asked Her Majesty's Government whether they will introduce legislation to ensure that the same burden of proof applies to cases alleging discrimination on the ground of colour as to cases alleging discrimination on the grounds of race or ethnicity.
My Lords, I have been asked by the noble Baroness, Lady Young of Hornsey, to express her regret that she cannot be here and her support for what I am about to say.
The Race Relations Act 1976, of which I was an architect, forbids discrimination on racial grounds which include not only race, ethnic or national origins and nationality but colour. That definition came from the United Nations definition in the convention on the elimination of racial discrimination. The UK is bound by that convention which expressly includes colour. The EU race directive of
Because the race directive does not specifically mention colour, but only discrimination based on grounds of racial or ethnic origin, the Government decided that it deliberately excluded colour. I believe that interpretation was contrary to European Union law and that the Court of Justice in a proper case would so decide. Among other things, Article 8 of the race directive eases the burden of proof in race discrimination cases, but because of the way in which the Government have translated it into our statute law, someone complaining of racial discrimination on grounds of colour has a heavier burden of proof than on other racial grounds. That absurd anomalous result was confirmed by the Employment Appeal Tribunal in Okonu v G4S Security Services (UK) Ltd last year. The anomaly was described as going even wider by Mr Justice Birtles, who said that this means that,
"the new definitions of indirect discrimination and harassment, the shift in the burden of proof, and the new provisions relating to the genuine occupational requirement exception will apply only to discrimination on the grounds of race, ethnic or national origin and not to colour".
When the regulations were debated here on
"coherent, consistent, accessible, joined-up and user-friendly ... legislation".—[Hansard, 11/6/03; col. 320.]
I seek an assurance in this brief debate that the anomaly I have just described will be removed soon in the much promised and greatly delayed new equality Bill.
I should like to say a few words about that Bill but before I do so I should like to say something about the role of this House in the reform process. I am very glad indeed that the noble Baronesses, Lady Prashar, of Runnymede, and Lady Howells of St Davids, are both taking part in this debate. I am sure they will remember the previous work done by this House in seeking to secure coherent legislation—for example, in the Race Relations (Amendment) Act 2000 in the aftermath of the Stephen Lawrence barbarity, where we managed to persuade the Government to strengthen that Act during its passage. I refer also to my own Bill of 2003, which was passed by this House, and which drew upon the authoritative Hepple report, which won very widespread support. This House contains exceptional expertise and I am sure that noble Lords who are present and those who are not will wish to assist the right honourable Harriet Harman MP and her colleagues in preparing the equality Bill—a Bill of which we would like to be proud.
I look forward very much to hearing the noble Lord, Lord Dixon-Smith, explain the position of the Official Opposition on this matter. In the 1970s, a generation ago, I well remember that his party was not conspicuous in supporting effective equality legislation, although it is true that in 1989 in Northern Ireland the Administration of the right honourable Margaret Thatcher—now the noble Baroness, Lady Thatcher—strengthened the law there as a result of pressure from investors in the United States.
In the remaining time allotted to me to speak, I would like to summarise what I hope the new law will secure in the course of its preparation and passage. The aim of law reform in this area should be to achieve an effective, efficient and equitable regulatory framework aimed at encouraging personal responsibility and self-generating efforts to promote equality. As I said, the groundwork was done in the Hepple report. There is a pressing need for clear, consistent standards. The Bill should consolidate existing law to make it more user-friendly and accessible. The Bill should establish an effective, efficient and equitable regulatory framework aimed at encouraging voluntary and easy steps to promote equality. As regards accessible remedies, individuals should be free to seek redress for the harm they have suffered as a result of unlawful discrimination through procedures which are fair, inexpensive and expeditious, and the remedies should be effective in achieving widespread change. There must be no hierarchy in the strands, and multiple discrimination needs to be dealt with.
There need to be measures to target particular behaviour or arrangements. I will say nothing about the scope or exceptions of the Bill, because this is not the place to do so. There need to be measures to facilitate general progress towards equality, with equality duties in the public sector and in the private sector. The torturous and unworkable equal pay legislation needs to be radically reformed. There need to be measures on positive action, reasonable adjustment and public procurement.
There are three important points about enforcement. First, there should be no levelling down of existing protection. Secondly, there should be effective individual remedies and scope for enforcement. Thirdly, there should be less emphasis on procedures and more emphasis on outcomes. The enforcement needs to be proactive. There is too much focus on eliminating discrimination by means of investigative and legal processes. The new legislation should be more proactive and less adversarial, without imposing unnecessary bureaucratic burdens.
I am glad to see in his place the noble Lord, Lord Morris of Handsworth, because he serves on an employment appeal tribunal among other things, and he will have great experience of how the law does and does not work. To make more efficient use of resources, complicated discrimination cases need in some way to be referred up from the employment tribunal, perhaps to the Employment Appeal Tribunal, to deal with them as a court of original instance. I have found that the employment tribunals are not able to deal with that in a satisfactory way. Representative actions need to be dealt with, the tribunals should be able to make recommendations for strategic changes and there need to be staggered sanctions.
I have said nothing that should be controversial. I hope that all parties would support sensible measures of that kind. I realise that the Minister cannot give assurances about that. I ask that such points be very carefully considered by Ministers as they prepare legislation, and that they will meet Members of this House who have particular expertise to discuss those issues at an early stage, before policy is finalised. That would help to deal with this ridiculous anomaly, whereby a person who is told that he or she is treated worse because he or she is black is to have a heavier burden of proving the case than a woman, or someone discriminated against on the basis of ethnicity other than colour, or any of the other forbidden grounds. I very much hope that the Minister can at least tell us tonight that the anomaly will at last be dealt with in primary legislation.
My Lords, I support the noble Lord, Lord Lester, who seeks to have the same burden of proof applied to cases relating to colour as to cases alleging discrimination on the grounds of race and ethnicity. With the same spirit and commitment that he has shown when addressing bigotry, he has in his opening remarks today presented the House with a compelling case to consider. I feel that the House is already persuaded, which makes my task very easy.
With the indulgence of noble Lords, I will bring a practical example to the attention of the House. I have been engaged in visiting schools and, from time to time, I meet young people with real problems. At one school, a sixth-former told me that he is always being stopped by the police, he is detained from getting to school on time and he feels harassed. The boy is considered to be a bright and serious student by his teachers. He asked the policeman why he was being stopped. The policeman, who was white, said, "It is because you are black". I leave noble Lords to judge, but my belief is that he was stopped because of his colour. With the law as it stands, he would have the onus of proof left to him to make his case. How could he?
If the policeman had said, "You were stopped because you are of a different ethnic group" or, "because of your race", the law currently states that the onus of proof, as explained by the noble Lord, Lord Lester, would be on the policeman to prove that he did not discriminate. The action has sown a seed that will make things difficult for the victim, who is left seeing his colour, which he cannot change, as a major obstacle to his development.
The second reason I support the noble Lord, Lord Lester, is that the law should be consistent. It should deal with colour in the same way as ethnicity and race, as in the Race Relations Act. Maybe the Government should have paid more attention to the effect on their citizens than to meeting the deadline for the implementation of the European directive. In the UK, we expect the law to protect all our citizens from discrimination. I believe that the Government listen, apologise for mistakes and seek remedies; so I look forward to this anomaly being treated with the same courtesy as is shown for any other transgression.
If a dog bites you, you get a shot, and in most cases you heal in a matter of days. If you are hit on the head with a truncheon, you might get knocked out, but usually the pain is gone within a few days. The issue here is not the dog, or the truncheon, but the psychological segregation, which digs deep into the psyche. It does not heal easily, and it continues to cripple people of colour. I remember a rhyme I heard growing up, "If you are white, you are right; if you are yellow, you are mellow; if you are brown, stick around; if you are black, get back".
The colour of skin breeds a sense of inferiority that drives men to drink, boys to become disaffected with the system and girls to get pregnant rather than finish their education. It gnaws away at self confidence, until the young believe that they cannot do anything right, when they are treated less favourably than others on the grounds of colour. That has wider implications for society than many of us care to think about. I invite the Government to think again.
My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for initiating the debate and for bringing this anomaly to the attention of the House. As the noble Lord, Lord Lester, explained, there is an unfair gap in the law. When an individual experiences discrimination based on her race or ethnicity, she has the benefit, correctly so, of a reverse onus of proof. The burden of proving that there was no discrimination shifts to the defendant. The same benefit does not apply to an individual who experiences discrimination based on her colour or national origin. That distinction itself creates inequality. Those who experience discrimination based on race or ethnicity are treated differently, and better, than those whose colour or national origin are the basis of their discriminatory treatment.
It cannot be that this unequal application of anti-discrimination law was intended, especially because the Race Relations Act prohibits discrimination on the grounds of race, ethnicity, colour and national origin. That gap is an example of inconsistencies and anomalies that characterise current anti-discrimination law. I very strongly agree with the noble Lord, Lord Lester, who clearly and cogently expressed what is needed. As he said, this House has expertise in all the strands of discrimination. That expertise must be used to ensure that we get new equality legislation based on the criteria that he so clearly described and that the standards that he set are met.
As someone who has over the years been involved in the implementation of anti-discrimination legislation, I think that there is a great deal of merit in ensuring that we have a single equality Bill that is consistent and straightforward to implement and enforce. It would be helpful to have legislation where enforcement is not solely reliant on individual complaints but encourages proactive action and, as the noble Lord, Lord Lester, said, is self-generating in promoting equality of opportunity. Those of us who have been involved in implementation recognise the importance of having a framework that encourages promotion of equality of opportunity.
As the noble Lord, Lord Lester, said, some excellent work was done in 2003 by Bob Hepple on the noble Lord's Equality Bill. That provides a very helpful model on which the single equality Bill can be based. Combining that work with the expertise in this House, I very much hope that we can move to a single equality Bill based on the criteria so clearly outlined by the noble Lord. I hope that the Government will ensure not only that the inconsistencies and anomalies are remedied, but that the forthcoming Bill will meet the criteria and provide a framework that will help us to promote equality in a consistent manner.
My Lords, I apologise to your Lordships for not having put my name down to speak. Perhaps I may be permitted, with serious—perhaps almost unparalleled—brevity to put down a marker and say how much I agree with the Question raised and the answer proposed by the noble Lord, Lord Lester. We have now on all stages, nationally and internationally, very strong statements banning—forbidding—discrimination on many different grounds. As the years go by, Governments and international organisations add to the list. The work of courts and tribunals in dealing with discrimination cases is not easy. Having been president of the Employment Appeals Tribunal for some years, I know how difficult those cases can be.
It is very important that we should strive to avoid differences between the various grounds of discrimination. It is also extremely important that we should root out or prevent technical discrimination between the different cases, unless there is very good reason for it. Having a different burden of proof in different areas is very difficult to justify. I do not believe that there is any justification for having a different burden of proof between the three categories to which the Question asked by the noble Lord, Lord Lester, refers. I very much hope that the Government will, at the very least, look at the matter again but, more hopefully, do something to remove what I regard as an unnecessary anomaly.
My Lords, we will all agree that we are deeply indebted in so many senses and so many different ways to my noble friend Lord Lester for his contribution in the field of human rights. I thank him for what he has done and what he is doing today. I will not speak at great length. We see another move in the right direction, removing one sort of discrimination. I am sure that when the Government's Bill is published, it will remedy this whole situation; otherwise, the Government will fail us tremendously.
We are in an era when the past, with all its suffering and all its discrimination, is a matter of great embarrassment to us. Martin Luther King, one of my great heroes, said in that great speech of his that he dreamt of the day when his children would be judged not by the colour of their skin, but by content of their character. Let me admit it here: I shall be singing hallelujah if Mr Barack Obama wins the presidency of the United States. It would be a tremendous leap forward.
I do not think that my noble friend would say that his Bill or his contribution today is anything but a move in that direction. Parliament here decided to implement the European directive by statutory instrument rather than by primary legislation. That is the cause of that discrimination. It does not apply to claims of discrimination on the grounds of colour or nationality. We want the directive implemented by primary legislation in the new equality Bill to come before this Parliament.
Enough has been said. I know that the Government are listening and will act. I look forward to singing the hallelujah chorus twice, once the equality measure is before this House and when a noble friend in another part of the world makes dreams come true.
My Lords, the noble Lord, Lord Lester, is nothing if not consistent. I pay tribute to him for his stamina in pursuing the subject over many years. He has laid out tonight a solid case where the law is apparently in a small way inconsistent. What I have not heard him do—perhaps that was in the interests of brevity—is lay out a lot of cases where people have been disadvantaged as a result of this slight inconsistency in the law, shall we say? I have to say that he has made a very solid case for removing that inconsistency. If there is a legislative opportunity, it should be taken. I do not know what is the Government's programme in the medium or longer term; I know that it is immensely crowded in the short term. This is a matter that only government can deal with, but there would be no opposition from our party if there were, as part of some other Bill, a clause that put this anomaly to bed—one hopes for the last time.
Curiously, I am not ashamed of my past, whatever it may have been. If one looks through the tide of history, one sees immense injustice, inequity and bad treatment of all sorts of people of the same race, let alone of a different race. We had to learn to do away with those things, and the tide of human progress has been rolling steadily forward over the years with improvement in the interests of everybody—more recently, in the interests of all communities.
We had to be bad, it seems to me sometimes—this is not a justification for it—to learn how to become good. Your Lordships may think that that is an odd way of putting it, but in so much that we do, progress comes as a result of knowledge, and knowledge comes from looking at what we are doing at present. If we had not learnt that we were wrong, we would not have made any progress at all. So I stick by what I said.
If there is an opportunity for this matter to be put right, it should be, but until that opportunity arises, we must ensure that the existing law is applied in such a way that people are not disadvantaged. The noble Baroness, Lady Howells of St Davids, said that this can be a psychological problem. I accept that it is very difficult to deal with psychological problems, but the law was never designed, as I have understood it, to cure psychological problems. The law has always been designed to cure injustice. The psychological cure will come when society in general treats everyone in the same way.
My Lords, I am sure that I speak for the whole House when I say that I am grateful to the noble Lord, Lord Lester, for raising this important matter in debate. He has enabled noble Lords from all sides of the House to rally around and draw attention to what we all agree is a clear anomaly. I join other noble Lords in paying tribute to his long and distinguished career as an architect of the most progressive race-relations legislation in Europe. That is to the great credit of this House because, as he said, it has traditionally played a key role in challenging and getting the best out of our law. I am sure that that will continue to be the case when we bring the new Equality Bill before this House and that conversations which draw on the experience of this House will be had. I am grateful, too, to all noble Lords who have taken part in the debate, particularly my noble friend Lady Howells of St Davids, because she always speaks with total authority and is always clear and compassionate. She always draws our attention to the real implications of our debates and the law that we are discussing.
The issue before us has been of particular concern to the noble Lord, Lord Lester. I am grateful for the opportunity briefly to explain how it fits in with our track record of tackling discrimination and to explain our next steps to improve and simplify the law for the benefit of all. I hope that he will not be too disappointed if I tell him that I cannot provide specific assurances on the different matters that he raised because we will bring forward shortly a Statement on the equality Bill which the House will understand I cannot pre-empt. I hope that he will understand from the tone of my remarks that he should have every confidence that, in seeking to harmonise existing law, we will seek to address inconsistencies and anomalies such as that which we are debating today in relation to the burden of proof.
I hope that I shall be able to go a little beyond telling the noble Lord things which he knows already, but it is useful to place on record the background, because there are two main issues for consideration in this debate. The first is the way in which European and UK law are connected; the second is the way in which their interaction has impacted on issues such as the burden of proof, to which all noble Lords have referred.
The noble Lord will be aware of and welcome the way in which increasing equality has been at the heart of the Government's policy—I shall not rehearse that. It in a way emphasises the nature of the anomaly that we have tried so hard to bring significant advance in giving individuals the right to fair treatment and to bring equality into the heart of policy-making and improved services.
The noble Lord's case is that there is a different domestic test for the burden of proof applying to cases where discrimination on grounds of colour and, in effect nationality, is alleged from that which applies to cases where discrimination on the grounds of race or ethnic or national origins is alleged. The explanation for that is in the interaction between our historic and wide-reaching law in relation to race and the more recent requirements imposed by European race legislation. Those requirements are in areas that are drawn more narrowly than the protections that we have long applied. The perceived anomalies in the way in which the burden of proof operates for domestic race-discrimination cases are due to the way in which domestic law has been changed to meet our European obligations in respect of race, ethnic and national-origin discrimination. I shall explain why we introduced those changes in the way that we did. We are very keenly aware of those anomalies. We know that they affect other provisions in our race legislation, such as those relating to harassment and to various exceptions in the 1976 Act.
We have also made it clear that we want to address the range of these anomalies. Noble Lords will know that this week in the draft legislation programme we have already announced our intention to introduce a new equality Bill within the lifetime of this Parliament. That was anticipated in the Green Paper, A Framework for Fairness, which outlined the Government's intentions for the Bill, which is intended to consolidate existing legislation, taking the opportunity to harmonise the law. Particular reference was given in the Green Paper of the Government's wish to rectify such anomalies, particularly those relating to harassment and contained in the various exceptions.
The Bill will build on our proud record of anti-discrimination legislation. As the years have gone on, the significance of the 1976 Act has become clearer. In particular, the 1976 Act domestically has long been held to cover five separate dimensions of race; namely, racial, national and ethnic origins, and significantly, colour and nationality. A person who has suffered discrimination on any of those five separate dimensions can claim the protections in the Act. In many ways, this means that the breadth of our domestic race provisions introduced at that time ensured that the protection available in the UK against racial discrimination was way ahead of anything that applied through comparative European legislation.
Since 1976, things have moved on and some of the concepts in UK and European law have also moved on, partly as a result of a body of case law developing over the period. In 2000, the European Council introduced new protections in what is commonly referred to as the race directive, to implement the principle of equal treatment between persons irrespective of racial or ethnic origin. We should be proud of the role that the UK played in framing that race directive. The then 15 Member States of the European Union were required to implement the directive in full by July 2003.
I emphasise that the breadth of protections in the 1976 Act meant that UK legislation had already met its requirements. The directive introduced certain new obligations that needed to be incorporated into our legislation, one of which was to make changes to the existing law covering the burden of proof with regard to cases of racial discrimination. That was achieved in Article 8 of the race directive, which required member states to adapt their domestic legislation to give effect to the reverse burden of proof in those areas with which the directive is concerned. Therefore, the UK subsequently was required to amend its legislation to reverse the burden in respect of race discrimination and harassment claims falling under the race directive; that is, race, ethnic or national-origin cases. This is where the problems identified by the noble Lord occurred in domestic legislation.
In order to comply with the deadline—I emphasise the deadline—for implementation of the directive, it was decided that rather than wait for an opportunity for primary legislation, which would have brought the burden of proof into full compatibility with the wider scope of UK race relations law, we would utilise the powers in Section 2(2) of the European Communities Act 1972 to transpose the additional requirements of the race directive into domestic legislation. That is a simple explanation. Using those powers is a common way of doing it, as the noble Lord knows.
The formulation of the race directive in this case meant that its protections are limited to racial, national and ethnic origins, whereas, as I have said—
My Lords, I am sorry to interrupt but it is at this point that everything breaks down. The Government's case depends on construing the race directive as excluding colour when it says race and ethnicity. I have tried to ask in Questions for Written Answer whether any other country has interpreted the directive in that way and have got no answer. Could the Minister write to those who have taken part in the debate to answer this question: when the race directive was made and this Government exported the Race Relations Act to it, did we take the position that it would leave out colour? Was that a policy decision we supported? If so, it was contrary to the UN definition that we used in our own race relations law and that is in the preamble to the directive. I do not expect her to answer that now, but whoever interpreted it in this way acted in a way I regard as manifestly unreasonable.
My Lords, my advice is that in the formulation of the race directive, many of the protections were limited to racial, national and ethnic origins because the directive expressly excluded differences of treatment based on nationality and stayed silent on the question of colour. The legal basis for the directive is Article 13 of the treaty establishing the European Community, which itself did not refer to colour but to racial and ethnic origins. I will take up the invitation to write to the noble Lord and will pursue the subordinate question as well.
Using the powers of that act did not allow for the provisions that it transposes from the race directive to be extended or expanded to cover colour or nationality. That meant that although historically our domestic legislation has recognised and covered five separate dimensions of race, including colour, the new requirements imposed by the race directive could only be introduced on the grounds of racial, ethnic and national origin. The result has been, as noble Lords have reflected, that the protections of the 1976 Act now operate on a two-tier basis. The noble Lord knows that the provisions relating to the burden of proof are only one of the areas where the transposition has resulted in an anomaly; others are those relating to discrimination, indirect discrimination, victimisation and harassment, as well as the several race exceptions.
It was recognised at the time of the introduction of the Race Relations (Amendment) Regulations that these anomalies would be created. The then Minister, Beverley Hughes, explicitly acknowledged that the Government would certainly want to take the first opportunity to bring all the relevant provisions into line on nationality, colour and the three dimensions in the directive—race, national and ethnic origins. We did that in relation to Section 54A, entitled "Burden of proof: employment tribunals", and Section 57ZA, entitled "Burden of proof: county and sheriff courts".
The noble Lord, Lord Dixon-Smith, asked about the actual impact on the ground. I am thankful that we are not aware of any cases where this has been a major issue. That does not mean in any sense that we have not got to address the problem that has been created. There is a need for total clarity with regard to the protections available through the law. It is an important issue and is already being addressed. These anomalies can only be rectified now by primary legislation.
Finally on the burden of the noble Lord's task this evening, yes, we will be introducing a new equality Bill. The Prime Minister's recent announcement of the draft legislative programme included reference to it. We are committed to introducing the Bill during this Parliament. The noble Lord has already emphasised that it will be widely welcomed in this House but intensely scrutinised as well. We look forward to that. We are proud of our framework of discrimination law but it has become complex. One of the major challenges in these nine pieces of legislation and 100 more that surround those key elements is to bring together, harmonise, consolidate and simplify the law, and to remove inconsistencies. That is one of the key reasons we intend to introduce the equality Bill. It will make the law clearer and easier to use by simplifying and harmonising the patchwork of protections that we have. Simpler law will make for simpler guidance from bodies such as the Equality and Human Rights Commission. As a result, employees and customers will have a better idea of their rights. Employers and service providers will have a better idea of their responsibilities.
On the noble Lord's comments on the wider issues relating to the Bill, both in the way the new law should be framed and what the Bill should contain, I have to ask for his continuing understanding and patience. We all want a law that is clear, consistent, balanced and positive, which I am sure it will be. As for what the Bill should contain, I am grateful to him for having made his views so clear this evening. They are now on the record. We expect to make a detailed announcement shortly. His views and those of everyone who has spoken this evening will be taken seriously, and the opportunities will be taken to meet them.
There has been immense interest in the Bill. We had 4,000 responses to the consultation, which in itself has been a reason for careful and deliberate work to develop our response. I accept that people have grown impatient, too. We want to respond to the conspicuous appetite for a strong Bill by taking steps to strengthen the framework as well as to harmonise and consolidate the existing law. The Bill is intended to make Britain a fairer place where people have the opportunity to succeed, irrespective of their race, gender, disability, age, sexual orientation, religion or belief. Fairness and an absence of discrimination are the hallmarks of a modern and decent society with a strong economy that takes advantage of the talents of all. The Bill will promote fairness and equality. It will tackle disadvantage and discrimination, and will modernise and strengthen the law to make it fit for the challenges of the future.
To return to the specific issue of the debate, some of the responses to the Green Paper identified the same types of anomaly which the noble Lord has brought to the attention of the House this evening. As I said, the Government have already indicated their intention to rectify anomalies similar to the one which he has raised. The Bill will provide the opportunity to do that. I hope that, with those assurances, he can have the confidence that he sought in the spirit of the debate. We look forward to the detailed Statement and to the debates that we will have on the Bill.