§ (1) Whereby virtue of the provisions of section 14, 15 or 16 of, or Schedule 2 to, this Act, an investigation is being carried out by the Board or by a conciliation committee or by any body of persons to whom such investigation has been referred, any person who willfully and unreasonably refuses or neglects to provide any material information or to answer any material question or to disclose any material document upon being requested in writing so to do either by the Board or by a conciliation committee or by any such body as aforesaid with the authority in writing of the Board shall be guilty of an offence under this section.
§ (2) Any person who in the course or for the purpose of any such investigation as aforesaid wilfully gives false information to either the Board or a concilation committee of any such body as aforesaid shall be guilty of an offence under this section.
§ (3) Any person who wilfully and unreasonably obstructs or threatens to obstruct or does any act calculated to obstruct either any investigation by the Board or by a conciliation committee or by any such body as aforesaid or the provision by any person in the course of any such investigation of any material information or the answering of any material question or the disclosure of any material document shall be guilty of an offence under this section.
§ (4) The penalty for an offence under this section shall be a fine not exceeding£100 or imprisonment for a period not exceeding three months, or both; or, in the case of a second or subsequent offence, a fine not exceeding £250 247 or imprisonment for a period not exceeding twelve months, or both.—[Mr. Alexander W. Lyon.]
§ Brought up, and read the First time.
§ 5.0 p.m.
§ Mr. Alexander W. Lyon (York)
I beg to move, That the Clause be read a Second time.
I understand that with this Clause we are to discuss new Clause 3—"Enlarged definition of discrimination".
§ Mr. Lyon
I am grateful to Mr. Speaker for reversing his original selection, because, although the two Clauses apply to different problems, that to which Clause 4 relates is far more important. It relates to one of the principal weaknesses of the Bill which has been widely commented upon and upon which we had a good deal of discussion in Committee. Varous ways of trying to improve the Bill to remedy this weakness were suggested in Committee.
The weakness to which I refer is that in fulfilling its obligations to investigate an alleged act of discrimination the Race Relations Board will have no power under the Bill to compel anyone to give evidence to it, to produce papers, or to furnish information upon which to make any rational judgment about whether discrimination has taken place. In Committee, my right hon. Friend the Home Secretary and, even more, the right hon. and learned Member for St. Marylebone (Mr. Hogg) made great play with the comparison of the police investigating serious offences, even murder, being unable to compel witnesses to give information if the witnesses refused to do so.
This analogy was always wrong. The Board will not be in the position of a policeman in the exercise of its functions. Of course, it is an enforcement agency, but it is more. In the nature of most cases of discrimination, the Board will be a court itself. It will have to decide whether there has been discrimination and to do so it will have to take evidence from both parties involved about the alleged act of discrimination.
It is true that by later Amendments in Committee my right hon. Friend changed the phrase from "making a determina- 248 tion" to simply "forming an opinion", and it will, therefore, be possible for the Board simply to reach a prima facie opinion that discrimination has occurred. That would not in any sense be a final determination of the matter. But to do that it will have to have the necessary information, and the weakness of the Bill as it stands is not that it denies the Board powers which the police do not have, but that it will mean that inevitably the Board will have to send more cases to court.
I thought that we were all agreed that the fewer the cases which went to court, the better. The object of the procedure is to conciliate and not to enforce. Therefore we are all trying to create conditions in which fewer cases will go to court. But if the Board cannot obtain the evidence to determine whether there has been discrimination and the only evidence before it is a complaint by the person who is alleged to have been discriminated against, the Board must form a prime facie opinion that there has been discrimination and it must send the case to court.
Therefore, the objective, which was eschewed by my right hon. Friend in Committee, of bringing enforcement too much into the proceedings will be achieved by this weakness in the Bill. The only way of conciliating in the end will be to take the acrimonious parties to court. I would not want that and I do not think that the Home Secretary would, and I therefore ask him again to consider this weakness.
The new Clause was devised by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who, unfortunately, cannot be here to move it today. It is a new device from those suggested in Committee and from those urged by the Board. It creates a criminal offence. I would have preferred the Amendment which I moved in Committee, but, that having now passed, I hope that the Government will accept the new Clause.
I do not think that there is any secret about the fact that one of my right hon. Friend's concerns at that stage was that if his concession were made on a matter thought by the Board to be important, that would in some way militate against 249 the acceptance of the Bill by the Opposition. We have now reached the stage when the Opposition have clearly determined not to support the Third Reading. Surely we should now determine to get the best Bill possible with the support of this side of the House.
I therefore hope that my right hon. Friend will be less intransigent about this matter than he was in Committee. If he feels that the Clause is not the right way in which to deal with the weakness, I would be happy to accept an assurance that the matter would be dealt with before the Bill reached another place. However, I hope that in response to all the criticism from all informed sources about race relations, not least the Board, and in view of the experience in America, where this weakness has been proved over and over again in those States which have no power to get witnesses or documents before a similar conciliation committee, my right hon. Friend will yield.
§ Mr. Paget
I regarded on Second Reading, and I still regard, this proposal as possibly the most important if the Bill is to be effective. In Committee, my right hon. Friend took the view that the Race Relations Board could not be given powers which were not given to the courts even in cases of the most serious crimes. That is a misunderstanding of the situation. It is a very ancient tradition—we might have to consider it, but it is none the less very ancient—that no man should be compelled to incriminate himself; that is to say, he should not be compelled to give evidence which would show that he had committed a crime, or, though this is subject to considerable limitations, to produce documents which incriminate him. He can decline to do so on that ground.
But we have not created a crime here. We have not said in the Bill that discrimination is a crime. We have expressly declined to do so. When one is not dealing with crime, any man may be compelled to give evidence against himself. In any civil proceedings, for libel or otherwise, one may call one's opponent and put him in the witness box, where he is bound to answer any questions dealing with the case.
Equally, by the process of discovery, one can compel him to produce all the relevant documents. It is not only in a 250 court of law that one can do this. Under the Arbitration Act an arbitrator can do it. Why, then, not the Board? The Board is considering matters which are expressly not criminal, which are to be dealt with in a civil fashion. Why deny it the procedures and facilities which are usual in the investigation of civil matters?
So much for what seem to be the main argument advanced against this proposal. Now to the argument for it, which is based on something else. I will not go into this at any length, but I do not think that the injunction system will work. This is very largely because the courts will be very loath to make injunctions, the performance of which they are not in a position to supervise. This has always been the tradition of the courts—very loath to grant injunctions which are enforced by committal to prison unless the definition can be complete, unless the performance can be supervised by court.
That will mean that the cases become far more constricted than we would wish. Secondly, I do not believe that a procedure for damages in which damages are paid to an injured party, but the complaint can only be brought by someone else, is a system which will work very satisfactorily in practice. The real sanction to this discrimination legislation will not be the result of an inquiry, but the inquiry itself. One has to carry public opinion, and on the whole one does. People may be against foreigners coming here, against coloured people, but they feel that if they do come here it is decent to treat them equally. That is the general feeling, and people do not like being exposed for not doing so.
They do not want to be put in the witness box and have questions put to them, questions showing them to have been rather mean, perhaps prevaricating and lying fellows. They do not like that, and least of all do they like people going into their business, going through their business and investigating how it is conducted. That is the effective sanction.
The main purpose of the Board is conciliation, but behind that there must be the ultimate sanction. The effective sanction to my mind is stage 2—"If we cannot agree we will have to have an investigation.…if you will not answer these questions and discuss it sensibly you will have to answer it in the witness box, with the Press there and everyone 251 else…we will have to look at your books." This seems to be the most effective sanction, and that is why I hope that my right hon. Friend will look favourably at this new Clause.
§ 5.15 p.m.
§ Mr. Hogg
I must make it clear that whoever else is against this new Clause, I am against it. I hope that my hon. Friends will be as firmly against it as I am. I regard it as wholly illogical—it is the ultimate lunacy to which the extreme enthusiasts of this Bill would seek to lead us. It would destroy any hope that the Board would command the support of the public.
Let me deal first with the speech of the hon. Member for York (Mr. Alexander W. Lyon). He began by seeking to show that the Race Relations Board is a court. That is exactly what it is not. It is not designed as a court. If it were a court, it would be acting and proceeding at every stage contrary to natural justice, and the proposal to arm it with the capacity to create a criminal offence is to turn it into an inquisition. That is exactly what the worst enemy of the Bill would wish to do if he wanted to discredit it with the public. We must clearly understand what the Bill envisages to be the function of the Race Relations Board. There can be no doubt about this under the Bill as it stands.
Whether one agrees with the Bill, or opposes it, or whether one tries to examine it, as I tried to do, in an objective way, it is clear that its functions are twofold. The first is conciliation and that, by consent, is the result that one most desires to achieve, if the Bill becomes law. The second function is to be an enforcement body. It achieves the first function by conversations and seeking to obtain assurances, and by obtaining voluntarily information from the parties. Its value very largely depends upon its capacity to acquire information voluntarily, and its functions as an enforcement body depend upon its capacity to bring proceedings for enforcement before a properly constituted court in public.
This is the logical point at which I must confess a wide degree of surprise at the extraordinary arguments adduced in favour of the new Clause by the hon. and learned Member for Northampton (Mr. Paget). No man, he said, should 252 be compelled to incriminate himself, but, he adds, we have not created a crime. That is precisely what the Clause does. It arms the Race Relations Board with the capacity to create an offence. I would accept as a matter of fact, in some ways I was surprised that the hon. and learned Gentleman did not make the point, that there are certain authorities with that capacity. In social security legislation, an inspector of the Ministry can demand information under this precise type of penalty, although I have not investigated the penalty clause. The Minister under whose authority he acts is answerable to this House. The supporters of the Bill, the more extreme supporters particularly, have all along decided to eliminate the one answerable Minister from the proceedings of the Race Relations Board—the Attorney-General.
As the Bill stands, as the intention of the Government stands, as the hon. and learned Gentleman opposite has said, the Attorney-General is eliminated. What one is doing is to create a body not responsible to this House, with the capacity to create a criminal offence by demanding information and then reporting to a criminal court. I find that utterly and completely deplorable. The hon. and learned Gentleman went on to argue that in civil proceedings a man was bound to incriminate himself, and these were civil proceedings. What he failed to understand completely was the logical conclusion of his argument, because under the Bill there will be civil proceedings if the Race Relations Board is not satisfied with the result of its voluntary inquiry. In those proceedings the person accused of discrimination will have to give evidence if he is subpoenaed. The full power of subpoena exists in those civil proceedings. What the hon. Gentleman is arguing is wholly unnecessary.
The hon. and learned Gentleman goes on to say that there must be discovery of documents and that people are bound to discover documents in civil proceedings. Again, if the Board, as a result of its conciliation procedure, which is basically voluntary under the Bill, does not succeed in obtaining satisfaction under Clauses 18 and 19, this is precisely what will happen under the Bill. The proceedings will be begun and, under the proper authority of a judicial officer—a judge, or a registrar of a county court— 253 there will be discovery of documents. In other words, the real sanction of which the hon. and learned Gentleman made so much will be there and what he proposes is wholly and absolutely unnecessary.
I take that argument a stage further, because I think I can claim to have a legitimate point of view on this. I realise that the Board has always felt that it needs further powers. I am sure that it does not. To act at all it must have some information to the effect that some contravention of the Act has occurred. It does not investigate in vacuo. If it did, it would be making itself ridiculous. It asks the target against whom the allegation is made, "Is there any truth in it?" He can say one of three things. He can say, "Yes, it is true", "No, it is false", or, "I am not going to give you any information."
If he says the third at any stage of the proceedings, the information in the hands of the Board, coupled with his attitude, evidence of which can be given in the county court, if the county court is the tribunal which will ultimately decide upon the matter, will be available to the civil court for the purposes of evidence. Even if he is not subpoenaed to give evidence, which very likely will not be the case, for the value of a subpoena can be grossly exaggerated, that evidence, on the balance of probabilities, wall hold the field, because it is a civil court and not a criminal one.
I would hope that this is something on which all parties can unite. This is a proposal which is illogical in its conception, unnecessary in its application, and inconsistent in its demands. If it were introduced, it would be oppressive. For those who oppose the Bill it would make the Bill totally offensive. For those who support that Bill, it would destroy and undermine any confidence they might have.
§ Mr. Alexander W. Lyon
The right hon. and learned Gentleman makes it the main point of his argument that he would not give to a body which was not under the control of a Minister and answerable to the House powers to demand information on pain of legal penalties. In fact, his Government—I believe that he was intimately concerned with the matter—produced the Restrictice Practices Court with a Registrar of 254 Restrictive Practices, which is the inforcement agency and who can demand information. A refusal to give information in the way requested in the Clause is, under that legislation, an offence.
§ Mr. Hogg
The hon. Gentleman is giving his own case away. The Restrictive Practices Court is a court constituted at law, operating at law, and the Registrar is an officer of the court. This is the whole point I was making. The hon. Gentleman's reference to the Restrictive Practices Procedure leads me to make another point which passed through my mind when the hon. and learned Member for Northampton was speaking. The hon. and learned Gentleman, in expressing doubts about the injunction procedure and about the procedure provided by the Bill for hearing in the county court—as the House knows, the county court is not my preferred tribunal—overlooks the large range of judicial proceedings which recent Parliaments, under successive Governments, have introduced, whereby this is the very sanction selected by Parliament and which on the whole has proved, or the threat of it has proved, to be a wholly effective means of enforcement without the criminal law being invoked and without, in nine cases out of 10, the injunction being imposed.
For all these reasons, I am against the Amendment.
§ Mr. Richard
I am not surprised that the right hon. and learned Member for St. Marylebone (Mr. Hogg) is against the Clause, because I remember the speeches he made in Committee. The analogy made by my hon. Friend the Member for York (Mr. Alexander W. Lyon) with the restrictive trade practices law is quite apt, for this reason. Section 15 of the Restrictive Trade Practices Act, which is a piece of legislation the primary responsibility for which must rest on the other side of the House, as it was passed in 1956, provides for the examination of any witness before the High Court at the request of the Registrar. That request precedes any suggestion of court proceedings. Indeed, it can be totally independent of court proceedings.
As I understand the position, it is an apt analogy, for this reason. I hope that the right hon. and learned Gentleman will take this into account, because I know that he has strong views on this 255 matter. Nevertheless, this is a strong point on the other side of the argument. Under the restrictive practices and monopolies legislation, just as under this legislation, the recourse to court proceedings is the end of the ladder: it is the last link in the chain. The very last thing that is desired in race relations legislation, as in restrictive practices and monopolies legislation, is to get to court.
That is why it is right for the Registrar to be given the power, when he is investigating certain agreements, to go to the court and ask for a witness to be examined before the court. It is right in that case and it is right in this case, for very much the same reason, namely, that we do not want a multiplicity of court actions and we do not want the Board to have to chase off to court every time somebody says, "I am not going to answer any questions". Therefore, the analogy is apt.
The second point which is underestimated by the right hon. and learned Gentleman—and by my right hon. Friend the Home Secretary, I fear, if his attitude tonight is to be the same as it was in Committee—is the uniqueness of the legislation and of this problem. After all, we have not created a criminal offence, but we are not in the realm of purely civil law. What we have done, if anything, is to create something analgous to a statutory tort, and we have gone on to provide a statutory form of enforcement of that tort, leading to eventual court proceedings.
In these circumstances, it is logical to ask those on whom the burden of enforcement is to be placed, who are themselves the most expert and informed in this matter, whether they believe that they have the necessary powers. Those who are expert in this field, and who are charged by the Government with the responsibility of trying to enforce the legislation, are overwhelmingly of the opinion that they have not sufficient powers, because there is no form of investigatory procedure which they can call in aid before they have to go to the trouble of launching court proceedings.
If the object of the exercise of the Bill is to conciliate, there must be some procedure for dealing with the total non-co-operator. Somewhere along the line, 256 before going to the trouble of launching a county court action, seeking an injunction, and asking for the whole panoply of the law to be brought into play, the Board should be entitled to step in and say, "You have refused to answer our questions. Now we shall ask you to answer them by virtue of the statutory authority that we have been given under the Bill".
I agree with my hon. and learned Friend the Member for Northampton (Mr. Paget) that the real sanction will be the publicity. If the Board say to a man, "If you do not answer our questions at this stage, you may have to undergo a public examination", the threat of the public examination will be almost as effective as the threat of the court action and of the eventual injunction.
I rest my case upon the uniqueness of the situation, the uniqueness of the problem, and the unique way in which the Bill, fully supported by the Tory Party, has tried to deal with the problem of creating a statutory tort and an enforcement machinery. There is the further point that those charged with enforcement say that they believe that they will be inhibited. There is the final point that both right hon. Gentlemen on the Front Bench said in Committee that, if they are inhibited, we must try to do something about it. I prefer to deal with that possibility now. I see no danger in not conceding in general terms some form of investigatory procedure before going to court.
The precise form of the new Clause, in creating a criminal offence with a fine of£100 or imprisonment not exceeding three months, is not wholly acceptable to me. What we argued in Committee was not whether a man should be fined£100 or sent to prison for a period not exceeding three months, but whether he might suffer the ultimate indignity of being fined£10 because he was in breach of a county court subpoena issued by a county court judge.
I would prefer to see that that type of civil procedure where the Board could apply to a county court, get a subpoena and have the man examined. If the only sanction is a£10 fine, I would prefer that to the massive criminal penalty 257 expressed in the new Clause. Although without much hope of success or without much faith in my plea, I ask my right hon. Friend the Home Secretary at least to consider the views of the Race Relations Board and look at the matter again.
§ Mr. Callaghan
It is right that we should have this discussion again, because it goes to the nub of the problem of the powers of the Race Relations Board. That is basically what we are discussing. There is here a fundamental clash of opinion. I take a different view from that of my hon. Friends the Members for York (Mr. Alexander W. Lyon) and for Barons Court (Mr. Richard).
It is true that the Race Relations Board would like these powers to be conferred upon it. I am asked by my hon. Friend the Member for Barons Court to agree that because the Board wants the power conferred upon it, therefore the House should confer that power upon the Board. That is not a wholly persuasive argument for me. There must be rather better reasons than that.
The one thing which I regret about the justifiable campaign which has taken place—I do not complain about it; people are entitled to say that they want the Board to exercise the powers—is that in their enthusiasm some hon. Members and some interests outside the House have said that the Bill will be valueless unless the Board gets these powers. That seems to me to be not only destructive of the usefulness of the Bill, but also wholly untrue.
Let me make the point clear. It is not true to say that the Bill is wide in scope, but lacks teeth. I may rouse some antagonism elsewhere on this matter, but let us get the facts straight. The Bill has teeth. The question is: who is to bite? Is it the Race Relations Board or the courts? That is what we are discussing.
I ask those who say that they are in favour of legislation, but who then go on to attack it the whole time on the ground that the Board is not getting the powers, to stop that kind of argument, because the powers exist. It is important that everybody should recognise this. The question is: by whom are they to be exercised? My hon. Friend the Member for York said that one of the weaknesses of the Bill is that the Board has 258 no power to compel anyone to appear before it or to produce papers; it is not a policeman, it is not a court. That is what my hon. Friend says. That, however, is not the concept in the Bill. It is not the concept on which I believe that the Board is best likely to build up its standing with the public.
In that aspect, I entirely agree with the view of my hon. and learned Friend the Member for Northampton (Mr. Paget) that it is essential that this legislation and the Race Relations Board should carry public opinion with them. In my view, it is more likely that the Board will carry public opinion with it if it has to have recourse to the courts in respect of matters in which it believes that an offence has been committed than if it has the power itself. I believe that I am a better friend of the Race Relations Board in this regard in the attempt to build up that state of public opinion than are those who would themselves at this stage arm the Board with the important powers and liabilities that the Bill conveys. That is my view about that.
My hon. Friend the Member for York then said that the inevitable result would be to send more cases to the courts. I do not agree. Why should that be? As my hon. Friend developed his argument, I said to myself, as I did in Committee, that what my hon. Friend presupposes is that innocent people will not co-operate with the Board. In saying that more cases will go to the courts, he is presupposing that those who have committed no offence but against whom an offence has been alleged refuse to reply to the Board when it makes its inquiries.
I said in Committee that I could well understand that somebody might exercise his god-given rights as an Englishman and say that he did not propose to answer, but the number of cases of that nature—and I hope that I can assess opinion about this as well as my hon. Friend or anybody else—are likely to be extremely small. I do not accept my hon. Friend's view that the consequences would be to send more cases to the court, unless I must deduce from that that those who have not committed an offence will refuse to co-operate with the Board. That seems to me to be an unlikely conclusion.
§ Mr. Alexander W. Lyon
I do not for one moment suggest that the increase in 259 the number of cases will come from innocent people. To be able to conciliate, however, the Board has to be clear that there has been an act of racial discrimination. I am saying that guilty people, who are under no compulsion to provide the information to the Board, might prefer to refuse to give information and, therefore, the Board would be inclined to send more cases to the courts. That is the argument.
§ Mr. Callaghan
I do not follow that, either. What my hon. Friend now says is that a guilty person—at least, someone who is presumed to be guilty and is not denying his guilt—goes before the Board and refuses to answer the questions, and that if the Board has the powers it will not send the case to court. That is not likely either. How can one conciliate a guilty man who is determined to persist in his guilt? One cannot have it both ways. Either this is a conciliatory body or it is a court. In my view and in the view of the Government—and that is why we bring the matter forward in this way—the Board is a conciliatory body, and one cannot compel people to be conciliated if they themselves refuse to conciliate. I will return to the point later.
I have looked up the points raised by my hon. and learned Friend the Member for Northampton about arbitrators because it is important in considering what powers should be given to the Board in this regard. If the analogy were close, it might be worthwhile thinking about it again, but the analogies which I have found do not persuade me that I would be right to give these powers.
The function of the Monopolies Commission, for example, is confined to reaching findings and making recommendations. It is the ultimate tribunal. I understand that there is no appeal from it. Nor does the Commission initiate inquiries. It operates only when a case is referred to it by a Minister of the Crown. Therefore, that analogy is not complete. No one would argue that the Race Relations Board should operate only on the basis of a case referred to it by a Minister of the Crown. There is, therefore, an entirely different set of circumstances.
The Registrar of Restrictive Trading Agreements, to which my hon. Friend 260 the Member for Barons Court referred, is the closest approach that I can find to the kind of power that I would like to give to the Race Relations Board. Here again, however, the failure to comply with the notice is a criminal offence punishable by a fine of up to£100. I do not believe that it is right that we should arm the Race Relations Board with powers and penalties of that sort.
The power of the Registrar of Restrictive Trading Agreements to issue a notice is in relation to the narrow question of a restrictive trade agreement. What is more—and, here again, I must come back to where I started from at 3.30—the Registrar, whom my hon. Friend quoted, has no conciliatory function. He is not a conciliator. He is, as the right hon. and learned Member for St. Marylebone (Mr. Hogg) said, an officer of the court in one sense. Therefore, I do not accept the view which has been put forward that these powers are given to other people.
I come back to my main argument which can be summed up in this way. The Board's primary function is to secure conciliation by agreement. That is what the Government want it to do and, as it emerged from Committee, that is what the Committee wanted it to do. I believe that it is right and sensible, in the present state of development of the Board and the necessity to carry public opinion with it, that we should ensure that the Race Relations Board does not reach too far yet. Whatever may be the development in the future, and I cannot foretell it either way, their principal rôle is that of conciliation.
My second main argument against adopting the new Clause is that there would have to be a criminal sanction against failure to comply with the orders of the Board, and this would be contrary to the whole concept of the Bill as it has been discussed. Compulsory attendance before the Board would inevitably require appropriate safeguards to maintain the principle that nobody should be compelled to incriminate himself. The right hon. and learned Member for St. Marylebone answered that point admirably, and there is no need for me to pursue it. That, clearly, is a very important argument against it. A fully effective safeguard for a man who was 261 compelled to appear before the Race Relations Board in practice would enable him to remain silent in proceedings before the Beard. Such proceedings would be of no practical value unless the principle that no one should be compelled to incriminate himself is breached.
I think that the last sentence of my hon. and learned Friend the Member for Northampton added up to complete support for the line we are taking. He said if a person appeared in front of the Race Relations Board mute and silent, the Board would say to him, "If you do not answer you will have to produce your papers in front of the court if we form the opinion that an offence has been committed." Exactly. That is exactly the procedure that is laid down and it seems to me to be the right procedure.
I am certain that we are right to divide these powers. I emphasise that it does not weaken the Bill in any sense. It is a division of powers rather than an aggregation of powers, and, therefore, I regret that I cannot accept the Clause.
§ Sir D. Walker-Smith
I will not keep the House for more than two minutes at the most, and I should not have added anything to the admirable speech of my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) were it not for the praying in aid of the precedent of the Restrictive Practices Court. An hon. Member opposite said that my right hon. and learned Friend was a member of the Government who passed that Act. I was not only a member of the Government; I was one of the Ministers directly responsible for formulating the provisions of the Act and taking charge of its conduct through the House. I say, with respect, that it is wrong to press the analogy of that Act as a precedent for these powers. It is true that there is a power in the Registrar to get the information as to the restrictive agreements which there is a statutory duty to register, but that is a necessary power. It is not an oppressive or inquisitorial power, because if the restrictive agreement exists it is simply a matter of fact and it must be registered. In every respect basically the procedure of the Act is judicial, and it was on that basis that we put it before the House. I do not want to go into far off things and battles long ago. It was because it was 262 judicial that it was voted against by the other side.
§ Mr. Richard
Would not the right hon. and learned Gentleman agree that one reason why power was given to the Registrar was so as to avoid the ultimate sanction of having to go in front of the courts? If they were given the limited power multiplicity of action would be avoided.
§ 5.45 p.m.
§ Sir D. Walker-Smith
It was confined to the registration of the agreement. The agreement had to be registered, and it was in the interests of the parties that it should be registered, since it was only by so doing that they could displace the onus that it was against the public interest. The hon. Gentleman must appreciate that it was in an entirely different climate. Under that Act the sort of parties engaged are very substantial indeed and equipped and aided from the start by solicitors, counsel and the like who are able to look after themselves.
§ Dr. Winstanley
I am sorry to delay the House, but I regret that I cannot advise my right hon. and hon. Friends how to proceed on this matter, whether to give their support to the Home Secretary or to withhold it.
I cannot advise them until I have an answer to a question to which I endeavoured to get an answer in Committee and which has not been answered this time either. The Home Secretary told us that the number of cases in which people would refuse to give information would in his view be "infinitesimal". This was the word he used. I suggest to him that this would depend on what such people think is likely to happen if they do not answer the questions, and this is precisely what this discussion has been about.
The right hon. and learned Member for St. Marylebone (Mr. Hogg) in his interesting and convincing speech said that the person could behave in three ways. If, for example, a representative of the Board or of the conciliation committee visits a public house to find out whether or not the public house refused to serve someone and asks questions, (a) they can say "Yes, it is true", (b) they can say, "No, it is not true", or (c) they can decline to answer. 263 Surely there is a fourth possibility. They may very well say, and would do so, I imagine, "What happens if I do not answer?" What is then said? Is the Race Relations Board representative then to say that nothing happens, in which case I would suggest that they might not answer; or will the Race Relations Board representative say, "Of course, if you do not answer, this is a matter that we will take into consideration in deciding whether or not to refer the matter for civil proceedings before the court."
The Home Secretary will recollect that this is precisely the solution on the Order Paper as a way in which we might proceed. In other words, it is suggested that rather than adopt this formula we should make it clear that, where a person fails to respond either reasonably or at all to inquiries made of him, this should be in itself a reason, if the Race Relations Board so determines, to refer the case for civil proceedings. If the Home Secretary will state quite clearly that the Board has this power and can proceed in this way, I would advise my hon. Friends to support him, since it would seem that the point about which we are worried is answered. I agree that these powers must be given. I agree that it would not be right that the rô le of the Board should be frustrated merely by people declining to co-operate, but I take the point, and I accept the force of the argument, that it should not be given powers which would be more suitable or more appropriate to the courts and which should not be vested in a body of that kind.
If the Home Secretary can say unequivocally that the Board has the power, that, where a person refuses to answer, this, ipso facto, can be a reason for the Race Relations Board referring the case to the country court which could then issue subpoenas and so on, I would be satisfied.
§ Mr. Callaghan
I would just say quite shortly that if I were a member of the Race Relations Board and were faced by somebody asking what would happen to him if he did not answer, I would say that it depends on the opinion that I form on the papers that are in front of me, and if I feel on the basis of the allegation that has been made and any other evidence that I have that it should go before the court, then I will take it 264 before the court. I suppose, if I was a member of the Race Relations Board, I would have to try to judge whether his failure to answer was in itself another factor in forming my opinion, but I imagine that the Race Relatons Board in considering the matter would base its opinion primarily upon the evidence it had in front of it and only secondarily on the attitude of anybody who appeared in front of it.
§ Mr. Alexander W. Lyon
Before I beg leave to withdraw the new Clause, may I say that, if the argument of my right hon. Friend the Home Secretary is right, I am surprised that the experience in the United States should be that those States which have these powers for their conciliation committees have proved to be more effective than those which do not. I hope that that will not be the case in this country, but I am quite willing to accept the greater wisdom of the majority of the House.
I beg to ask leave to withdraw the Motion.
§ Motion and Clause, by leave, withdrawn.