2000 Chapter 34

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These notes refer to the Race Relations (Amendment) Act 2000 (c.34)
which received Royal Assent on 30 November 2000

RACE RELATIONS (AMENDMENT) ACT 2000

EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Race Relations (Amendment) Act 2000 ("the 2000 Act"). They have been prepared by the Home Office in order to assist the reader in understanding the 2000 Act and to help inform debate on it. They do not form part of the 2000 Act and have not been endorsed by Parliament.

2.      The notes need to be read in conjunction with the 2000 Act. They are not, and are not meant to be, a comprehensive description of the 2000 Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.      When originally enacted the Race Relations Act 1976 ("the 1976 Act") made it unlawful to discriminate on racial grounds in relation to employment, training and education, the provision of goods, facilities and services, and certain other specified activities only.

4.      The 1976 Act applied to race discrimination by public authorities in these areas but not all functions of public authorities were covered.

5.      The 1976 Act makes employers vicariously liable for acts of race discrimination committed by their employees in the course of their employment, subject to a defence that the employer took such steps as were reasonably practicable to prevent the employee discriminating. However, police officers are office-holders, not employees. Chief officers of police were, therefore, not vicariously liable under the 1976 Act for acts of race discrimination by police officers.

6.      The Commission for Racial Equality (CRE) in its Third Review of the 1976 Act proposed that the Act should be extended to all public services and that vicarious liability should be extended to the police.

7.      The Report of the Inquiry into the death of Stephen Lawrence recommended, among other things,

"that the full force of the Race Relations legislation should apply to all police officers, and that Chief Officers of Police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation."

SUMMARY OF THE 2000 ACT

8.     The 2000 Act's main purposes are to:

- extend further the 1976 Act in relation to public authorities, outlawing race discrimination in functions not previously covered;

- place a duty on specified public authorities to work towards the elimination of unlawful discrimination and promote equality of opportunity and good relations between persons of different racial groups;

- make chief officers of police vicariously liable for acts of race discrimination by police officers; and

- amend the exemption under the 1976 Act for acts done for the purposes of safeguarding national security.

COMMENTARY

SECTION 1: DISCRIMINATION BY PUBLIC AUTHORITIES

9. Section 1 of the 2000 Act makes general provision extending the scope of the 1976 Act in relation to public authorities, outlawing race discrimination in functions not previously covered. It does this by inserting new sections 19B, 19C, 19D, 19E and 19F into Part III of the 1976 Act, which deals with non-employment cases. Each is explained below. Inserting the new general provision into Part III also has the effect that, except where explicit alternative provision is made, all the enforcement provisions of the existing Act that apply to non-employment cases will also apply to the new provisions. So, for example, except where explicit alternative provision is made, individuals will be able to bring proceedings under the new provision in the same way as for existing non-employment cases - in a designated county court (a sheriff court in Scotland). Other examples of provisions in the existing Act that will apply to the new provision are those relating to court procedures, remedies, the CRE's powers, time limits, and exemptions.

Section 19B

10.      Section 19B(1) makes it unlawful for a public authority to discriminate against a person on race grounds in carrying out any of its functions.

11.     Section 19B(2) defines "public authority" for the purposes of section 19B. The definition is generic, based on the definition used in section 6 of the Human Rights Act 1998.

12.     Section 19B(3) provides for certain exemptions from the definition of "public authority" at subsection (2) of section 19B, namely the Houses of Parliament and proceedings in Parliament, and the intelligence agencies.

13.     Section 19B(4) makes it clear that the provision at section 19B(1) only applies when the act of discrimination has taken place in the carrying out of a public function.

14.      Section 19B(6) prevents there being any overlap between the new provision and the existing provisions of the Act.

Section 19C

15.     Section 19C provides an exemption for judicial and legislative acts in order to protect the legislative functions of the UK Parliament, Scottish Parliament and National Assembly of Wales and the independence of the judiciary

Section 19D

16.      Section 19D provides that an act in relation to immigration or nationality functions is not unlawful under section 19B where it is done by a Minister of the Crown acting personally, or by officials acting in accordance with a relevant authorisation. This reflects the position that Home Office and Foreign and Commonwealth Office officials who operate immigration policies are required to discriminate between individuals on the basis of their nationality and ethnic or national origin when determining their entitlement to enter or remain in the United Kingdom or their entitlement to protection under various international instruments, including the 1951 UN Convention Relating to the Status of Refugees. The exemptions previously provided in section 41 of the 1976 Act are insufficient to allow immigration, asylum and nationality laws to continue to operate as Parliament intended.

17.      Section 19D(1) provides that new section 19B applies to an act of a "relevant person" carrying out immigration and nationality functions only if that act involves discrimination on the grounds of colour or race. Section 19B will not apply to the act of a relevant person carrying out immigration or nationality functions that discriminates on the grounds of nationality or ethnic or national origins.

18.      Section 19D(2) defines a "relevant person." A relevant person is defined as a Minister of the Crown acting personally, or any other person acting in accordance with a "relevant authorisation".

19.      Section 19D(3) defines "relevant authorisation" as being where a requirement is imposed, or express authorisation is given, either with respect to a particular case or class of case, by a Minister acting personally; or with respect to a particular class of case, by any of the enactments mentioned in section 19D(5), or by any instrument made under or by virtue of those enactments. Ministers will continue to be able to make personal decisions in individual cases in the national interest outside the Immigration Rules. Such decisions will be subject to other legal provisions which safeguard human rights, such as the Human Rights Act 1998.

20.      Section 19D(4) defines "immigration and nationality functions" as functions exercisable by virtue of any enactment listed in section 19D(5).

21.     Section 19D(5) lists the specific immigration and nationality enactments which are subject to the exemption. Section 19D(5)(a) excludes from this list sections 28A to 28K of the Immigration Act 1971 so far as they relate to offences under Part III of that Act. The effect of this is to place the immigration service in the same position under the 2000 Act as the police in respect of the investigation and prosecution of offences.

Section 19E

22.     Section 19E provides for the Secretary of State to appoint a person (in consultation with the CRE) to monitor section 19D.

23.     Section 19E(3) sets out the duties of the Monitor. In a manner determined by the Secretary of State, the Monitor is to monitor any relevant authorisation given by Ministers to immigration staff to discriminate against another person on grounds of nationality or ethnic or national origin in carrying out immigration and nationality functions. The Monitor is also to monitor any acts done in accordance with such an authorisation.

24.     Section 19E(4) and (5) requires the Monitor to make an annual report on the discharge of his functions and for the Secretary of State to lay this report before Parliament.

25.     Section 19E(6) allows the Secretary of State to remunerate the Monitor.

Section 19F

26.      Section 19F provides that section 19B does not apply to a decision not to institute criminal proceedings, or, where a decision not to institute criminal proceedings has been taken, to any act done for the purpose of making a decision about criminal proceedings. This exemption will prevent it being possible for a person to use the Act to discover the reasons for a decision not to prosecute, thereby preserving the role of the criminal courts as the sole forum for determining guilt. Section 19F further provides that section 19B does not apply to decisions to terminate, or not to continue, criminal proceedings once they have been instituted.

SECTION 2: SPECIFIED AUTHORITIES: GENERAL STATUTORY DUTY

27.     Section 2 replaces section 71 of the 1976 Act, which imposes a general duty on local authorities to promote race equality, with sections 71, 71A, 71B, 71C, 71D and 71E which provides for all specified public authorities to promote race equality. Each section is explained below.

Section 71

28.     Section 71(1) imposes a general duty on public authorities. It places specified public authorities (listed in Schedule 1A) under a duty to have, when carrying out their functions, due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

29.     Section 71(2) allows the Secretary of State to make an order imposing specific duties on public authorities to ensure the better performance by them of the general duty.

30.     Section 71(3) allows an order under subsection 71(2) to be made in relation to some public authorities but not to others, to impose different requirements on different public authorities or categories of public authority. The purpose of this is to allow for proportionality and flexibility. For example, it may be inappropriate to require the same of small public authorities as of a major department of state or local authority.

31.     Section 71(4) requires the Secretary of State to consult the CRE before making orders under section 71(2).

32.     Section 71(5) allows the Secretary of State to amend, by order, Schedule 1A. This enables him to amend the list of bodies in Schedule 1A that are subject to the general duty. He can, in particular, do this by removing bodies from or adding bodies to the list, or by altering existing entries in the list.

33.     Section 71(6) enables the Secretary of State, when making an order under section 71(2) or (5), also to make incidental, supplemental or consequential provision, including amendment of other enactments. The purpose of this, in relation to the section 71(1) power, is to enable the removal of overlapping statutory duties which may already apply to bodies subject to the duty to promote race equality when specific duties are imposed upon those bodies by an order under section 71(2).

Section 71A

34.     Section 71A limits the requirements of the duty to promote race equality in respect of immigration and nationality functions. It provides that, whilst public authorities carrying out immigration and nationality functions will be subject to the general duty in so far as it pertains to eliminating unlawful racial discrimination, and to promoting good relations between persons of different racial groups, they will not be subject to the duty in so far as it requires the promotion of equality of opportunity between persons of different racial groups. This section is required because immigration and nationality policy, by its very nature, denies opportunities to some nationalities that are offered to others.

Section 71B

35.     Section 71B deals with devolution issues. Under the Scotland Act, the subject matter of race relations legislation is a reserved matter with two exceptions: the encouragement (other than by prohibition or regulation) of equal opportunities and in particular the observance of equal opportunities requirements; and the imposition of duties on Scottish public authorities and cross-border public authorities in relation to their Scottish functions. The new general duty may therefore impact on devolved areas of responsibility, and the intention of this section is that the order making powers in relation to the duty should be conferred on Scottish Ministers in line with the devolution settlement.

36.     In relation to Wales, section 71B provides that the Secretary of State shall consult the National Assembly for Wales before making orders relating to cross-border authorities, and shall make orders relating to Welsh authorities only with the consent of the National Assembly for Wales.

Section 71C

37.     Section 71C gives the CRE the power to issue Codes of Practice to provide practical guidance to public authorities in relation to carrying out their duties to promote race equality provided for at sections 71(1) and 71(2).

38.     The procedures for preparing and issuing draft Codes, and consulting on them, are based on the existing procedures in the 1976 Act for Codes on employment and housing. So too are the procedures for Secretary of State approval of the Codes, and for laying the Codes before Parliament. The only difference is that the Secretary of State will be under a duty, in view of devolution, to consult with the Scottish Ministers and the National Assembly for Wales in deciding whether to approve or reject such Codes.

39.     A breach of a Code would not be actionable as such, but a Code would be admissible in evidence where it is relevant to any issue in proceedings before the court.

Section 71D

40.     Section 71D gives the CRE the power to issue a compliance notice if it is satisfied that a public authority has failed to comply with any duty imposed by order under section 71(2). A compliance notice would require the public authority to comply with the duty and to inform the CRE of the steps it has taken to do so. It could also require the public authority to give the CRE other information to verify that the duty has been complied with.

Section 71E

41.     Section 71E gives the CRE the power to apply for a court order requiring a public authority to provide information required by a compliance notice if that authority has failed to do so, or if the CRE has reason to believe it does not intend to do so. It also provides for the CRE to apply for a court order requiring a public authority to comply with a requirement of a compliance notice, where the Commission considers that that public authority has not complied with it within three months of the compliance notice having been served. The court may grant the order in the terms applied for or in more limited terms.

SECTION 3: CERTAIN APPOINTMENT FUNCTIONS OUTSIDE THE EMPLOYMENT FIELD

42.      Section 4 of the 1976 Act covers discrimination against applicants and employees. Section 76 of the 1976 Act covers discrimination in relation to government appointments where section 4 does not apply. Before the 2000 Act, section 76 was limited to appointments made by a Minister or government department. Section 3 of the 2000 Act inserts sections 76(3) to (15) into the 1976 Act to cover additionally appointments, dignities and honours made or conferred on the recommendation or with the approval of a Minister or government department. This includes, for example, appointments or conferrals by the Queen which are made on the recommendation of a Minister.

Sections 76(3) to (11)

43.      New sections 76(3) to (11) make it unlawful for a Minister or government department to discriminate on race grounds in making a recommendation, or giving or refusing an approval, or making arrangements for determining who should be recommended or approved, for appointment to an office or post where section 4 of the Act does not apply, or for conferring dignities and honours.

Sections 76(12) to (15)

44.      Sections 76(12) to (15) provide that the remedy for unlawful discrimination under sections 76(5), 76(9) and 76(11) is by way of an application to the High Court, or in Scotland the Court of Session.

SECTION 4: POLICE: EXTENSION OF LIABILITY OF CHIEF OFFICERS, ETC

45.      Section 4 inserts new sections 76A and 76B into the 1976 Act. This provision makes a police authority liable for acts done by it to a constable. It also makes chief officers of police (a chief constable of a police force in Scotland) liable for the acts done by him to a constable and vicariously liable for acts of race discrimination by constables under his direction and control. It also provides for compensation, costs or expenses awarded as a result of a claim to be paid out of the police fund (in Scotland, payments by the police authority).

46.      Section 32 of the 1976 Act makes employers liable for the acts of their employees. This allows an individual who has been discriminated against by another in the course of that other's employment to bring an action against the employer as well as against the discriminator. There is a defence for the employer, under section 32(3) of the 1976 Act, that he or she took reasonable steps to prevent the act of discrimination. This defence also now applies by virtue of the 2000 Act in respect of chief officers of police.

SECTION 5: CRIMINAL INVESTIGATIONS AND PROCEEDINGS

47.     Section 57 of the 1976 Act contains provisions for enforcement of claims under Part III of the Act.

48.     Section 65(1) of the 1976 Act provides for forms ("section 65 questionnaires") to be submitted by the aggrieved person who considers he may have been discriminated against to the respondent, in order to help the person decide whether to institute proceedings and to present more effectively his case. The questions may relate to the respondent's reasons for doing any relevant act or to related matters. Section 65(2)(a) provides for the respondent's reply to be admissible as evidence in the proceedings. Section 65(2)(b) provides that, if it appears to the court that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply was evasive or equivocal, adverse inferences may be drawn from that fact, including an inference that the respondent committed the unlawful act.

49.     Section 5 amends sections 57 and 65 of the 1976 Act .

50.     Section 5(1) of the 2000 Act inserts new sections 57(4A), (4B), (4C) and (4D) into the 1976 Act. The new subsections make provision in relation to remedies available to claimants, and to the power of courts hearing cases to grant a stay of the civil proceedings (a sist in Scotland), in particular circumstances.

Section 57(4A)

51.      Section 57(2) of the 1976 Act provides that, when a claim is brought in a designated county court (a sheriff court in Scotland), all remedies are obtainable that would be obtainable in the High Court (the Court of Session in Scotland). New section 57(4A) restricts the ability of the court to grant certain remedies to a claimant when the claim is brought under section 19B against a public investigator or public prosecutor. There is no limitation on the court's ability to grant a remedy of damages or a declaration (a declarator in Scotland). But the section limits the power of the court to grant other remedies, for example injunctive relief, unless it is satisfied that such a remedy would not prejudice a criminal investigation, a decision to institute criminal proceedings, or any criminal proceedings.

Section 57(4B)

52.      New section 57(4B) provides definitions of criminal investigation and public investigator functions for the purposes of section 57.

Sections 57(4C) and (4D)

53.     The Civil Procedure Rules already make it possible for a party to apply for, and for the court hearing a case under the Act to grant a stay of the proceedings (a sist in Scotland) including where there is a risk that those proceedings might interfere with a criminal investigation or criminal proceedings. Sections 57(4C) and (4D) make provision relating to the circumstances in which the court hearing a case under section 19B must grant a stay in cases where a party to the proceedings has applied for a stay of the proceedings on the grounds of prejudice to particular criminal proceedings, a criminal investigation, or a decision to institute criminal proceedings. The court shall grant a stay unless it is satisfied that the continuance of the proceedings under section 57(1) would not result in prejudice to the case.

Sections 65(4A) to (4C)

54.     Section 5(2) of the 2000 Act inserts new sections 65(4A), (4B) and (4C) into the 1976 Act. These enable a respondent to proceedings under new section 19B to decline to answer a section 65 questionnaire without the risk of adverse inferences being drawn where:

- at the time of doing the relevant act the respondent was carrying out public investigator or public prosecutor functions; and

- he or she reasonably believes that to respond, or to give a different response, would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings, or any criminal proceedings, or would reveal the reason behind a decision not to institute, or not to continue, criminal proceedings.

SECTION 6: IMMIGRATION AND ASYLUM APPEALS

55.     Section 57 of the 1976 Act provides that proceedings under Part III of the Act shall be brought in a designated county court (a sheriff court in Scotland). Section 77 of the Immigration and Asylum Act 1999 establishes a "one-stop" procedure for immigration and asylum appeals, where all grounds for appeal must be adduced before the immigration appellate authorities in appeal proceedings against an immigration or asylum decision.

56.     Section 6 of the 2000 Act inserts new section 57A into the 1976 Act. It provides that race relations complaints relating to immigration decisions may be brought before the immigration appellate authorities under Part IV of the Immigration Appeals Act 1999, in the same way as appeals lodged on human rights grounds. Appellate authority is defined in section 77(6) of the Immigration and Asylum Act 1999 as an adjudicator, the Immigration Appeal Tribunal, or the Special Immigration Appeals Commission.

57.     Section 57A(1) prevents an immigration claim being made to the county court if an appeal could be brought, or is pending, before the immigration appellate authorities. It also prevents a further appeal to the county or sheriff court if an appeal on race relations' grounds to the immigration appellate authorities is dismissed.

58.     Section 57A(2) defines immigration claims in respect of immigration decisions as a claim that a person has committed an act of discrimination against the claimant which is unlawful by virtue of section 19B or that section and sections 32 and 33 of the 1976 Act.

59.     Section 57A(3) prevents the county court from questioning a decision of the immigration appellate authorities that a particular act was discriminatory and unlawful under section 19B. Where the immigration appellate authority finds that a person has been the subject of race discrimination under section 19B the appeal may be allowed on that ground only, and the matter may be referred to the county or sheriff court to assess a claim for damages under section 57(1). This section prevents the immigration appellate authorities' decision in respect of section 19B from being overturned.

60.     Section 57A(4) prevents the county court from challenging the immigration decision to which an immigration claim relates, or an appeal determination in respect of such a decision. There is the possibility that an immigration claim might be made to the county or sheriff court only after the conclusion of an appeal to the immigration appellate authorities on other grounds, as a means of delaying the enforcement of an immigration decision. The amendment seeks to avoid the likelihood of the court granting an injunction against the enforcement of the immigration decision, by preventing the court from questioning that decision.

61.      Subsections (3) and (4) of section 6 of the 2000 Act also amend section 65 of the Immigration and Asylum Act 1999, which creates a new right of appeal to the immigration appellate bodies on human rights grounds against decisions affecting a person's entitlement to enter or remain in the United Kingdom which are alleged to be unlawful under section 6(1) of the Human Rights Act 1998. They provide that there shall in addition be a right of appeal to the immigration appellate bodies on the grounds of racial discrimination.