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Lord Bassam of Brighton: That was a helpful intervention. I think that the noble Lord, Lord
Goldsmith, has read the situation accurately. For that reason I believe it would be most helpful if the noble Lord, Lord Lester, would kindly withdraw his amendment. I am quite happy, as I said earlier, to pick up any loose points that may have arisen from today's debate. We believe that our simple approach is perhaps the best way forward.
Lord Lester of Herne Hill: I am grateful to everyone who has taken part, including the noble Lord, Lord Goldsmith, for a very helpful intervention with which I agree. I shall come later to new subsection (4B). It may require separate consideration. It is right that the Bill gives two kinds of protection of criminal investigations. One appears in new subsection (4A) and the other in new subsection (4D). New subsection (4A) deals with the remedies that can be granted for unlawful racial discrimination. New subsection (4D) deals with the kind of protective orders that are necessary to preserve the integrity of, for example, criminal proceedings.
To make clear beyond doubt what our position is, it is very important that the Commission for Racial Equality--which certainly supports the amendment--should be in a position to have findings of unlawful racial discrimination as the foundation for its monitoring and follow-up powers under the 1976 Act. The problem about awards of damages alone is that they do not qualify, technically, as a finding. But I repeat that it is wholly illogical to allow an award of damages to be made which is predicated upon there having been a finding of unlawful discrimination without allowing the actual finding to be made.
I can see that the defect in my amendment is that it may go too far in allowing, for example, injunctions to be granted that may be wholly unnecessary. If the Government do not do so themselves, I am minded to narrow the scope of my amendment at Report stage to make sure that a finding can be made or a declaration granted in addition to an award of damages, but not an injunction. That is very easy, technically, to do. One comes later to new subsection (4D). I hope that I have made our position clear. I hope that we can reach a consensus before Report stage as to how to reconcile the rights of the accused with the rights of victims in this context. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 20:
- Page 6, line 7, leave out ("other than damages").
To put it at its lowest, I do not think that this amendment can do any harm. If damages never do look like prejudicing criminal investigations or
proceedings, then the court would be able to grant them just as they could another remedy. On the other hand, if the amendment is not passed and the damages at some stage--in some circumstances which we may or may not be able to envisage at the moment--do seem likely to be prejudicial, then, with the Bill as it stands, nothing could be done about it. The prejudice would take place, and nothing at all could be done. At its lowest, it seems to me that the amendment has something to commend it. I commend it to the Committee.
Lord Bassam of Brighton: Our intention in framing new subsection (4A) is to strike the right balance between the interests of individuals in pursuing a legitimate claim under the Race Relations Act, on the one hand, and reducing delays in the criminal justice system, on the other, meeting the legitimate needs of victims and witnesses and promoting confidence in the criminal justice system.
The amendment tabled by the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, would, as we understand it, remove the ability of a claimant under new Section 19B of the Bill to pursue any remedy in a case against the public prosecutor or investigator unless they could satisfy the civil court that the remedy itself would not prejudice the criminal investigation. That much is clear.
The main thrust of the Race Relations Act is to provide financial redress for victims of discrimination. We consider it highly unlikely that the award of damages would, of itself, prejudice criminal proceedings or investigations whereas other remedies, such as injunctive relief, may have that effect. For that reason we think it right that claimants should be able to obtain financial redress wherever possible. The present wording of new subsection (4A) makes that clear. However, in the few cases where consideration of the award of damages might have a prejudicial effect, the civil court could, in such circumstances, exercise its power to stay the proceedings until such time as the risk of prejudice to the criminal proceedings had passed. As it currently stands, the Government could not therefore agree to Amendment No. 20. I hope that the noble Lord will consider withdrawing it.
I am, however, happy to consider the points made in this and the earlier debate, look at the two amendments together and see if we can better perfect the situation so that there are no apparent contradictions in the way in which the legislation seeks to work.
Lord Cope of Berkeley: I accept entirely that the Minister and the Government are trying to seek the right balance. We are all trying to seek the right balance in this matter. However, I am still not in the least clear what is special about damages. The Minister said that he thought it highly unlikely--not impossible--that damages could prejudice a case or an investigation. If the possibility exists, we should not rule it out. The noble Lord did not say that it is certain that damages could not prejudice a case. He just said that it is highly unlikely. That is probably right. But he
also pointed out that, with regard to the matters to which we shall come a little later, the court has the right to stay proceedings. I fully understand that. However, that does not affect the immediate right to have a remedy such as damages, or for that matter another remedy, which might or might not prejudice the ongoing investigation and proceedings. The fact that there is a stay is a separate matter which is valuable and important and provides some of the balance that is required by otherwise preventing or limiting the remedy that there might be.
Lord Goldsmith: If the Act works as the Bill intends, does the noble Lord agree that in a case where criminal proceedings are taking place, there will be a stay of those proceedings until the criminal proceedings have come to an end? At that stage, the proceedings would revive. If the applicant cannot get damages in the proceedings, there will be nothing the applicant can get at all. Does the noble Lord agree that at that stage the only prejudice could be in relation to subsequent or other proceedings where an injunction might give rise to prejudice but an award in the instant case would not?
Lord Cope of Berkeley: I am not sure that I follow all the ramifications of what the noble Lord said. In the first place, I am concerned not only about proceedings but also about investigations and matters before the proceedings take place. In the second place, I realise that quite often the stay in the civil proceedings is what will prevent the prejudice taking place in the criminal proceedings. But I do not see that anything in the Bill, if it were amended in accordance with my amendment or, for that matter, if it were unamended, would prevent damages or any other remedy being awarded when the civil proceedings restart after the criminal proceedings have been concluded, whichever way that turns out.
4.15 p.m.
Lord Lester of Herne Hill: Perhaps I may help the noble Lord by suggesting what would happen. Let us suppose that there is a whole series of multiple complaints by black alleged victims alleging racial discrimination and that criminal proceedings against them and against the police are really complicated, which is not unheard of. One might then need to be able to grant effective remedies and at the same time preserve a fair trial. Is not the noble Lord, Lord Goldsmith, right that it is important to have the prophylactic protective order under new subsection (4D), which is there to ensure that one can hold up the civil proceedings until after the criminal proceedings have occurred in a particular case but then be able to award the victim in that case an effective remedy, whether by way of damages or a finding, thereafter? Is there not otherwise a danger in such a multiple case
that someone who is wholly innocent and a victim of race discrimination simply will not receive an effective civil remedy?
Lord Cope of Berkeley: He would receive his remedy, whether by damages or otherwise, when the civil case proceeded following the stay.
Lord Lester of Herne Hill: I have not made that point clear. There will then be other investigations and other proceedings. They may be wholly separate. With the very loose test here, the danger is that fettering the judge's discretion in the way that the noble Lord's amendment would do would mean that there was no remedy at all.
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