COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENT'S TO A LORDS AMENDMENT AND COMMONS AMENDMENTS TO WORDS RESTORED TO THE BILL AND MOTION TO BE MOVED ON CONSIDERATION OF ONE OF THE COMMONS REASONS (Hansard, 15 November 1976)

§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth not insist on their Amendment No. 1 to which the Commons have disagreed for the Reason numbered 2. The issue embodied in this Amendment has been debated extensively both in your Lordships' House and in another place, so I shall be brief. The issue before us is not whether the burden of proof under the Bill should in general he on the respondent; in general the burden of proof under the Bill is on the complainant. The issue we are considering is the much narrower one of where the burden of proof should lie in respect of one of the elements of indirect discrimination. The complainant has to show that he is put at a disadvantage by a requirement or condition which is discriminatory in its effect. After the complainant has established this, it should, 1059 the Government believe, be for the respondent to justify the requirement or condition.
The primary questions of fact to be determined in a case of indirect discrimination are these: first, has a requirement or condition been applied to the complainant; secondly, has he failed to comply with it; thirdly, has his failure to comply with it operated to his detriment: fourthly, is the condition or requirement such that the proportion of those of the complainant's racial group who can comply with it considerably smaller than the proportion of those not of his racial group who can do so; and fifthly, is the condition or requirement justifiable irrespective of the racial group of those to whom it is applied?
Of these five questions, the Bill requires the complainant to satisfy the court or tribunal on the balance of probabilities that the answer to the first four are in the affirmative. This is a substantial task which should not be underestimated. What the Government are saying is that if, and only if, the complainant can prove on the balance or probabilities that the answer to these four questions is in the affirmative, then it is reasonable to require the respondent to prove in answer to the fifth that the condition or requirement was justifiable. I beg to move.

§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I have been much concerned as to how to deal with these wretched Reasons put forward by the Commons and how to handle the debate in general. It might be for the convenience of the House if I made in effect one speech on this Amendment indicating my general approach to the matter, and then perhaps we can take the others rather more shortly.
When the Bill came up for Second Reading, I prophesied that it would do damage to race relations instead of achieving the object we all have in mind, which is to improve race relations. Rather to my surprise, it can already be shown to have had that effect; I do not want to rub the recent by-elections in the 1060 nose of the Government because I do not want to intrude on private grief. On the other hand, I must remind the Government of the fact that the National Front so vastly increased its support at them and that some of the other fringe candidates had a racialist tinge to the rather peculiar descriptions of their candidature. That is exactly what I prophesied would happen. If one looks for the causes, it is almost certain that the cause was the introduction of and the publicity given to this Bill through Parliament. That is what has caused the disquiet, which these extreme Right-Wing elements, if that is the right description, have used as a source of recruitment.
This, I fear, will reproduce itself because the supporters of the principal contentious features of the Bill proceed, I believe, on a totally false conception of what will improve and what will damage race relations in this country. I have never sought to deny that legislation has some valuable role to play in the improvement of race relations; I have wearied the House and previous Parliaments on this subject for so long that I will not rehearse the ways in which I think it can improve race relations. But in order to improve race relations one must have a fairly clear idea as to what is the unease which has spread throughout the country and how it can be allayed or further exacerbated.
A recent example of the mistaken view which has prevailed so widely and which has produced the Bill and the Amendment was seen in the way in which Mr. Powell's recent speech was treated in the country. First, the prominent leader of a racial minority produced a trailer which advertised the speech in advance. Before it was delivered, he said how dreadful it was going to be, with the result that every newspaper took it up. When it was delivered it received the publicity which was largely due to the trailer and when it had been delivered the same individual gave it a follow-up by saying that Mr. Powell ought to be prosecuted for it—a situation to which we shall revert when we come to the Amendments relating to old Clause 70—thus giving him three times the amount of publicity he would otherwise have had.
The truth of the matter is not that the great majority of the people of this country are racialists or "racists" as one 1061 Member would insist in calling them in Committee; they are not. They are, as are all other human communities, disturbed by a large incursion from various other sources coming into the country. They are afraid that the fundamental values of life which they have come to prize will be subverted by this incursion. This does not imply any degree of racialism whatever. It may indeed be very largely irrational. I think it is to a very large extent irrational, but it is something that is far more deeply seated than is racialism. The Greeks had a word for it. It was xenophobia. Once you have recognised it for what it is, the thing to do is to allay the fears that have been aroused and not exacerbate them.
If you introduce legislation the effect of which is to subvert the burden of proof in even one respect, as this particular Amendment does; if you bring in legislation which will give people the impression that you will interfere with the freedom to elect members to clubs, as another part of this legislation does; if you are going to introduce indictable offences that do not contain a guilty mind as an essential ingredient in the prosecution's case, you will not merely not allay but actually confirm the fears that the people who belong to the racial majority of the country feel. In that way, you will make race relations worse, not better. That is what is happening in front of our eyes. That is what I predicted would happen when we introduced the existing legislation in 1968. It happened—in introducing the Second Reading, the then Home Secretary said clearly that race relations had deteriorated. That is what is happening as the result of the introduction of the present Bill.
I would say with great respect to the proponents of the Bill that they are setting about it in the wrong way. They think that, by legislation which is repressive, which undermines well-established British traditions and which is unintelligible in parts and unenforceable in other parts, they will improve the situation. Not at all. We shall find that in four or five years' time those who find that race relations have further deteriorated will say that we must have another Bill with even bigger teeth and so we shall go on with the Rake's Progress in which this Government and the Labour Party in particular (though it is not only the Labour Party, for other people are also involved) have 1062 been engaged ever since 1965. Race relations will, in consequence, get worse and worse.
Having said that and, I hope, said it fairly plainly, the question remains, what are we to do with the Commons' contemptuous disposal of our Amendments? These were designed to remove some of the evils of this Bill and when one looks at the reasons given for their rejection one sees that they are not reasons at all. One looks at the present reason. We changed the burden of proof in a particular respect back to the traditional view that the burden of proof rests on those who are making the assertion. The Government say that they disagree to that Amendment, because the Commons consider it appropriate that the onus of establishing that a requirement or condition which has been shown to be discriminatory is justifiable should rest upon the respondent. In other words, they say that their reason is, "We are right and you are wrong". That is no way to conduct a rational or civilised argument and the Commons are pursuing their course of thinking that, as an elected dictatorship, they can dictate to the great majority of the people of this country. The mistake that the Government are making is to encourage the Commons in that belief, which leads to the kind of humiliation to which they will continue to be subjected by the population whenever the latter is given a chance to vote.
However, the question remains, what are your Lordships to do? I have given the matter as careful attention as I could after consulting my right honourable and honourable friends and my noble friends in this House. For what it is worth, my view is that I would have divided on almost all the contentious Amendments had this House been an effective control over or court of appeal from the Commons. I have never tried to treat it like that, despite some of the scutterings and squeakings which go on behind the wainscots down the corridor. I have tried to treat it as a revising chamber whose exact composition prevents it from wielding a very high degree of authority. My conclusion is—and I shall have to reiterate it at intervals during the course of the, I hope, relatively short passage of this Commons Message—that we did not 1063 get enough support in the Commons to justify sending it back again to the Commons for their reconsideration.
That is not to say that we were wrong in our opinion, nor that if we had had a differently constituted Second Chamber we should not have been justified in vetoing it, but it is to say that in the present constitutional situation we believe that we should be both misrepresented and misunderstood if we used the fact that the Government have so mismanaged their business that it comes at the very end of the Session to give them the unpleasant alternative of choosing a quite different Bill (which is what it would be if our Amendments were insisted upon) or abandoning it altogether. For these reasons, we on these Benches do not propose to divide on these Amendments. We simply point to the defects of the Bill and consider that the arguments that have led us to introduce the Amendments have never been answered and are not being answered by the Commons on this particular occasion. However, as I said, we did not get enough support in the Commons to justify sending the Bill back again. I believe that the present Amendment was defeated by 53 votes or something similar, so I propose to leave it at that, with these few—I hope not inappropriate but I fear somewhat opprobrious—words.

§ Lord MONSON
My Lords, I am very disappointed to hear that the noble and learned Lord, Lord Hailsham of Saint Marylebone, has no intention of dividing the House on any of the Amendments and I hope that he may reconsider this later. I said on Third Reading that all your Lordships, whatever your individual views on the Bill, had supported wholly moderate and reasonable Amendments and that none of them were in any way wrecking Amendments. Despite this, the other place accepted only two Amendments of ours of any substance—or two and a half, depending on the importance which one attaches to the Amendment to Clause 49. Of these two only one is of much practical value, as opposed to philosophical importance. I very much hope that the House may divide —not on all the Amendments because I do not think that there is a case for doing so—on the first Amendment, on Amendment 1064 No. 14, and on Amendment No. 28, all of which involve individual freedom in a very serious way.
I read very carefully indeed through the Official Report of the Commons proceedings when they were considering your Lordships' Amendments. I tried to see whether there was any validity in the Government's case on Amendment No. 1 and at first I thought that they said one or two things which merited consideration. But in the end one comes back to the totally conclusive remarks of the noble Lord, Lord Foot, speaking from the Liberal Benches. Postulating a case in which the court was faced with an equally balanced argument between a respondent and a claimant, unable to decide which case had the greater merit, he pointed out that the court would have to decide against the respondent unless he could prove his case conclusively, innocent though he might be; in other words, unless there was a definite balance of probability in favour of the respondent. The court might be well aware that the man was likely to be innocent of any discrimination, but because he had not had the intelligence, or had not been able to afford to employ a good enough barrister to prove his case, he might well be found guilty of discrimination, whereas in fact he was not guilty. To my mind that is totally conclusive, and I believe that for that reason alone your Lordships should insist upon the first Amendment.

§ Viscount HANWORTH
My Lords, this matter raises once again the question of whether we have got the right Parliamentary system. We have not. In my view, and I think in the view of many people, it ought to be possible to have a Second Chamber which has some power. I do not suggest for one moment that we should do anything other than what the noble and learned Lord, Lord Hailsham of Saint Marylebone, has suggested, but I should like to take this case in point as being just one other where the need to reform our Parliamentary system is emphasised. If we do not do this, I am certain that our democratic system as we know it—whatever "democratic" now means—will not endure.

§ Lord HARRIS of GREENWICH
My Lords, I should like to respond briefly to the points made, not because the points 1065 made are unworthy of discussion, but because they have inevitably ranged rather wider than the confines of the Amendment. As the noble Viscount, Lord Hanworth, will appreciate, although it would no doubt be profitable to discuss the question of the type of Parliamentary system we have, I think it is difficult to do it in relation to Amendment No. 1 This is a matter which has, perfectly properly, occupied a great deal of the time in recent weeks, and I had the pleasure of hearing the noble and learned Lord, Lord Hailsham of Saint Marylebone, on this subject during his Dimbleby lecture. He referred in passing in his speech today to the question of an elective dictatorship, which was a point which he discussed with characteristic verve on the occasion I have mentioned. But I am bound to say that on the basis of the events of the last few days, an elected dictatorship is not a form of words which I would apply to the situation now confronting the Government. That is the first point.
The second substantial matter which the noble and learned Lord, Lord Hailsham, raised comes down to the fundamental question of whether it is a good idea to have anti-discrimination legislation at all; whether it could arguably make the position a good deal worse than it otherwise would be. I accept at once that it is possible to speak with power and conviction on both sides of this argument, but I must say, as I think I said in the winding-up speech on the Second Reading of the Bill, that I do not believe that the situation in this country would be better at the moment in terms of race relations, in terms of community relations, if there had in fact not been race relations legislation on the Statute Book. I think the situation would have been a good deal worse. One has to take only one particular example, to look at the serious problem faced by many coloured school-leavers confronted with the very clear evidence of prejudice which exists—possibly among only a handful of employers, but which nevertheless exists—to see the need to have proper legislation to defend the rights of those coloured teenagers trying to get jobs. Had there not been legislation I believe the situation would have been worse in that respect.
We have only to look at the example of the United States. There has been substantial legislation by Congress in this 1066 area. Looking at the community relations in the United States today, as compared with the situation 10 or 15 years ago, most of us would come to the conclusion that one of the principal reasons, though not the only one, for that employment was the civil rights legislation passed during the presidency of Mr. Johnson. I have myself, I feared, trespassed rather outside the terms of the first Amendment, but I thought that it was right to do so, given the fact that the noble and learned Lord ranged rather more widely than he should have done—perfectly reasonably—and I will seek to limit my own comments on later Amendments to avoid going over the same ground again.