§ 19BA.—(1) Section 19B does not apply to—
- (a) any judicial act (whether done by a court, tribunal or other person); or
- (b) any act done on the instructions, or on behalf, of a person acting in a judicial capacity.
§ (2) Section 19B does not apply to any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment.
§ (3) Section 19B does not apply to any act of, or relating to, making or approving arrangements, or imposing requirements or conditions, of a kind falling within section 41.
§ (4) Section 19B does not apply to any act of, or relating to, imposing a requirement, or giving an express authorisation, of a kind mentioned in section 19C(3) in relation to the carrying out of immigration and nationality functions.
(5) In this section—
immigration and nationality functions" has the meaning given in section 19C; and
Minister of the Crown" includes the National Assembly for Wales and a member of the Scottish Executive.'.
§ Mr. Speaker
With this it will be convenient to discuss Government amendments Nos. 4, 21, 22 and 38 to 40.
There have been several discussions during the Bill's passage through this House and the other place about the approach that should be taken to the definition of public authorities for the purposes of section 19B of the Race Relations Act 1976. The choice is essentially between a listing approach and a generic definition as used in the Human Rights Act 1998. The Government have throughout listened to the arguments, both inside and outside the House, particularly those about the need to avoid small gaps arising in coverage, which was a perceived risk with the listing approach that was originally proposed.
527 In response to those concerns, we made a commitment in Committee to introduce amendments that would provide for the adoption of a generic definition for the purposes of defining public authorities. These amendments meet that commitment. They delete the provisions for a listing approach for the purposes of section 19B of the 1976 Act and provide instead for a definition based on section 6 of the Human Rights Act 1998. As flagged up in Committee, the generic definition has been adjusted to allow for a very limited number of specific exemptions—namely, for the Houses of Parliament, the legislative functions of the Scottish Ministers, the National Assembly for Wales and United Kingdom Ministers, the intelligence agencies and judicial acts.
The Government stress that functions have not been exempted other than where there are good reasons for doing so. Our approach is governed by the principle that the Bill should not fetter the legislative functions of Westminster, the Scottish Parliament or the National Assembly for Wales. Ministers will remain subject to parliamentary scrutiny but, like others involved in the legislative process, they must retain the ability to make legislation that discriminates, where that is justified—for example, to implement immigration legislation that requires discrimination on grounds of nationality, or social security or education legislation that discriminates on grounds of residence. That is consistent with the existing provisions of the 1976 Act, which provide that acts done with statutory authority are not unlawful.
To include the intelligence and security agencies in the Bill would have required special clauses to safeguard against claimants misusing certain provisions to undermine the operational effectiveness of those agencies. The necessary safeguards would, in practice, have the same effect as excluding the agencies from the Bill. The Government therefore believe that it is better to continue to make the exemption clear, as we did with the listing approach, rather than having it obscured by special clauses which might be a matter of judicial interpretation. We want the position of the security and intelligence agencies to be very clear.
Nor do the Government think it appropriate that decisions of courts and tribunals should be challenged by way of proceedings in the county or sheriff court under section 19B. Allowing civil action against judges would interfere with the concept of judicial immunity, and the Government would not wish the Bill to cut across that. Immunity is an aspect of the principle of an independent judiciary. The independence of the judiciary is a key feature of the British constitution and runs parallel with immunity.
§ Mr. David Lammy (Tottenham)
This debate about the nature of public authority is clearly more than simply a semantic debate about definition. Many private companies and organisations carry out their business under a clear public remit. Many of those profit-making companies have habitually neglected to promote, employ and support ethnic minority people in the workplace. My constituents will welcome the amendment, but I hope that we are moving towards a situation in which racial equality is 528 about the economic as well as the social context of Britain in the 21st century. The amendment, as it applies to private organisations, is very important in that regard.
My hon. Friend is right. We should ensure that private sector organisations which undertake public functions should know that they will have obligations under the race relations legislation, and that the Bill will cover them in so far as they undertake the public functions for which they are contracted. Indeed, Group 4 has today taken the trouble to say publicly that it is delighted that the Government have decided to use the Human Rights Act definition of a public authority in the Bill. Group 4 says that it firmly believes that there should be a level playing field between the public and private sectors in all social policy matters. I welcome Group 4's announcement; it is entirely along the lines that my right hon. Friend the Secretary of State has said that he wants to go.
Let me return to judicial immunity, which is an important part of our constitution. Judicial immunity does not mean that a person lacks a remedy against racial discrimination or any other form of bias, but the proper avenue for a challenge in the courts is by an appeal, not by making a fresh claim against a judge. The fair and efficient functioning of the justice system requires us to avoid satellite litigation and the reopening of cases.
I must flag up another important issue. It will be for the courts to decide whether a public body is a public authority for the purposes of the legislation and whether a particular function is a public function. That bears on the point that I made earlier about Group 4 and private companies and other private bodies that undertake public functions. The Government are grateful to those who have contributed to the way in which the legislation will be interpreted, especially to private companies such as Group 4, which have said that they will be happy to be brought within the legislation.
Having listened to all the contributions, the Government are also grateful to Members of both Houses of Parliament who have given their views on how we should take forward that definition and on whether we should use either the list or the generic approach. We have shown that we have listened with great care to the debate. There was a genuine argument about the various public functions that might have slipped through the net if we had used the listing approach and, therefore, we think that an approach based on the Human Rights Act 1998 is the best that can be delivered. In due course, the courts will make judgments on cases under the 1998 Act. That will define matters of public function and public authority. I hope that that will soon clarify the matters covered by the 1998 Act and the Bill, and that hon. Members will agree to the amendment.
§ Mr. Lidington
I welcome the Government's decision to move from a listing approach to a generic approach. As the Minister said in his opening speech, both sides of the House were involved in a constructive debate on the issue. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and his noble Friends can take pride in the way they helped to promote the idea. As a result, we shall have a better approach than that under the Bill as originally drafted.
I want to ask the Minister some questions to tease out in more detail exactly which persons and what activities will be exempt under amendment No. 2. First, I shall deal 529 with Parliament. I accept completely the Minister's argument that the legislative function of both Houses of Parliament should remain free and that they should not have to look over their shoulders at the Bill, but I am intrigued that the exemption will also apply toa person exercising functions in connection with proceedings in Parliament.That strikes me as a phrase that could be said to apply very widely—to House of Commons administration and staff, as well as Officers of the House and perhaps even Hansard reporters. Will the Minister flesh out a little more which people the Government intend the phrase to cover?
The Bill will now exclude the security and intelligence services and GCHQ. I support those exclusions, but if those organisations are to be excluded, why not the National Criminal Intelligence Service, the National Crime Squad and others who work closely with the security and intelligence services and may well be party to operational knowledge that the Government rightly want to keep secret? Those police organisations are engaged in very sensitive and secret work against organised crime, terrorism and drug trafficking. Do they not need the same protection that the Government want to afford to the security and intelligence services?
A comparable point could be made about members of the armed forces on active service. We discussed that in Committee, and it was debated in the House of Lords. Should not the exception that the Government are applying to the security and intelligence services and to members of the armed forces assisting GCHQ also apply to members of the special forces, and especially those on active service? There are units whose operations have traditionally been regarded as a matter for secrecy by Governments of both political colours.
The Minister said that the courts would have to rule in due course on what is a public authority. In Committee, I referred to the position of the Churches and I make no apology for doing so again. As an obvious example of my point, civil registrars, as public officials, will be subject to the provisions in the Bill in carrying out their duties involving the preparation of couples and the conduct of the marriage ceremony, but will ministers of the Church of England or the Church of Scotland be similarly subject? Surely those ministers carry out a public function when they, too, conduct marriages. Have the Government engaged in any consultation with the Churches about the impact that the Bill might have on them, especially in the light of the controversy that blew up on the matter during proceedings on the Human Rights Act 1998?
I have no problem with the Government's proposal that judicial authorities—judges, magistrates and tribunals, in their judicial capacity—should be exempt from the normal operations of the Bill, but does that exemption also apply to Ministers of the Crown when they act in a quasi-judicial capacity, for example when they place themselves in the shoes of a judge in setting the tariff for a life sentence prisoner? I should be grateful for answers to those questions.
§ Mr. Simon Hughes
Like other colleagues, I am grateful for the progress that we have made on this matter, 530 and for the fact that, when we came up with what seemed to be the best way forward in terms of the definition of "public authority", the debate was listened to.
First, it strikes me that that produces a shorter Bill, and that must be a good thing. I will comment on the way in which the Bill could be further shortened when we come to another debate.
Secondly, it is a good idea for the definition of "public authority" in one piece of legislation passed by a Parliament to be the same as the definition of "public authority" in another piece of legislation passed by that Parliament, albeit a year or so later. That seems to be a good idea in terms of political and parliamentary practice, and I welcome it. I am grateful for the work done by colleagues in the Lords and for the debate that we had in Committee.
I have a supplementary question, which picks up on one of the points made by the hon. Member for Aylesbury (Mr. Lidington) about definition. It concerns the point about employees or functionaries of the Church or other religious organisations carrying out a public function.
I raise that not only because I have responsibility for these matters on the Liberal Democrat Benches but because the matter has been raised in the context of prospective European legislation. Last week, the hon. Member for Gainsborough (Mr. Leigh) was given leave to introduce a ten-minute Bill so that we may at least take the debate forward and discover what exactly is allowed. The hon. Gentleman's Bill would exempt religious organisations and although it was not on all fours with this proposal, it raised the same set of issues.
What we are discussing now is clearly a narrower issue because it is about people acting for religious organisations who, in that context, are also acting as a public authority. The conduct of marriages is a good example. People in this country can have their marriage conducted entirely in a religious ceremony, and do not, as in other countries, have to have a separate civil ceremony. I should be grateful for elaboration on that matter and on whether Ministers have been advised how—if at all—the measure ties in with prospective European legislation on such matters.
§ Mr. Mike O'Brien
The welcome from both hon. Gentlemen speaking for the Opposition parties is music to my ears. The Government are pleased that we have been able to take a constructive and listening approach during the debate, and grateful for the contributions from all parts of the House on these issues.
The hon. Member for Aylesbury (Mr. Lidington) asked about the areas covered in respect of Parliament. The existing Act already covers employment functions and certain unlawful acts—they are set out in part IV—and areas that may be subject to parliamentary privilege. It covers the provision of goods, facilities and services.
The Government do not wish to fetter the legislative functions of Westminster, the Scottish Parliament or the Welsh Assembly in extending the Act. In the case of the United Kingdom Parliament, there are issues of parliamentary privilege. Interference with the privileges of Parliament should obviously be avoided. The first report of the Joint Committee on Parliamentary Privilege has looked at the need for, and recommended, clarification of the definition of parliamentary privilege in relation to each House's privilege to administer its own internal affairs.
531 It would be pre-emptive and impractical to try to resolve the issues involved for the purposes of the Bill before critical decisions have been made in relation to the wider issue of privilege. We are not therefore proposing to extend any further the application of the Bill to the UK Parliament. That is consistent with the approach taken in the Human Rights Act 1998.
The hon. Gentleman asked about the issue of exercising functions in connection with proceedings in Parliament. We envisage that it is an area directly involved in the preparation of legislation. It is not an exclusion that would deal with areas not directly involved in preparing legislation and the proceedings of this place. That is the position as far as I understand it. The hon. Gentleman raised the matter and I raised it with officials. The definition is quite tightly drawn.
Like the hon. Gentleman, I was a little concerned that the measure might look a little wide, but considering Pepper v. Hart and being aware of all that, 1 am indicating that we intend it to be construed in a way that has direct applicability to legislation and to the proceedings in this Parliament relating to debates.
The hon. Member for Aylesbury also asked me why the National Criminal Intelligence Service and the National Crime Squad are not included. Following the Stephen Lawrence inquiry, our intention was to bring the police within the realm of the Race Relations Act. As NCIS and the National Crime Squad are akin to police forces and their director-generals have responsibilities which are equivalent to those of a chief constable, the Government believe that, in order to meet the commitment made in response to the Stephen Lawrence inquiry report to apply race relations legislation to police forces, NCIS and NCS must be covered. The Government do not envisage that the problems associated with including the intelligence and security agencies would be replicated for NCIS and NCS, and indeed we have no reasons to have any concerns that this might cause problems in terms of the operational effectiveness—or anything else—of those two organisations, which are well aware of their responsibilities to ensure that they do not racially discriminate.
The hon. Gentleman asked me about special forces. I have had no requests from the Ministry of Defence to exclude them, so I assume that there is a degree of happiness with the current situation. However, just to be sure that there is no difficulty, I shall take up the hon. Gentleman's point with Ministers at the MOD. These days, the Army in particular has a proactive view on race equality and many parts of our armed forces have a good and improving record in that respect.
The hon. Members for Aylesbury and for Southwark, North and Bermondsey (Mr. Hughes) asked me about a more complex issue—whether the legislation would cover ministers of the Church of England and the Church of Scotland in relation to their role as registrars. They will be covered when they carry out a public function but not when they carry out private functions as ministers of the Church. I envisage that the public function of signing the various documents which relate to their legal and public duties will be covered. However, decisions about who should have a service conducted in their Church, for example, will be an issue for the Church. The same would apply to other Church-related decisions. However, in recent decades Churches have been particularly conscious of the need to ensure that they regard race equality as 532 particularly important and I have no real concern that the Churches will find themselves subject to any substantial litigation in relation to the Bill. The Churches are well aware of their responsibilities on race equality and I suspect that most of them will welcome the inclusion in the Bill of at least their public functions.
Finally, the hon. Member for Aylesbury asked me whether the legislation covered Government Ministers exercising a judicial function. The answer is yes. An immigration function, for example, would be covered. That is not a good illustration as immigration matters are excluded, but any other quasi-judicial decision would be covered by the exemption. However, we want to make sure that Ministers are aware that they have moral as well as legal responsibilities and that they must not discriminate unless there is a good public interest reason for doing so. Later amendments relate to circumstances in which discrimination may be proper and lawful and may well have the support of the House, but normally that would not be the case.
I hope that I have dealt with most of the issues, and I am pleased with the warm welcome that the Liberal Democrats and the Conservatives have given to the amendment.
§ Amendment agreed to.4.45 pm
§ Mr. Harry Cohen (Leyton and Wanstead)
I beg to move amendment No. 1, in page 2, leave out from beginning of line 18 to end of line 31 on page 3.
§ Mr. Deputy Speaker (Mr. Michael Lord)
With this it will be convenient to discuss the following: Amendment No. 54, in page 2, line 38, after "(5)", insert—'in connection with the granting or refusal of—Government amendments Nos. 3, 35 to 37, 41, 42, 44 and 45.
- (a) pre-entry clearance to enter the United Kingdom;
- (b) leave to enter the United Kingdom;
- (c) leave to remain in the United Kingdom;
- (d) a condition or conditions of leave to enter or remain in the United Kingdom; or
- (e) citizenship of the United Kingdom.'.
§ Mr. Cohen
This is a good Bill which implements the recommendations of the Stephen Lawrence inquiry and tackles the real problems of direct and indirect institutional racism. However, my amendment deletes the exemption of immigration and asylum matters from the institutional racism provisions.
I can put the case by putting on record an article in journal No. 56 of the Campaign against Racism and Fascism. It is by Frances Webber, a leading immigration lawyer. She puts the matter succinctly, albeit a little pejoratively towards the Home Secretary. The article, which is called "The last frontier: immigration controls and racism", asks:Why does a minister who wants to be remembered for his anti-racism keep on giving aid and comfort to racists? In the Race Relations (Amendment) Bill currently going through Parliament, Home Secretary Jack Straw is once again trying to face both ways at once. On the one hand, the Act allows immigrants and asylum-seekers to appeal against immigration decisions and to obtain damages from a county court, if such decisions have discriminated on grounds of race or colour. On the other hand, 533 immigration officers will be authorised to discriminate on the grounds of "nationality, ethnic or national origin" in carrying out their functions under the Immigration and Nationality Acts.In the Lords, Lord Bassam of Brighton sought to justify the provision by talking about the need to stop "scams" operated by Chinese nationals masquerading as Malaysian or Singaporean Chinese which, he claimed, made it acceptable for immigration officers to check every Chinese-looking person.The question puzzling us lawyers who act for immigrants and asylum-seekers is this: how on earth are we going to prove unlawful race discrimination on the part of an immigration officer, if it is not unlawful for an immigration officer to discriminate against someone on the grounds of their "perceived ethnic origin"? It is ironic that a law brought in to counter institutional racism ends up—so far as immigration is concerned at least—by rationalising and further institutionalising it.Notwithstanding the comments regarding the Home Secretary, there is a fundamental point there concerning the complete exemption of the immigration and asylum service. I tabled the amendment to get a response from the Minister on why this exists, when the thrust of the Stephen Lawrence inquiry and the Bill is to tackle institutional racism wherever it occurs, including in the public sector. I do not see why immigration should have that total exemption.
Proposed section 19C states that it will not beunlawful to discriminate against another person on grounds of nationality or ethnic or national origins…where the act is by a Minister acting personally or an immigration official acting in accordance with an authorisation by the Minister, or with respect to a particular class of case authorised by statute or statutory instrument. If this House has delegated the power to a Minister, I see that he could exercise that power. However, I am concerned as to how he will delegate power—presumably down to a civil servant, or even to junior civil servants. I would like the operation of the system to be spelt out. Will the exemption also apply to a junior civil servant in the immigration and nationality directorate acting in the name of the relevant Minister or civil servant?
How will the Minister be held accountable? Will ministerial responsibility extend to the actions of the junior civil servants in the immigration and nationality directorate who act in his name under the proposed legislation, or will he be able to palm things off on the civil service, as happened with the BSE scandal? That is a serious point about ministerial power and its possible extension to civil servants.
In the context of junior immigration officers who may exercise power and to whom the exemption may apply, there have been cases in the past of such officers being sympathisers and supporters of openly racist parties such as the National Front or the British Movement. Although I have not heard of a case for many years, there have been such cases in the past. I presume that disciplinary measures are in place. I ask the Minister to confirm that. How will they operate against an officer who is openly racist if it is lawful under the Bill for him to discriminate? Those questions need answering.
I understand that there is a delay in determining and authorising the classes of cases in respect of which discrimination will be lawful. Perhaps the provision will not be effected until next April or later because the immigration and nationality directorate needs more time to determine those classes of cases. If that is so, will the 534 classes be spelt out to Parliament, perhaps with an opportunity for a discussion on them? They do not appear in the Bill. Can they be changed arbitrarily? Can new classes be added without anyone other than civil servants knowing?
If the Government are going to persist with the exemption for the immigration service, what activities will be authorised as lawful racial discrimination? A broad, blanket authorisation is not right. I am worried about the classes of cases to which the clause refers. Racial discrimination could take place on the basis of scare campaigns. For example, an argument was made for trying to ban all Kenyan Asians and Ugandan Asians as a class, regardless of the merits of the cases of individuals, who were facing perhaps torture or death in the countries that they were leaving. The same could apply currently to the Roma.
The provision could lead to a susceptibility to scaremongering, and to racial discrimination in immigration and asylum policy—through banning whole categories of people—becoming legal under the Bill. Another recent example is the Kosovans—perhaps they could all have been banned under the Bill. I shall be interested in the way in which the Minister deals with that concern.
Today, I received a letter from Mr. Richard Jarman, the parliamentary officer of the Commission for Racial Equality. It stated:In a meeting I had with the Refugee Council and the Immigration Law Practitioners Association, the one activity where discrimination occurs that is of real concern is the detention of asylum seekers on arrival (when they have committed no offence in the UK whatsoever). Currently certain nationalities and people of Roma ethnicity are nearly always detained. The CRE, Refugee Council. ILPA all say that detention of asylum seekers should not be done on the basis of nationality or ethnic or national origin but on the basis of the particular circumstances of each individual asylum seeker.Clearly that will not happen given the way in which the law is framed. There is a potential blanket provision to discriminate. There should not be a blanket authorisation of discrimination when dealing with asylum seekers on arrival. That is clearly different from detention prior to deportation, which often happens after a person has breached his conditions of entry. Blanket authorisation on arrival has a possible institutional racist content.
The role of the monitor is set out in proposed section 19D. I know that he will submit an annual report to Parliament, but what can he say? How can he refer to any institutional racism in the immigration and nationality service or even on the part of a Minister? Will that be exempt under the law? Could such racism be deemed legal in immigration matters? What power will the monitor have? Will he have the power, for example, to see all the papers and files in a case? Can a Minister or civil servant deny access to them?
The monitor might be toothless, rather like the prison ombudsman, who was denied access to papers and files by the previous Government. Will he be able to investigate every case where a charge of racism is brought, or will he not even be notified of cases where racism has been alleged? Will he be able to require revised consideration by the immigration and nationality service, perhaps of a Minister, and a possible new decision where, in his opinion, racism has occurred in the service?
535 If the monitor is not to be able to do any of these things, what can he do? Without any of the powers to which I have referred, he will be toothless and not worth even an annual report to Parliament.
These are important matters. The Government have set off on the path of total exemption for the immigration and nationality service, and it is not the right approach. It might be a matter of balance but total exemption is not the answer. If my amendment and those of Liberal Democrats are not accepted, the matter should be kept under review. Perhaps an amendment might be introduced later. I await my hon. Friend's answers with interest.
§ Mr. Simon Hughes
I welcome the debate. Effectively, the amendments set out three options. The matter was the subject of considerable debate in Committee.
We face the danger of bad drafting. The Government are seeking to amend the Race Relations Act 1976 by inserting a new clause that states what is unlawful and by introducing a supplementary new clause, proposed section 19C, which sets out exceptions to what is unlawful. Later, there are tabled the exceptions to the exceptions to what is unlawful. I am not, and have never wished to be, a parliamentary draftsman, but I hope that we can do a bit better. The Bill has to go to the other place when we have dealt with it, so perhaps someone can consider whether we can make it easier for people to use.
The hon. Member for Leyton and Wanstead (Mr. Cohen) has tabled the most widely drawn amendment. It would remove new section 19C, which is to be inserted into the 1976 Act. The Minister's proposal in Government amendment No. 3, which he will speak to later, qualifies the list of Acts with immigration and nationality functions that come within the exemption and are, therefore, outside the protection of the legislation, by stating that the list will not apply to certain activities. It does not say what activities it covers, but refers to another part of the legislation. It excludessections 28A to 28K of the Immigration Act 1971 so far as they relate to offences under Part III of that Act.Those are in fact policing functions in relation to the activities of the immigration and nationality directorate. Again, it might be helpful to make that clear.
Our amendment seeks to do what the hon. Member for Leyton and Wanstead hinted might be a way forward. It would allow the law to apply in general terms: people could not discriminate in their work in the immigration and nationality directorate unless those activities were on the legislated list. We believe that those activities should certainly and logically be included in the list. In relation to immigration, there are clearly activities in which discrimination on the basis of nationality, for example, is justifiable.
Our amendment sets out five exemption categories. The first isin connection with the granting or refusal of…pre-entry clearance to enter the United Kingdom.It is entirely logical to allow people to be discriminated against if the view is taken that, for example, the entitlement of someone from a Commonwealth country is different from that of someone from a European Union country or someone who is from neither. The second 536 category relates to leave to enter, which is the permission granted when people arrive here as opposed to the permission granted before they leave to come here. The third category concerns permission to stay here—leave to remain. The fourth is in connection with conditions that are imposed on a leave to enter or remain. The fifth relates to citizenship, because we discriminate against people on the basis of where they come from and their relationship with this country. We propose that those should be exempted categories. I hope that, at worst, we get confirmation from the Minister that, in light of our debate in Committee, the Government will move in that direction.
I do not pretend to have a perfect understanding or knowledge of this subject, but we would argue that those are the most logical categories for exemption and, to take the view of the hon. Member for Leyton and Wanstead, that no others appear to need that protection. I stand to be corrected by the Minister if I am wrong. He might say that I have forgotten a category and that a sixth should be added. However, our case is that the categories should be specified in the Bill. If we do not do that, we will give a "relevant person", who is defined asa Minister of the Crown acting personally; or—the hon. Gentleman alluded to this—any other person acting in accordance with relevant authorisation,who could be quite a long way down the hierarchy of responsibility, the ability to make decisions in particular cases. The Bill as it stands leaves it to Ministers to define at a later date the particular class of case. We are effectively providing for secondary legislation, although it might not technically be called that—again, I stand to be corrected. Decisions are to be made later by Ministers when we have given general permission under the Act. Our argument is not unfamiliar. The provision gives Ministers huge discretion and does not even provide the benefit of allowing us to know what the category will be, even though Ministers have been much better on that matter recently than they have in the past. Sometimes when a Bill is introduced, we see a draft of regulations under it before we approve it. We know what the Government have in mind and can be clear about what is expected. However, this Bill does not make provision for a schedule or document setting out what the authorisations are likely to cover.
In addition, as the hon. Member for Leyton and Wanstead pointed out, we do not have a date by which such a decision will be made. I accept that, if we are going to go down that road, the Bill has to be introduced before any power under it can be exercised. However, the time gap could last several months. This debate is a bit like our earlier debate on the definition of public authority. It is better to specify clearly the categories under the Bill, but I accept that Ministers may argue that one category, or perhaps two categories, have been forgotten. I accept that categories have to be clear.
This issue is controversial in the world outside Parliament, so I shall explain when we accept that it is right to discriminate and allow that power, and when it is wrong. In Committee, we said that we would limit the scope for permitted discrimination on the grounds of nationality or ethnic or national origins to functions of the immigration and nationality directorate, when nationality is a legitimate ground for difference in treatment, or when ethnic or national origin could be a ground for different treatment.
537 That would not interfere with rules or procedures requiring visas, entry permits or work permits for people of some, but not all, non-UK nationalities. That is quite understandable, as every country works on that basis, and the issue would, rightly, remain separate from anti-discrimination legislation. To take a slightly controversial example, we would not stop the Home Office taking into account the ethnicity of Romanies or Roma people from eastern Europe when deciding their asylum applications, as it is a relevant factor that, clearly, is not to be excluded. However, we would prohibit discrimination on the grounds simply of nationality or ethnicity in circumstances such as those described by the hon. Member for Leyton and Wanstead. It would therefore be impossible to say that one was going to detain all asylum seekers from Kosovo, but not those from Bulgaria, Serbia, Montenegro or elsewhere.
It is important to make that distinction as the decision about asylum seekers and their treatment consists of two elements. The first is how asylum seekers are treated when they come into this country and whether they are free—I shall return to that in a second—and the second is how their application is determined. In law, it is clear that every asylum application must be treated on an individual basis. The Government accept that case, which is unarguable under the United Nations convention on refugees. It is also clear that there should be no presumption about detention for any particular category, which should be decided on an individual basis.
There is a dispute on this issue, not so much between Labour and Liberal Democrat Members, but between both our parties and the Conservative party. We believe that it is against international law for asylum seekers to be detained when they come to this country simply on the basis that they are asylum seekers. We accept that it is proper to detain them if they have a criminal record or if intelligence leads the authorities to believe that they could break the rules, escape or be unwilling to be subject to authority. However, my understanding is that such discrimination is illegal in the areas covered by the European convention, and possibly also in the European Union.
I tested that during my one official foreign visit—all Members of Parliament are authorised to make one two-day European Union visit during each year. I went to Finland. My visit coincided with a certain football match, at which I considered it important to watch crowd control measures, having dealt with the Football (Disorder) Bill in Parliament. The police in this country—the National Criminal Intelligence Service and others—and the Finnish police were extremely helpful, and my visit was very informative.
I asked about asylum seekers, who come to Finland mainly from Russia and Estonia, and some from elsewhere in eastern Europe. The Finnish police take the view that it would be illegal to detain people who come as asylum seekers. There are reception centres, quite properly, but no detention centres.
§ Mr. Winnick
I do not make a party point, although it will probably be interpreted as such, and I accept entirely that the hon. Gentleman speaks from a genuine wish for tolerance. I do not question that at all, but what he says 538 seems to conflict with the attitude of Liberal councillors in my constituency and in the Walsall borough, as demonstrated in correspondence and speeches relating to a single family that is to be housed temporarily in a ward represented by a Liberal Democrat councillor. I have pointed out before that there seems to be a discrepancy between the hon. Gentleman's fine words—again, I entirely accept his genuineness and sincerity—and those of some of his councillors.
§ Mr. Hughes
Obviously, I do not know the details of the case, but if the hon. Gentleman is concerned about it, I am happy to see any correspondence or documentation that he wants to give me. I shall not prejudge the matter. No one is perfect and our councillors may be wrong; they may be right. I cannot judge, but I have sometimes been in difficulty on the same subject. I understand the pressures and the difficulties, but we must be clear about the issues. I have large numbers of asylum seekers in my constituency and I am aware df the potential issues that that can generate in the community. If there are matters that the hon. Gentleman wants to bring to my attention, I shall make sure that they are examined.
§ Mr. Hughes
If there is a serious allegation, I would rather see the documents that support it.
There are various stages in the treatment of asylum seekers, during which it is possible to test whether discrimination exists. If the amendment were accepted, it might affect other matters, such as the financial support systems. We would argue that it should not be possible to discriminate generally by people's ethnic origin and where they come from, and that there should be no generalisation in respect of the dispersal system around the country or the withdrawal of support.
The amendment would also make it unlawful to discriminate directly or indirectly on any racial grounds, including race, colour, nationality, citizenship, or ethnic or national origin, with regard to support arrangements, finance and so on. However, there could still be positive measures to help people who, for example, may not speak English. People with particular needs may require positive action and extra support. It is a difficult debate, but I understand that such exceptions will be lawful, because they come under another part of the Act—section 53—which allows special needs to be looked after.
We are discussing a difficult matter, open to misinterpretation if we are not careful. It will be much better regulated by clear language, rather than open-ended language, and by Parliament dealing with the issue, rather than leaving it for subsequent authorisation. It is clear that in such difficult areas of policy—refugees, immigration, asylum seekers and the like—decisions must be seen to be fair by applicants and their representatives, and by society as a whole.
I hope that the Minister will give an assurance either that he is willing to consider the proposition that we have advanced or that the authorisations will cover only the sort of list that I described when I discussed the five examples contained in our amendment. If he gave a categorical statement about what the authorisations would cover, 539 even if he did so on a later occasion, that would be some consolation to those of us who are interested in the matter, both in the House and outside it. The hon. Member for Leyton and Wanstead made it clear that there was such interest.
§ Mr. Lidington
We should remind ourselves of two points. First, illegal immigration remains a serious challenge for this country. Attempts at illegal immigration are frequently assisted by organised criminals who traffic in human beings, much as they might traffic in drugs or other contraband goods. Secondly, the officials whom we charge with enforcing our system of immigration control have to take complicated decisions that involve judgments about the quality of evidence that they receive from individuals. They might also have to take such decisions, which are of great importance, quickly and under great pressure. Those officials deserve to know that Parliament will provide them with certainty about what they are, and are not, allowed to do.
I, and, I am sure, hon. Members from all parties, have sat alongside entry clearance officers at posts overseas, immigration officers at ports and case workers at the Croydon headquarters of the immigration and nationality directorate. On each occasion, I was struck by the professionalism of the officers concerned—they have absolute commitment and try to examine the merits of a case and the quality of evidence that is presented to them—and by the immense responsibility that we devolve to them when they take decisions about cases involving individual men, women and children.
As I made clear in Committee and earlier, I start from the premise that some immigration exemption is necessary. I was persuaded by the arguments that were contained in the letter of 26 January from Lord Bassam of Brighton to Lord Lester of Herne Hill, to which the hon. Member for Leyton and Wanstead (Mr. Cohen) alluded. Lord Bassam explained why the Home Office believed that some exemption for discrimination on the grounds of ethnic origin should, in particular and defined circumstances, remain within the law. That remains my position.
I hear the arguments of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), who said that his amendment would lead to greater clarity and greater control over ministerial discretion. However, as I listened to his speech, various questions occurred to me. He invites us to agree to an amendment that would limit the exemption to a list of specific functions of the immigration and nationality directorate and the migration and visa department of the Foreign Office, but what functions would his amendment exclude from the exemption?
The hon. Gentleman discussed the detention of various people. As I understand the arrangements for detaining people at the Oakington detention centre, decisions are made on the basis that, on the whole, people are sent there because the immigration officer at a port believes that they have a fairly straightforward case, about which an initial decision can be taken within relatively few days.
I have not examined the statistics in detail, but I think it conceivable that analysis of the nationalities of people detained in Oakington would show particular nationalities to be represented disproportionately, in terms of the proportion that they represented of the total number of 540 seekers of asylum in the United Kingdom. If amendment No. 54 were passed, a court might conceivably decide that the fast-track rule applied in respect of Oakington was indirectly discriminatory on grounds of race. I think there is a danger that the amendment would introduce more rather than less ambiguity.
Although I do not close my mind to arguments in favour of further amendments, my inclination is to leave the provision as it stands.
§ Mr. Simon Hughes
I understand the hon. Gentleman's argument, too, and I accept that fast-track systems start with presumptions. However—in this regard, as in others, there may not be much between the hon. Gentleman's view and mine—whereas a presumption might be made that would put someone into a category in respect of consideration of his case, the actual consideration would be on the basis of the paperwork, the facts and the information collected. That, not national, ethnic or other discrimination, would be the determining factor.
§ Mr. Lidington
I take the hon. Gentleman's point, but I still think that his amendment has the potential to reintroduce a measure of ambiguity.
I welcome Government amendment No. 3, which, as I read it, would remove from the scope of the exemption the powers—effectively—of a constable which were conferred on immigration officers by the Immigration and Asylum Act 1999. I think that the reference to sections 28A and 28K of the Immigration Act 1971 refers to new powers conferred by the 1999 Act. If so, I consider the amendment sensible.
§ Mr. Mike O'Brien
There has been much discussion during the Bill's passage, both here and in another place, about the exemption for immigration and nationality functions provided in new section 19C in clause 1. Amendment No. 1 would remove altogether the exemption, and the associated provision creating an independent monitor whose function would be to account to Parliament on its operation. Amendment No. 54 would narrow the immigration exemption in new section 19C.
At present the Bill allows discrimination that is proper and necessary, on grounds of nationality or ethnic or national origin, in the carrying out of immigration and nationality functions. Those are defined as functions exercisable by any of the enactments listed in subsection (5). The amendment seeks to prescribe only a limited number of functions in which discrimination may occur.
I am fully aware of the concerns expressed about the immigration and nationality exemption. The Government have said on many occasions that it should be no wider than is absolutely necessary. The amendments, however, would damage our attempts to provide a fast, firm and fair immigration control. They ignore a number of the principal functions contained in the immigration legislation in which discrimination may well be proper and necessary. In particular, they would not permit discrimination in respect of the removal, deportation or detention of individuals who did not qualify for leave to enter or remain. Detention, for example, is sometimes necessary to enforce the removal of those who do not qualify for leave to remain, and who will not comply voluntarily with instructions to leave the United Kingdom.
As hon. Members will know, owing to operational factors such as the ready availability of national travel documentation, or the preparedness of other states to 541 allow us to return their nationals using other forms of documentation, some nationalities are easier to remove than others. In respect of certain nationalities, enforcing removal can be a prolonged process. In such cases, when there is no immediate prospect of removal, detention may not be appropriate.
It is necessary for the immigration service and the integrated casework directorate to conduct special nationality-specific exercises, involving the fast-tracking of cases in response to sudden or sustained influxes of certain nationals seeking to circumvent control. In particular, the immigration service needs to ensure that resources are targeted at the nationalities that offer the best prospect of successful removal, often in the light of other Governments' attitudes to accepting the return of their nationals. I am not convinced that the amendments would permit such activity.
At ports the immigration service requires the ability—under close ministerial supervision—to treat people differently on the basis of their nationality and, occasionally, their ethnic or national origin when it has intelligence that, for example, certain national travel documents are being abused, or individuals or groups of one nationality are presenting themselves as nationals of another country in order to benefit from compassionate policies or asylum procedures that are being applied to one nationality or ethnic group but not to others. The Kosovan situation is an obvious example.
We have encountered a number of rackets emanating from various countries. There are also many examples of the immigration system discriminating positively in favour of individuals on the basis of their nationality or ethnic or national origins. For example, in the past we have given special treatment to Kosovan Albanians, during the recent conflict in the Balkans. Kosovan Serbs were not treated in the same way, for obvious reasons.
There are other examples in which guidance to asylum caseworkers indicates that one ethnic or national group from a particular country should be treated differently from another. The ethnic or national origin of the applicant is a key consideration in the determination of applications for asylum and exceptional leave. It is clearly important to establish whether a particular ethnic group is the subject of some form of persecution in the country from which it comes, rather than another ethnic group. It would be impossible to operate a rational asylum process, requiring the immigration authorities to treat cases alike without always delving into the detail of each claim, if caseworkers were unable to make such distinctions. That would make the operation of the asylum and immigration system extremely difficult.
§ Mr. Simon Hughes
I hear what the Minister says, but in my constituency experience of dealing with huge numbers of such applications, at the end of the day Ministers and officials make decisions on the basis of the individual concerned, and—either initially, or if pressed—provide explanations. Is it not the case that, whatever may be the starting point of a policy, decisions are and should always be made on the basis of an individual's circumstances? We cannot get away from that.
§ Mr. O'Brien
Certainly each asylum application is decided on its individual merits. To that extent, the hon. 542 Gentleman is right. The individual, however, comes with a history—a background. In the case of Kosovo, for instance, in which we operated special procedures in relation to ethnic Albanians, it was clearly relevant to determine whether an individual claiming to be an ethnic Albanian was indeed an ethnic Albanian. An ethnic Albanian coming from Kosovo rather than Albania itself might be given different treatment from an Albanian coming from Albania, or a Serb coming from Kosovo. On that basis, we had to examine not just individual circumstances, but the broader context. It was not necessary to look much further into the individual circumstances of a person identified as a Kosovan Albanian to decide how that person should be dealt with.
The hon. Gentleman is right in principle: when deciding whether to grant asylum, we should consider individual cases. However, the context in which the decision is made cannot be ignored.
§ Mr. Cohen
I understand that the immigration service deals with nationality and ethnic origins in much of its case work, but at the heart of the Stephen Lawrence case and the subsequent inquiry lay the fact that there have been individual massive injustices caused by false stereotyping. That is what institutional racism is about. Why should the immigration and nationality service be exempt from provisions relating to institutional racism and false stereotyping when the police and many other public services are subject to those provisions? Why should an individual who is anti-Saddam Hussein be treated the same way as someone who is pro-Saddam Hussein, just because he or she comes from Iraq? It might be a false stereotype to assume that any applicant from Iraq should be turned down.
§ Mr. O'Brien
As we have already identified, when an asylum or immigration case is determined, the circumstances of the individual are important, as is the individual's background. I do not think that my hon. Friend and I disagree on that point. However, he appears to think that there is reason to believe that many, or at least a significant number, of the decisions taken by immigration officers are based on some sort of stereotyping or discriminatory intention. That is not my experience of the professional way in which decisions are normally taken. That is not to say that there have been no mistakes made—no public service is immune from the errors of individuals or the mendacity of a small minority—but, by and large, the immigration service bases its decisions on the proper and openly arrived at decision-making guidance issued by Ministers.
In his opening remarks, my hon. Friend mentioned Frances Webber. My right hon. Friend the Home Secretary has broad enough shoulders not to worry about criticism from that source, but he is certainly not facing both ways on the issues. He is trying to ensure that our record is that of a Government who promote a combination of the firm and fair immigration controls to which we committed ourselves in our manifesto and a strong commitment to race equality, which we have demonstrated throughout our term in office, both in the Bill and in the establishment of the Stephen Lawrence inquiry.
There is no question of facing two ways: our aim is to restore integrity to our asylum system so that it works for the genuine refugee, discourages those who would abuse 543 it or make unfounded claims and recognises the need to respect race equality. That is why we have tabled an amendment that makes a change that I am sure my hon. Friend wants. We think it is possible to do that because exemptions should be no wider than is necessary.
My hon. Friend quotes Frances Webber asking,how…are we going to prove unlawful race discrimination…if it is not unlawful to discriminate…?That is a very lawyerly way of putting it—of course one cannot prove something to be unlawful if it is not unlawful. However, there are circumstances in which it is proper, lawful and right to discriminate, for example, when we were helping Kosovan Albanians. There should be no disagreement about that. The lawyer quoted is placing a lawyerly concern to win—to get at the immigration service—above the need for proper decision making and justice. I, as a Minister, am concerned to ensure that just decisions are made and public policy operates properly to achieve the openly articulated aim of the Government to ensure that we have a system of immigration control that is both fair and firm.
My hon. Friend asks whether junior civil servants have the ability to take unto themselves the exemption. The answer is no: a junior civil servant has no ability to say, "I have decided that, in that case, such a course of action is no longer discriminatory," nor does a senior civil servant, or the chief immigration officer. Immigration officers will operate under the guidance issued by Ministers, which is, by and large, in the public arena. My hon. Friend will be able to ascertain the criteria by which such decisions are made and the way in which they are reached.
In no sense does the Bill create an exemption that gives a civil servant broad discretion to discriminate. Civil servants will be able to discriminate properly and lawfully only when there is a clear instruction from the Minister to do so in specific circumstances, and those circumstances are mainly in the public arena. One of the actions taken by the Government after entering office—indeed, while I was Minister with responsibility for immigration—was to ensure that the guidance on how such decisions are made was put into the public domain and so made available to immigration lawyers such as Frances Webber. There is a degree of openness from which my hon. Friend can take solace. We do not accept that any official is entitled to discriminate in a way that is unacceptable to the Government.
§ Mr. Hughes
I shall not dispute the issue of openness with the Minister. I hope that he will now address the question of the timetable from now on governing the exemptions provided under the legislation. However, the example he gives works both ways. The House and the country had huge sympathy for Albanian Kosovans and everything started from there. However, I know from colleagues and from discussions with the Refugee Council when I visited Kosovo that some Serbian Kosovans felt that their case was prejudged against them, even though they had no history of acts of aggression or intimidation or other anti-social activities. The very generalisation that Albanian Kosovans should be considered together and regarded favourably and that Serbian Kosovans should not is worrying to me, because I know how much grief that presumption has caused over the past couple of years.
§ Mr. O'Brien
We considered Albanian Kosovans differently from Serbian Kosovans not because specific 544 individuals might have been involved in activities that, in retrospect, they would not have been proud of, but in the light of evidence of persecution of a particular ethnic minority. Obviously, in Kosovo at that time, the issue was whether Albanians were suffering persecution, not whether Serbs were. I am sure that the hon. Gentleman understands that point.
I recognise that neither my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) nor the Liberal Democrats intend to frustrate control, even though that would be the effect of their amendments. The Government accept that the amendments were tabled for bona fide reasons, even though we cannot accept them. We are concerned that they would deprive us of the ability to preserve the integrity of immigration control.
The provisions in the Bill to ensure that any discrimination in the sphere of immigration and nationality is justified are quite strict. Such discrimination must be in accordance with the provisions of the various enactments, or must be authorised by Ministers who, in turn, are accountable to Parliament. Such instructions are normally in the public arena, although there might be security issues relating to specific individuals or circumstances that oblige Ministers to decide otherwise—no doubt, hon. Members can work out for themselves the circumstances in which a Minister might decide not to make such matters public.
Precisely because there have been concerns, we took the view that there should be a race monitor to ensure that the decisions made by the immigration service were made properly and subject to some public scrutiny. The race monitor will have free access to all of the IND's papers. He or she will also be able to call on the IND to provide an individual file. However, I make it very clear that the monitor should not be a surrogate appellate authority. It is not the monitor's job to examine an individual case and to make decisions on it. The monitor's job is to look at the broad array of cases and at a selection of cases and to determine whether, as a whole, immigration control is being operated within the spirit of this legislation. The race monitor will, therefore, monitor the immigration service and the IND to ensure that the legislation's spirit is being properly adhered to.
The current entry clearance monitor, who provides real accountability to Parliament, provides a very successful precedent for the role of race monitor. The entry clearance monitor will report annually to Parliament, and I know that many hon. Members pay great heed to the views that the monitor expresses. We very much hope that the race monitor will have the same type of credibility and impact, so that Ministers, too, pay great heed to what is said by him or her.
I am satisfied that we have struck the right balance, and therefore urge my hon. Friend the Member for Leyton and Wanstead to consider withdrawing amendment No. 1.
Government amendment No. 3 would modify the exemption for immigration and nationality functions in clause 1, new section 19C. As I said, we have consistently made clear our view that the exemption should be no wider than is absolutely necessary to safeguard the effective operation of immigration control. We have reached the view that a refinement to the immigration exemption can be made in the interests of securing the Bill's objectives without the risk of harm to immigration control.
545 The amdendment is designed to remove from the scope of the immigration exemption sections 28A to 28K of the Immigration Act 1971 as they relate to offences under part III of that Act. Those offences include seeking to obtain leave to enter or remain by deception, facilitating the entry of an illegal entrant into the United Kingdom, and possessing false immigration documents—such as passports, visas and work permits—for use. Many of those offences are committed by our own citizens, although some may be commissioned only by those subject to immigration control.
The amendment would place the immigration service, in the investigation and prosecution of such offences, on the same legal basis as police—with whom they often participate in joint operations—in operating the Bill's provisions.
It is right that the investigation and prosecution of offences should be based on some objective evidence or intelligence, rather than on an individual's nationality or ethnic or national origin. The immigration service does not prioritise the investigation of such offences by nationality. It is also right that the immigration service and police should be subject to the same legal constraints in carrying out similar activities, often conducted together. Those constraints will not harm or hinder the administration of justice or action against those engaged in immigration fraud or human trafficking.
Immigration service functions that support the removal or deportation of individuals from the United Kingdom will, however, remain within the scope of the exemption. As I said, it is sometimes necessary to prioritise cases for removal on the basis of nationality in response to particular pressures on control or as a result of the attitude of other Governments towards accepting the return of their own nationals.
The amendment contains a justifiable refinement to the immigration exemption. We have listened carefully to the concerns expressed by hon. Members and by Members of another place, and we have taken action to ensure that the exemption is no wider than is necessary. I hope that the House will accept this Government amendment to new section 19C.
§ Mr. Hughes
When does the Minister expect new authorisations in relation to this part of the Bill to be made?
§ Mr. O'Brien
I cannot give a date now, but we would want to implement the provisions as soon as we possibly can. Although we would have to take account of the analysis of controls that is currently being done, we would, as I said, want to implement the provisions as soon as reasonably possible. I undertake to write to the hon. Gentleman and to the hon. Member for Aylesbury (Mr. Lidington) to let them know when we anticipate implementing them.
Government amendment No. 35 provides that a finding of unlawful discrimination by the independent appellate authority in an immigration case will trigger the power of the Commission for Racial Equality to seek an injunction under section 62 of the Race Relations Act 1976.
546 Government amendment No. 36 extends section 66 of the 1976 Act to allow the CRE to give assistance to people in immigration proceedings before the independent appellate or the special immigration appeals commission.
Government amendment No. 37 amends section 67 and will protect applicants whose visa applications are successful, but who nevertheless consider that they have been racially discriminated against by an entry clearance officer. It ensures that redress is available in the county court.
Government amendments Nos. 41 and 42 extend the Lord Chancellor's current jurisdiction under the Special Immigration Appeals Commission Act 1997 to make rules.
Government amendments Nos. 44 and 45 are technical ones to ensure that in cases in which a claim of racial discrimination has been certified as manifestly unfounded, an adjudicator is able to determine whether it was correct for the Home Secretary to issue a certificate when the claim was made and to make a decision on that certificate. A consequential amendment has also been made to the equivalent certification provisions on human rights and asylum in the Immigration and Asylum Act 1999.
I hope that the House will accept not only these technical and consequential amendments, but the more substantive amendments that I have outlined.
§ Mr. Cohen
My amendment No. 1 was always a probing amendment, to express concern and to get answers, and I appreciate the answers that the Minister has given. I particularly welcomed his answers as they touched on the role of civil servants and the race monitor and on the transparency of the criteria. I am still concerned, however, about the broad exemption being granted to the service. It is too great in the case of the IND and it should have been reined in a bit more. Although I heard the Minister's comments about exemptions being no wider than necessary, I do not think that the exemption granted to the IND should be any wider than that granted to other public services.
Nevertheless, I also appreciate the full answers that the Minister has given to my questions. I also realise that the Home Secretary has broad shoulders, and that he will not be too worried about the comments of Frances Webber that I quoted.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ No. 4, in page 3, leave out lines 46 and 47.—[Mr. Touhig.]