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Lord Cope of Berkeley moved Amendment No. 15:

The noble Lord said: My Lords, here I venture again into the legal field, with the immediate caveat that I am not a lawyer; I am here to learn as much as to do anything else.

The amendment seeks to address a matter which was of concern to us in Committee, where things got extremely complicated. It addresses the problem of the interaction between criminal proceedings, on the one hand, and civil proceedings for racial discrimination under this Bill, on the other. As the Bill presented to the House now stands, a civil court can award damages but not an injunction in a civil case for racial discrimination unless it is satisfied that there would be no prejudice to the criminal case or, for that matter, to the criminal investigation if the case was still at an earlier stage.

Under the original Bill it seemed that it might also not have been possible for the court in the civil case to grant a declaration saying, for example, that unlawful discrimination had taken place in a particular instance. Subsequently, I understood from the letter of the noble Lord, Lord Bassam, to me of 25th January that a declaration might be considered a finding rather than a remedy and, therefore, not prevented by the clauses as they stand.

The noble Lord, Lord Bassam, has also tabled Amendment No. 16, which is to be discussed with Amendments Nos. 15 and 17, and makes clear that a declaration can be given by a civil court in any case. It gives equivalent wording to cover Scotland where, of course, as usual the wording is slightly different.

Amendment No. 15 returns to a point that we discussed in Committee as to the difference between "damages" and "other remedies". As we have now dealt with the declaration issue under Amendment No. 16, it would seem that the only other remedy available is an injunction of some kind. For the benefit of the non-lawyers present, I should explain that, as I understand it, the important difference is that damages are awarded to compensate someone for a discrimination which has already taken place and which has been declared to be unlawful--they are to remedy something which has happened in the past--whereas an injunction is intended to look to the behaviour of people in the future and to prevent them continuing with the unlawful discrimination or whatever it may be. So an injunction looks to the future whereas damages, as it were, seek to remedy what has happened in the past. That is an important distinction, which I well understand.

But the underlying difficulty seems to remain. In principle we do not want a civil case to prejudice, to get in the way of, a criminal case. I said in Committee--I shall repeat it in case any noble Lords should misunderstand--that I do not take the view that every criminal case is automatically more important or more significant than any civil case can be. Clearly that is not so. There can be criminal offences of a small nature which are not very important, and there can be very serious racial discrimination involved in a civil case.

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The unlawful discrimination involved in a civil case may be much more important than a small theft or a small criminal offence. None the less, it seems to me that the criminal law should be, as it were, satisfied in general before the civil case comes along.

There are two ways in which this can happen under the Bill. One way is under the later provisions which provide for a stay of civil proceedings. Under those provisions the civil proceedings wait until the criminal proceedings are completed; and then they are resumed as soon as the criminal case is finished and carried through to their conclusion. However, it seems to me that even a declaration--and certainly damages--could affect a criminal case. For example, if the police were found by a civil court to have collected evidence using unlawful discrimination, surely that evidence would be tainted in the criminal case--it might even be inadmissible in the criminal case. That would be quite right if the evidence had been improperly obtained through something that was unlawful from the point of view of the Bill. However, there may be other cases where that was not so but, none the less, the declaration could affect the criminal case.

So far as concerns damages, it could be at least difficult in many cases for the civil court to assess damages if there is a related criminal case still proceeding. It seems to me that the civil court would have to wait until the criminal case was completed to know what the damages should be. The result of the criminal case will affect the decision about the amount of damages.

I am not criticising what the Government are trying to achieve, as I understand it, by these positions. I am trying to tease out, as much as I can, whether the Government have got it right and, for that matter, precisely what they are trying to achieve. As I understand it, with the aid of Amendment No. 16 they seek to achieve that someone will be able to obtain a declaration that there has been unlawful discrimination and able to obtain damages for unlawful discrimination in the past, but they will not be able to obtain an injunction to have the discrimination stopped should it take place in the future.

I am afraid it is still unclear to me why it is necessary to make such a clear distinction between these different remedies and I think it is right to share my doubts with the House. I do so by moving this probing amendment. I beg to move.

The Deputy Speaker (Baroness Turner of Camden): My Lords, I must inform the House that if Amendment No. 15 is agreed to I cannot call Amendment No. 16 due to pre-emption.

Lord Lester of Herne Hill: My Lords, the more I listen to the noble Lord, Lord Cope of Berkeley, the more I realise that he would have made an excellent lawyer and I would have made a terrible accountant.

In speaking to his amendment and explaining why I am not in favour of it, I hope it will be convenient to the House if I speak also to Amendments Nos. 15 and 17 as they deal with a linked subject matter.

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The issues with which the amendments are concerned are how to preserve a fair balance between effective remedies for the victims of race discrimination, on the one hand, and preserving the integrity of criminal proceedings and the presumption of innocence, on the other. Sections (4D) and (4E) of the amended Race Relations Act would give the courts very wide protective powers to ensure that the integrity of criminal proceedings and the presumption of innocence are well safeguarded. I have every confidence in the vigilance of the courts in protecting the presumption of innocence and the integrity of the criminal process.

The objection to Amendments Nos. 15 and 17 is that they would deprive victims unnecessarily of effective remedies for race discrimination and at the same time would disable the Commission for Racial Equality--I am using shorthand in what I am saying--from having the benefit of a declaration or finding, which could be used in cases of persistent discrimination or for formal investigations. Amendment No. 15 would deprive victims of a remedy if there was a possibility of prejudice. I do not consider that an award of damages would cause prejudice given that proceedings can by stayed in any event under new Sections (4D) and (4E).

Amendment No. 16, by contrast, meets the point that was raised in Committee. It allows declarations as well as damages to be granted, as the noble Lord, Lord Cope of Berkeley, pointed out. That would enhance the CRE's investigative ability and answer the concerns raised in Committee. For those reasons, I oppose Amendment No. 15.

Lord Cope of Berkeley: My Lords, before the noble Lord sits down, I am grateful to him for his flattering comments. My amendment would not deprive someone of a remedy or, for that matter, a declaration, though it might postpone that remedy or whatever.

Lord Lester of Herne Hill: My Lords, I stand corrected. It would deprive the victim of a speedy remedy in circumstances where there would be no necessity for depriving the victim of that remedy and disable the Commission for Racial Equality from being able to use its investigatory and monitoring powers. I stand corrected. The word "speedy" should be added.

Lord Avebury: My Lords, I can see only one problem. New Section (4E) states:

    "Where no decision to institute criminal proceedings has been made, the court shall not grant a stay ... unless it is satisfied that the continuance of those proceedings would be contrary to the public interest".

But let us suppose that the criminal proceedings are not in contemplation at the beginning of the proceedings in the civil court, but that half-way through those proceedings the police decide, in consultation with the CPS, that there are grounds for taking criminal proceedings against an individual. In those circumstances, I do not see how new Section (4E) would come into play. The civil court would not have known that the criminal proceedings were in contemplation if

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that was not the situation until half way through the case was being heard in the civil court. I wonder whether that poses a difficulty for the protection of the criminal proceedings which otherwise is admirably provided by the amendment in question.

Lord Lester of Herne Hill: My Lords, before my noble friend sits down, perhaps I may help him by pointing out that new Section (4D) would apply at any time during the trial of the civil proceedings if in the course of that trial a decision were taken to institute criminal proceedings. New Section (4D) would come into play and the court would exercise its prophylactic powers if it were necessary to do so.

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