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Clause 1

Discrimination by police and other public authorities

Mr. Mike O'Brien: I beg to move amendment No. 2, in page 1, line 9, leave out from "a" to end of line 17 on page 2 and insert--

'public authority in carrying out any functions of the authority to do any act which constitutes discrimination.

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(2) In this section "public authority"--
(a) includes any person certain of whose functions are functions of a public nature; but
(b) does not include any person mentioned in subsection (3).
(3) The persons mentioned in this subsection are--
(a) either House of Parliament;
(b) a person exercising functions in connection with proceedings in Parliament;
(c) the Security Service;
(d) the Secret Intelligence Service;
(e) the Government Communications Headquarters; and
(f) any unit or part of a unit of any of the naval, military or air forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.
(4) In relation to a particular act, a person is not a public authority by virtue only of subsection (2)(a) if the nature of the act is private.
(5) This section is subject to sections 19BA to 19E.
(6) Nothing in this section makes unlawful any act of discrimination which--
(a) is made unlawful by virtue of any other provision of this Act; or
(b) would be so made but for any provision made by or under this Act.
Exceptions or further exceptions from section 19B for judicial and legislative acts etc
19BA.--(1) Section 19B does not apply to--
(a) any judicial act (whether done by a court, tribunal or other person); or
(b) any act done on the instructions, or on behalf, of a person acting in a judicial capacity.
(2) Section 19B does not apply to any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment.
(3) Section 19B does not apply to any act of, or relating to, making or approving arrangements, or imposing requirements or conditions, of a kind falling within section 41.
(4) Section 19B does not apply to any act of, or relating to, imposing a requirement, or giving an express authorisation, of a kind mentioned in section 19C(3) in relation to the carrying out of immigration and nationality functions.
(5) In this section--
"immigration and nationality functions" has the meaning given in section 19C; and
"Minister of the Crown" includes the National Assembly for Wales and a member of the Scottish Executive.'.

Mr. Speaker: With this it will be convenient to discuss Government amendments Nos. 4, 21, 22 and 38 to 40.

Mr. O'Brien: There have been several discussions during the Bill's passage through this House and the other place about the approach that should be taken to the definition of public authorities for the purposes of section 19B of the Race Relations Act 1976. The choice is essentially between a listing approach and a generic definition as used in the Human Rights Act 1998. The Government have throughout listened to the arguments, both inside and outside the House, particularly those about the need to avoid small gaps arising in coverage, which was a perceived risk with the listing approach that was originally proposed.

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In response to those concerns, we made a commitment in Committee to introduce amendments that would provide for the adoption of a generic definition for the purposes of defining public authorities. These amendments meet that commitment. They delete the provisions for a listing approach for the purposes of section 19B of the 1976 Act and provide instead for a definition based on section 6 of the Human Rights Act 1998. As flagged up in Committee, the generic definition has been adjusted to allow for a very limited number of specific exemptions--namely, for the Houses of Parliament, the legislative functions of the Scottish Ministers, the National Assembly for Wales and United Kingdom Ministers, the intelligence agencies and judicial acts.

The Government stress that functions have not been exempted other than where there are good reasons for doing so. Our approach is governed by the principle that the Bill should not fetter the legislative functions of Westminster, the Scottish Parliament or the National Assembly for Wales. Ministers will remain subject to parliamentary scrutiny but, like others involved in the legislative process, they must retain the ability to make legislation that discriminates, where that is justified--for example, to implement immigration legislation that requires discrimination on grounds of nationality, or social security or education legislation that discriminates on grounds of residence. That is consistent with the existing provisions of the 1976 Act, which provide that acts done with statutory authority are not unlawful.

To include the intelligence and security agencies in the Bill would have required special clauses to safeguard against claimants misusing certain provisions to undermine the operational effectiveness of those agencies. The necessary safeguards would, in practice, have the same effect as excluding the agencies from the Bill. The Government therefore believe that it is better to continue to make the exemption clear, as we did with the listing approach, rather than having it obscured by special clauses which might be a matter of judicial interpretation. We want the position of the security and intelligence agencies to be very clear.

Nor do the Government think it appropriate that decisions of courts and tribunals should be challenged by way of proceedings in the county or sheriff court under section 19B. Allowing civil action against judges would interfere with the concept of judicial immunity, and the Government would not wish the Bill to cut across that. Immunity is an aspect of the principle of an independent judiciary. The independence of the judiciary is a key feature of the British constitution and runs parallel with immunity.

Mr. David Lammy (Tottenham): This debate about the nature of public authority is clearly more than simply a semantic debate about definition. Many private companies and organisations carry out their business under a clear public remit. Many of those profit-making companies have habitually neglected to promote, employ and support ethnic minority people in the workplace. My constituents will welcome the amendment, but I hope that we are moving towards a situation in which racial equality is

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about the economic as well as the social context of Britain in the 21st century. The amendment, as it applies to private organisations, is very important in that regard.

Mr. O'Brien: My hon. Friend is right. We should ensure that private sector organisations which undertake public functions should know that they will have obligations under the race relations legislation, and that the Bill will cover them in so far as they undertake the public functions for which they are contracted. Indeed, Group 4 has today taken the trouble to say publicly that it is delighted that the Government have decided to use the Human Rights Act definition of a public authority in the Bill. Group 4 says that it firmly believes that there should be a level playing field between the public and private sectors in all social policy matters. I welcome Group 4's announcement; it is entirely along the lines that my right hon. Friend the Secretary of State has said that he wants to go.

Let me return to judicial immunity, which is an important part of our constitution. Judicial immunity does not mean that a person lacks a remedy against racial discrimination or any other form of bias, but the proper avenue for a challenge in the courts is by an appeal, not by making a fresh claim against a judge. The fair and efficient functioning of the justice system requires us to avoid satellite litigation and the reopening of cases.

I must flag up another important issue. It will be for the courts to decide whether a public body is a public authority for the purposes of the legislation and whether a particular function is a public function. That bears on the point that I made earlier about Group 4 and private companies and other private bodies that undertake public functions. The Government are grateful to those who have contributed to the way in which the legislation will be interpreted, especially to private companies such as Group 4, which have said that they will be happy to be brought within the legislation.

Having listened to all the contributions, the Government are also grateful to Members of both Houses of Parliament who have given their views on how we should take forward that definition and on whether we should use either the list or the generic approach. We have shown that we have listened with great care to the debate. There was a genuine argument about the various public functions that might have slipped through the net if we had used the listing approach and, therefore, we think that an approach based on the Human Rights Act 1998 is the best that can be delivered. In due course, the courts will make judgments on cases under the 1998 Act. That will define matters of public function and public authority. I hope that that will soon clarify the matters covered by the 1998 Act and the Bill, and that hon. Members will agree to the amendment.

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