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Baroness Prashar: My Lords, I do not underestimate the difficulties faced by the Immigration Service--

Lord Bach: My Lords, I am sorry to interrupt the noble Baroness, but I must remind the House that this is the Report stage of the Bill. I believe I am right in saying that after the Minister has responded and sat down, only the mover of the amendment may speak. I apologise, again, for interrupting the noble Baroness.

Lord Lester of Herne Hill: My Lords, I am glad and grateful that the Minister has given his explanation, but I am very concerned about the matter. Like everyone else, I am strongly against any form of dishonesty or evasion of immigration control and in favour of firm, fair and effective immigration control. That is not in issue. I accept that the policy must be based on nationality and country of origin; and, indeed, humanitarian considerations, together with other special grounds. But what worries me--

Lord Bassam of Brighton: My Lords, I am sorry to interrupt the noble Lord, but perhaps he will bear with me for a moment.

I have explained carefully that we intend to consider and publish guidance in this field. Clearly we will have to publish such guidance and, obviously, we will have to take on board comments made by your Lordships and others. I should like to think that, in the guidance, we can tackle the concerns and issues that the noble Lord has quite properly raised on the Floor of the House this afternoon. I make that point because I believe it might help the noble Lord in determining how he wishes to proceed with the amendment.

Lord Lester of Herne Hill: My Lords, guidelines are crucial and they must be transparent. I also believe that they should be subject to parliamentary scrutiny and approval. I add the words "and approval" because

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I think that this is quite an exceptional situation where Parliament should act as a watchdog over any approval of ethnic discrimination of this kind. However, perhaps I may try to explain why I am so concerned.

Everyone in this House understands that the police must not use their stop and search powers on the basis of racist assumptions. But if they cannot stop black people because of their ethnicity, they cannot take a short cut and say, for example, with regard to the Chinese, "We think that there is a great deal of criminality of a particular kind among the Chinese community, so anyone who looks Chinese will be stopped and searched for the very important function of detecting and prosecuting crime". The Home Office has accepted, and we have accepted in this legislation, that that conduct must be unlawful.

It is unconscionable for a public officer to treat one person worse than another in exercising the powers of the state because of that person's ethnicity. There is no difference between ethnicity and a person's colour. If you look Chinese, it does not matter whether it is because you look yellow or have Chinese features; it is to do with characteristics that you cannot help. For the Immigration Service to stop and search in precisely that way on the basis of ethnic stereotyping is, I suggest, equally unacceptable. No guidelines are going to make it acceptable.

The point is that as a matter of principle immigration officers should not be stopping, searching and interviewing people differently because they are black, Chinese or because of any other ethnic reason. I very much hope that between now and Third Reading we will be able to find an appropriate form of words. It would be very sad if the Bill were to leave this House with a very important fundamental principle still being contentious.

I am very grateful for the letter and the explanation I have received, but I still think it is contrary to the very principles of the legislation to allow immigration officers to treat people differently because they look Chinese any more than because they come from the Caribbean and they are black. I see that we are dealing not with colour discrimination but ethnic discrimination. For the reasons I have given, I do not think that this is acceptable. The noble Lord, Lord Cope of Berkeley, very helpfully throughout these debates has taken exactly the same point of principle, distinguishing between ethnicity and nationality. We all see the reasons why the Home Office must distinguish on the basis of nationality, country of origin and humanitarian considerations. I very much hope that we can make progress on this between now and Third Reading to find a form of words which will give the Home Office all the protection it needs without undermining the very principles of the legislation. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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5.15 p.m.

Lord Bassam of Brighton moved Amendment No. 10:

    Page 3, line 12, leave out from ("or") to end of line 13 and insert ("where such a decision has been made, to any act done for the purpose of making a decision about instituting criminal proceedings."").

The noble Lord said: My Lords, the Government's policy objective with Section 19B of Clause 1 will preserve the role of the criminal court as the sole forum for determining guilt, while keeping the exemption in Section 19B as narrow as possible. I think there is agreement on all sides that this is a proper and necessary objective.

At Committee stage the noble Lord, Lord Lester, brought forward an important amendment to narrow this exemption. I said in Committee that the Government felt that the clause was broader than would be ideal and I indicated that we would wish to bring forward an amendment which would meet our concerns in relation to the decision-making process while narrowing the exemption as much as possible. I believe that the Government's amendment achieves that objective.

It is intended to leave significant but remote acts such as the initial arrest itself and, where appropriate, the gathering and assessment of evidence subject to Section 19B. However, it would continue to provide the protection that we believe is necessary for acts done for the purpose of making a decision about instituting criminal proceedings which may result in any decision not to prosecute.

The Government believe that if the role of the criminal court as the sole forum for determining guilt is to be preserved it is every bit as important to protect such acts from action under Section 19B as it is to protect the decision not to prosecute. As was acknowledged on all sides at Committee stage, there is a balance to be struck between two laudable aims and objectives. On the one hand, there is the need to ensure that individuals have a right to a remedy where discrimination has taken place and, on the other hand, there is the need to ensure that matters of criminal guilt are determined in the criminal court. I believe that this amendment strikes the right balance and on that basis I would commend it to your Lordships. I beg to move.

Lord Lester of Herne Hill: My Lords, we welcome and strongly support this amendment. It tightens the language in a satisfactory manner. It reduces the scope of immunity from racist acts to the minimum necessary to protect the rights of the accused. We therefore support the amendment.

Lord Cope of Berkeley: My Lords, the noble Lord, Lord Lester, is much more able to judge the effect of the amendment than I am. I just wish to probe for a few moments what it actually achieves, because I am not quite clear. The amendment refers to the purpose of making a decision about instituting criminal proceedings, but at least some of the actions of the police in the course of the investigation will be about deciding whether or not an individual committed the

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offence which is being investigated. They will be gathering evidence, looking at alibis and many other things. They will be asking themselves in the first place: did this man or woman commit the offence? Have we got the right suspect? Secondly, they may well ask themselves: if we have got the right suspect can we bring the case to court successfully and should we institute criminal proceedings?

Many of their actions in interviewing a person, even in arresting somebody, seems to me to be about trying to decide whether they have indeed got the right suspect and whether they have sufficient evidence to institute criminal proceedings. I am not quite clear therefore that any act done for the purposes of making a decision on instituting criminal proceedings does not actually also cover a large part of police investigation. Certainly it would be arguable in many cases in court.

In probing what these things mean and why they are necessary I do not necessarily want to be taken as having gone along with the proposition made here. The noble Lord, Lord Lester, said in connection with the last amendment that I had been concerned about ethnicity and immigration during our Committee stage debates. However, I was actually probing at that stage as to whether or not ethnicity was a necessary consideration in regard to immigration. I was neither supporting nor rejecting that proposition, but one does need to understand the legislation to make sure that the Government are achieving what they wish to achieve. The same principle applies to this amendment.

I do not want the actions of the police to be impeded, as it were, by legislation of this character when they are making a decision about criminal proceedings. However, I am not quite sure whether the actual wording of this amendment achieves that aim. An act done for the purpose of making a decision about instituting criminal proceedings seems to me to include many of the activities of the police.

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