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Lord Lester of Herne Hill: My Lords, I am extremely grateful to the Minister for his reply. Without repeating what has been said, perhaps I may try to clarify for the last time today what this is really about.

I take as a hypothetical example a privatised prison organisation. Let us assume that that privatised prison organisation discriminates on racial grounds against a prisoner and the prisoner brings proceedings against the privatised prison body. Let us assume that the privatised prison body is not listed in the schedule, but there is no doubt that under the Human Rights Act, it would be a public authority which must not discriminate against somebody in the enjoyment of the right to liberty or something of that kind. Let us now assume that that victim brings proceedings against the privatised prison authority. What the Minister's letter to my noble friend Lord Avebury means is that there would then have to be case law to determine whether or not that privatised body was exercising a function which fell within Section 20 of the existing Race Relations Act.

I can only say, having read all the cases on Section 20, that the case law is in a complete mess and the case would have to go to the House of Lords. The correctness of the Re Amin decision would have to be reconsidered. That is what the Minister's letter really amounts to because one could not tell, without analysing all that case law, whether or not it was within Section 20.

The remedy given by the Government is to add to the schedule that body which I assume is not there already. That does no good for the victim because the victim's case will fail because the body has not already been included in the schedule. So there is a completely ridiculous gap and there will be a lot of litigation for no good reason.

Therefore, it seems to me that the solution is to distinguish between the positive duty which needs to be linked to the schedule and the general duty not to

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discriminate, with a remedy which needs also to have a generic definition. I hope that I have clarified where I stand on this. Therefore, I propose to reflect on this, as will, I am sure, the Government and then see whether it is possible to agree or, if we disagree, to return on Third Reading with an amendment which puts forward an option different from that suggested today. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 7 not moved.]

Lord Lester of Herne Hill moved Amendment No. 8:

    Page 2, line 21 at end insert--

("(9) Nothing in this section shall make unlawful any measures appropriate and necessary to meet the special needs of persons of a particular racial group or any measures designed to prevent or compensate for disadvantages suffered by persons of that racial group.").

The noble Lord said: My Lords, I think I am right in saying that the Government have already indicated in previous debates that they are sympathetic to the need for an amendment along these lines to widen the circumstances in which positive action can be taken to meet the special needs of persons of a particular racial group or any measures designed to prevent, or to compensate for, disadvantages suffered by persons of that racial group.

The amendment permits public authorities to take proportionate measures to ensure that the special needs of racial groups are met. It supplements the ability of public authorities to justify policies and schemes that are intended to benefit particular communities.

In Committee the noble Lord, Lord Bassam, said that he "saw merit" in the amendment and would like to take it away to consider. Section 35 of the 1976 Act allows positive action as regards access by ethnic minorities to facilities or services to meet their special needs in the context of education, welfare and ancillary benefits. As it stands, the section is too narrow and too confined in scope. Our amendment would expand the ability of public authorities to take positive action when appropriate to meet the needs of a particular racial group.

Where special measures are targeted on grounds such as language, employment history and prospects, or length of residence, that could potentially constitute indirect discrimination. That was one of the Government's objections to widening the law to cover indirect discrimination. The amendment will enhance the Government's ability to take special measures and reduce the possibility of spurious and misconceived cases.

The amendment reflects the European Commission's proposal for a racial equality directive. As I understand it, that directive has strong support within the Government and there is a similar exception in the directive. New Zealand has a similar piece of

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legislation in Section 73(2) of the Human Rights Act 1993, and I understand that Ireland is introducing a similar provision in its Equal Status Bill. So there is solid support for an amendment of this kind. I beg to move.

Lord Cope of Berkeley: My Lords, I realise that there is a connection between this amendment and Amendment No. 2, which was not moved. That amendment dealt with indirect discrimination to which the noble Lord, Lord Lester, drew attention. My only doubt about this amendment is whether it is necessary. We know that any proper reason for an action--I do not refer to discriminating racially--is not covered by the Bill or the 1976 legislation. I share with the noble Lord, Lord Lester, the desire to avoid spurious and misconceived cases clogging up the courts and everybody's time. If it is necessary to achieve that, perhaps we need a provision of this character in the Bill. However, it seems to me that the principle, at least, is covered in the 1976 legislation and, therefore, in this legislation. If it is required, we should consider it, but I am sure that the noble Lord, Lord Bassam, has reflected on it as he promised and we shall hear the results of his reflection now.

Lord Bassam of Brighton: My Lords, as I explained when debating this amendment in Committee, it would allow positive action to be taken in the functions of public authorities to which Section 19B applies. The aim of positive action is to create a level playing field. The amendment broadly follows the approach taken in Section 35 of the Act which provides for positive action in relation to the access of racial groups to facilities or services to meet their special and individual needs in the context of education, training, welfare, or any ancillary benefits. In fact, there is a degree of overlap between this amendment and Section 35.

In Committee I agreed, as has been acknowledged, to give further consideration to this amendment. In view of the Government's decision to bring forward an amendment to extend Section 19B to include indirect discrimination, we need to consider the amendment further--as we are doing--in that context. To the noble Lords, Lord Lester and Lord Cope, I say that it would help all of us if this amendment were withdrawn. We need to reflect on it further. We need to engage in more discussions on how to bring forward something that is fit for the purpose. I am grateful to the noble Lord for tabling the amendment, but if he will take that explanation as gospel I shall happily do some more work on the matter so that it fits with other parts of the emerging legislation.

Lord Lester of Herne Hill: My Lords, the word "grateful" will appear so often in this debate that those who have to report our words in Hansard will become tired of having to set it out. I am genuinely grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Lester of Herne Hill moved Amendment No. 9:

    Page 2, leave out lines 22 to 25 and insert--

("(1) Nothing in section 19B shall render unlawful any act done by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion, or ethnic or national origin special treatment on humanitarian grounds.").

The noble Lord said: My Lords, Amendment No. 9 stands in my name and those of the noble Baronesses, Lady Prashar and Lady Howells. In previous debates I have said a great deal about this matter. I shall not repeat what I have said. The Minister sent me two letters explaining the position within the Home Office. Having read the letter of 26th January I now understand better than I did before what the concerns are of the Immigration and Nationality Directorate. However, I am still concerned about the great breadth of the exception, as it stands, in authorising ethnic discrimination in respect of any aspect of immigration control or the conferring of naturalisation and the effect that that may have in damaging the good reputation of the Immigration Service.

I have already expressed those views, and I believe it would be more sensible not to add to my comments--I know other noble Lords wish to speak to this amendment--but to listen to the Minister's explanation. No doubt he will put on record the substance of his letters to me and consider the matter further. I beg to move.

Baroness Prashar: My Lords, before I speak to this amendment I want to congratulate the Government on the two announcements that have been made. The extension of indirect discrimination to public authorities is particularly welcome. However, on this issue, to date I have heard no clear or convincing case for the exception that would allow Ministers of the Crown and immigration officials to discriminate on grounds of ethnic and national origin. Nothing that has been put forward has convinced me. I have carefully studied the Minister's letter to the noble Lord, Lord Lester, which was placed in the Library, and that has concerned me even more. I shall quote the paragraph that causes me concern:

    "It has also become clear during the course of our examination that it is also necessary on some occasions for the Immigration Service to differentiate between individuals on the basis of their ethnic or national origin. As an example, from time to time, the Immigration Service detects Chinese nationals with falsified documents that misrepresent them as Malaysian or Singaporean nationals of Chinese ethnic origin. Were this problem to grow significantly, it would be necessary for the Immigration Service to scrutinise with particular care the documents presented by these nationals of Chinese ethnic origin and to interview them".

I see the problem. My concern is that that would actually perpetuate stereotyping and that needs further consideration. Furthermore, in my view, this exception is incompatible with the principle of non-discrimination that the legislation is designed to serve. It will undermine the confidence of ethnic minorities in the legislation. I, for one, have vivid memories of the case of the East African Asians who, in 1968, were treated differently on grounds of their ethnic and national origin. As noble Lords know, the matter was

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taken to Strasbourg. That has had a long-lasting adverse effect both on ethnic minorities and on race relations generally.

Exceptions in immigration, as other matters, should be based on objective considerations, such as conditions in countries of origin or fear of persecution, and not on ethnic or national origins. I fear that this blanket exception will give unfettered power to Ministers of the Crown and immigration officials to discriminate on grounds of ethnic or national origin, which may be administratively convenient but in my view is totally unacceptable on any other reasonable grounds. For that reason, I urge the Minister to reconsider the position.

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