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The Earl of Onslow: Before the Minister sits down, will he answer the following question? How many public bodies will be left out? If the answer is none, why do we have a list?
Lord Bassam of Brighton: I am not aware that we intend to omit any public bodies. We seek to establish clarity and certainty. The list approach makes crystal clear at the outset what is defined as a public body in each and every instance.
Lord Avebury: Will the Minister please deal with my question? What happens in the intervening period between classifying a body as having functions of a public nature under the Human Rights Act and the tabling of an instrument to bring this legislation into line with it?
Lord Bassam of Brighton: We would expect that the bodies which have been defined as "public authorities" in terms of the Human Rights Act will be the same bodies as those covered by the Race Relations Act. We are trying to specify and be more precise. If there is a problem with our approach, I shall be more than happy to look again at the point that the noble Lord raised and to clarify more precisely in correspondence how we shall deal with the difficulty which he believes he has identified.
Lord Lester of Herne Hill: We are grateful to the Minister for his reply, but I remain perplexed. Perhaps I may explain why and hope for further reflection. The starting point is the common law.
Under the common law, any public authority which discriminates on grounds of race or sex is in breach of a fundamental common law principle. That was established a couple of years ago in the Privy Council. Therefore, the starting point is that every body which the court would regard as a public authority--that is, a body of the kind captured by the Human Rights Act definition--whether in a list or not, must not discriminate on racial grounds, whether directly or indirectly, at common law.
The Bill merely extends direct discrimination obligations by way of statute to all public authorities rather than to only some of them. On that basis, I cannot understand the hesitation about adopting a broad, inclusive definition rather than a statutory list definition. I understand why in the Data Protection Act and in the Freedom of Information Bill a list approach has been adopted. The reason is that onerous, widespread and complex obligations are being imposed on various public authorities, sometimes in stages and sometimes requiring subordinate legislation and orders. Therefore, it makes a great deal of sense to use a list approach in such complex legislation. However, at the moment, all we are dealing with in the Bill is direct discrimination. There is no suggestion of a statutory duty being imposed upon public authorities which might make it necessary to have a list.
Therefore, for those reasons and because of the gap which will open up between those which are in the list and those which are in the Human Rights Act definition and the consequences of that, I hope that the Government will reflect further and see whether we can use the Human Rights Act definition. At this stage and after this important debate there is time for further reflection on all sides. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lester of Herne Hill moved Amendment No. 2:
- Page 1, leave out lines 13 and 14.
What is at stake transcends any technical legal questions. What is at stake is the need for effective redress for the victims of unfair racial discrimination by the Government and public authorities and the need to protect and win the confidence of vulnerable ethnic minorities in the wake of the Stephen Lawrence scandal and the recommendations of the Macpherson report. What is also at stake is the need for Ministers and their departments to be fully accountable to the rule of law, interpreted and applied by the independent judiciary.
The central question is whether Ministers, their departments and other statutory bodies acting on behalf of the Crown should be subject to the same duty
to comply with the same legal principles of non-discrimination in serving the public--for example, through the Immigration and Nationality Service, or the Prison Service, or the Police Service, or Her Majesty's Customs and Excise, or in providing social security services--as are the providers of services which are covered by Section 20 of the Race Relations Act 1976. In other words, should the citizen be entitled to the equal protection of the Race Relations Act and to equal access to justice against the state and its agents as against other institutions and services which discriminate unfairly? Or should the citizen continue to be left with less statutory protection against Ministers of the Crown and their departments, when they exercise their statutory and prerogative powers, than against other bodies where government-imposed practices, procedures and rules are indirectly discriminatory and cannot be objectively justified? Those are the central questions that are raised by the amendment.The answer given by Macpherson, in the context of policing, was unequivocal. It recommended that the full force of the Race Relations Act should apply to all police officers; the full force and nothing less. The Government went further--and they are to be commended on doing so--promising that all public services would be brought within the scope of the legislation. The full force of the legislation includes forbidding indirect as well as direct discrimination; that is, practices and rules which apply equally to all in a formal sense, but which hit disproportionately at ethnic minorities and cannot be justified.
I see the noble Baroness, Lady Lockwood, in her place and I am reminded that my comments will apply in exactly the same way to the Sex Discrimination Act when it comes to be amended in due course. We are dealing now with race discrimination, but we shall then be dealing with indirect sex discrimination by government departments.
The Bill as it stands falls far short of the promise to apply the legislation in its full rigour. The new Section 19B(2) will permit much of the public service to operate indirectly discriminatory practices without having to justify them to the victims, the courts and the CRE. Instead of having a greater responsibility because of the public nature of their functions, Ministers, departments and other statutory public bodies are to be less legally responsible than providers of services such as banks, building societies or local authorities because they will not be liable for unjustifiable indirect discrimination.
That leaves victims of indirect racial discrimination by the public service without a remedy. British Muslims, for example, have no legal remedy for unfair religious discrimination. They are protected under the 1976 Act only if they are victims of racial discrimination. It is here that the concept of indirect racial discrimination is so essential. Yet unless the Bill is amended--and I hope that the Minister will confirm this--it will provide no protection for British Muslims where government-imposed practices and procedures have a disproportionate adverse impact upon them.
If the Government oppose the amendment, I hope that the Minister will explain the principle which justifies the denial of equal protection of the law and equal access to effective remedies for members of the Muslim communities--more than 1 million people in this country--and for other vulnerable ethnic minorities.
If the amendment is accepted, it will ensure that the public service is subject to the same requirement to justify indirect discrimination as are private and public sector providers of services under Section 20. That section makes it unlawful for any person concerned with the provision of goods, facilities and services to the public or a section of the public to discriminate directly or indirectly against ethnic minorities.
The great architect of the 1976 Act was my noble friend Lord Jenkins of Hillhead. I had always believed that the Act's provisions were meant to apply fully to the whole of the public service. That is why, for example, we wrote into Section 41 a special escape clause where a Minister directly authorises a requirement or condition which is discriminatory. The gap in the 1976 Act did not arise because Parliament created a deliberate gap but because of the restrictive way in which the Law Lords, by a three to two majority, interpreted Section 20 in the case of Amin in 1983. I deal with that matter in the note which I have placed in the Library, but in Amin, the complaint concerned alleged sex discrimination in immigration control. The Law Lords, by a majority of three to two, decided that Section 29 of the Sex Discrimination Act 1975, which is in identical terms to Section 20 of the Race Relations Act 1976, applies to discriminatory acts carried out by the Crown only if they are of a kind similar to acts which may be carried out by a private person.
Amin created a serious gap which the Bill fails to remedy. Direct and indirect discrimination are unlawful if carried out by those concerned with providing services to the public. But if Amin is correct, that does not include other forms of public service; for example, those involving regulation and control by government departments and other public authorities. There is no coherent distinction at all--I defy the Minister to come up with one--between those different forms of public service. The distinction made in Amin is arbitrary, irrational and confusing. I am confident that my noble friend Lord Jenkins of Hillhead would never have drawn such a distinction, or intended to, in the 1976 legislation. How can one explain the distinction between the service provided by the police in giving advice and assistance to the public--which is covered by Section 20--and the service provided by the police in preventing and detecting crime, in keeping the peace, or in helping to prosecute alleged offenders, which is outside the scope of Section 20 if Amin was correctly decided? The Bill as it stands preserves that irrational distinction as regards liability for indirect discrimination.
It is likely, in my view, that Amin would be reversed if the Law Lords had the opportunity to reconsider the decision. I say so for a number of reasons which I have set out in the note, prepared for the convenience of the
Committee and available in the Library. Perhaps I may summarise a few of them briefly. One reason is related to the Human Rights Act 1998 which will require the courts to interpret all existing and future legislation, where possible, compatibly with rights guaranteed by the convention, including the right to non-discrimination guaranteed by Article 14 and the right of effective access to the courts in the determination of the civil right to equal treatment without discrimination guaranteed by Article 6.The arbitrariness of the Amin distinction violates those convention guarantees, as does the Bill, by immunising public service from the duty to justify indirectly discriminatory practices to the individuals affected, the courts and the CRE, and to provide effective redress to victims of unjustifiable indirect discrimination. The European Court of Human Rights has already ruled in the case of Tinnelly--a case in which I appeared for the applicants, who were Northern Ireland Catholics challenging a bar which prevented them from having the merits of their claims of religious discrimination dealt with by the tribunal in Northern Ireland--that a statutory immunity of that kind, blocking access to courts for religious discrimination claims related to national security breached Article 6 of the convention.
The concept of indirect discrimination is well recognised in the European convention and in international human rights treaties, such as the UN Convention on the Elimination of All Forms of Racial Discrimination and the UN International Covenant on Civil and Political Rights, which are all binding on the United Kingdom. Unless the amendment is accepted, our statute book will continue to authorise breaches of the UK's obligations under international and European law because the victims of indirect racial discrimination and sex discrimination will still be unable to obtain effective remedies for indirectly discriminatory acts by Ministers, government departments and statutory bodies acting on behalf of the Crown.
The Government accept that the application of the concept of indirect discrimination by the courts and the CRE has not resulted in over-intrusive or unworkable decisions. The concept has worked well in practice, except for the artificial limitations imposed by statutory definition and by the Amin case. There is no case at all in which the concept of indirect discrimination has been taken too far, unnecessarily hampering or fettering the exercise of discretion by providers of public services.
Opposition Conservative parliamentarians played a crucial role in defeating the first Wilson government's attempt, in the Race Relations Bill 1968, introduced by the noble Lord, Lord Callaghan, to create a statutory immunity for Ministers and government departments from liability for unlawful discrimination. I am delighted that I am making these remarks in the presence of my noble friend Lord Jenkins of Hillhead, but I wish that I were doing so also in the presence of the noble and learned Lord, Lord Hailsham of Saint Marylebone. In the debate in Committee in the other place, as Quintin Hogg MP, he was part of an all-party
revolt joined also by Alex Lyon, later to be Minister of State, which removed the Crown's immunity that Home Secretary Callaghan wanted to maintain. After that defeat, there could be no doubt that Parliament intended the Crown to be fully bound by the duty not to discriminate unlawfully, and to be accountable to the courts for any breach of that statutory duty.The remarks of the noble and learned Lord, Lord Hailsham, made during that debate remain apposite today:
- "The whole experience of the last 45 years has been that the Crown has fought in every ditch against being made a party to litigation to which it is willing to subject the subject. Every time it has been wrong".
On 22nd December the Minister sent me a letter explaining Home Office thinking, copies of which he has placed in the Library. I am grateful that the Minister has met me, as has the Home Secretary, and that he has met others also. The Home Office letter deserves to be quoted extensively. Since I am sure that the Minister would want to do so in his reply, I shall save him the trouble by referring to it now and commenting upon it. The letter begins by observing that the new provision in the Bill,
- "will cover a much broader range of functions such as law enforcement, regulation and social and economic policies".
- "Indirect discrimination as an approach does not fit well".
- "where there is no particular requirement or condition imposed upon an individual being stopped and searched and at least no requirement that cannot be complied with".
The fact that such situations will be rare is not a justification for applying Section 1(1)(b), as at present, only when the police are giving assistance to the public, as distinct from when pursuing and arresting or charging suspected criminals, or making representations about bail. A point already made by
the noble Baroness, Lady Whitaker, in relation to the police's own attitude is that, in performing their vital role in detecting crime and keeping the public peace, it would not hamper the police to be subject to the full provisions of the Race Relations Act, as the Machperson report recommended. Indeed, police authorities across the country are already taking steps to eliminate any racial discrimination, direct or indirect, from their practices and procedures. They recognise the need to do so for the sake of having the confidence of the whole community. If they are alleged to have discriminated indirectly, the police will have a complete defence if they can show that their practices and rules are justifiable.The Home Office letter continues:
- "Nor does this approach fit well in relation to policy implementation (as distinguished from the provision of 'services' which is covered)".
- "Any policy or practice of a public authority which imposed a requirement or condition on an individual and which had a differential impact on different racial groups could be challenged in the courts and would be unlawful unless it were justified".
It should make no difference if the indirect discrimination is caused by "policy implementation" or the provision of "services" to the public, especially, if I may say so, because the Government are elected to be the servants rather than the masters of the people. By making the Government and the public service subject to the full force of the Race Relations Act, Parliament would provide the necessary sanction to encourage public authorities to review outmoded and unfair practices and rules. Surely that is in the interests of good government and sound public administration.
The Home Office letter continues:
- "This could potentially include any age-based policy, because a high proportion of the ethnic minority population is young, and any requirement based on geographic location because of the different regional spread of racial groups for example. Not least challenges could be mounted to those policies, programmes and practices that are helping ethnic minority communities the most. The courts would be in the position of having to decide whether a policy was justified or not".
But surely if a government policy resulted in the imposition of an age requirement or a geographical requirement, the Government should not impose such a requirement if it cannot be justified. The role of the courts in having to decide whether such a requirement was justifiable, irrespective of colour or race, is the necessary consequence of a decision taken a quarter of a century ago by Parliament to make unlawful indirect as well as direct discrimination. Ministers and government departments surely should not be above the law. The citizen should be entitled to the equal protection of the law, to equal access to justice and to an effective remedy in relation to government-imposed practices and rules which operate unfairly in their impact on ethnic minorities.
As for the point which the Home Office makes about potential challenges to policies, programmes and practices that are helping ethnic minority communities the most, we shall deal with that in a later amendment so as to permit public authorities to take proportionate and necessary measures to ensure that the special needs of racial groups are met.
The Home Office letter concludes (and your Lordships will be happy to know that so, almost, do I!):
- "Overall, therefore, the Government's preferred approach is to prohibit direct discrimination in the functions newly caught by the Act, to retain the flexibility to pursue policies and to oblige public authorities to promote equality in order to eliminate any unjustifiable indirect discrimination".
We do not understand why a Government who introduced the Human Rights Act and claim credit for extending the Race Relations Act to all public authorities should shrink at the prospect of having to justify their own practices and rules through the legal process before independent courts in order to avoid the unfair effects on ethnic minorities of their policies. We hope that the Government will find the necessary political will to accept that the constitutional principles of equal protection of the law, of equal access to justice and of the equal right to effective remedies should apply to government-imposed practices and rules that discriminate indirectly. We submit that the Government's immunity from liability under Section 1(1)(b) should be removed. I beg to move.
4.15 p.m.
Lord Patel: My name appears in support of the amendments related to Clause 1 and moved by the noble Lord, Lord Lester of Herne Hill, and the other noble Lords whose names appear on the Marshalled List.
I, too, am not a legal expert and therefore your Lordships will forgive me if my understanding of legislative aspects of the Bill are poor. In the main I want to address how the clause will affect those who work in the National Health Service, particularly in relation to indirect discrimination. I confine my comments in respect of Clause 1 to the provision concerning the inclusion of unjustifiable indirect discrimination; that is, leaving out lines 13 to 14 of page 1 of the Bill. Those lines omit the extension of Section 1(1)(b) of the Race Relations Act 1976 to public authorities.
When I speak of extending the indirect discrimination provisions of the 1976 Act to public authorities, I speak about unjustifiable indirect discrimination. If the clause is accepted and included in the Bill, our public authorities could still discriminate indirectly if they could justify the action in law. If they could not justify such action, they would be subject to legal challenge. Can it really be the intention of the Bill to allow the public authorities to continue to discriminate indirectly where there is no justification in law for such an action? Is it reasonable to allow the public authorities to continue to discriminate indirectly and unjustifiably, especially when it has been unlawful for the private sector to do so since the 1976 Act was passed? Surely it is the role of the Government and public bodies to lead the private sector by example.
The Government have said that the inclusion of unjustifiable indirect discrimination in this Bill would prevent them implementing policies designed to meet the needs of particular groups; that the Government would be tangled in endless litigation over such issues that the floodgates would be opened to mendacious litigants. Surely, such arguments must have been used by opponents of the original Race Relations Act in the 1970s. Did the wheels of business and commerce grind to a halt? Has the private sector collapsed under the weight of mendacious litigants?
There is nothing in the way in which the law works at present which prevents the development of such policies in the areas already covered by the Act so long as those policies are justified.
Introducing an unjustifiable indirect discrimination provision into the new Bill would simply ensure that policy proposals are properly tested and finalised so that they meet the purposes for which they are designed. Far from entangling decision-making, such provision would help to establish the procedures and approaches needed to clarify the thinking of civil servants, Ministers and others responsible for the activities of public bodies and so provide for more focused and effective practices. That would certainly help those who work in the health service.
It goes without saying that if policies are properly focused, the justifications for the practices will be obvious and they will not be open to court challenges. However, if they are open to challenge, it will be because the policies are wrongly formulated and focused and will not, in practice, be meeting the aims which the policy-makers have set themselves.
I understand that these amendments have the support of the Commission for Racial Equality, the Law Society and others and the British Medical Association.
The intention of Clause 1 is to produce a clearer and more straightforward extension of the existing Race Relations Act which will place the emphasis on changing policy and practice rather than on litigation in relation to single acts of discrimination. Therefore, I believe that in time it will produce fewer rather than more litigious cases. The inclusion of provisions in respect of unjustifiable indirect discrimination has the effect of encouraging public bodies to review their practices in order to ensure that those practices meet most effectively the purposes for which that body was created.
One example of how that has worked under the provisions of the present Act includes distinction awards for NHS consultants. The criteria used by the health service for giving distinction awards--which involve extra payments--to NHS consultants favoured certain medical specialties where ethnic minority doctors were less likely to be working compared with specialties where such doctors were likely to be found.
After the Commission for Racial Equality informed the Department of Health that that was likely to be unjustifiable indirect discrimination, it was agreed that the balance favouring work of "national significance" as opposed to "outstanding contributions in a hard pressed post" in the selection criteria should be altered. The result is that medical excellence in vital specialties such as accident and emergency can now be properly rewarded not only for ethnic minorities but for all doctors, so encouraging better overall practice.
Using that same approach, the inclusion of provisions on unjustifiable indirect discrimination in the standards of best practice backed by legislation and laid upon public bodies will be a useful tool in improving the quality of their work.
I conclude by saying that yesterday I read a briefing from the Home Office entitled:
- "Race Relations (Amendment) Bill: concerns raised about indirect discrimination".
- "the full force of the Race Relations legislation should apply to all police officers".
- "We are implementing this recommendation in full".
However, Section 19B(2) of this Bill states that,
- "section 1 has effect with the omission of subsection (1)(b)".
Therefore I hope that the Committee will support Clause 1 which will not only honour in full the recommendations of that inquiry but will also be helpful to those working in other public authorities and bodies such as the National Health Service.
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