DAMAGES (Hansard, 9 July 1968)

§ Mr. Alexander W. Lyon
I beg to move Amendment No. 88, in page 14, line 31, at end insert— (3) In any case where it appears to the court reasonable so to do the court may in lieu of awarding damages under this section order the defendant to take such steps as may appear to the court to be equitable to place the person in respect of whom the complaint has been made as nearly as is practicable in the position in which he would have been but for the unlawful act; and if any defendant fails or neglects to comply with any such order within such period (or such extended period) as the court may allow, the court may thereupon award damages against him; and in the calculation of such damages the court shall take into account both the conduct of the defendant and any loss suffered by the person in respect of whom the complaint has been made which may be attributable to such failure or neglect. This is a matter which arises out of the Street Report which, of course, was the basis of this legislation. The authors of the Report suggested that it might be a more effective remedy to a person who has been discriminated against if he could be put into the position that he would have had if he had not been the victim of discrimination, and for that reason a mandatory order would be better than either an injunction or damages. Indeed, this would to some extent get round the difficulty which the right 438 hon. and learned Member for St. Marylebone (Mr. Hogg) raised about damages in that they would be speculative and to some extent arbitrary, because the effect of a positive or mandatory order would be that the person got the job, or the house, or the service, which he had been deprived of by reason of the discrimination.
The reasons for the Amendment were fully set out in the Street Report, and I do not intend to repeat them They are well known to the Front Bench, and I do not anticipate that at this stage of the Bill they are preparing any concession. But I think it would have been advisable if, at an early stage of the drafting of the Bill, they could have included positive orders, and I hope they may think about it again before it gets to another place.

§ The Attorney-General
I regret that I must advise the House to reject this Amendment. Mandatory injunctions to deal with the kind of situation which we are considering in this Bill would be, I submit, objectionable in principle. To empower a court, for example, to order an employer to employ a certain man, or a householder to sell his house to a particular individual, would be unacceptable.
An injunction is an appropriate remedy to prevent anyone from engaging 439 in a discriminatory course of conduct, but where an individual has suffered an ascertainable loss through discrimination, the provision in the Bill which we discussed in the last Amendments for the award of damages is, I submit, the appropriate remedy. Accordingly, in my submission the proposal for mandatory injunctions should be rejected.

§ Mr. Hogg
I should like to congratulate the Attorney-General. He has just persuaded the House to indulge in the absurd, but he has refrained from compelling it to attempt the impossible. Of course what is attempted by the hon. and learned Member for York (Mr. Alexander W. Lyon) is not merely absurd but also impossible. It is, as the Attorney-General has pointed out to the House, quite impossible to secure, without grotesque injustice, specific performance of a contract of service, a contract of letting or a contract of purchase. But it is also logically impossible to attempt to do so. This is why the hon. Gentleman is pursuing a will-o'-the-wisp.
It is conceded that what a man is entitled to if he is not discriminated against is not to succeed in a contract but to be entitled to compete for one. When the act of discrimination is complete the contract goes off to somebody else, the house is sold, the job is filled, or the taxi-cab, if it is the case of a taxi-man discriminating, is driven off to Euston. What the hon. Gentleman is seeking to persuade us is to put things back as if they had never happened. I can see the force of the injunction, by a stretch of the imagination I can conceive of the absurdity of the damages, but to turn the clock back and make it never to have happened is something which even the hon. Member, as the Attorney-General has rightly pointed out, cannot achieve.

§ Mr. John Fraser (Norwood)
I hope that the Attorney-General will be good enough to look at this again. I think he fell into the same trap as the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) in choosing examples which were not valid ones. I see no reason why he should come to the belief that the judges would never find circumstances when a mandatory injunction would be necessary. I 440 give some examples, and ask him to think about this again.
Take a mortgage from a building society. Say a building society able to give mortgages discriminates against somebody applying for one. Is there any reason why the court in some circumstances should not order it to grant a mortgage to that person?
Secondly, take the sale of houses. There are many estates developed outside London consisting of, say, 250 houses all exactly the same and at the same price. Surely it is reasonable in these circumstances that a mandatory injunction should be given for the sale of one of these identical houses to a person who has been discriminated against.
I suggest that there are also circumstances where if somebody were refused membership of a trade union branch through discrimination there should be a mandatory injunction for admitting the person to membership.
There are many circumstances in which a mandatory injunction would be inapplicable, but there could be a few cases where it might be better to have the person discriminated against put in the position as if the discrimination had not taken place. I urge the Attorney-General to consider this and not exclude judges from ever being able to grant such an injunction.