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The Earl of Onslow: My Lords, I take exception to something which the noble Lord, Lord Lester of Herne Hill, said. The exception I take is to the accusation that we on this side of the House would not have objected to the measures in these regulations had this been discrimination in any other form. As they have been shown to be flawed, not only by the noble Lord, Lord Lester, but by the noble Lord, Lord Ouseley, it would be an insult to our intelligence to suggest that if similarly flawed regulations were introduced on sex discrimination or other discrimination we would not have objected. I certainly would have done so on exactly the same grounds as I object to these regulations.
However, one must always give a little and take a little. I agree entirely with the noble Lord, Lord Lester, on the need for genuine, all-purpose equality legislation. It makes much more sense that there should be a general right of equality, a general right not to be discriminated against and a new Bill. I completely agree with the noble Lord, Lord Ouseley, and with the noble Lord, Lord Lester, that these regulations are flawed in themselves. They are over-complicated and they should not have been introduced at this time of night. These matters should be dealt with by primary legislation.
I suggest to your Lordships that this country has some of the best race relations in all Europe. Try being a Turk in Hamburg; try being an Algerian in Marseilles or in some of the scruffier parts of Paris. I was driving home yesterday fairly early. Some schoolchildren were leaving a school in Wandsworth. It was a racially mixed school. It was a pleasure to see the children walking along, talking to each other, with no form of discrimination in their bones at all. That is the level which race relations in this country have reached.
There are cases of discrimination and they are not necessarily white on black or white on brown. One of my favourite fishmongers is in Chinatown. There was a notice outside saying "New sales assistant required: Mandarin essential". Many school leavers from inner London schools could get a perfectly decent job in an English fishmonger and, with a little bit of training, would be able to sell cod. But those who speak Mandarin would, I assume, come from only one racial minority.
It is interesting that there is a society of black lawyers. If there was a society of white lawyers the noble Lords, Lord Ouseley and Lord Lester, would be jumping about with rage like peas in a banshee bucket—justifiably so. There is a society of black policemen. If that is not racist, I do not know what is. It strikes me as being racist.
Having said all that, the English—I use the word advisedly—I hope, are sufficiently tolerant and sensible to say that, even though it is racist, it is not unreasonable to have a society of black lawyers because it is trying to produce fairness in this world.
I am lucky enough to go sailing at Cowes. Your Lordships may ask what race relations have to do with Cowes. I went onto a boat called "Drumbeat", which had been owned by Lord Beaverbrook—Maxwell Aitken—and was now owned by an ex-sergeant in the Royal Engineers who was half-Jewish and half-Ghanaian and had made a fortune out of property. He had a crew of New Zealand rugby players to make sure that his racing was successful. That situation at one end of the social scale and the school at Wandsworth at the other shows how successful is the general ease of race relations in this country.
Of course we must not be complacent—it can all go wrong—but I am told that paragraph 41 of these regulations—I have taken a certain amount of advice—is the first legislation to change the burden of proof in the way that it does, certainly by regulation. The people I asked—one was a judge and the other was a distinguished legal correspondent—had not been briefed, but neither of them could think of a case involving this kind of reversal of the burden proof.
I was always told that it was scientifically impossible to prove a negative.
Lord Lester of Herne Hill: My Lords, in the light of the speech of the noble Earl, perhaps I may clarify what I said. I am not suggesting that the Conservative Opposition has double standards and is not attacking disability and sex discrimination legislation but only
race discrimination legislation. I was seeking to say—the noble Earl's point about the burden of proof illustrates this—that the way in which the attack has been mounted today could equally be made on the sex discrimination and disability discrimination regulations, but there has been no similar attack by the Conservative Party upon them.As to his point about the burden of proof, paragraph 41 of the regulations simply states that if the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent has acted unlawfully—that is, something like a prima facie case—then the burden shifts to the respondent to show that the act was not done on unlawful grounds.
That is a well-established concept in English law of the shifting of the burden. It has been applied in sex discrimination legislation under European law and it is being applied here under race legislation. I do not understand the Conservative Opposition to be attacking it in relation to sex equality legislation but only in respect of this legislation. If they attack it on the grounds of both they will be equally wrong, but they will be consistent.
The Earl of Onslow: My Lords, the reason that I did not tack that on is that I did not have the faintest idea that it was being introduced on the other issue. I read about the matter, thought that it was wrong and still think that it is wrong. I am still not convinced that turning the burden of proof upside down by regulation is not a "first" and it is a wrong "first".
The Government have a tendency to tyranny. On Monday, we shall hear about hearsay evidence, the reduction of trial by jury and all kinds of nasty things which I, as an old-fashioned person who likes the concept of the protection of English law for subjects of the Crown, find deeply offensive. Her Majesty's present advisers are too prone to that tendency.
That is why I dislike the measure. I do not think that this reversal of proof is a measure which any government should be proud to introduce. I agree that we should have proper equality legislation. To demonstrate how difficult it can be to define what is an ethnic minority, perhaps I may say that my great-great-great-grandmother was a Negro slave in Jamaica; and my great-great-aunt was a daughter of Tullachdan of Aude. When my great-aunt was vicereine of India, they met. She saw him. He said, "My name is Gardner", to which she said, "We must be cousins".
I am deeply disturbed by these regulations. It is an achievement for the Government to have united against them the noble Lord, Lord Lester, the noble Baroness, Lady Anelay, the noble Lord, Lord Monson, myself and the noble Lord, Lord Ouseley. It means that the Government are not thinking and are introducing the provision in a sloppy and haphazard way.
11.1 p.m.
Lord Filkin: My Lords, the first of the questions by the noble Baroness, Lady Anelay, was on the burden of proof. The burden of proof does not shift to the respondent unless and until the complainant proves facts from which the tribunal could conclude, in the absence of an adequate explanation from the respondent, that the complainant has been unlawfully discriminated against. In simple language, if it appears on the facts of the case put forward that there is a case to answer, there is an expectation and a responsibility on the person against whom the complaint is made to answer that complaint if they wish to defend themselves from the presumption that something that should not have happened has happened. If there is no prima facie evidence of race discrimination, the tribunal will dismiss the case as at present. There is no question of a respondent having to prove an unsubstantiated accusation.
The situation is not new. Employment tribunals have been applying the revised rules on the burden of proof in employment cases under the Sex Discrimination Act 1975 since October 2001. Therefore, tribunals should be well acquainted with the principle involved. We see nothing that is fundamentally wrong with this. The title "reverse burden of proof" perhaps over-dramatises in ways that may slightly mislead.
The noble Baroness, Lady Anelay, also asked about time limits. The time limit of eight weeks for a respondent to reply to the complainant is in part a question of complying with the directive. It is the directive's requirement to provide an appropriate redress to complainants. It is consistent with the approach taken in respect of the regulations implementing the employment directive.
The noble Baroness also asked about "particular disadvantage". The phrase reflects the wording of the directive. It means that the complainant must show that the provision criteria or practice concerned causes a significant disadvantage to his or her racial group which would not be suffered by persons of comparable racial or ethnic groups.
On proportionality, it has to be shown that if the provision criteria or practice cause a disadvantage, the application of the provision criteria or practice needs to be proportionate to the aim that it pursues. That means a judgment of whether it is appropriate to achieve the aim and necessary to do so. That includes consideration of whether there are less restrictive means of achieving that aim. I hope that that explanation will seem a statement of virtual common sense, rather than anything more contentious.
The noble Baroness, Lady Anelay, also asked whether the provision set down obscure and incomprehensible tests—on proportionate application, for example. Genuine occupation requirement is a narrow exception and it is important that it be drafted in the strictest terms to show that the requirement is applied proportionately. In order to clarify the application provision, employers are given the choice of showing that the requirement is not in
fact satisfied or, where that is not clear cut, to show that it is reasonable for them to consider that it is not satisfied. That will assist employers and tribunals in the practical application of the legislation.On the impact on business, we have sought to implement this directive and the employment directive so that they have an eye to each other. We recognise that employers will be under a duty to respond to both directives. Therefore—although it has met some criticism tonight—we have sought to take in parallel the processes by which they would be implemented, trying to ensure a joined-up approach as far as possible, to minimise unnecessary regulatory burdens on business. However, it is my experience that most businesses in Britain take a positive approach to the importance of race equality measures and legislation and are alive to the business case for so doing.
As a result of the changes by the directive, charities will be subject to the same employment provisions in the Race Relations Act as other employers, in relation to discrimination or harassment on grounds of race or ethnic or national origins. That change has been welcomed, because it will make the approach to employment in the Race Relations Act more consistent. That will prevent charities that target support to particular disadvantaged racial groups from being able to recruit staff from a particular racial group, unless they can demonstrate that there is a genuine occupational requirement. Charities will be able to rely on genuine occupational requirements when recruiting staff to undertake certain posts or roles where the post holder needs to be of a particular background. They will continue to be able to rely on the existing exemption to the provisions of the Race Relations Act when recruiting staff who need to be of a particular nationality, as grounds of nationality are not covered by the changes.
The noble Baroness, Lady Anelay, asked when the guidance would be produced. It is our intent to produce a leaflet and guidance by the end of June so that advice is available to employers or others in that respect.
It is with regret that I find that I have not completely satisfied the noble Lord, Lord Lester, on the way in which we have handled these important measures. The House is aware of his leadership on equality legislation. However, I shall do my best to respond to his specific questions. He asked about the 1976 Act, which covers discrimination on grounds of colour, race and ethnic origin, and the new definitions of indirect discrimination and harassment, which will apply only to discrimination on the grounds of race and ethnic or national origins.
The short answer, which I do not pretend will fully satisfy him, is that we are fully implementing the race directive. We are satisfied that we are by these measures fully implementing it, and we are doing so by the due date. As such, we are making changes that will benefit those bringing claims within the scope of the directive. The criticism from the noble Lord, Lord Lester, and others, is not that we have not implemented the directive but that we have not gone
further than the directive to extend the directive's benefits to all other elements of our race relations legislation. I hear and acknowledge that as a statement of fact. However, we are making changes that will benefit those who are bringing claims within the scope of the directive. Those bringing claims that are outside the scope of the directive will not have suffered any detriment as a result of the changes that we are making. Courts and tribunals will of course have to come to terms with the provisions; that is often the case.
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