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Lord Lester of Herne Hill: The Minister has repeatedly used the word "safeguards" in reference to new Section 19C, by which he means safeguards for the Home Office. We are concerned about safeguards for the individual. There are no safeguards in Section 19C as it stands. It says that it will not be unlawful for a relevant person to discriminate against another person on grounds of ethnic origin in carrying out any immigration or nationality functions provided that the relevant authorisation has been given. There are extremely broad powers of authorisation. As it stands, it applies to the entire immigration functions of the Immigration Service and even to the entire nationality functions of the nationality service of the Home Office.

I have attempted in my amendment to meet the need for the avoidance of doubt where humanitarian concerns are at stake. I do not understand what was wrong with the situation in 1976 when Section 41 was written into the Act. That would be quite properly narrowly construed, of course, because the concern was with the liberty of the subject. The Home Office does not want race discrimination to be practised by the immigration and nationality department without good reason. That will be viewed with great concern by immigrants and their descendants in this country as giving a blank cheque to some future government to discriminate on blatant grounds of ethnic origin.

I am glad that the Minister has indicated that he would like to reflect upon the matter. I do not intend to press for a vote this evening, but I give notice that I should like to return to the matter. I hope that he will come back to us with a fresh, better, more narrow exemption clause. That is what we are looking for. It is common ground that some kind of cover is needed for differences of treatment on the basis of nationality. I hope that in the gap between now and Report stage it will be possible to find a narrower amendment which gives the Government what they legitimately need but contains effective safeguards against abuse in conforming to our international treaty obligations. On that basis and with that indication, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Lester of Herne Hill moved Amendment No. 12:

The noble Lord said: In the ordinary course of events, my noble friend Lord Dholakia would have been moving this amendment and other related amendments because he is particularly expert in those areas. Unfortunately--it is something which should not happen to any noble Lord--he has lost his voice. Therefore, he is sitting mute, but listening and giving his moral and spiritual, although not vocal, support. I shall have to be the next best thing and I will do it briefly.

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The purpose of the amendment is to remove the exemption from the race relations legislation of acts leading to a decision not to prosecute. The amendment provides that such racially discriminatory acts are not to be exempt from being found to be unlawful under Section 19B. The valid justification for exempting from Section 19B decisions not to institute criminal proceedings--namely, to avoid a criminal trial in civil proceedings under the Race Relations Act--does not apply to the series of acts leading up to a decision not to prosecute, which could, for example, include significant but remote acts by the police in gathering or rejecting evidence. In particular, the vagueness of the words,

    "acts leading to such a decision",

is remarkable. Almost any police or prosecution practice that involved the gathering or assessment of the evidence could possibly come into a category of that breadth. Again, that stems from the Lawrence affair and the Macpherson report. We greatly hope that the amendment will be acceptable to the Government. I beg to move.

Lord Cope of Berkeley: As the noble Lord, Lord Lester, said, the Lawrence case and the Macpherson Report are extremely relevant to this amendment. In that case, decisions not to prosecute were crucial, even to the extent that a decision to bring a private prosecution was made. Therefore, it seems to me that if matters leading up to a decision not to prosecute are kept out of the Bill, the Bill cannot be said to have answered the concerns which arose from the Lawrence case, which is, after all, fundamental to what the Government have said.

There is a real dilemma here; that is, if a decision is taken not to prosecute and it is believed by some that the decision was racially motivated, we could reach the position where in effect the criminal trial was being held but under the guise of a race relations case. That would be most unsatisfactory. Therefore, the issue presents a real dilemma. I do not believe that it is answered easily either by the clause as it stands or, for that matter, by the amendment. Having read the Macpherson Report, I do not believe that it is easy to proceed on the assumption that a decision not to prosecute can ever be thought to have arisen for racial reasons; that is, with investigations not having been influenced by racial decisions. That is a difficult way to start and is, of course, the position which the Bill takes. However, it is not an assumption which I find a satisfactory basis for legislation.

At the same time, I cannot escape from the dilemma of not wanting a criminal trial to take place on totally the wrong basis. Therefore, I shall listen extremely carefully to what the Minister says on this as, of course, on all the other amendments, and I shall study his words carefully. Whatever the decision, it will be unsatisfactory in one direction or the other, and a balance must be held.

Lord Bassam of Brighton: I believe that the noble Lord, Lord Cope, has pointed us rather well in the direction of the dilemma. We may well want to look

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closely at what the noble Lord, Lord Lester, said in moving his amendment. The Government's policy objective with Section 19D of Clause 1 of the Bill is in effect to preserve the role of the criminal court as the sole forum for determining guilt. I believe that that must be plainly right. We understand the purpose of the amendment in the name of the noble Lord, Lord Lester, and the noble Baroness, Lady Howells. The wording,

    "or to any acts leading to such a decision",

is broader than ideally it should be, and I believe that that point is accepted. However, we would not want to delete those words without providing better ones because we believe that the reasons for a decision not to prosecute, or, even worse, part of those acts which are an essential part of the decision-making process, should be protected as easily from an action under Section 19B as the decision itself.

Therefore, the Government will wish to bring forward an amendment which achieves our objective in relation to the decision-making process but without, as now, excluding all acts leading to a decision not to prosecute. On that basis, I hope that the noble Lord, Lord Lester, and other movers of the amendment will be happy and prepared to withdraw Amendment No. 12 as it currently stands.

6.45 p.m.

Lord Lester of Herne Hill: We are certainly happy to do so, subject to seeing the fine print. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Clause 1 agreed to.

Schedule 1 [Public Authorities]:

Lord Cope of Berkeley moved Amendment No. 14:

    Page 10, leave out lines 18 to 32.

The noble Lord said: This amendment seeks to leave out the two subsections which bring the Scottish Administration and the National Assembly for Wales within the scope of the Bill. I should say at once that I do not intend to press the amendment. It is a probing amendment designed to give the Minister an opportunity to explain to the House what is happening with regard to those two devolved Administrations in respect of the Bill. Quite obviously, the functions which are devolved to Scotland are in part covered by the Bill, particularly those relating to the law, and so on. Therefore, I should like to know whether the Scottish Parliament or, for that matter, the Scottish Administration has been consulted on the matter and, if so, what view was taken.

To some extent, in the case of Scotland the question is addressed also to Peers on the Liberal Democrat Benches because they are in government in Scotland in coalition, and they, too, may be able to answer the question. However, the same question applies also with respect to the Welsh Assembly. Has the Assembly or the Administration in that part of our Kingdom been consulted and, if so, with what effect?

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I have another question which risks showing my ignorance of the devolution legislation in which I took very little part when it passed through your Lordships' House. However, it struck me as odd that the paragraph relating to Scotland is entirely in terms of an office holder of the Scottish Administration--a Minister, in fact--and the staff of the Administration.

As far as concerns the National Assembly for Wales, that paragraph is expressed in terms of the Assembly. Does that mean that the Assembly Members in Wales are covered by the legislation and are subject to it, whereas in Scotland the Members of the Scottish Parliament are not covered but only the actions of the Ministers in Scotland? That would be most odd.

It is interesting to consider whether, in its discussions on matters in Wales, the Assembly should be prevented from doing things which our national Parliament at Westminster and the Scottish Parliament are allowed to do. That would be to discriminate against the Welsh in that respect, which I am sure none of your Lordships would want to do. However, there may be a perfectly valid reason for the way in which the devolution legislation is set up which leads to the difference in wording. But it is a peculiar difference in wording to try to confine it to the Scottish Administration in Scotland but to extend it to the whole of the National Assembly for Wales. In both cases, there is a let-out in respect of any function relating to the making, confirming or approving of Orders in Council and other instruments. In relation to that particular function of the two bodies, there is a let-out.

I am not quite sure whether that means that an Order in Council can be made which is discriminatory and which would otherwise be unlawful under the Act. I doubt whether it does, but it occurred to me to wonder whether that covered the Order in Council itself. It covers the making of an Order in Council in both the devolved jurisdictions, but at the same time it would obviously not be desirable for this Parliament and your Lordships' House to permit the devolved legislators in those two parts of our Kingdom to make legislation which would otherwise be unlawful. Apart from anything else, that would discriminate against the English. It is a specialised example, as it were, of the West Lothian question.

There are two main points which concern me. The first is whether those administrations and legislatures have been consulted about this legislation and their position with regard to it. Secondly, why is there a difference between the two devolved administrations?

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