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Baroness Whitaker: I wish to add a dimension to this debate. It would be helpful if we took account of the views of senior police officers who are particularly concerned with improving race relations. They are tasked with changing police culture. I confirm the view of my right honourable friend the Home Secretary that to exclude indirect discrimination is certainly not the express wish of the police. On the contrary, there is no police pressure to exclude indirect discrimination. There is a view that in any case the Human Rights Act gives the right to challenge indirect discrimination on the part of public authorities. There is also a view among senior police officers that the definition of "public authority" should be the same as that provided in the Human Rights Act. Indeed, these views go further. I have heard it said that it is essential that indirect and institutional racism should come within the scope of the Bill and that their absence would undermine the ability of the police to manage race relations. Inclusion would help them to have a more informed and effective strategy.
Lord Lester of Herne Hill: I am most grateful to the noble Baroness for giving way. In the debate we are dealing with two separate issues. In due course I shall move an amendment which deals with indirect discrimination. Amendment No. 1 deals with the definition of "public authority". Although it is helpful to have the other points raised, which will save time later when we come to indirect discrimination, it may be helpful to the Committee if I indicate that that is the distinction between the two amendments. We have not yet reached the amendment on indirect discrimination.
Baroness Whitaker: I apologise for being out of order. I simply followed my noble friend Lady Howells. I wanted also to refer to the view of the police that the Human Rights Act definition should be the one used. I shall return to my point later.
Lord Peston: I am indebted to the noble Lord, Lord Lester, for speaking twice. I was full of trepidation at the thought of taking part in the debate at all but at least I now understand the topic we are now on. I take it that we are on the topic of which set of public bodies we are talking about. Perhaps I may say substantively that the noble Earl, Lord Onslow, put the point as simply and as clearly as it could be put--that the presumption should be that no one is excluded from the set of rules and modes of behaviour which we shall debate later on. If anyone should be excluded, the case should be specifically for such a body rather than the other way round. Therefore, I have to say to my noble
Lord Avebury: The danger my noble friend draws to the attention of the Committee is that under the government formulation some entities which have functions of a public nature will be inadvertently omitted from the schedules before us and from any instruments laid afterwards by the Secretary of State under new Section 19B(5). At the same time those authorities will be covered by the Human Rights Act.
When the Minister replies will he sketch out this scenario? What happens if, under the Human Rights Act, an organisation is designated as an authority having functions of a public nature but it is not in any of the schedules or instruments published under the Bill? There are bound to be such cases, otherwise the Government would have no objection to the amendment. The clear implication is that there will be authorities which are not covered by the Bill but which the courts deem to have functions of a public nature under the Human Rights Act.
It is important that this point is clear. If the courts decide that such a body falls under the Human Rights Act, what are the consequences? The Minister brings forward a statutory instrument to designate that public authority. However, there is a gap between the court's decision under the Human Rights Act and the passing of the instrument by Parliament. Actions taken by the authority having functions of a public nature would be perfectly lawful in that gap but would be made unlawful once the instrument is passed. That is an intolerable situation.
In the light of that argument, does the Minister consider that Parliament would do well to amend definitions in the Data Protection Act and the Freedom of Information Bill? I believe that a common definition of a "public authority" should extend throughout legislation under which human rights problems may arise. The Human Rights Act had not been passed when the Data Protection Act and the Freedom of Information Bill were tabled. If we had been in the present position when we considered the Data Protection Act and now the Freedom of Information Bill, would we not take the same view as my noble friend on the amendment? I shall be grateful if the noble Lord can deal with that matter in his reply.
Lord Bassam of Brighton: This has been a somewhat longer debate than many of us had anticipated. I pay tribute to those who contributed to the debate. Although it has been wider in range than the noble Lord, Lord Lester, or I anticipated, it has been useful.
Lord Peston: I hate to interrupt the Minister, but does he insist on replying to everything said? We shall debate, I hope at greater length, indirect discrimination. Some of us may find if difficult if my noble friend replies twice to the debate. It is entirely up to him. I merely ask whether he wishes to do so twice.
I touch also on the understandable grumble of the noble Lord, Lord Lester. I apologise to him. There has been an exchange and crossing of correspondence between us. We sought to clarify the issues he raised. He graciously wrote to my right honourable friend the Home Secretary and shared generously his view through the Library of the House. We clearly need to address the points he raises, and shall be happy to do so, either directly or through correspondence. No doubt those issues will inform the course of debates on this important piece of legislation. I trust that he will accept my apology as sincere. I hope that we can proceed, as we have done, in the best traditions of this House.
On the content of the amendment, I wish to make the Government's position clear. These amendments would adopt the Human Rights Act approach to the definition of public authorities. In so doing, they would leave it entirely to the courts to interpret whether or not a function is of a public nature--a point observed by the noble Lord, Lord Cope. We believe that this approach is entirely appropriate in respect of the Human Rights Act and is the best way of meeting our aim of giving people access to their convention rights in the United Kingdom against bodies for whom the Government could be held responsible in proceedings before the convention institutions in Strasbourg. However, the Government do not feel that it is appropriate for this Bill.
The noble Lord, Lord Lester, made reference to other pieces of legislation in which the list approach, if it can be so described, has been adopted: the Data Protection Act; the Freedom of Information Bill currently before another place; and in devolution legislation. The list approach is accepted not only in this field of law but in other areas too.
Our view is that there is clarity. If a body appears on the list there can be no doubt in anyone's mind that it is a public authority to which new Section 19B applies. There can be no doubt. It is listed. It is clear. It is in the schedules. The Act adopts a list approach at Section 19(6) in relation to the educational bodies that are covered by its current provision. That list brings clarity there. In addition and looking ahead, a list approach may serve a useful purpose in bringing clarity in the context of a duty to promote equality. That point needs to be carefully understood. It will specify precisely who owes the duty to promote
I also note that the amendment appears to be narrower than our provision because it states that in relation to a particular act, a person is not a public authority if the nature of that act is private. Thus, some functions of public authorities which would be caught by new Section 19B as it stands, would be excluded. As noble Lords will be well aware--there has been reference to it in the debate--any gaps which occur in the list can be filled by use of the order-making power under new Section 19B(5) and (6) and public bodies can be listed by class of body.
There is no reason to list every public authority or public body individually. That approach gives us the flexibility to which many Members of the Committee have referred. It will give us the cover here. It is not the Government's intention to exclude some public bodies. As we know from political experience over many years, what is defined as a "public authority", a public body, can from time to time change. Therefore, the list approach through the order-making power gives us flexibility and will enable us where appropriate to expand the list of bodies covered by the legislation. I trust that on that basis noble Lords will not wish to press the amendment today.
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