§ Mr. Hattersley
I beg to move Amendment No. 47, in page 4, line 40, leave out 'ten' and insert 'twenty-five.'
378 This Amendment deals with certain temporary exemptions provided by the Bill in the employment sphere. I should emphasise that the exemptions are, in the Government's opinion, and should so remain, essentially temporary. The proposition I am putting forward is simply for an extension in the temporary exemptions, for the Government could not conceive of a situation in which we were prepared to grant permanent exemption for any sort or class of employers under those provisions of the Bill which insist that there should be no discrimination in employment.
As the Bill stands, the time exemption is in two parts. For the first two years of the Measure's operation, firms employing 10 people or less are exempt. That provides an exemption for firms employing 14 per cent. of the working population. The extension of that exemption in the Bill is for a third year, in which firms employing five people or less continue to be exempt. That third year exemption will cover firms employing 6 per cent. of the working population. It was suggested in Committee that a more substantial and longer exemption was necessary if the objectives of the temporary exemption were to be achieved.
The first objective is to give the small company time to prepare for the effects of the Bill, and to make necessary adjustments. The second objective is to make sure that the Race Relations Board is not presented, in the first year or two years of the operation of the Act, with more cases than it can reasonably or rationally examine in the way that my right hon. Friend expects.
These exemptions never were, and never can be, intended as a means by which the force of the Bill is reduced. All our experience suggests that the immigrant population probably has greater difficulties in finding employment in smaller firms than in larger ones. Our attempts to provide exemptions of a sufficiently long period, covering sufficiently large numbers of firms, are intended to do no more than to make the Bill operate smoothly, and make the firm which must eventually be covered by it have the opportunity of adjusting to its proposals.
It was said in Committee that there is no way of knowing what the exact figure of the exemption should be. There are 379 no magic numbers which are right for a certain number of years for a certain sector of the economy. My right hon. Friend and I certainly take the point. The decision as to which firms should be exempt, and when, and for how long is in part an arbitrary decision and certainly a subjective decision. In consequence of that, we were prepared to take into account the views expressed in Committee that the purpose we seek to achieve would be more easily achieved if the exemption was increased. This is exactly what the Committee was promised would be the nature and purpose of the Amendment. That is, that firms employing 25 people or less are exempted for the first two years—that is, firms employing 20 per cent. of the population—and firms employing 10 people or less are exempted for the following two years after the initial exemption; that covers 14 per cent. of the population.
We hope that the Amendment will commend itself to the House in the knowledge that our intention is simply to make the Bill work smoothly and is in no way to reduce the effects of the Bill or its force in employment situations.
§ 11.30 p.m.
§ Mr. Hogg
This time it is I who am looking a gift horse in the mouth, and looking it in the mouth rather squarely. I must accept the gift horse for what it is worth because my own Amendment No. 49, in page 4, line 42, leave out from 'household' to 'to' in line 43, has not been selected for discussion, although it is an Amendment which I would have sought leave to divide upon had it been selected because we attach considerable importance to it.
Again we are concerned with the exemption limits which are acceptable in a Bill of this kind, and again we are concerned with a difference of degree which divides the two sides of the House, without perhaps the gulf being as wide as some people have made it out to be.
The figure of 25 has been substituted by the Under-Secretary of State, coupled with an increase of the tapering period from two to four years. It would be churlish of me not to recognise that these are significant improvements in the Bill from my point of view. On the other hand, it would be equally unrealistic to 380 say that they were satisfactory improvements from my point of view in the sense that I can accept them with a glad heart.
Both sides agree that an exemption limit of some kind is desirable. Both sides agree that to impose an employment Clause on the public without an exemption limit would be impossible. The two points at issue are whether there should be a tapering period and what the exemption limit should be. The Government appear to think that they have satised the requirements by giving a number of figures showing the number of people employed in small units and showing that this number is large, and arguing from that that the Bill must cover them sooner or later.
I do not accept that, for a number of reasons. Obviously the exact line at which one draws the limits either of tapering or of exemption is a matter of judgment, and therefore in itself arbitrary. In favour of 25, which is the preliminary limit chosen by the Government and which my Amendment, had it been selected, would have made indefinite, is that it is the figure chosen by the American Code—not that this is conclusive in our favour because our situation is different, but it is significant that it was chosen by the American Code—and the Street Committee chose either 25 or 50;I have forgotten which. At any rate, it chose a figure which was not less than 25.
We therefore start from the proposition that this is not an unreasonable figure to choose. I am not impressed by the number of individuals who may be employed in establishments of less than 25. Those of us who read the Donovan Committee's Report—I cannot pretend to have read it all yet, but I hope that I shall have read it all certainly before the end of the recess —recognise how many of our fellow countrymen serve in establishments which employ very large numbers of people. The numbers of individuals serving in establishments employing 5,000 or more people are very large.
The point which we are making in seeking for a high exemption limit in the absence of tapering off is basically threefold. First, one gets progressively unrewarding the more one bogs down in investigations into small establishments. We do not think that it is an answer that there are a very large number of people 381 serving in small establishments, because we notice that a large number of small establishments are involved and the number of investigations would have to be very high to result in a significant change in pattern.
Secondly, as I have pointed out before, we think that the problems involved in small establishments become different in kind when the scale dwindles below a threshold. The problems of management in a large establishment are easily solved. If one man does not get on with another or if a small group forms up against a smaller one, various arrangements are open to the management of the large establishment whereby the situation can be solved without causing a great deal—
Mr. Deputy Speaker
Order. We are not discussing the large establishments on the Amendment. We are discussing only whether the figure should be 10 or 25.
§ Mr. Hogg
We are discussing whether it should be 25, Mr. Deputy Speaker, and I am indicating why I favour the higher figure rather than the lower.
I was answering the Under-Secretary's argument that a large number of people were employed in the establishments within the critical range which he sought to alter. I was trying to establish on our side that the management problems involved above the critical threshold figure must be intrinsically different in kind, because there are various solutions of personal difficulties and personal antagonisms open to management in a large establishment—I am prepared to take the threshold to some extent at an arbitrary figure—which are not open to the management of a small establishment.
Then, it is said that there should be tapering off. This involves two fallacies. The first is that the Bill will stay on the Statute Book unamended for an indefinite time, which I simply do not believe to be the case. The Bill is designed to amend an Act of Parliament dated 1965, and I simply do not believe that experience in this novel sphere of legislation will leave it unamended for another five years. I doubt whether it will leave it unamended for another three years. Therefore, it is foolish to insert periods of four years like that which the Under-Secretary proposes 382 in the Amendments. It is far better to take a figure which for the moment we consider to be satisfactory and stick to it.
Secondly, I feel that we would create good will among those who are in a relatively humble way of business by not imposing on them at this stage a time limit beyond which they came within the ambit of a law which they may well view as oppressive.
Let us see how we get on with the big operators. Let us see how it works. Let us get experience of how the Bill operates. The Race Relations Board will have plenty on its plate with the employment Clause and the accommodation Clause for more than two years and, I think, for more than four years. Let us gain experience before we plunge out into the jungle of small establishments, small operators, problems of individual management, problems of individual antagonisms. If the Bill can justify itself by experience, it very likely will succeed over the range of small establishments without further legislation. I should not be a bit surprised. If it fails, I doubt whether further legislation will help it.
As matters are, I would be disposed to think that the Government would have been wise to accept the experience of the American code and put in 25 without a tapering clause. The Government would have been wise to accept the Street Committee's recommendations without putting in a tapering clause. I cannot see why they have insisted on this limitation to their wisdom.
Although it is not open to us to divide, Mr. Deputy Speaker, in view of the selection of the Chair which of course we loyally accept, as we have loyally accepted every selection that the Chair has made, I think I should make my protest as I have made it. Although we on this side of the House accept the Amendment, we think it is insufficient, and even now we are not above asking the Government whether they would not in another place consider an indication that it ought to be of more indefinite significance than they have hitherto thought.
§ Mr. Heffer
I think that the Government have gone as far as they should go in this matter. I certainly hope that they will resist the extremely friendly 383 blandishments from the right hon. and learned Member for St. Marylebone (Mr. Hogg), since this is a compromise Clause. There was pressure, if one may use that term, from industry on both sides in relation to this. If one went beyond this the Clause would be defeated, because it would mean that a considerable section of the working population would be completely exempt from ever becoming involved in complete integration. I accepted this very reluctantly, but on the ground that there ought to be an easing-in period until final and complete integration was achieved. I think the four years is about right. Anything beyond that would be wrong, and I therefore hope that my hon. Friends will not go any further in this matter and will keep the Bill as it stands.
§ Mr. Kenneth Lewis (Rutland and Stamford)
I share the reservations of my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) on this matter. I cannot understand why the Government are coming so low down in the scale on this Bill, since they did not come down so low in nominating firms of certain numbers in previous Bills, for instance in the Prices and Incomes Bill. It is extremely difficult administratively to deal with firms that are employing few people since there is such a vast number of them. It may seem relatively difficult for us to pass legislation which does not apply the same rules across the board, but my right hon. and learned Friend in making the point that we are in a new sphere here and ought to try it out on larger organisations made a valid point. By bringing the number so low, the right hon. Gentleman will add to discrimination, because the Bill lays down regulations for both employment and dismissal.
The head of a small firm will be careful whom he employs for fear that, should he later have to dismiss the man, the firm will be charged with discrimination. It is, therefore, relatively easy to get round the subsection dealing with employment. No small firm need employ anybody it does not wish to employ in that a valid excuse can be made, covering up discrimination; the inability of the applicant to do a certain job. that 384 a suitable job is not available and so on. This means that although a small firm might wish to employ an immigrant, it will avoid doing so for fear of being charged, at a later date, should redundancy occur, with discrimination.
A larger firm need not have this fear. A company employing 100, 1,000 or 5,000 people can keep an individual on its books for a few months without much difficulty. A small firm employing only a handful of men is in a different position, and I fear that this provision will add to, rather than detract from, discrimination in employment in these circumstances.
§ Sir S. Summers
The Government assert that they are doing something in favour of coloured immigrants by ensuring that after four years it becomes an offence to discriminate against them. When one considers how this will work in small firms, one must wonder whether this will really benefit immigrants. Are we doing a service to immigrants if we make it possible for them to force then-way into firms? We must bear in mind the personal relations that exist among workers in particularly small firms. I trust, therefore, that further thought will be given to this matter.
§ Amendment agreed to.
§ Mr. Hattersley
I beg to move Amendment No. 48, in page 4, line 41, leave out 'in or'.
This proposal deals with exemptions, but on this occasion we seek to tighten up, rather than extend, the definition of the word. On three occasions the Bill refers to persons employed…in or for the purposes of a private household.It was suggested in Committee that the presence of those words might imply that the calculation of exemptions in terms of employment could include those who, while not working permanently in a private household as an intimate, personal part of it, perhaps living in it doing, say, domestic work within its boundaries, might include those who occasionally call, for example, to clean windows, repair the television set or do some other temporary and occasional task. Clearly, the exemption for private households in terms of numbers should not apply. By asking the House to delete these words, we are 385 asking the House to remove any possible ambiguity and to make clear that the exemption applies to people in households as originally intended.
§ Amendment agreed to.
§ Further Amendments made: No. 50, in page 4, line 43, leave out 'year' and insert 'two years'.
§ No. 51, in line 45, leave out 'five' and insert 'ten'.
§ No. 52, in line 45, leave out 'in or'.
§ No. 53, in page 5, line 2, after 'discriminate', insert 'against any person'.—[Mr. Hattersley.]
§ Mr. Rose
I beg to move Amendment No. 54, in page 5, line 4, after 'faith', insert'with prior approval of the Race Relations Board'.In Committee we debated in full the implications of the so-called racial violence Clause. The Committee, in its wisdom, by a small majority on two occasions rejected Amendments moved by my hon. Friends the Members for Barons Court (Mr. Richard) and Southall (Mr. Bidwell). I stress that these were very small majorities and hon. Members on the second bench below the Gangway opposite fought very strenuously over this matter, which we believe to be one of the most fundamental issues in the Bill.
§ Mr. Rose
The hon. Member was not a member of the Committee. I have not seen him here very much tonight. Perhaps he will do me the courtesy of listening.
This Amendment would at least remove a very strong objection to the Clause as it stands. The test of what is a reasonable balance remains an objective test. It depends on whether the particular employer in the particular circumstances thinks that he is preserving what he considers a bad balance. There is no question of objectivity in this test, but it is a matter of what the employer in good faith feels reasonable in the circumstances. It does not apparently depend on what the Race Relations Board considers a bad balance.
§ Mr. Grieve
Surely, as the Clause stands, if he thinks it is not in good faith, the person discriminated against is entitled to take it to the Race Relations Board and the Board will determine whether it is in good faith or not?
§ Mr. Rose
The hon. and learned Member entirely misses that this is the difference between intention and result. The Clause does not define either. The hon. and learned Member also misses the point about the person on whom there is an onus to show that it is in good faith. Is he the person against whom discrimination is alleged, or the person whom it is alleged is discriminated against? In the absence of a definition, the burden might lie on the complainant to show bad faith rather than on the employer to show good faith.
The Clause also misses what I would call "vertical discrimination", which, I assure my hon. Friend the Undersecretary, has nothing to do with vertical integration. This is the way I describe the kind of difficulties where there may be a balance in the numbers of the labour force and individuals are not allowed to rise above a certain level. We know of the case of the bus guard who is not allowed to become a bus inspector. This is more concerned with levels of employment.
§ Mr. Kenneth Lewis
Surely the hon. Gentleman recalls that the bus conductor who could not become a bus inspector was prevented from becoming a bus inspector, not by his employer, but by his co-employees.
§ Mr. Rose
The hon. Gentleman must not accuse me of referring to an individual case. I was using this as a general example. I could have cited many examples where people are not allowed to rise beyond a certain level. For example, they are not allowed to become foremen or managers. I am not referring to any individual case of discrimination. Even if it is conceded that good faith may rest with the employer—this is the important point that hon. Members opposite fail to grasp—the employer's action, which may be in good faith, may objectively discriminate. This is why the Board, which is experienced in these matters, should define what a balance is.
387 I have never taken the view that a so-called fair balance is itself discriminatory. I find the principle of a quota somewhat abhorrent, but it may well facilitate integration at a later stage. I said in Committee that I accept that in some employments there is a threshold beyond which, if more coloured people are employed, the white personnel will leave and what might be termed an industrial ghetto situation is created.
I realise what my right hon. Friends are trying to do by the Clause. It is very laudable, but the result may well be different from what they intend, because this would be valid only if the purpose was to create a fair balance and to promote integration in the future. As it stands, the Clause could provide for a situation where the balance is by no means fair, except in the mind of the person against whom discrimination is alleged. For this reason, I should like a far more objective view to be taken of this, a view which would allow the Board, on the basis of its wide experience, to decide, having been consulted by the employer, whether in a given case it would be right for the employer to apply a certain quota or arrange his labour force in a given way. This would make the existing Clause far less objectionable. In those circumstances, I should be prepared to accept the so-called racial balance Clause, abhorrent as many of us find it.
I make no apologies for raising this at this late hour. I believe that this is the fundamental weakness of the Bill. Even if we cannot be given an assurance tonight, I hope that it will not be too late to correct in another place what is a major defect in an excellent Bill. It would be a shame if the Bill were to go on to the Statute Book with this major defect in it, after all the work which has been done in race relations legislation since the 1965 Act. I therefore ask my hon. Friend seriously to consider accepting the Amendment, even at this stage, in order to allow the Board to make the test, rather than leaving this at the discretion and will of the employer.
§ Mr. Sydney Bidwell (Southall)
As my hon. Friend the Member for Manchester, Blackley (Mr. Rose) has said, many of us on this side who are well experienced in 388 immigration questions, particularly as they affect matters of employment, regard the Clause as it stands as the greatest weakness in the Bill. However, we realise that the wording of the Clause, particularly these words—The Secretary of State may, if it appears to him expedient to do so, by order repeal subsections (2) and (3) above"—can be regarded as a tentative or transitional situation.
What many of us on this side of the House feel is that this transitional period might prove to be extremely dangerous to the central purpose of the Bill, which is to bring about not simply integration, which is a rather harsh word, but human harmony in all fields, and especially in employment. I said in Committee many times, and other Members said it as well, that it was employment opportunities which were supreme. In an earlier discussion it was suggested by my hon. Friend the Joint Parliamentary Secretary to the Ministry of Housing and Local Government that housing was the most important part of the Bill. It may be the most sensitive part of the Bill at this stage, but in my view it is not the central part of the Bill. The central part of the Bill is equal job opportunities for all people, consistent with their skills and abilities and educational qualifications, regardless of the colour of their skin or their ethnic origin.
I regard these subsections of Clause 8, as they stand, as an impediment to that, because an employer can say he has got sufficient employees and can put up a notice, lawfully within the Bill as it stands, saying "No more immigrants wanted". Not "No immigrants wanted"; but "No more immigrants wanted". Not "No blacks wanted" but "No more blacks wanted". Not "No Irishmen wanted" but "No more Irishmen wanted". My hon. Friend shakes his head, but that becomes quite lawful. It may not be the intention; it may not happen in that way; and I hope the conciliatory spirit of the Bill blossoms and flowers and that this kind of thing will be, as it is, totally unthinkable; but we are dealing with legislation of which the words will be interpreted, in the courts, perhaps, eventually, and by the conciliation 389 machinery and the Race Relations Board. Clause 8(2) says,It shall not be unlawful…In other words, the whole central purpose of the Bill is outlawed. It starts by making unlawful discrimination on grounds of colour or ethnic origin and then kicks that provision in the teeth. It opens wide a way of discrimination. I say to my hon. Friend that there is considerable depth of feeling about this on this side of the House. Not least is there depth of feeling in the hon. Member for Southall who has a considerable amount of immigration experience.
In Committee I read a letter about the intake of apprentices by London Transport. Someone in my constituency was complaining about present quota arrangements by which only three in ten of our Indian boys were taken into apprenticeships. I argued then along the lines I have argued earlier this evening, and there was no reply to the points I made in that discussion. I hope I shall not be without a reply this evening. It was suggested that there are in industry enormous difficulties in this matter. Of course there are, but there is a great sense of fair play.
In Committee my hon. Friend rejected the terminology of "quota"; he said it was not a quota arrangement. Whatever we call it, it becomes a quota arrangement, but it is not defined. We argued about the matter of percentages, but we did not get even a figure of percentages; we did not get any numbers at all. The Bill does not deal with an establishment but sections of an establishment. I asked in Committee how it was this arose, because in my experience in industry it does not arise. One would be hard put to it to find an employer who could immediately say how many Irishmen he had, how many Cypriots he had, how many Indians, how many Pakistanis, how many other people of differing national origins. He might even be not all that conscious of colour, especially if his black and white employees were used to working together. Similarly, school children cannot tell one how many coloured and how many white children there are in their class.
Therefore, I hope that my hon. Friend will at least meet our general complaint about this part of the Clause. It is 390 dangerous, undefinable and virtually inoperable in any sense of legality, and therefore it is best left out.
I am not enamoured by arguments from the C.B.I., which has not fallen over itself to support the idea of legislation, or from the T.U.C., which has only been a reluctant accepter. The leading industrialists to whom I have spoken on the idea of racial legislation have said, "Leave it alone. We do not want it. We want to please ourselves." We heard that from hon. Members opposite when we discussed other matters.
Mr. Deputy Speaker
Order. We are on Report. The hon. Gentleman must address himself to the Amendment.
Mr. Deputy Speaker
Order. We cannot argue about the Clause in general, but only the Amendment, as to whether the words:with prior approval of the Race Relations Boardshould be added in line four.
§ Mr. Bidwell
Having regard to the discussions in Committee about the point we now seek to amend, we can go so far as to say that employers can abuse this—and not only employers. Sometimes they hide behind the activities of their workers, and the workers hide behind the activities of their employers. If the Bill is to be effective this nonsense must stop. There will be no qualified body other than the Race Relations Board, and because my hon. Friend's Amendment is an effort not only to change but to improve the Bill I commend it to the House.
§ Mr. Eldon Griffiths
There is a much better body than the Race Relations Board to decide these matters. That is the men at work, whether employers or employees, on the shop floor in the factory. They are far better qualified than the Board to decide these very practical matters.
One thing that has not been pointed out is that the Clause refers only to a very limited group—first-generation immigrants. It is made perfectly clear in subsection (4) that those born and 391 educated in this country are not caught by the Bill, and that is important.
The Amendment is wholly impracticable. It is wrong in principle that the Board should be asked to intervene on the floor of factories and offices to manage their own businesses for those in industry. I cannot imagine that the Board wants to be asked to do this, and I would hope that it would oppose the Amendment.
It is a practical question. In many plants there are already large numbers of coloured people. They are very useful. They contribute a great deal to our country. But it is fact, whether we like it or not—and I believe most of us deplore it—that when some-thirds of the staff of a paint shop in a car factory in Coventry or on night-shift in an hotel in London are members of the coloured community, there is a tendency for white workers no longer to stay there. What happens is that the shop in question or the shift in question tends to become all-immigrant, all black. This is some thing all of us would deplore.
Therefore it must be reasonable to allow the employer, the manager of the shop, the shop steward in the shop, to apply his commonsense and try to arrange some kind of racial balance there so that this problem does not arise. This is a really practical consideration, and I am sure it is one of the considerations which prompted the Government to include this Clause in the first place.
Then there is the other practical aspect. If for some reason in a particular shop, factory or canteen, there comes to be difficulty between one group of people and another—and it may be a difficulty on racial grounds because whatever Act we pass will not change the nature of human beings—it must be right to allow the shop steward, the manager of the plant, to move people around in that factory to maintain some sort of balance so that, human relations being what they are, the plant is not brought to a standstill.
Therefore, the practical reasons of an employer keeping his production line going and a shop steward maintaining harmony in the shop, there must be this power. It is quite wrong that the Race 392 Relations Board should be brought into the act and asked to decide in advance every little detailed consideration of balance which an employer or shop steward may wish to bring about. I hope that the Government will not accept the Amendment.
§ Mr. Alexander W. Lyon
Of course my hon. Friend the Member for Manchester, Blackley (Mr. Rose) is absolutely right in saying that this is the most offensive part of the Bill to those of us who have supported the idea of legislation for a long time, and who have tried to strengthen those parts of the Bill we thought were weak. We failed in Committee to have the Clause deleted, and this is by way of being a half-measure to improve the situation now that we have to accept that there is going to be a racial balance Clause included in the Bill.
But, if I may say so, it was made clear in Committee, and indeed it has been made clear again tonight in the speech of the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), that when we are talking about the nature of the racial balance Clause it is something that one cannot talk about with any great precision. It is a matter of trying to access the undefinable in the particular atmosphere of a particular shop floor in a particular factory. That is why the Government, I think rightly, have said they do not want to be bound to any idea of quotas, any arithmetical proportion of the labour force which would be acceptable. It must be a question of judgment in each single case.
What we are saying in this Amendment is that we have to decide whose judgment is going to be final in assessing what is reasonable. The hon. Member for Bury St. Edmunds, speaking as he does for the C.B.I. on this matter, has said that the best persons to decide that issue are those who are actually on the shop floor. All I can say to him is that if that were true we would not need a Bill in this particular section of community relations, because if the people who are on the shop floor at the moment were not discriminating there would be no need for the Bill.
The fact is, as was brought out in the P.E.P. Report, that we do need a Bill to deal with discrimination in industry, 393 and that is because people on the shop floor are discriminating..
§ 12.15 a.m.
§ Mr. Eldon Griffiths
The hon. Gentleman must recognise that those on the shop floor will be acting within the context of the Bill as a whole, which outlaws racial discrimination. The Amendment is on whether or not they should have to get in touch with the Race Relations Board before they can move a man from one part of the plant to another or before they can decide how they are going to avoid a certain shop becoming all black or all white.
§ Mr. Lyon
I am not impressed by the argument that those who have been discriminating and, therefore, have provoked legislation should be able to decide what is reasonable in relation to an offence arising in the course of the Bill. It may be the kind of factory posed by the Home Secretary in Committee when discussing this racial balance Clause. It may be the case of the reasonable employer who has done his best in the past to employ coloured people and because of his indulgence has reached the limit where his white employees are saying that they will no longer stay and, therefore, ask for some protection against the calling in of any further coloured persons. It may be that there are those situations, but it is wrong that even where the good employer is acting on the dictates perhaps of his own workpeople the decision about what is a reasonable balance should be left to them.
One must recollect that at the moment there are areas of employment where discrimination has been practised so successfully that no coloured person has been employed. When the Bill comes into operation it will be necessary for those areas to accept coloured employees at some stages if coloured people wish to apply for jobs and are equipped to do them. In those circumstances the danger that we have always foreseen about the racial balance Clause will become apparent. The racial balance Clause will be used so that as few coloured employees as possible will be taken on. I should rot want to think that in such a situation they were to be the deciders of what was reasonable.
§ Mr. Hattersley
I am sure that the House does not want to proceed on what 394 is becoming an increasingly false premise increasingly widely held. My hon. Friend will realise that in interpreting what is a reasonable racial balance in all the circumstances under the other provisions of the Bill and under the general way in which the Bill is operated and when the powers in the Bill are in operation, if he or an immigrant believes that he has been rejected for employment because a firm is operating the malpractices to which he has referred, he or the immigrant will be able to appeal to the Race Relations Board and make the normal complaint, and the decision will be in no way the decision of the company but determined in the normal way. To have a debate in which it is stated from both sides that the decision is that of the firm is to have a debate on a totally false premise.
§ Mr. Lyon
Yes, within the context of the Bill, but the hon. Gentleman said that they were the persons to decide. I accept that under the Bill they are not necessarily the persons who will decide and that the person who has been discriminated against can go to the Race Relations Board so that, willy nilly, despite the opinion of the C.B.I. and the hon. Gentleman, in the end the decision has to go to the Race Relations Board. The question that one has to ask is whether it should go further, whether it should go to the court to decide, whether if the Race Relations Board says that it is unreasonable the employer can go further and say to the court, "The Race Relations Boards says that we are being unreasonable. We say that in all the circumstances we are being reasonable." It is here that I want to draw the line.
I accept that we are dealing with an amorphous situation not easily definable in judicial terms. It is not the kind of thing that a court can easily assess. It will have to take evidence about the 395 kinds of pressure going on inside a factory. I do not think that a court, even with assessors, will necessarily be able to do it. I doubt whether it can do it successfully at all. That is why I have grave reservations about the racial balance Clause.
But if this is to be done, let us ensure that it is done by someone who can really assess the atmosphere in a factory —someone who is not a part of the factory. The only body I can see in that rôle is the Race Relations Board. If we accept that, in disputed cases, the Board can make a decision, clearly it is not going to be excluded. It should be the final judge of what is reasonable. If it is to be the final judge, there is much to be said for the view that it should be the prior judge.
If any employer wishes to claim in defence that he has reached a reasonable balance, there is much to be said for his consulting the Board for its view. It would safeguard his future position. If this is going to be done in a lot of cases, it is probably wise that it should be done in all cases. In these circumstances, there is much to be said for Amendment No. 54. My Amendment No. 56 would put it at a later stage, but I prefer No. 54 and will therefore not press mine. I hope that the Government will reconsider their attitude.
§ Mr. Heffer
What the Amendment asks for may seem a very good thing to those hon. Members with little experience of industrial life. I thought that the object of the Bill was to conciliate between the various races in order to solve problems. The rôle of the Race Relations Board is to conciliate. But the Amendment suggests that it should enter prior to there being any problem whatever in a factory. The sponsors of the Amendment have it the wrong way round.
I have heard statements tending to be somewhat of a slander on the overwhelming mass of British trade unionists and particularly their shop stewards and officials. There are pockets of people in the trade union movement who are prejudiced, but there are thousands of shop stewards who are daily dealing with problems not only of normal industrial life but of racial integration in factories where the Board will never be brought 396 in because the problems are being dealt with on the shop floor. The few dockers who marched on this House do not represent the general view of trade unionists and of the workers in the industry. We have to allow the normal machinery of industrial conciliation to operate first. If that breaks down, then the Board should be brought in.
Let us get this problem of racial balance into proper perspective. The danger is that certain unscrupulous employers may start using immigrants as cheap labour, turning certain jobs into jobs for immigrants only. In Committee I gave an example from the United States where a man can be a railway porter only if he is a negro. The negroes now have those jobs completely within their control, and a white man cannot get in. This is racial discrimination in reverse and it is a situation which we do not want in this country. We never want a particular job to be dominated by all black workers, or by Pakistanis, or Indians.
The Bill makes a clear distinction: if a coloured boy is born in this country, irrespective of his ethnic origin, he is a British citizen and the problem is not related to him; it relates only to immigrants, and for their protection we need something like the Clause until the problem is finally eased away altogether.
We have to be very careful about this problem and that is why the T.U.C. has adopted the attitude which it takes to this matter. Is the T.U.C. racialist? Is the T.U.C. not prepared to ensure genuine racial integration? Does anybody seriously suggest that? My experience in the trade union movement teaches me that the very opposite is true. The normal industrial machinery must be used first. If it breaks down, the Board and its conciliation machinery can be brought in.
I ask my hon. Friend not to persist with their contention that the Clause is racialist in concept. It is the very reverse. Whatever the Bill says, there will continue to be unscrupulous employers who are racialist and who endeavour to get round it, and some workers will be racialist, but they will be in a minority and I hope that the House will accept the trade unions' view of the problem.
§ Mr. Richard
Of course nobody is suggesting that my hon. Friend the 397 Member for Liverpool, Walton (Mr. Heffer) is racialist, or that the T.U.C. is racialist, or that the vast majority of working people are racialist. My hon. Friend says that we should use the machinery of industrial conciliation first. That is fine for those jobs which employ trade union labour, but what of those employers who do not employ trade union labour? What industrial machinery does my hon. Friend suggest that we use in those circumstances? What status and locus does the trade union movement have there? The answer is absolutely none—or, with respect to my hon. Friend, the answer is that it is not good enough to stand up and say that a fair part of the trade union movement is not racialist and that, therefore, we do not need this Clause. I have said time and time again, that we are dealing with a most difficult and delicate subject and that it is high time the country got out of thinking that, because a subject is difficult and delicate, then that is a reason for inaction.
We have heard the expression before during this debate, but I say that one can drive a coach and horses through this Bill so far as this Clause is concerned. I have said it before, but the Government do not seem to have realised the fact, nor dealt with the problem. If I may say so, it seems to me that although it may thought to be a semilegal point—and I hope that my hon. Friend the Member for Walton will listen to me—where one is trying to write into the Bill some provision which at one moment gives legal protection to the liberally minded employer who is trying to preserve a racial balance in the interests of harmony, and at the same time is trying to produce a situation where the illiberal are protected, then one has got to get somebody to decide what is on one side of the line and what is on the other.
The whole argument is really about to whom one gives that discretion. I have always said that it is wrong to give it to the courts. They form completely the wrong body, and I am equally against giving it to the employers. They are not the people who should have it, and when we have deliberately set up enforcement machinery, with experts in 398 this field to serve it, then why on earth cannot the discretion be given to them? Why, in heaven's name, should not the Race Relations Board be allowed to say on which side of the line it thinks any given action falls? They are the people who should assess the discretion, but I am not very surprised that the Government have not been able to accept that rather obvious principle.
If the Government cannot accept it, then can we at least be told that in the Clause through which it is attempted to write into the Bill what the court should take into consideration, there should at least be the rudimentary reasons for giving a certificate? Just to say that this does not matter because it applies only to first generation immigrants is really the biggest nonsense. This is a licence to an employer to discriminate on the ground that he believes he has a certain racial balance which he wants to preserve; and if he believes it is necessary to discriminate, does anybody really say that circumstances will change because the first generation employee was born in England rather than elsewhere?
If one believes that there are racial differences, then they will remain whether the man was born here or not. Let us forget what the C.B.I. and others have said about this matter of where the man was born. As I have already said, this is a licence to discriminate and the Race Relations Board should be allowed to come in and have the power to say that this should be dealt with at the earliest possible moment.
§ Mr. Hattersley
My hon. Friend the Member for Barons Court (Mr. Richard) told the House on several occasions that the existence of this Clause, in its present form, gives employers a licence to discriminate. It is a good, ringing, attractive phrase, the sort of phrase that, I am sure, makes enjoyable reading in the national Press. [An HON. MEMBER: "It happens to be true."] It is, however, wildly wrong, as applied to this Bill. I have to tell my hon. Friends that I believe, and I say this in all humility and good faith, that it might have been easier had the discussion on this Clause been conducted on the not unreasonable assumption that the Government were acting in the same sort of good faith as is written into the Clause.
399 I do not minimise the feelings of my hon. Friends, nor do I minimise the importance of seeking to specify, clearly and properly, the way in which a racial balance is determined. I understand many of their doubts. I concede immediately that the concept of racial balance is a notion against which it is possible to advance formidable arguments. I should be dishonest were I not to accept and concede that.
On the other hand, even stronger arguments can be advanced in favour of this concept. Those strong arguments are made relevant and meaningful if we have a legitimate, proper and reasonable way of determining when the argument for racial balance can be applied to the work situation. The arguments in its favour are reasonable because, in the interests of the immigrants already here, and those likely to enter the country, it is important that they should be encouraged to take their place in a genuine cross-section of industry, that they should be spread throughout industry, and that we should avoid some jobs becoming immigrant jobs, becoming thought of as "black" jobs. That is not in the interests of the immigrants or industry.
All we seek to do in this Clause is to make sure that that situation does not arise. I hope that it is some consolation to my hon. Friends to know that my right hon. Friends the Home Secretary and the First Secretary accept entirely that if this Clause is to work at all tolerably, "reasonable balance" has to be interpreted so as to facilitate integration, to avoid the difficulties involved in immigrant jobs, rather than to allow —and this is another emotive phrase, but a totally accurate one—the employer with malicious or frivolous intent to drive a coach and horses through the Bill.
I can only explain the weaknesses of the arguments of some of my hon. Friends if I remind them of the processes which must be undertaken if the racial balance criteria, or the racial balance conception, is to be applied. If I know of a company which has intentionally and overtly discriminated against an immigrant in employment—and I have some experience of constituencies in which immigrants are to be found—the advice that I would give that immigrant would be to process 400 his complaint, as he is entitled to do under the Bill.
If an immigrant is turned down when applying for employment by the man at the gate, or the personnel officer, or whoever is responsible for employment, and told that he has been turned down not because that company was opposed to the employment of immigrants, but because it believed in a racial balance, and already employed a suitably high proportion of immigrants, then he would be entitled to make a complaint under the provisions of the Bill. He would, I hope, in the first instance, make that complaint to the voluntary machinery set up in the industry. I believe that the integration of immigrants into industrial life makes it important for the Government to bring in no measures, and to advance no principles that dissociate them from trade union and other normal principles.
I hope that the first thing that the immigrant would do would be to make a complaint to the voluntary machinery. If that failed, or if he were dissatisfied, that complaint would automatically go to the Race Relations Board. If the immigrant is dissatisfied by the decision handed to him by the voluntary machinery, it would be the Race Relations Board which would determine whether a company was reasonable in applying the racial balance Clause.
§ Mr. Hattersley
My hon. Friend says "No". Let me put to him the situation in which the Race Relations Board says "Yes, indeed, the firm was right in applying the racial balance argument here and there is no case to answer." Then the matter would be determined by the Board and would not go any further. Then the determination would be entirely in the hands of the Race Relations Board.
The case to which my hon. Friend refers and to which he takes exception is when the Race Relations Board says, "This company was not entitled to apply the racial balance argument and it should have accepted this man for employment" and the firm says "We believe the Race Relations Board is wrong, and we are not prepared to accept its adjudication." In that case, I think, my hon. Friend says that the Race Relations Board is in a position where it can only process the 401 complaint a stage further and take it to the court, and that it must be the court which decides whether the Race Relations Board's judgment was right or whether the judgment of the firm was right.
Surely my hon. Friend is not suggesting that the Race Relations Board, which will be responsible for processing the complaint to the court if necessary, should not only take the case to court but should also, before the case gets to court, determine whether or not the case was proved?
§ Mr. Rose
My hon. Friend consistently and throughout the debate has failed to take the point that what we are questioning is the matter of bona fide intention. The Race Relations Board does not have to decide whether it is reasonable or not, but has to decide merely whether the employer had a bona fide intention, although the result may be alien to what the Bill intends to deal with. It has to apply a purely subjective test of the employer's intention. Will my hon. Friend deal with that?
§ Mr. Hattersley
Yes, I will deal with it. The Clause puts on the Race Relations Board a number of obligations and specifies a number of criteria that the Board must take into account. To abstract one of those and say that this is the only one that matters, that this is the only one which is crucial and, to adopt my hon. Friend's phrase, that this is the one which will enable a coach and horses to be driven through the Bill, is a misunderstanding of the criteria which, according to this Clause, limit and define the action which the Race Relations Board can take. The only dispute between my hon. Friends and myself—
§ Dr. Winstanley
Before the hon. Gentleman leaves that point, may I put this to him? He has explained very clearly that a person would have a right to complain to the Race Relations Board if he had been told that he could not be employed because the firm wished to maintain a racial balance and that it was already employing enough coloured people. But suppose that an applicant was told, not that it was wished to preserve a racial balance, but that his education was deficient. He would not have the right to complain to the Race Relations Board. Therefore, this provision would not be needed at all.
§ Mr. Hattersley
The hon. Gentleman is confusing the issue. If an applicant for employment is told that he is rejected not because of his race or ethnic origin but because of some industrial or educational deficiency, one is confronted with the problem of deciding whether the defence is legitimate or bogus. But that is hardly the issue with which we are concerned now. What we are concerned with is whether or not the Race Relations Board should be asked to give a judgment before the racial balance Clause is invoked, or after.
To say that a company cannot apply this rule until it possesses a certificate of exemption is asking for the rule to be applied in an intolerably inflexible way. It is asking for a certificate of exemption which would have to last for a period of time during which circumstances and employment patterns might change. It is asking for rigidity which is unacceptable and it misunderstands the way in which people employ individuals. It is making it impossible for the voluntary machinery to work, and it is asking for arbitrary and inflexible decisions to be taken.
All I am asking—and this is why I referred to my hon. Friend the Member for Barons Court with unacceptable severity at the beginning of my speech, for which I humbly apologise—is the understanding that the Government seek to meet the problem and solve the difficulty—not to reduce the force of the Bill but to meet a problem of the immigrant community. We seek to do it in the most flexible or reasonable way, and we believe that as the Bill stands, it does that as well as it can be done.
§ 12.45 a.m.
§ Sir D. Renton
Since about midnight, we on this side have listened quietly, patiently and not without interest to the sort of clash which is inescapable in the party opposite between the Left-wing intellectuals as represented by the hon. Member for Manchester, Blackley (Mr. Rose) and the hon. Member for Barons Court (Mr. Richard) —
§ Mr. Richard
On a point of order. The right hon. and learned Gentleman should speak from more knowledge of this party before he makes allegations like that.
§ Sir D. Renton
I shall not be deterred by that intervention from drawing this 403 just and necessary comparison. We have heard the Left-wing intellectuals, on the one hand, clashing with the practical trade unionists as represented by the hon. Member for Liverpool, Walton (Mr. Heffer) and, I am glad to say, on this occasion, supported by the Government representative.
I fully endorse what the hon. Gentleman has said. I might make so bold as to add to his reply that if one reads carefully the last Report of the Race Relations Board, and particularly paragraph 48, one sees that the Board does not envisage having to do the kind of work which the hon. Member for Black-ley would like to impose upon it. Indeed, the Board has a cautionary phrase or two which make it clear that it would not be qualified to do so.
The Board states:If it is important to secure the confidence of members of minority groups, it is no less important to win the confidence of those who may find themselves in a position to discriminate. This means that the Board, its staff and its committees, must be properly qualified to carry out their duties.When one thinks of the kind of duties that would have to be performed and the sort of staff, and the enormous numbers of staff, who would be needed to carry out the duty of giving the prior approval of the Board as mentioned in Amendment No. 54, one realises that the hon. Member's proposal is quite impractical, quite apart from being undesirable for the reasons given by the hon. Member for Walton and for the powerful reason taken by my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) when he pointed out that the men on the shop floor, in consultation with management, can probably reach the right sort of preliminary decisions much better than anyone from outside and that if anything went wrong, or anyone feels that he has a complaint, there is opportunity to go to the Board.
The Under-Secretary is quite right about this, more especially when one bears in mind, as my hon. Friend pointed out, that subsection (4) of Clause 8 means that in any event the Clause is applicable only to first-generation immigrants.
The hon. Member for Blackley called the Clause the most offensive part of the Bill. It is unthinkable that we should 404 legislate in this field without having something on the lines of the reasonable balance Clause, difficult of definition though that becomes. We must face that.
We went into this matter in Committee. We made various suggestions to the Government. They have not put down Amendments which improve the position, and it may be that it is difficult to find the right phraseology. As I say, however, it is unthinkable that we should be without something like this provision, and I am glad that the Under-Secretary has, on this occasion, stuck to his guns.
§ Amendment negatived.
§ Mr. Hattersley
I beg to move, Amendment No. 57, in page 5, line 23, leave out 'and (3)' and insert 'to (4)'.
This is, I trust, an uncontentious Amendment. It merely seeks to add the right phrase rather than the wrong phrase. It intends that the powers we seek should be extended to cover the right subsections rather than the wrong subsections. It is entirely a correction, and I hope that the House will accept it in these terms.
§ Amendment agreed to.
§ Further Amendment made: No. 58, in page 5, line 28, leave out 'in or'.—[Mr. Callaghan.]
§ Mr. Ennals
I beg to move Amendment No. 63, in page 6, line 11, at end insert:(12) For the purposes of this section British territorial waters shall be treated as part of Great Britain.Certain parts of Clause 8 deal with ships at sea and aircraft, and in Committee it was suggested that the Parliamentary draftsman had overlooked territorial waters. The point was raised by the right hon. and learned Member for Huntingdonshire (Sir D. Renton). The Secretary of State said that he would look at the question. The Amendment, which removes any doubt that British territorial waters are to be treated as part of Great Britain, gives effect to that undertaking. Its practical effect will be minimal.
§ Sir D. Renton
While thanking the hon. Gentleman for this Amendment, may I express the hope that the Government will never again forget that Great 405 Britain is an island entirely surrounded by territorial waters?
§ Mr. Hogg
On a point of order. I know that hon. Friends of mine, and I dare say hon. Members opposite, have their own arrangements to make. Perhaps the Government would say one way or the other—I am not anxious to dictate to them in any way—what are their intensions about the progress of the Bill. I do not want to move a dilatory Motion, although I would do so to put myself in order if we wanted a discussion. I do not want a discussion, but I think hon. Members ought to know exactly what the intention of the Government is.
§ Mr. Callaghan
Further to that point of order, if this is a proper way of doing it. There is only one major Amendment left, namely, on damages, as I understand it, and it therefore should be possible to get through Report stage quickly and proceed to Third Reading, so that the Bill may be transferred to another place reasonably quickly so that it may be considered before the Summer Recess.
§ Amendment agreed to.
§ Mr. Hattersley
I beg to move, Amendment No. 64, in page 6, line 11, at end insert:(12) Section 3 above shall not render unlawful the selection of a person of a particular nationality or particular descent for employment requiring attributes especially possessed by persons of that nationality or descent.The Amendment seeks to meet an assurance given to the Committee that we would seek to remedy a situation in which quite unreasonable powers might be applied by the Bill. The Government accept that it is reasonable, to take a perhaps banal but obvious example, for an Indian restaurant to wish to employ Indian waiters and only Indian waiters, and to prevent them from doing that might be taking the principles of the Bill outside the bounds of reason.
I make the speech only to assure the House that the Clause is worded in such a way as to make it as near impossible as can be done for people to misuse the Clause and extend its powers over a wider sphere than the House would intend and regard as reasonable. I therefore commend the Amendment to the House on those principles.
§ Mr. Hogg
I ought to say "Thank you" to the Under-Secretary on behalf of my hon. Friends and myself. This matter occupied quite a long time in Committee. I had to claim the assistance of the hon. Member for Eton and Slough (Miss Lestor) as a potential geisha girl, and we had to give a number of other highly commendable analogies and examples, but at least we made the Government see sense, and we are grateful to them for having seen it.
§ Amendment agreed to.