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Lord Bassam of Brighton: The debate has indeed been interesting and stimulating. I have followed the comments with great interest. I was rather tempted to bring up my own stop-and-search anecdote but am reluctant to enter into that field, except to say that it is such a long time since I was stopped that, if the police ever did stop me and I were to venture that I was the Lord Bassam, I should probably be arrested on the spot for impersonation rather than any other reason.
The amendment presents some difficulties for the Government. We are willing in spirit. We are fully committed to our historic role of introducing fairness and justice in the whole field of race relations. That is a long, important and noble part of the Labour tradition. It was a Labour government that broke the ground in this area more than a quarter of a century ago, guided and aided by the noble Lord, Lord Lester, and the proposals were ably advanced by the noble Lord, Lord Jenkins of Hillhead.
The amendment as drafted would have the effect of making indirect discrimination by a public authority unlawful under new Section 19B of the Bill. Perversely, it would not catch most law enforcement functions, but would catch government regulatory social and economic policies, leaving them open to challenge and uncertain consequences. The Government believe that in those functions a more positive approach would be to require public authorities to promote equality. I believe that there is consensus on that issue.
The Government fully support the principle of indirect discrimination where appropriate. Indirect discrimination occurs when a requirement or condition which, although applied equally to people of different racial groups, has the effect that the proportion of a racial group that can comply is considerably smaller than that of another racial group that can comply. Such a requirement or condition is unlawful only if it cannot be justified irrespective of colour, race, nationality or national origin and if it is detrimental to the claimant who cannot comply.
Indirect discrimination applies in the fields already covered by the Race Relations Act: employment, education, and the provision of goods, facilities and services. Some contributors to the debate have rather ignored the fact that the provisions already exist, in part, in law relating to those practical areas of policy. The Act already applies to the public sector and private sector alike in those areas, including the police. We should not forget that important point.
The protection is essentially in respect of things that ethnic minorities may want but might be denied by an unjustifiable requirement or condition. For example, an unnecessary height requirement on individuals seeking a job could easily exclude certain groups of ethnic minorities from employment. A requirement such as an address in a particular locality could easily exclude ethnic minorities from access to services and so on. Such requirements or conditions would be unlawful unless they could be justified.
The acts of public authorities to which the new provisions will apply fall within a much broader range of functions, such as law enforcement, regulation and social and economic policies. Those are not of the same nature as those between an employer and an employee or a provider of services and a recipient of services. Case law has shown that to be the position. Moreover, indirect discrimination as an approach does not fit well with those functions.
Many Members of the Committee will by now be familiar with the reasons the Government believe that to be the case. The arguments were well aired on Second Reading and, as many have acknowledged, I have since written to all Members of the House setting out the Government's position for clarity and for the purpose of improving the quality of debate. My right honourable friend the Secretary of State for Home Affairs and I have met many of your Lordships to discuss the issue at first hand. We have indicated that our minds are not closed, and I wish to reiterate that important point today.
This Bill has its origins in the Stephen Lawrence inquiry report. It implements recommendation 11 of that report. The inquiry found much evidence of racism within the police and there are many examples throughout the report of what the inquiry had in mind by this and what it wanted to see addressed. Interestingly, the inquiry found little evidence of overt racism.
Conversely, the inquiry found a great deal of evidence of unwitting racism. Many noble Lords have given voice to this and quoted examples of police officers in their dealings with others--for example, showing lack of respect and sensitivity to an individual due to their race or colour; using unwitting racist language; displaying lack of understanding; showing ignorance or mistaken belief about others; using well intentioned but patronising words or actions; displaying unfamiliarity with behaviour or cultural traditions of people or families from ethnic minorities; under reporting of racist incidents; and, as many Members of the Committee mentioned, racial stereotyping black people as criminals or trouble makers, for which, I should emphasise, the inquiry partly blames the countrywide disparity in stop and search figures.
All the examples of unwitting racism highlighted in the report are, we believe--and this is the important point to recall--direct discrimination, not indirect discrimination. Direct discrimination occurs under the Race Relations Act when, on racial grounds, a person treats another person less favourably than he or she treats or would treat other people. So a police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, because of the colour of his or her skin is directly discriminating against that individual. A police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, because he or she holds negative racial stereotypical views is directly discriminating against that individual. A police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, in a patronising or disrespectful manner because he or she is from an ethnic minority group, is, we argue, directly discriminating against that individual.
I will not persist with this listing as I am sure that I have by now underscored my point that the unwitting racism identified by the inquiry was unwitting direct discrimination. That is an important point to take into account in the debate.
I should say a little, however, about what the Government are doing to tackle the problem of unwitting racism in the police service. The inquiry made many helpful recommendations for doing that and the Government have set out how they are taking them forward in their action plan, published last March. My letter of 5th January to all Peers gave the main examples.
In short, the police service's performance in tackling racism will be rigorously assessed by means of the new ministerial priority to increase trust and confidence in policing among minority ethnic communities. In 2000-2001, the number of ministerial priorities set for the police will be reduced from four to two, one of which will be the police service's performance in tackling racism. These priorities will be underpinned by performance indicators, the development of which is under way.
New discipline procedures will now apply. In particular the civil standard of proof has been introduced for discipline cases and there are now formal procedures in legislation for dealing with unsatisfactory performance. Targets have been set and agreed for the recruitment, retention and progression of ethnic minority officers and the dismantling barriers action plan was prepared to help the service achieve those targets. The action plan includes a commitment to review the whole of the recruitment process and to remove any discriminatory practices.
I pause here to draw attention to the important report produced by Her Majesty's Inspectorate of Constabulary yesterday, Winning Consent. That report, in large measure already accepted by the Metropolitan Police, is another part of our commitment at the time of the publication of the Macpherson report. It takes forward and tackles many of the issues in its recommendations. We see it as an important part of the package for tackling the issue within the police service.
The Government have already made funding available under a "crime fighting fund" to recruit 5,000 frontline officers over and above the number forces would otherwise have recruited over the next three years. One of the five criteria for that fund is that forces should have agreed ethnic minority recruitment targets in place and to have work in hand to meet the targets set out in the dismantling barriers action plan.
There is also a programme of community and race relations training under way in forces up and down the country using a specialist external contractor under a Home Office contract. This typically involves obtaining the perceptions of the local community on how the police are providing their services and facilitated sessions with members of minority ethnic communities. ACPO are also in the final stages of producing guidance to forces on dealing with hate crimes.
A programme of research is being conducted on stop and search, including on recommendation 61 of the inquiry report that all stops and searches should be recorded and a copy of the record given to the person
Members of the Committee will know that we believe that much of that is about culture and ethos. The problem of unwitting racism in the police is, therefore, being tackled on a number of fronts embracing those issues on the lines recommended by the inquiry report. Where the case can be helped by prohibiting indirect discrimination, we believe it is already provided for in the Act. As I explained earlier, indirect discrimination by the police is already covered in respect of their employment and where they provide a direct service, within the meaning of the Act, to the public. These are essentially things that individuals might want but may be denied by an unjustifiable requirement or condition. In terms of law enforcement, which case law has shown to be different from a "service", indirect discrimination does not fit.
As in the case of stop and search, there is no particular requirement or condition imposed upon an individual being stopped and at least no requirement that cannot be complied with. In this instance, the law places the onus on the police officer to have reasonable suspicion or belief in order to stop and search an individual. A prohibition of indirect discrimination would not, therefore, catch such law enforcement activities, only direct discrimination would. Any disproportionality in the use of stop and search that is attributable to discrimination is due to the cumulative effects of direct discrimination.
A prohibition of indirect discrimination would, however, catch the Government's regulatory and social and economic policy-making functions. Many of the Committee have focused their thinking and attention on that point.
Lord Lester of Herne Hill: I am grateful to the Minister for giving way. I wish to ask a question because I do not understand the Government's position and would be grateful if he could answer it. Let us suppose that the police in one area were to refuse bail on the grounds that people had to be of fixed address or in continuous employment. The police were objecting to bail on that basis. Suppose that that hit disproportionately, let us say, at gypsies who do not have a fixed abode or steady employment, so that there was a requirement or condition as regards obtaining police bail that one should be able to satisfy and that could not be satisfied by gypsies. Would that not be an example of a kind of indirect discrimination? It would not be direct discrimination, because it would be applied equally to everyone in the formal sense. You have to be of fixed abode or in continuous employment to get bail. But it would hit disproportionately at gypsies and would require to be justified.
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