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Lord Lester of Herne Hill: I am grateful to the noble Lord. Following his line of reasoning, I wonder whether the noble Lord will agree with me in the following example of a case of someone who has been the victim of race discrimination in this context. New Subsection (4B)(a) applies to a case where no decision to institute criminal proceedings has been made. The noble Lord will see that it is very wide in giving what the noble Lord, Lord Goldsmith, referred to as a proper reason within the statute. It refers to,

That is not just the criminal proceedings in relation to the alleged victim. We are dealing with a case where there has been no decision to institute criminal proceedings of any kind. Does the noble Lord agree that that, at any rate, seems to be far too wide a protection of the investigative and prosecutorial system and that it would entirely frustrate or negate the ability of a victim to obtain an effective remedy?

Lord Cope of Berkeley: The noble Lord has made a good point. In a sense, it brings us back to his earlier point about multiple investigations and proceedings. In particular, the inclusion of the word "any" is a difficulty in this respect.

However, when discussing an earlier amendment the noble Lord also questioned the meaning of the phrase,

    "contrary to the public interest".

I must admit that my first expectation was that this was a term of lawyers' art, which would be well documented in some books. Indeed, I made enquiries in that regard when considering the Bill but did not get a very clear answer as to what might be "the public

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interest". I think that it could be used extremely widely in some cases. The noble Lord has also made a good point in that respect.

4.45 p.m.

Lord Bassam of Brighton: I should, first, register my gratitude to all those Members of the Committee who have contributed to this short debate, which has been very illuminating. I am grateful for the comments made from all sides of the Chamber.

My noble friend Lady Whitaker is absolutely right to remind the Committee that the Government have agreed that there should be a duty on courts to draw adverse inferences from the failure of respondents to complete the Section 65 questionnaire. Indeed, that is one of the issues that the Government intend to consider and address in the equalities Bill that we promised in our equality statement on 30th November last. My noble friend gave us a very helpful and valuable reminder in that respect.

The Government accept that there is some force in the argument advanced by the noble Lord, Lord Lester, that it may be unnecessary to provide an opportunity for an early court decision on whether a refusal to respond to a questionnaire issued under Section 65 of the Act is reasonable where a public investigator or prosecutor believes that a reply may prejudice a criminal investigation or proceedings.

However, we feel that it is essential for claimants, investigators, prosecutors and the courts alike to make clear on the face of the Bill that a Section 65 questionnaire need not be completed where it might prejudice criminal proceedings or investigations. We believe that this is consistent with the theme running through Clause 4 of trying to strike a balance between the ability of an individual to seek redress through the civil courts, while ensuring that the commitment to reduce crime, and the fear of crime, to dispense justice fairly and effectively and to promote the rule of law is not undermined or weakened.

For that reason, I am able to tell the Committee that the Government are prepared to reconsider Clause 4(2). On that basis, I rather hope that the noble Lord, Lord Lester, will be content and feel able to withdraw his amendment.

Lord Avebury: Before the Minister sits down, I should remind him that this is the second time that he has been asked about the phrase,

    "contrary to the public interest".

Is it not possible for the noble Lord to give Members of the Committee some explanation of the meaning of the phrase in the two contexts that have been mentioned?

Lord Bassam of Brighton: It would perhaps be helpful to give some further thought to what is "in the public interest". I believe that it is in the public interest for us to get this piece of legislation right; that is what we seek to do. Indeed, that is the purpose of this debate

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and the important discussions that we have had. I think that we should rely on that. We will take this matter away and consider it further.

Lord Lester of Herne Hill: It is very good news that there will be an equality Bill and that the point about drawing inferences raised by the noble Baroness, Lady Whitaker, will be addressed in it. It is not, of course, worth debating that issue today. It is also very good news that the Government have agreed to reconsider this matter because of the need to ensure effective access to justice in cases of this gravity. Therefore, on that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 to 7 agreed to.

[Amendment No. 23 had been withdrawn from the Marshalled List.]

Lord Lester of Herne Hill moved Amendment No. 24:

    Before Clause 8, insert the following new clause--


(" . For section 71 of the Race Relations Act 1976 there shall be substituted--
"General duty on public authorities.
71.--(1) Without prejudice to its obligation to comply with any other provision of this Act, a public authority to which this section applies shall have due regard to the need--
(a) to eliminate unlawful racial discrimination;
(b) to promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and
(c) to promote good relations between persons of different racial groups.
(2) The compliance of each public authority to which this section applies with the requirements of this section shall be subject to inspection and appraisal in accordance with regulations to be made by the Secretary of State after consultation with the Commission for Racial Equality.
(3) This section applies to every body or other person specified in Schedule A1 or of a description falling within that Schedule."").

The noble Lord said: I believe that this amendment is the most important amendment that we are considering. It is as important as the amendment that we considered on Tuesday. It seeks to impose a positive and enforceable duty,

    "to eliminate unlawful racial discrimination ... promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and to promote good relations between ... different racial groups".

If I may say so, in an equality Bill one would expect this to apply not only to race but also to other forms of forbidden discrimination, such as gender discrimination. The all-important enforcement mechanism is for now to be determined under this amendment by the Secretary of State after consultation with the Commission for Racial Equality. I shall explain a little later why we have left the provision in that form at the moment.

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The significance of a positive duty is that it would require public authorities to act to prevent racism, which is preferable to using the law only to seek redress after discrimination has taken place. Only a positive duty can prevent delay and prevarication by public bodies in confronting and eradicating institutional racism which the Stephen Lawrence inquiry identified as all too common in some of our public authorities.

A duty to promote racial equality is not a novel concept in our race relations legislation. Section 71 of the 1976 Act--this was very much a child of the late Alex Lyon MP as Minister of State, as I recall--imposes a similar duty on local authorities, but, without any effective means of enforcement, this has had a limited and uneven impact. The purpose of our amendment is to create a clearer, more enforceable and more direct positive duty covering all public authorities and not just local authorities.

As the Minister has indicated, a few days before the publication of this Bill the Government published their equality statement, acknowledging that an obligation on public bodies to promote racial equality needs the force of statute. We very much welcome that. They have undertaken to legislate for this,

    "as soon as parliamentary time permits".

Why cannot this be done now in this Bill in relation to race discrimination? That would then serve as a model and as an experiment when parliamentary time is found for the wider equality Bill. There is no need for delay; the Bill constitutes a perfect opportunity to introduce such a duty.

The Government have made progress in requiring public bodies to take action to eliminate inequality. The legislation establishing the Greater London Authority, the Welsh Assembly and the Metropolitan Police Authority all provide for a duty to promote racial equality. My noble friend Lord Dholakia played a particularly prominent part in relation to the Greater London Authority provision; namely, Section 404. But the problem with these statutory duties is that they remain essentially unenforceable. Any duty must be backed with a strong enforcement mechanism developed in consultation with the Commission for Racial Equality, as our amendment requires.

There is one example of an elaborate enforcement mechanism; namely, the detailed procedure in Schedule 9 of the Northern Ireland Act 1998 which requires designated public authorities to adopt schemes for the regular appraisal of the extent to which they are abiding by their duty to promote equality. The Government were happy to introduce such a scheme for Northern Ireland; why therefore should not a similar enforcement mechanism be introduced here?

It is intended that the Secretary of State will specify measures that public authorities will need to take and will give additional powers to the Commission for Racial Equality to require evidence of compliance and to take enforcement action where there is evidence of non-compliance. The central purpose is to create an effective but not excessively bureaucratic system of monitoring and enforcement modelled, for example, on the Northern Ireland scheme.

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The CRE has repeatedly expressed its disappointment that the Government have failed to require all public bodies to use their purchasing power to promote equality by building equality requirements into their external contracts, service level agreements and grants. I recall what is often forgotten; namely, the White Paper of the noble Lord, Lord Jenkins of Hillhead, entitled Racial Discrimination of September 1975. This is what the second Wilson government committed themselves to. Paragraph 19 of the paper states:

    "Since 1969 all Government contracts have contained a standard clause requiring contractors in the United Kingdom to conform to the provisions of the Race Relations Act 1968 relating to discrimination in employment and to take all reasonable steps to ensure that their employees and sub-contractors do the same".

Paragraph 20 states:

    "It would be the intention of the Government when new legislation about racial discrimination is enacted--

that was the 1976 Act--

    "to require a similar undertaking to comply with its provisions as a standard condition of Government contracts. The Government has considered whether its duty to take an active role to eliminate discrimination requires something additional. It would be an unacceptable burden to require all contractors to supply as a matter of form full particulars of their employment policies; but the Government cannot passively assume that a formal condition in a contract is all that is required. It is therefore intended that it should be a standard condition of Government contracts that the contractor will provide on request to the Department of Employment such information about its employment policies and practices as the Department may reasonably require".

That never happened. After the noble Lord, Lord Jenkins of Hillhead, left to become president of the EEC Commission, the commitment disappeared. Therefore, although that is the provision that the White Paper promised, it never came into being. Oddly enough, it was introduced across the Irish Sea when in 1989 the government of the noble Baroness, Lady Thatcher--of which the noble Lord, Lord Cope of Berkeley, was a distinguished member--introduced some extremely strong and effective monitoring in the Fair Employment (Northern Ireland) Act 1989. However, we still do not have fulfilment of the commitment in the 1975 White Paper on race discrimination. We still have nothing that is equivalent to the situation in Northern Ireland.

The Cabinet Office has published strong guidelines providing that all government departments must implement policy appraisal in order to assess the impact of their measures. In those circumstances we see no good reason why, now that we have the Bill before the Chamber, an opportunity should not be taken to introduce the positive duty. We have left out of this amendment the schedule that is in the Northern Ireland Act. The reason we have left it out is simply because we do not want to tie the Government's hands, or the hands of the CRE, in negotiating a sensible method of monitoring which is effective without being too onerous. We could have written in the Northern Ireland provisions literally verbatim.

The reason we refer to the positive duty applying to public authorities designated in a schedule--this goes back to a point that we raised at the very beginning in

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Committee--is because this is a different situation from the one we were considering previously as regards the duty on public authorities not to discriminate unlawfully. When one is dealing with a positive duty, it is vital that there be a schedule with a list of public authorities to which the positive duty can be applied in a well targeted and phased way so that we do not impose unnecessary handicaps on very small bodies, for example, and become unnecessarily legalistic or bureaucratic.

I hope that the Committee will consider that the amendment is well designed and is not over-intrusive. It does not seek to legislate for everything. It leaves a discretion with the Government, in consultation with the CRE, to work out an effective system of monitoring. It is much more modest than anything which occurred under the Conservative government or under the Labour government with regard to Northern Ireland. We very much hope that the Government will take the opportunity provided by this Bill to begin the experiment of having a proper, enforceable positive duty in Great Britain, as exists in Northern Ireland. I beg to move.

5 p.m.

Lord Cope of Berkeley: The noble Lord, Lord Lester, was right when he said that one of the most important things to consider when putting a statutory duty on public authorities to take some action or to have regard to some matters is the way in which it will be enforced and appraised. The weakness of his amendment is that it leaves that issue extremely vague. When I say "weakness", I mean weakness as far as Parliament is concerned. We are given no indication in the amendment--nor, unless I missed it, were we given a great deal of indication in the noble Lord's speech--as to how this inspection and appraisal might work.

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