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Lord Avebury: My Lords, I believe that we are all in the same position of sitting at the feet of my noble friend in this seminar or tutorial to which the noble Lord, Lord Cope, referred. I believe that the last suggestion that was made is extremely ingenious because it gets round the objection that the noble Lord, Lord Bassam, put to us when we discussed the matter in Committee. However, one must have certainty in placing the duty on public authorities, as we intend to do. My noble friend's suggestion of having the two sets of definitions seems to get round that point. At the same time, it takes care of the point about which I was anxious and which I should like to repeat; that is, if we did not have the catch-all or generic definition, there could be a danger of mismatch between this legislation and the Human Rights Act.
The noble Lord, Lord Bassam, kindly wrote to me after the Committee stage. He said that the situation which I foresaw was unlikely to arise, and that there would be some difference in the way that the Human Rights Act and this legislation would apply. He said that if the situation did arise then of course the order-making power could be used to add the body to the schedule at the earliest opportunity. Therefore, any loophole could be closed quickly. I am not sure that that is completely satisfactory because, the timetable of Parliament being what it is, it may not always be possible to lay orders instantaneously. Therefore, there could be a period of time in which that kind of gap could exist between the two pieces of legislation.
If the noble Lord, Lord Bassam, will allow me to quote from his letter, I should like to lay before your Lordships another point which he made:
- "Because of the differing natures of the RRA [Race Relations Act] and the HRA [Human Rights Act], it might not always be necessary to take such action. It would not necessarily be the case, if a court found that a body was carrying out functions of a public nature in the context of the HRA, that it would be necessary for that body to be listed in the Schedule to the RR(A)B [Race Relations (Amendment) Bill] in order for the function to be covered by the RRA. That would depend on whether or not the functions in question were already fully covered by provisions in the existing RRA. We would wish to take each case--if there were any--on its ... merits".
Lord Bassam of Brighton: My Lords, the Government considered carefully the points made by noble Lords at Committee stage on this issue. I note again what has been said this afternoon. However, we continue to believe that the approach that we have adopted in defining public authorities is the right one. Our main reason for maintaining that belief is that there is a need for clarity. If one looks at the schedule, it is crystal clear what is intended by way of definition. We believe that that remains the best way to deal with the matter. If a body is on the list, it is clear what is to be covered. There can be no argument about that. The noble Lord, Lord Lester, in a sense has anticipated one of the issues on which we wished to be clear; that is, it will be much easier to use the schedule if we move forward a positive duty to promote race equality. I believe that the noble Lord accepts that point and that he probably did so from the outset.
Of course, it is true that the Government believe that on balance the broad definition approach is right for the Human Rights Act. Obviously, we retain that position. While a list approach would have brought clarity there too, we judged--and we took that consideration on board at the time--that it would be inappropriate as we wanted to keep the definition broad so that domestic legislation would always be in step with developments in case law in Strasbourg.
However, it does not follow, as night follows day, that that approach is right for the Race Relations (Amendment) Bill or, for that matter, for the Freedom of Information Bill. Using the human rights approach in the context of this Bill would mean that it might not be at all obvious to public bodies how and whether the Bill affects them. The schedule approach makes it much clearer. We believe that such clarity is essential if the Bill is to work properly and effectively.
The noble Lord, Lord Avebury, raised the question of correspondence and, if I may, I shall try to deal with his point. He raised the issue of what might happen if the courts find that a body is a public authority for the purpose of the Human Rights Act, yet it is not listed in Schedule 1 to the Bill. As the noble Lord rightly drew to our attention, I wrote to him on that point. A copy of the letter has been placed in the Library of the House, where it is accessible for everyone to see. It may be useful if, again, I explain our thinking. First, we believe that it is highly unlikely that such a situation will arise because of the care that we have taken to ensure that the schedule is comprehensive. Of course, we are always open to suggestions as to how we may make it even more comprehensive than it is already.
Secondly, if such a situation arose where there was a gap, we could close the loophole quickly, as the noble Lord recognised, by using the order-making power in Section 19B(4) in Clause 1(1).
Thirdly, if a court found that a body was carrying out functions of a public nature in the context of the Human Rights Act, it would not be necessary for that
body to be listed in the schedule to this Bill in order for the functions to be covered by the Race Relations Act. That would depend on whether or not the functions in question were already fully covered by the existing provisions of the Race Relations Act. All in all, we want to take each case on its merits.4.30 p.m.
Lord Avebury: My Lords, that is the point which I was seeking to elucidate. I was asking the noble Lord to give me an example of a case which is fully covered by the Race Relations Act and which therefore, when it came before the courts under the Human Rights Act, was deemed unnecessary by the Government to extend the schedule accordingly.
Lord Bassam of Brighton: My Lords, the point which the letter tried to convey was that some public authorities are already wholly covered by the Act; for example, education bodies are comprehensively covered and are also listed in Part III.
I believe that we can rely on the safety of the list. The noble Lord, Lord Lester, suggests that we should have an each-way bet on this to ensure that we are fully covered. I shall read with interest in Hansard what he said about that. I am not making any commitments one way or the other. But we are confident that the approach which we have adopted is sufficiently rigorous and thorough. On the basis of taking what we have said on trust, I hope that the noble Lord will be happy to withdraw the amendment.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, I wonder whether I may clarify the position. I realise, to be fair to him, that he is dealing with an argument which arose from what I said rather than from the amendments in their present form.
But is it not the case that the list in the schedule at the moment does not include every body within the broad definition in Section 6 of the Human Rights Act, including a privatised body that is exercising functions of a public nature? That is the first question. I am sure that it is common ground that the schedule definition, although very broad, does not include as wide a group of public bodies as does the Human Rights Act.
Secondly, if it is right that there is that gap, what is the policy objection to keeping the schedule, which is clear and certain, for use with the public duty amendment but having a catch-all provision where one is not concerned necessarily with the public duty but with forbidding direct and indirect discrimination by public authorities?
Perhaps I may ask the Minister to look with an open mind at that point because it may be desirable to return on Third Reading with a different kind of amendment which keeps the schedule but also has a generic catch-all definition. Is he willing to undertake to consider that point as a different approach?
Lord Bassam of Brighton: My Lords, I understand the questions which the noble Lord is raising. It is
common ground that the Government agree that private bodies exercising public functions should be covered by the Act in respect of those functions. We believe that the Bill as drafted allows such bodies to be added to the schedule. It is the Government's intention to do so. We should wish to consult widely on any such order.The approach which the noble Lord has suggested this afternoon was not, as he says, the original general approach that he was going to suggest to us. I have listened carefully to his comments. As I said earlier, I am happy to consider what he has said and I shall read Hansard very carefully. I can see the beauty of his solution but other considerations may well apply.
We do not see any great difficulty in adding to the schedule. That is a simple and effective way of broadening the definition. But I undertake to have another look, without any commitment, at this matter. I appreciate the comments which the noble Lord has made and the points he has raised on this issue. I suggest that that is the best we can do this afternoon. I should be happier if we could leave the matter there.
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