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The Earl of Onslow: Before the noble Lord withdraws the amendment, can he give an undertaking that he will come back to this issue at the Report stage if the Government do not come up with something satisfactory?

Lord Lester of Herne Hill: I certainly intend to do that, as I think is obvious from the tone of my withdrawal. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 to 7 not moved.]

5.55 p.m.

Lord Lester of Herne Hill moved Amendment No. 8:

The noble Lord said: I can be brief on this amendment. It is designed, for the avoidance of doubt, to make sure that nothing in the Act is intended to cut down the common law, the common law already having a clear principle that public authorities must not exercise their powers or perform their duties in a manner which is discriminatory.

I have put down this amendment to seek reassurance from the Government on what is now known as a Pepper v. Hart statement. I would rather see this on the face of the Bill, and therefore of the Act, for the avoidance of any doubt. I have therefore put down the amendment to make quite clear that the Act does not intend in any way to cut down the common law of England with regard to equal treatment without discrimination. I beg to move.

Lord Cope of Berkeley: As there is now to be statute law on this subject, one instinctively starts from the assumption that the common law will be superseded. As I understand it, that is not likely to happen because, after all, even if the statute law takes over from the common law in some respects, it will not do so entirely and it does not eliminate the common law. If any parts do remain covered by the common law but not by this new statute they will still be able to form the basis of a court case. Obviously, the direct/indirect discrimination point is the big one as far as that is concerned. But there may be other elements where the same applies.

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Given that it is justiciable in any case, it might be thought that it did not matter much whether it was justiciable under the common law or under this new statute. The important additional element of being covered by the statute is that the Commission for Racial Equality has a role which comes into play in the case of the possibility of unlawful discrimination under the statute. Therefore, it is not left to the rather more haphazard business of which cases come forward.

I think it is clear that as the Bill is drafted, including the indirect and direct discrimination difference, some common law rights will remain and will not be overridden by this statute. It may be that it is the Government's intention that most of the common law in this respect should be overridden, but it is clear that it is not to be at the moment.

Apart from the direct and indirect discrimination, I should like to know from the Minister whether there are any other common law rights which the Government think will remain of importance because in some particular they go further than the Bill does. But it is all subject--this point came out during the previous debate and at Second Reading--to the fact that we have international obligations which override all of these provisions. The common law will remain. It is only a question of the mechanism which remains and, particularly, whether the commission will be involved in all the parts of the discrimination which may come to court.

Lord Bassam of Brighton: The Government believe that nothing in Section 19B will interfere with discrimination in common law. To state on the face of the Bill, as the amendment would, that new Section 19B does not make lawful any unlawful discrimination under common law could have the reverse effect of what is intended by the noble Lord, Lord Lester of Herne Hill. It could suggest that an act, if it is discriminatory under common law, is not unlawful under Section 19B and therefore no proceedings could be brought under Section 19B; a perverse effect, indeed.

Section 53 of the Act preserves the right to bring judicial review proceedings for unlawful discrimination. In view of that and my earlier point, the Government do not agree with Amendment No. 8 and ask whether the noble Lord, Lord Lester, will in those terms withdraw it, principally because we believe that it does not have the effect that he intends it to have.

The noble Lord, Lord Cope, asked a question which I am not in a position to answer. I shall read Hansard carefully on his point, and if it is not covered I shall write to him on that.

Lord Lester of Herne Hill: Before the noble Lord sits down, is it common ground that nothing in the Bill is intended to cut down the common law principle of equal treatment without discrimination? If that is what he said--I think it is what he said--I am happy to withdraw the amendment.

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6 p.m.

Lord Bassam of Brighton: That is our understanding and that is how we intend things to be.

Lord Lester of Herne Hill: I am very grateful. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 9:

    Page 2, line 21, at end insert--

("(9) Nothing in this section shall make unlawful any measures appropriate and necessary to meet the special needs of persons of a particular racial group or any measures designed to prevent or compensate for disadvantages suffered by persons of that racial group.").

The noble Lord said: This amendment would permit public authorities to take proportionate measures--I emphasise "proportionate measures"--to ensure that the special needs of racial groups are met. It supplements the ability of public authorities to justify policies and schemes that are intended to benefit particular communities. Alongside Section 35 of the 1976 Act, which already has provision to meet the special needs of ethnic minorities, it makes the taking of additional or different action lawful where that is appropriate to meet the needs of a particular racial group. Its object is to achieve a non-colour blind approach by public authorities, as was strongly urged by the Stephen Lawrence inquiry. Where special measures are targeted on grounds such as language, employment history, employment prospects or length of residence, that could constitute indirect discrimination, assuming that we succeed in amending the Bill to cover indirect discrimination. The amendment ensures that such measures will not be unlawful. It also reflects the European Commission's proposal for a greater equality directive. There are similar provisions in the New Zealand anti-discrimination legislation, in the Irish anti-discrimination legislation and in the South African constitutional guarantee of equality. We hope that the Government will be sympathetic to the amendment because one of the arguments they have used against including the concept of indirect discrimination is that it might fetter their ability to take positive action in favour of ethnic minorities. The purpose of the amendment is to make sure that properly controlled and proportionate positive action can be taken. I beg to move.

Lord Cope of Berkeley: I am not clear why the amendment is required. The underlying legislation--the 1976 Act--allows for discrimination to remain lawful if there is a good reason for it--if one is trying to achieve something for which there is a perfectly valid reason other than being discriminatory purely on a racial basis.

We all accept the need for policies designed to benefit particular sections of the community which are suffering hardship or disadvantage. There are many examples of such policies under successive governments. I did not think that it would be necessary to have in the Bill a specific provision of this character.

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There is no such provision in the 1976 legislation and I do not think that that has caused any problems as far as concerns institutions covered by that legislation. I am cautious about the need for the amendment although I am sympathetic to the idea that positive discrimination or compensation for disadvantage for persons of a racial group, or for that matter other groups, is essential.

In referring to racial groups, perhaps I may mention one other point. I discovered that the Home Secretary thinks that I am prone to violence on account of being English. That seems to be a directly discriminatory remark which I do not think is historically accurate. But we all have our crosses to bear, and disapproval of the Home Secretary seems to be one of them.

Lord Bassam of Brighton: This amendment would allow positive action to be taken in relation to the functions of public authorities to which Section 19B applies. It broadly follows the approach taken in Section 35 of the Act, which allows positive action as regards the access of racial groups to facilities or services to meet their special needs in the context of education, training, welfare or ancillary benefits. The aim of positive action is to create a level playing field, something which I think we all support. The Government see merit in the amendment and would like to take it away and consider it further in discussion with the noble Lord, Lord Lester, and the noble Baroness, Lady Howells, if necessary and if that is convenient to them. In the light of that, it would be helpful if the noble Lord, Lord Lester, were prepared to withdraw the amendment for the time being.

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