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Dr. Harris: The hon. Lady makes my only residual point more eloquently from her direct experience than I could have done. I do not know whether the Minister has an answer, but I am not minded to press the amendment. If she does not rise now to respond, will she write to me about it?
I shall not satisfy the hon. Gentleman or my hon. Friend that we can solve the problem with the Bill, but colour is included because it is a component of race and not because there is any intention of the UK Border Agency discriminating on that basis.
Dr. Harris: I do not want to prolong the matter, but the point that the hon. Lady and I are making is that, if there is a way of taking colour out of the exemption, that would put a positive duty on the immigration services to undertake even more training to prevent the incidents that have happened to my constituents who are from ethnic minorities but that do not happen even to overseas nationals who are white. Obviously, there is no point in pursuing the debate now, and we will reflect on what the Solicitor-General said. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor-General: I beg to move amendment 282, in schedule 18, page 216, line 13, at end insert—
‘Judicial functions, etc.
(1) Section 143 does not apply to the exercise of—
(a) a judicial function;
(b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function.
(2) The references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal.’.
This amendment would provide that the duties imposed by clause 143 on public authorities, as well as on other persons exercising public functions, will not apply to the exercise of judicial functions (or other functions exercised in a judicial context).
The Chairman: With this it will be convenient to discuss Government amendments 283 to 285.
The Solicitor-General: The amendments, essentially, will make minor corrections.
Mr. Harper: I do not want to take too much of the Committee’s time, but I have a few questions. Amendment 282 will insert an exemption for judicial functions. Will the Solicitor-General explain why those functions will be removed en bloc?
What is the logic behind amendment 284, which will remove the exemption for those who take decisions about prosecution—presumably the Director of Public Prosecutions, the Attorney-General, the Solicitor-General and bodies such as Her Majesty’s Revenue and Customs—so they will have to make decisions bearing in mind the public sector equality duty in clause 143. That seems to go in one direction for decisions about prosecutions; but at the same time, there will be a wider exemption for judicial functions and two issues connected with judicial decision making seem to go in opposite directions.
Amendment 282 refers to judicial functions conferred on a person other than a court or tribunal. I just wanted to check that that applied to Ministers when they are making quasi-judicial decisions in their role—for example, when the Secretary of State for Communities and Local Government makes a decision about planning cases, or when other Ministers make similar decisions in that quasi-judicial capacity.
The explanatory notes refer to the UK Border Agency:
“The UK Border Authority, when taking immigration-related decisions, will not need to give due regard to the need to advance equality of opportunity for people of different races, religions beliefs or age.”
However, the agency does have to give due regard
“to the need to advance equality of opportunity for disabled people...for people of all sexual orientations and transsexual people”.
When the UK Border Agency makes a decision, that decision could be appealed at the Asylum and Immigration Tribunal, which is carrying out a function of a judicial nature. Presumably, the AIT is then exempted from the need to apply the public sector equality duty, which is a different test to the one that is being applied by the UK Border Agency. So the measure does not seem to be wholly consistent and could lead to one agency making decisions based on a certain set of criteria, but when it reaches the judicial part of the process, it is effectively exempted from that duty. That could lead to those organisations making different decisions purely based on whether or not the public sector equality duty is applied. It is not a major issue, but there is a potential for conflict. Perhaps the Minister could take us through the logic behind the reason for amendments 282 and 284, because they seem to be going in opposite directions, and address the other two issues that I have raised.
The Solicitor-General: The measure does not apply to Ministers. I certainly did not have Ministers in mind. We were thinking about people, such as planning inspectors, who exercise judicial functions but who are not judges as such. It has never been our policy intent to have judicial functions in the Bill.
Mr. Tim Boswell (Daventry) (Con): I am sorry that I had to leave the Committee for a moment. Just to be clear, is the Solicitor-General saying that Ministers never exercise quasi-judicial functions, that they might do or that, if they do, they are not covered by this kind of provision?
The Solicitor-General: Ministers are covered when they make decisions on various kinds of development. I did not have it in mind that the exemption would cover Ministers, but we will write to all parties and clarify that point.
Mr. Harper: I just want to be clear. Ministers are explicitly set out in schedule 19 as being subject to the public sector equality duty. The example that I gave was in the planning case. The Solicitor-General just confirmed that the exemption would apply to a planning inspector, but the planning inspector will make their report to the Secretary of State, who will then make a decision in a quasi-judicial capacity. As in my example of the UK Border Agency and the Asylum and Immigration Tribunal, different bodies will make decisions. The AIT will operate in a judicial capacity and the Minister in a quasi-judicial capacity, and they will have a different set of duties to the subordinate body. It just seems to be rather messy, and we could end up with some court cases. The Solicitor-General knows how controversial planning decisions can get, so it strikes me that it would be better to be very clear about this. If the planning inspector does not have to follow the public sector equality duty in quasi-judicial cases, neither should the Minister.
The Solicitor-General: That sounds like a sensible conclusion to draw from the argument. We will write to the parties on whether Ministers will be exempted when exercising that role. There will not necessarily be an incompatibility between the UK Border Agency, for example, or the police and the judicial functions that follow them. They are different kinds of agency. The UKBA makes a decision that is not part of the judicial function, and if there is an appeal, it goes to a judicial body. Likewise, the police make a decision about whether to charge somebody in a non-judicial way and the matter then goes to court. The judicial function is exempt from the Bill in a way that the police are not. That is not a real issue, but we will write about whether Ministers are quasi-judicial.
I think that the hon. Gentleman was making another substantive point about whether we will go in opposite directions by excluding judicial functions for all purposes and bringing in a prosecution function. We do not think that we are doing that, although it is an oversight that we have not dealt with the matter before. We now wish fully to exclude judicial functions from the duty for all purposes. That is about the exercise of actual judicial functions. The measure is not, for instance, about HM Courts Service, the Ministry of Justice or administrative support to the courts; it is about purely judicial functions. The courts will have to have regard to the equality duty even when carrying out the instructions of a judge, but the judge will not.
On amendment 284, the policy is that the prosecution functions of the Crown Prosecution Service and the Serious Fraud Office should be subject to the requirements of the equality duty in the same way as other functions. They are included in schedule 19, so their decisions to prosecute will be subject to the requirements of the duty. However, paragraph 3(3)(f) of schedule 18 will disapply the equality duty to organisations other than public authorities exercising public functions in respect of decisions on whether to institute criminal proceedings. For safety’s sake, that will have caught any organisation not listed in schedule 19 that from time to time might exercise public functions in respect of decisions on whether to prosecute. We do not think that that is necessary, and we cannot think of any body like that anyway.
Mr. Harper: If I am clear about the matter, amendment 282 on the wider exclusion of judicial functions will correct an oversight. Amendment 284 will effectively reapply the duty to those who make prosecuting decisions. Is that an oversight or is that changing something because somebody has thought again? Does the measure effectively mean that, in relation to the test already applied by pretty much all of those who make prosecution decisions about the likelihood of success, the public interest test that is already used will be widened to cover the public sector equality duty? I am thinking specifically about the area with which I am most familiar: the CPS’s decision to make prosecuting decisions in cases of hate crime. When making decisions in those cases, will the CPS effectively set the bar lower because of the need to advance equality? I am thinking particularly of hate crimes against disabled people.
The Solicitor-General: The CPS already has that duty, of course, because it is already subject to the public sector duties that currently exist. The measure is not a change in policy towards the main prosecuting bodies. Paragraph 3(3)(f) of schedule 18 will disapply the equality duty for a community of people whom we now do not think need the exception at all, because we cannot think who would be involved. The measure will disapply the equality duty for persons who are not public authorities, but who exercise public functions in respect of decisions on whether to institute criminal proceedings. However, we cannot think of a body that is not a public authority that would, none the less, carry out the public function of prosecuting. The measure was left in the Bill when it probably should not have been, but it is not a change of policy. The CPS remains covered; the judiciary for pretty obvious reasons do not. In a nutshell, I hope that that is sufficient to deal with the hon. Gentleman’s concerns.
Amendment 282 agreed to.
5.45 pm
Dr. Harris: I beg to move amendment 300, in schedule 18, page 216, leave out line 25.
This amendment removes the exemption for the General Synod of the Church of England from the duty in section 143(2).
My amendment was tabled in response to one tabled earlier by the hon. Member for Glasgow, East, which we debated previously, that sought to un-exempt all the law-making bodies, except the Church of England, and remove them from the schedule. I thought that it was only fair that the Church should not be discriminated against and that this matter should be debated. I accept that it is a rather rhetorical point and that it was meant for the hon. Gentleman, so I do not expect the Minister to bother responding to it, because I guess that what she said in respect of lines 21 to 24 would apply. However, I should like to make an extra point.
The Church of England is different, because we have an established religion. Therefore, in my view, anything that it does as a religion that is discriminatory it is entitled to do. It is its own business if it does not want to have women priests or bishops or gay priests or whatever. However, that becomes our business, because the established nature of the Church means that our country, and this institution, is associated with the policies of the Church and many people, including many in the Church of England, do not find it satisfactory that there is essentially a homophobic Church of England and General Synod. Despite the many virtues of many of its policies relating to development aid and so forth, it is still, essentially, endorsing a homophobic position. That is either the Church of England’s business, because it is its own religion, or it is our business because it is the established Church and we are associated with it. The best example of this is in the House of Lords, where seats in our legislature are reserved for heterosexual, white—
The Chairman: Order. The hon. Gentleman is going slightly astray. This is not about the House of Lords; it is about the Synod.
Dr. Harris: I will seek to stay in order, Lady Winterton. My point was that without the duty applying to the General Synod, we end up in a situation where our society is male-only in respect of bishops in the House of Lords and heterosexual-only, which raises the question of whether there is a basis for the General Synod’s being exempted from this duty. However, I accept that I have gone wider than that point and I apologise for doing so.
I do not expect much of a reply—just an explanation as to why the General Synod is treated in the same as the House of Commons.
The Solicitor-General: Most of the functions of the General Synod are private, so they would not be subject to the requirements of the duty at all. However, it can pass measures that, if approved by each House of Parliament and given Royal Assent, have the same force and effect as Acts of Parliament. So there are sound constitutional reasons why legislative bodies should not be subject to the requirements of the duty. That is why we keep them out of it.
Dr. Harris: I thank the Minister and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Harper: I beg to move amendment 192, in schedule 18, page 216, line 31, at end insert—
‘(j) persons involved in the commissioning, content and broadcast of programmes.’.
The Chairman: With this it will be convenient to discuss amendment 193, in schedule 18, page 216, line 44, at end insert—
‘(g) a function in connection with the commissioning, content and broadcast of programmes.’.
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