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Baroness Anelay of St Johns: My Lords, I am being taken to task by the noble Lord, Lord Lester, but I am not attacking any concept of equality—I made that clear in my opening remarks. I am attacking the way in which the Government are going about it. My assault is upon them, not upon equality.
Lord Lester of Herne Hill: My Lords, I had thought that the attack was on the particular proposals in these regulations. I am saying that those proposals are in well-established discrimination legislation dealing not only with colour and race but also with other types of unjustifiable discrimination. There is nothing very novel about any of this. Indeed, I will be criticising the regulations from an entirely different perspective; namely, that the Government are, I think, to be criticised for having decided to implement the directives not by coherent, consistent, accessible, joined-up and user-friendly primary legislation, but instead to proceed by way of piecemeal and disjointed delegated legislation—that is to say, by means of statutory instruments made under Section 2 of the European Communities Act 1972: a "nanocratic" decision that will disfigure the existing body of anti-discrimination legislation.
That nanocratic decision was taken last year for short-term reasons of political convenience. It means that the Government do not have to consider how best to remake the existing tangled web of anti-discrimination legislation, a pressing need so long signalled by the equality agencies and by independent experts. It means that parliamentary time is used instead to enact the endless flow of criminal justice and other Bills produced by the Home Office law factory. Incidentally, I have still received no answer to a Parliamentary Question tabled on 9th May seeking to discover the extent to which those consulted argued for the use of primary and not secondary legislation. I very much hope to receive that reply before next Tuesday when we deal with the last batch of these equality regulations.
The defects in that misguided approach are exemplified in these regulations as the Commission for Racial Equality—I am so glad that the noble Lord, Lord Ouseley, will be speaking as a distinguished and powerful former chair of that body, the public guardian of the Race Relations Act 1976—has pointed out. I have written to the Minister giving notice of some of my main concerns so that he is able to deal with them in his reply this evening rather than in correspondence at a later stage. This is our only chance as legislators to probe the Government's intentions on these important matters before the regulations become part of the law of the land.
By using Section 2 of the 1972 Act, the Government and Parliament are narrowly circumscribed in what can be done to amend the Race Relations Act. The powers conferred by Section 2 go no further than what is required to transpose the directive into our internal law. That is the main source of the incoherent and inconsistent amending regulations that we are asked this evening to approve. Perhaps I may give just one example—the burden of proof. How can it make any sense whatever to have a different burden of proof in employment discrimination cases than in education or housing discrimination cases on the basis of colour or race? It makes no sense whatever. However, it is part of the general pattern of legislating in this area, without any respect for internal coherence.
In my letter to the noble Lord, Lord Filkin, I raised the following as particular concerns. First, the Race Relations Act 1976 covers discrimination on the grounds of colour, race, ethnic or national origins and, with the exception of immigration functions, nationality. The new definitions of indirect discrimination and harassment, the shift in the burden of proof and the new exception for genuine occupational requirement in the regulations will apply only to discrimination on the ground of race, ethnic or national origins, and not colour or nationality. How can the Government avoid that resulting in confusion and potential injustice to applicants who may not know whether they are being discriminated against by reason of their ethnic origin or their colour?
Surely the CRE is right in stating that it is,
- "illogical to implement the principle of equal treatment by providing for greater protection from discrimination on grounds of race and ethnic or national origin but not colour. The principal trigger for racially discriminatory behaviour is frequently colour: discriminators will seldom know the victim's ethnic or national origin and sometimes not the racial group but 'colour' is a visibly different characteristic".
- "create more complex and confusing legislation for individuals, employers, businesses and the public sector and the new public duty to promote racial equality. In particular, the . . . Regulations . . . will create a two-tiered structure within the 1976 Act".
Does the Minister agree? If not, why not?
Secondly, the new provisions, such as the new definition of harassment, the shift in the burden of proof, and so on, will not apply to many functions of public authorities—for example, police functions,
such as stop and search, arrest and detention, functions of the immigration service and the enforcement or regulatory functions of local authorities. I have asked the noble Lord whether the Government accept that this will create widespread confusion among those carrying out public functions, with the result that they will not know which standards apply to which functions. How will such confusion be avoided in practice?Does the Minister agree with the CRE's assessment that the regulations,
- "will inevitably result in increased litigation to clarify the law with financial consequences for businesses, complaint aid organizations, including the CRE, and the courts and tribunals"?
I certainly agree with that view. If the Minister disagrees, I should be grateful if he would explain why this is not likely to be the undesirable practical outcome.
Thirdly, the regulations do not apply to many of the functions of public authorities imported into the Race Relations Act 1976 by the Race Relations (Amendment) Act 2000. That is another example of what will be a two-tiered structure. Does that not inevitably mean that the resulting complexity in the legal framework will make it very difficult for public authorities to comply with their new statutory duty under the recently amended Race Relations Act 1976? Again, if the noble Lord disagrees, I should be grateful if he would explain why this is not the likely, and undesirable practical outcome?
Fourthly, the fact that these provisions have been implemented through regulations rather than primary legislation will inevitably lead to an even more complex and opaque legal framework. Given the time-scale involved, I appreciate that primary legislation cannot now be introduced in time to implement the directive. But will the Government give serious consideration to the proposal that the regulations should be introduced as temporary provisions prior to the introduction of a single Equality Bill, or a new, modernised Race Relations Act? That would address the differences between the directive and existing primary legislation and provide equal protection on the grounds of colour, race, nationality or ethnic or national origin, and in respect of all public functions. If not, when do the Government intend at last to grasp the nettle and remake the anti-discrimination legislation enacted more than a quarter century ago?
Eighty years ago, FM Cornford published his well-known guide for the young academic politician, in which he examined the argument that,
- "the Time is not ripe".
- "The principle of unripe time is that people should not do at the present moment what they think right at that moment, because the moment at which they think it right has not yet arrived".
It saddens me that the Government are so timorous and lacking in ambition in this important area. It dismays me, frankly, that they are still so far from fulfilling their bold 1997 election manifesto promise to tackle unjustifiable discrimination "wherever it exists". I look forward to the Minister's considered
and full response this evening to the concerns that I raised in advance. I hope against hope and experience for some assurance that the Government will at last accept that the time is ripe for coherent, comprehensive, accessible equality legislation that can be enjoyed in practice to be introduced and enacted.
Lord Monson: My Lords, I do not want to blame the noble Lord, Lord Filkin, who is in no way personally responsible, but, as the noble Baroness, Lady Anelay, said somewhat more politely, it is pretty deplorable that regulations as important and controversial as these should not be considered until well after 10 p.m. At least yesterday's disability regulations of a similar order of importance came before the House at about half past three.
What is so disgraceful about all these EU regulations we are discussing this week and next is, as the noble Baroness said, the enforced abandonment of our ancient tradition of "innocent until proven guilty". The accused will now be deemed guilty, albeit guilty in the civil rather than criminal sense, unless he or she can prove otherwise.
Whatever the Government may say in public, I expect that they must agree with me in their hearts. Otherwise, they would have automatically introduced this radical change off their own bat some years ago without waiting for the EU to bully them into doing so. After all, the Government have been in power for more than six years.
Incidentally, what demand has there been from the ordinary citizens of the EU for the introduction of this unfair practice? Virtually none, I suspect, as I am sure a referendum or public opinion poll across the EU would reveal. As with so many "euro-laws", as one might describe them, the whole thing is driven by a small group of no doubt sincere zealots. Perhaps that is a tautology as zealots are by definition sincere.
The whole of page 3 of last Sunday's Sunday Telegraph was devoted to an expose of a Nigerian gentleman who claimed that he had been discriminated against 72 times. He lost 70 cases and won a partial victory in only two, but his actions have so far cost businesses, hospitals, local government and the police more than £0.5 million in legal and other costs. One can predict that if these regulations become law, such cases will mushroom, spurred on by lawyers who encourage grievances.
I have no personal axe to grind, but why are partnerships included—that is, tightening up the law—as partnerships have nothing to do with any employer/employee relationship? Do similar laws in other EU countries extend—
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