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?
The
Solicitor-General: I am happy to rise. Colour is part of
the definition of race. That is all. We do not want to use the power in
connection with colour—far from it. All the examples that have
been given are
appalling and should not occur. I have seen them at airports, but race
includes all those characteristics, and there is no fundamental point
in seeking to slice out any aspect of the definition. The race
exemption has not been used since 2002, and it has not been authorised.
It is likely to be used, as I said, when we need in an emergency to
take in one group of people and leave out
another. 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withdrawn.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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