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Lord Peston: My Lords, listening to the noble Lord, Lord Cope--towards whom I am normally sympathetic--speaking for the Opposition, I am pleased for once that I was never made a Minister. Obviously, the Government can never do any right! I took part in the previous debate, and I am impressed that the Government have listened. If in future, as I very much hope, this House is to function as a place where the Government listen to reasoned debate and change their mind, I hope that the Opposition will not turn on them for doing exactly what we hope will happen. I do not believe that the Bill is rubbish. As I understand matters, the Minister argued the case as he saw it at the time. He listened to some of us. I am flattered that he was persuaded and he is now trying to do something about it. I agree with the noble Lord, Lord Lester: I can wait for the Bill to return from the Commons. However, I accept the point made by the noble Lord, Lord Cope, about amour propre. In that sense, I should prefer this House to make the changes. But it is merely a matter of amour propre. I do not think that I shall fail to rest over Easter because I have to wait for the Bill to return to this House.
My main point is to say thank you for this proposal. The Government have listened and have moved in the right direction. I, for one, very much look forward to seeing the amendments as specifically drafted.
Lord Lester of Herne Hill: My Lords, first, I thank the Minister for his extremely helpful statement, and I thank all noble Lords who have supported the changes proposed by the Government. Secondly, there is nothing in the criticism that the announcement was in some way inappropriate. My understanding is that because the Conservative Party was having fun and games in another place the announcement was not able to be made as was intended. As a result--
Lord Lester of Herne Hill: My Lords, that is not quite right. The official announcement was made by the Home Secretary at about 5.30 yesterday evening. There may have been a leak in the newspapers, but I know for certain, because I inquired of the Home Office as to exactly when the statement would be made, that it was not made until 5.30p.m. yesterday. The reason it was made in the way that it was--namely, in a Home Office press release--was that it could not be made in another place for the reason that I have given. As I understand it--the Minister will no doubt say whether I am right or wrong--the intention was that there would be an Answer to a Parliamentary Question in another place. However, that is a minor point.
To return to the main point, we should congratulate the Government on listening and considering the arguments carefully on two very difficult questions. Perhaps I may explain briefly why they were difficult. It will save me having to move amendments later, so to do so briefly now will mean that I am not wasting time but saving it.
The concept of indirect discrimination and the difference between it and direct discrimination is something that only very few people in the world understand. It was entirely understandable that the Government would be troubled that their economic and social policies might be challenged time and again in the courts and that they would spend their time having to answer litigation instead of getting on with running the country. Therefore, careful analysis was needed of the case law which indicates that judges do not try to run the country and gives the Government the benefit of the doubt on matters involving economic and social policy. Other government departments had to be consulted because what is being provided in the Race Relations (Amendment) Bill will surely need to be included in due course, in, for example, the sex discrimination legislation. When that is amended, indirect sex discrimination by government will have to be tackled as well.
Five different government departments at present deal with equality. That is regrettable because it makes a co-ordinated approach more difficult. The Home Office, dealing only with race, had to consult widely on the concept of indirect discrimination.
From the speeches at Second Reading of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, it is clear that they are in favour of including the concept of indirect discrimination in the Bill. Indeed, the noble Lord, Lord Cope, described the Bill, in emotive words, as a "sham". I would never have dreamt of doing so. The noble Viscount, Lord Astor, indicated that he wanted to listen carefully to the Government's reasons for not including the concept in the Bill.
If Members on all sides of the House are agreed that the concept should be included, the only question is how it should be drafted. It is an easy matter to leave out the exception and to include indirect discrimination. There may need to be a procedural safeguard so that the Government are given a breathing space for a couple of months, as they are in the education sector, before proceedings are launched in this area; and they need time to think about the way to do that. I should have thought that it could be achieved by Third Reading because I do not think that it requires much careful drafting.
The more difficult matter is the positive duty, the second change the Government propose to make. The Government have always been committed to placing themselves and all public authorities under a positive duty. They have done so in the Northern Ireland Act. That is entirely commendable. The only argument was whether they would include the positive duty in the Race Relations (Amendment) Bill or later. Sensibly, the Government have decided to do so in this Bill. It will be a kind of experiment enabling one to see how the measure works in this country as well as Northern Ireland.
The amendment I have drafted gives the Government leeway to be able to consult with the Commission for Racial Equality, and more generally, and, by regulation to be approved by Parliament, to deal with the crucial matters of monitoring and enforcement. If the Government were to accept that approach, little redrafting would be required. On the other hand, if reasons about which I do not know make it more difficult for that to be achieved by Third Reading next week, it would be sensible to have the matter dealt with properly in another place. I am sure that there will be no real issues of principles as those are common ground on all sides of the House. We can then deal with the matter at that stage.
I shall not move amendments on either subject. Therefore, perhaps I may add a couple of points. From what I read in the Daily Mail and from what I heard on the radio this morning about the views of Mr Gerald Howarth MP, speaking for the Conservative Party in another place, there seems to be a suggestion that by extending the law on indirect discrimination the Government will in some way hamper the police. That is complete rubbish and shows a total misunderstanding of discrimination law. The police have always been subject to the law on racial discrimination. The complaints that black people have made about police misconduct and malpractice have not been about indirect discrimination in the technical sense, but about racial assumptions about people affecting matters such as the stop and search power: the notion that more black people than white people are stopped and searched, and so on. That is covered by direct discrimination.
In the wake of Macpherson, senior police officers across the country recognise that they must eliminate racial discrimination from their practices. They understand the need to secure full public confidence in all parts of the community. The notion that these changes will affect the police is completely misguided.
The Government will now have to think before they act. I am sure they do so already. But that will not affect the police. They must think before they act because of the law which already forbids direct discrimination. Therefore, it is wholly unfair and misguided to attack the Government on the basis that they are handicapping the police. On the contrary, the police understand that they must not discriminate directly or indirectly.
Lord Cope of Berkeley: My Lords, before the noble Lord sits down, perhaps I may make it clear that my complaint about the Bill being nonsense at this point refers to the issue about indirect discrimination. I should be happy to leave the second point--positive duty--for amendment in the Commons. But I do not think that we should send a Bill to the Commons--the noble Lord rightly says that I described it as a "sham"; and it is still so at present--without the indirect discrimination clause being included if the Government argue successfully for that. I am glad to have the noble Lord's confirmation that that can readily be drafted in time for Third Reading either on the present timetable or with a further postponement of Third Reading.
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