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Lord Lester of Herne Hill: My Lords, I am grateful for that answer, but there is something that I do not understand about it. The race directive itself, as the noble Lord, Lord Ouseley, indicated, refers to grounds of racial or ethnic origin. Would the Minister not agree with me that, if someone is discriminated against on the grounds of racial or ethnic origin, in ordinary common sense language that would include their colour? When someone is the victim of a colour bar, would we not all say that that person is the victim of racial discrimination? So I do not understand why the directive is not being implemented more faithfully to include colour bars as well as other forms of racial discrimination. Will the Minister deal with that point?
Lord Filkin: My Lords, I can deal with it to the best of my ability as a non-lawyer as compared with the noble Lord, Lord Lester. Our understanding is that the directive does not apply to discrimination on the grounds of colour, and that it specifically includes discrimination on the grounds of nationality. That is our understanding and interpretation of the directive: it does not apply to colourhence the difference that the noble Lord has raised.
The Earl of Onslow: My Lords, how does anyone allow a directive to be passed which says, "You can't do it because you're West Indian, but we're not going to complain because you say you are black". That merely seems stupid. Why do we pass such legislation?
Lord Filkin: My Lords, perhaps I may further address the second question raised by the noble Lord, Lord Lester. We do not expect that we are creating widespread confusion in this area. The new statutory definition of harassment, for example, mirrors the concept which has been developed through case law. We do not consider that it will be unduly difficult for the courts or public authorities to determine whether the provisions of the directive apply to particular functions.
It is already clear that functions of public authorities that constitute the provision of goods and services are covered by the directive. Courts may, in some circumstances, have to determine whether a particular function falls within the directive. Our discussions across government, however, have led us to the conclusion that this is unlikely to cause significant problems. Again, of course, we are fully implementing the directive.
The Earl of Onslow: My Lords, will the Minister answer my question as to why there is this differencethis lack regarding colour and race? He has done what I have seen Ministers of all parties do. When asked a difficult question, he has stuck his head down, got his neck into his collar, read his brief and hoped that people will ignore and forget what they have asked. Please will he answer the point about the difference between colour and race?
Baroness Anelay of St Johns: My Lords, I wonder whether I might interrupt the Minister. I think there has been a genuine misunderstanding. I think that my noble friend was seeking to agree with the noble Lords, Lord Ouseley and Lord Lester of Herne Hill. He was not questioning the need for this legislation per se. He was questioning the disparity between a definition including a reference to nationality without referring to the word "colour". He was trying to agree with both noble Lords who raised that point and felt that perhaps the Minister had not adequately responded. I hope that that assists the Minister. From my knowledge of my noble friend, I believe that that is exactly what he was trying to present.
Lord Filkin: My Lords, I shall do my best again to respond. My understanding was that the noble Earl was asking why colour was not covered in the directive but race was. There, I am in some difficulty, because the directive was passed in 2000 and I was not party to it. I have no knowledge of the negotiations. I can do my best to research the matter, but I am not in a position now to give an answer as to what happened at that point in the negotiations. I shall do my best to see whether I can find a fuller answer and write to the noble Earl, Lord Onslow, on that point.
The Earl of Onslow: My Lords, I thank the Minister for that answer. It is such a relief when someone says: "I don't know the answer. I shall go away and find it". That is always appreciated. I am sorry if I have been slightly beastly to the noble Lord. I thank him for that last intervention.
Lord Lester of Herne Hill: My Lords, when the Minister does his research, will he note that the preamble to the directive contains a reference to the International Convention on the Elimination of All Forms of Racial Discrimination that includes colour? It was plainly contemplated by the makers of the directive that colour should be included. The definition in the international convention is the one in the Race Relations Act and the one in international
Lord Filkin: My Lords, I am glad to give an undertaking to do so and to press the point strongly. I shall respond in parallel to both noble Lords and to other noble Lords who have raised the issue, which to my recollection included the noble Lord, Lord Ouseley.
The third question raised by the noble Lord, Lord Lester, was about the regulations not applying to many of the functions to public authorities which were imported into the Race Relations Act 1976 by the Race Relations (Amendment) Act 2000. Again, we do not think that public authorities will be caused undue difficulties. Although not all public functions may be within the scope of the directive, many are. In any event, the new statutory duty applies to all forms of unlawful discrimination whether they are unlawful by virtue of the original provisions of the 1976 Act, by virtue of the amendments made to that Act by the 2000 Act or by these regulations.
Public authorities will not therefore have to take a significant number of new issues into account in complying with the duty. We do not anticipate that the regulations represent a significant burden, if any, to public authorities in this respect.
On the fourth question asked by the noble Lord, Lord Lester of Herne Hill, regarding whether this provision will inevitably lead to more complex and opaque legislation and on the question of a single equalities Bill, the Government welcome the noble Lord's Bill as a major contribution to the debate on equality. However, as he knows, and I am sure does not celebrate, we are not at this point in time of the view that a single piece of legislation at this stage would be appropriate.
Equality legislation is constantly evolving. Our view is that an incremental approach to implementing equality legislation allows us fully to think through the implications at each stage. We shall be indicating our thinking on a single equalities body and making public how the Government intend to move forward on that. I hope that we can make that clear before the summer.
However, I have heard the comments that have been strongly argued from at least three points in the House about whether this legislation will be complicated to implement. I repeat that the directive is being fully implemented in our judgment. Therefore, we are fully in compliance with the directive by the timetable it sets.
The argument has been made that the issue may be more complicated by using secondary rather than primary legislation. I shall commit to monitor the situation. We will look at evidence from the CRE, from practitioners and elsewhere so that we are in a position to track if there are difficulties experienced which in our own judgment are greater than those we have concluded will be the case.
Perhaps I may put this point for further thought by him and his department. The difference in the race directive is that it applies beyond the employment field. The Government have levelled down to the framework directivefor example, so far as concerns the burden of proofin a way that means that it is lightened in employment cases but not in other cases, even though that is not what the directive says. That is a good example of not giving full faith and credit to this directive because the Government are concerned about broader considerations in the framework directive. I should be grateful if that could be looked at as well.
Lord Filkin: My Lords, I shall certainly undertake to look also at that. What I was seeking to express was not exactly as put by the noble Lord, Lord Lester, that we were seeking to implement the provisions in exactly the same way legally, but to think about the consequences and the processes of their implementation on the end targetthe employerto try to see where as far as possible, consistent with a duty to implement each of them, one could do it in a way that would make the regulatory burden on business less rather than more.
In conclusion, on that general point, before turning to one or two others, I wanted to say that we shall monitor the situation to see whether there were problems with its implementation and look to rectify any inconsistencies that resulted when a suitable opportunity arose.
The noble Lord, Lord Monson, also raised the charge that we were being bullied by the European Union in that respect. In fact, Article 13 was not a product of the European Union bullying us but, if anything, the European Union taking the basis of British race relations and seeking to use it as a platform to apply to other European Union countries. That is in part why we have taken the view that the impact on us of the directive is relatively minor compared with the impact on most other European member states, which have had to pass substantial legislation to bring themselves into compliance with it.
The noble Lord, Lord Monson, also asked about the issue of partnerships. The directive covers partnerships in Article 3(1)(a), which sets out the scope of the directive and refers expressly to access to self-employment. A partnership that refuses to admit a person to be a partner on the basis of his race will be in breach of the principle of equal treatment laid down in the directive, which is why it has been included.
The noble Lord, Lord Ouseley, made a strong, trenchant and painful criticism of the Government. It is doubly painful to hear them from him, given the leadership to race equality that he has given in his previous roles. Nevertheless, without necessarily answering every question, we believe that we are fully complying with the directive.
I shall address one or two more points and then make a general concluding comment. On the issue of indirect discrimination, Article 7 requires a remedy to be available to persons who consider themselves wronged. Individuals who respond to discriminatory advertisements but do not gain employment, for example, will still be able to bring employment tribunal proceedings alleging discrimination in recruitment and will able to rely on the new burden of proof provisions in support of their case.
In theory, it will also be open to an individual who had not responded to a discriminatory advertisementbecause the advertisement had discouraged him from applyingto bring tribunal proceedings. However, such a person may be unlikely to want to bring proceedings and, if he does, will not necessarily be successful because, if he did not apply for a job, he will have difficulty proving financial loss; or may have difficulty showing as a matter of law that the employer discriminated against him as an individual; or that the employer is under a duty to make adjustments where he does not and ought not reasonably to know that the person might be an applicant.
The current arrangements ensure that the CRE can take a strategic approach to discriminatory advertisements, while also being able to act against persistent offenders. I have answered the noble Lord, Lord Ouseley, with respect to our firm view that the directive does not apply to discrimination on grounds of colour. I hope that he will bear with me if I have not covered all his points, but there are one two others that I should cover.
On the definition of harassment, subsection (2) of new Section 3A makes clear that when considering whether the conduct has the effect of violating dignity, tribunals must take into account all relevant circumstances, including the perception of the complainant, but it will be regarded as harassment only if the tribunal is satisfied that the conduct complained of should reasonably be considered as having that effect. So trivial incidents would not constitute harassment, even if the complainant genuinely believed that his dignity was violated.
We do not accept that that definition goes too far. The provisions reflect the judgment of the Employment Appeal Tribunal in the case of Driskel v. Peninsula Business Services, decided in 2000. Employers should not be found guilty of harassment just because the complainant thinks that he has been harassed. Subsection (2) of new Section 3A does not apply to conduct intended to violate dignity; that would always amount to harassment, irrespective of perception.
The only other comment that I want to make to the noble Lord, Lord Ouseley, is that although he is more than disappointed about how we have implemented the directive, I reaffirm that the Government's commitment in practice to drive race equality and equality of opportunity in our society is as strong as that of any government has ever been.
The mechanism of the law may not be in exactly the form that the House may have ideally wanted, but we will use the lawthe Race Relations (Amendment) Act 2000 and the framework agreementin what I hope will be a vigorous and intelligent fashion to try to ensure that we deliver race equality in our society in ways that will deliver significant improvements to people in Britain. I commend the regulations to the House.