| Race Relations (Amendment) Act 2000 | ||||||||||||||||||||||||||||||||||||||||
| 2000 Chapter 34 - continued | ||||||||||||||||||||||||||||||||||||||||
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SECTION 7: NATIONAL SECURITY62. Section 42 and section 69(2)(b) of the 1976 Act together provide that an act of race discrimination is not unlawful if done for the purposes of safeguarding national security, and that a Ministerial certificate is conclusive evidence that an act was done for that purpose. The power to issue such conclusive certificates has been found by the European Court of Human Rights, in the case of Tinnelly and McElduff 249 EHRR 1999, to be incompatible with article 6(1) of the European Convention on Human Rights.
63. Section 7 of the 2000 Act removes the power of the Minister to issue a conclusive certificate in relation to non-employment cases. (The Employment Rights Act 1999 removed the power in relation to employment cases.) It also changes the national security defence so that it is not sufficient that a discriminatory act was done for the purpose of safeguarding national security, it must also be justified by that purpose.
64. Section 7(1) amends the national security defence under section 42 of the 1976 Act. The effect is that it will no longer be a complete defence to show that an act was done for the purposes of national security. It will, in addition, now need to be shown that the act was justified for that purpose. This provision is in the same terms as sections 90 and 98 of the Northern Ireland Act 1998 (c. 47) which applies to the national security defence in relation to claims of discrimination under that Act.
65. Section 7(2) repeals the power of a Minister to issue a national security certificate.
SECTION 8: NATIONAL SECURITY PROCEDURE66. Section 8 of the 2000 Act inserts a new section 67A into the 1976 Act which makes provision for courts to adopt certain special procedures when dealing with cases under the Act that raise national security issues.
67. Section 67A(1) provides that rules may be made enabling a court, where it considers it expedient for national security reasons, to:
- exclude the claimant, and/or his representative(s), and/or court assessors, from all or part of proceedings;
- allow an excluded claimant or representative to make a statement to the court; and
- take steps to keep the reasons for its decision secret.
68. Section 67A(2) to (4) also provide that, where a claimant and his representatives have been so excluded from proceedings, the Attorney General or, in Scotland, the Advocate General for Scotland, may appoint a person suitably qualified to represent the interests of a claimant. It provides that this person shall not be responsible to the claimant. These provisions are based on similar provisions in section 6 of the Special Appeals Commission Act 1997.
SECTION 10: SHORT TITLE, COMMENCEMENT AND EXTENT69. The substantive provisions of the Act will come into effect on the date or dates specified by order by the Secretary of State.
SCHEDULE 1: BODIES AND OTHER PERSONS SUBJECT TO GENERAL STATUTORY DUTY70. Schedule 1 to the 2000 Act inserts Schedule 1A into the 1976 Act. It lists those persons and classes of persons that are to be subject to the general duty to promote race equality under section 71(1). The Schedule covers the main central and local government bodies, the police, educational bodies and housing bodies amongst others.
71. It does not list the vast majority of Non-Departmental Public Bodies. Nor does it list private bodies carrying out functions of a public nature. However, it will be possible to add these bodies (so far as relevant) to the Schedule by order.
SCHEDULE 2: CONSEQUENTIAL AMENDMENTS72. Schedule 2 makes consequential amendments arising out of the main provisions of the Act.
73. Paragraph 1 brings the description of Scottish grant-aided schools in section 17 of the 1976 Act into line with the description in Schedule 1 to the 2000 Act.
74. Paragraph 2 removes the reference to section 19 of the 1976 Act from section 27(1) of the 1976 Act, since section 19 has been repealed.
75. Part III of the Act does not generally apply outside Great Britain. In general, this will be the position under new section 19B. Paragraph 3 extends the application of section 19B so that it applies to the grant or refusal of entry clearance outside Great Britain.
76. Section 53 of the Act provides that no proceedings shall be brought for race discrimination other than as provided for under the Act. Paragraph 4 amends section 53 to enable proceedings under the Act also to be brought as provided for under section 65 of the Immigration and Asylum Act 1999.
77. Paragraph 5 amends section 53 to provide that judicial review of acts relating to the appointments newly covered by section 76 is not available under section 53, except as provided for under section 76.
78. Paragraphs 6 and 7 remove the reference to section 19 of the 1976 Act from section 57(5) of the 1976 Act.
79. Paragraph 8 allows an enforcement notice served by the CRE in respect of an immigration decision to be appealed in the civil courts. This places immigration decisions on the same footing as other areas of decision-making under section 59 of the 1976 Act.
80. Paragraph 9 provides that a finding of unlawful discrimination by the Immigration Appellate Authority in an immigration case will trigger the CRE's power to seek an injunction under section 62 of the 1976 Act.
81. Paragraph 10 provides that persons making immigration claims to the immigration appellate authorities are denied access to the assistance provided by section 65 for obtaining information from the respondent concerning the alleged act of discrimination. This will ensure that the same procedures are followed in race discrimination claims made to the immigration appellate authorities, as for any other immigration case.
82. Paragraph 11 extends section 66 of the 1976 Act to allow the CRE to give assistance to people in immigration proceedings before the Immigration Appellate Authority or the Special Immigration Appeals Commission.
83. Paragraph 12 amends section 67 of the 1976 Act in order to protect those applicants whose visa applications are successful but nevertheless consider that they have been discriminated against by an entry clearance officer outside Great Britain. It ensures that redress is available in the county court.
84. Paragraphs 13 and 14 provide that the six month time limit for lodging a race relations complaint to the county court or sheriff court in relation to an immigration matter begins once that immigration matter has been dealt with under immigration legislation. This will be relevant where a person is happy with an immigration decision but wishes to complain of discrimination.
85. Paragraph 15 amends section 69(2) of the 1976 Act. Section 69(2) deals with the evidential burden in proceedings under the 1976 Act. It provides that where a Minister of the Crown certifies that he has approved a particular arrangement or condition, this shall be conclusive evidence that he did so. This amendment applies this provision also to appeals under Part IV of the 1999 Act. It does not prevent the court from deciding whether the action complained of fell within that approval and whether it was unlawful or not.
86. Section 73(1)(b) of the 1976 Act allows the Secretary of State by order to amend the Act, following consultation with the CRE, to make lawful an act which would otherwise be unlawful under particular provisions of the Act. The order is subject to the affirmative resolution procedure. Paragraph 16 adds section 19B to this list of provisions.
87. Section 75 of the 1976 Act makes provision in relation to the application of the Act to the Crown. Subsection (1) of section 75 provides that the Act applies to acts of public authorities "as it applies to an act done by a private person." This has been interpreted, in the case of R v Entry Clearance Officer, Bombay ex parte Amin [1983] 2 AC 818 as meaning that if an act of a public authority could not be done by a private person, the Act does not apply to that act. Subsection (2) of section 75 provides that Parts II and IV of that Act apply to service for purposes of a Minister of the Crown or government department (other than service of a person holding a statutory office), service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body or service in the armed forces, as they apply to employment by a private person. Paragraph 17 of Schedule 2 to the 2000 Act provides that sections 75(1) and 75(2) of the Act do not apply to sections 19B to 19F, sections 71(1) to 71E, including Schedule 1A and section 76A of the 1976 Act and makes express provision about how those provisions apply to the Crown. Paragraph 17 provides that the relevant provisions bind the Crown.
88. Paragraph 18 replaces the reference to section 16 in section 75(3) of the 1976 Act with a reference to the new sections 76A and 76B that will replace it.
89. Paragraphs 20-22 make provision to align references in the Local Government Act 1988 to section 71 of the 1976 Act with the new section 71.
90. Paragraphs 28 and 29 extend the Lord Chancellor's existing jurisdiction under the Special Immigration Appeals Commission Act 1997 to make rules regulating the exercise of appeals under that Act. At present the Lord Chancellor has no power to make regulations overning appeals before the Special Immigration Appeals Commission on race relations or human rights grounds. These paragraphs remedy this.
91. Paragraphs 30 and 31 amend the School Standards and Framework Act 1998 to ensure that the requirement in Schedules 4 and 5 of that Act for school organisation committees and adjudicators to have regard to the obligations placed on local education authorities and school governors which is contained in Part III of the 1976 Act, also apply to the obligations placed on those bodies by the duty to promote race equality contained in section 71 of the 1976 Act.
92. Paragraph 32 amends section 65(3) of the Immigration and Asylum Act 1999. This deals with the circumstances in which an immigration appellate authority has jurisdiction to hear a question, and the circumstances in which a decision may be taken to allow an immigration appeal. This paragraph adds to these circumstances where a question arises as to whether a public authority has racially discriminated against the appellant in taking a decision relating to his entitlement to enter or remain in the UK.
93. Paragraph 33 amends section 65(5) of the Immigration and Asylum Act 1999. This deals with the circumstances where a decision may be taken to allow an immigration appeal. Paragraph 33 adds to these circumstances where an immigration appellate authority decides that a public authority has racially discriminated against the appellant.
94. Paragraph 34 amends the side-note to section 65 of the Immigration and Asylum Act 1999 so that it refers to racial discrimination as well as human rights.
95. Paragraph 35 amends section 72(2) of the Immigration and Asylum Act 1999. It provides that where an asylum claimant is to be removed to a safe third country in accordance with arrangements between member states, or to a designated country under section 12 of the 1999 Act, no appeal may be made on race discrimination grounds whilst that person is in the UK if the Secretary of State certifies that the allegation of discrimination is manifestly unfounded. This brings procedures in respect of such claims into line with human rights claims.
96. Paragraph 36 amends section 73(2) of the Immigration and Asylum Act 1999. It provides that where a person makes an immigration appeal on the basis that he has been racially discriminated against but has already had an appeal against the immigration decision finally determined, the Secretary of State may certify that the second claim could reasonably have been made at the first appeal, a purpose of the late claim would be to delay removal from the UK and that there was no other legitimate reason for making the claim. The effect of certification is that the appeal relating to the second claim is regarded as finally determined. This brings it into line with human rights appeals.
97. Paragraph 37 amends section 74(7) of the Immigration and Asylum Act 1999. It provides that any claim of discrimination brought under the Immigration and Asylum appeals system must be included in a written statement of additional grounds to be lodged with any appeal. This brings such claims within the one-stop appeals process established under Part IV of the Immigration and Asylum Act 1999 in the same way as human rights claims.
98. Paragraph 38 amends section 76(3)(a) of the Immigration and Asylum Act 1999. It provides that even where a person fails to mention a claim of discrimination in his grounds of appeal or statement attached to that appeal, he may still rely on discrimination as an issue during the course of his appeal. This brings procedures in respect of such claims into line with human rights claims.
99. Paragraphs 39 and 40 amend Schedule 4 of the Immigration and Asylum Act 1999. The effect is that any race discrimination claim brought under Part IV of the 1999 Act may be certified as manifestly unfounded. If the adjudicator agrees that the claim has been correctly certified, the appellant is unable to appeal to the Immigration Appeal Tribunal.
100. A consequential amendment has also been made to the existing certification procedure in paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999, for applications for political asylum and for claims under the Human Rights Act.
SCHEDULE 3101. This Schedule makes repeals consequential on the provisions in the 2000 Act.
COMMENCEMENT102. The substantive provisions of the Act will come into effect on the date or dates specified by order by the Secretary of State.
HANSARD REFERENCES103. The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.
Royal Assent was given on 30 November 2000.
FURTHER INFORMATION104. Further information can be obtained from the Home Office website at www.homeoffice.gov.uk/raceact/welcome.htm
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