§ For the purpose of this Act a person discriminates against another if on the ground of colour, race or ethnic or national origins he treats that other, in any situation to which section 2, 3, 4 or 5 below applies, less favourably than he treats or would treat other persons, and in this Act references to discrimination are references to discrimination on any of those grounds.—[Mr. Callaghan.]
§ Brought up, and read the First time.
§ 3.55 p.m.
§ The Secretary of State for the Home Department (Mr. James Callaghan)
I beg to move, That the Clause be read a Second time.
As you have said, Mr. Speaker, we are discussing, at the same time, the Amendment to the new Clause, in line 1, leave out from 'Act' to end of line 5 and insert:'"discrimination" means any distinction, exclusion, restriction or preference based on race, colour or national or ethnic origins and references to discrimination shall be construed accordingly'.and the following Government Amendments: No. 1, in page 1, line 8, leave out Clause 1.
No. 23, in Clause 6, page 3, line 26, leave out from 'act' to end of line 27 and insert:'of discrimination, whether or not it'.No. 24, in Clause 7, page 3, line 37, after 'discriminate', insert 'against any other person'
and No. 53, in Clause 8, page 5, line 2, after 'discriminate', insert 'against any person'.
We had considerable discussion in Committee on this point, when I had pressure brought on me from all sides to 224 give a rather better definition of "discrimination" than was contained in Clause 1. So the purpose of the new Clause is to substitute a new Clause 1. I think that the old Clause 1 was deficient, and that the new Clause improves the situation. All that old Clause 1 did was to say that discriminate means discriminate, and that hardly seemed to be a particularly useful definition.
The new Clause states the conditions in which a person discriminates—if on the ground of colour, race or ethnic or national origins he treats the other person in any situation to which certain sections of the Act apply less favourably —those are the operative words—than he treats or would treat other persons.
The remaining Amendments are consequential on the new definition. I undertook to consider the possibility of finding a better definition and I indicated to the Committee what I thought it would be. The new definition that I have included is in line with the statement that I made in Committee on the manner in which I would redraft the definition.
§ Mr. Quintin Hogg (St. Marylebone)
I do not want unduly to take up the time of the House on this matter. I certainly do not wish to oppose the new Clause. Indeed, as the right hon. Gentleman has said, it is in line with one of the criticisms that I levelled at the definition in Committee, when I pointed out that the last definition was not a definition since it used the word "discriminate" to define the word "discriminate" in the Bill.
But I am still disappointed with the definition Clause. I will not go into my conviction, to which I have referred on more occasions than one, that the base of the Bill is too narrow even if its scope is too wide, but I will say one thing by way of criticism which the right hon. Gentleman has not met. Although I did not make the criticism on Clause 1, I made it on several occasions afterwards in Committee. I think that the definition Clause would be better if it recognised that there was a distinction between discriminating in favour of somebody and discriminating against somebody.
This is something that all of us tended to recognise in the course of the Committee discussions—that it was possible 225 legitimately to favour a particular minority group for which one had a particular affection—the Scots, the Welsh, the Irish, or even that submerged tenth, the English, or any other minority—the effect of which was to discriminate against all other nations when one did it, and that it was possible to do this without incurring the mischiefs of the Bill.
I know that there are difficulties—if I had seen an obvious way out of them I should have moved an Amendment—but I do not believe that it is beyond the wit of man to find one, and I still express; my disappointment that it has not so far been found.
§ Mr. Ivor Richard (Barons Court)
I do not want to seem ungracious—after all, it was my new Clause, withdrawn in Committee, which my right hon. Friend said he would consider—but, unfortunately the new Clause seems to be open to a very large objection. It would leave open to the discriminator the possibility of arguing that what he was doing was providing separate, but, in his view, equal facilities.
We had in the new Clause that I proposed that the person who was discriminating was discriminating not only if he refused or failed to afford like treatment, but if he refused or failed to afford like treatment in like manner and on like terms that he would to other persons in like circumstances. My right hon. Friend said that he would consider that, and now he has produced this new Clause with "discrimination" defined in the words:if…he treats that other…less favourably than he treats or would treat other persons".On that wording, it is open to an employer to have separate lavatory accommodation for blacks and whites and say, "It is of equal standard and, therefore, I am not discriminating on the wording of Clause 1.". It seems to me, therefore, that my right hon. Friend has introduced into the English law a doctrine which the Supreme Court of the United States took six years to get off the United States Statute Book—namely, that the provision of separate and equal facilities is not discrimination in English law. I would be very reluctant to believe that that is now the law in England, what it ought to be or, indeed, 226 that that is what my right hon. Friend intends by the new Clause. I hope, therefore, that to avoid this objection, which is one of substance, my right hon. Friend will say that he does not wish to introduce into the English law the doctrine of separate but equal treatment with the possibility of eventual litigation, which is enormous, because on the wording of the new Clause, it would be open to a discriminator to argue that, having provided separate but equal facilities, he is not discriminating. I cannot believe that apartheid ought to be written into the English law.
§ 4.0 p.m.
§ Mr. John Hunt (Bromley)
I am sorry that the Home Secretary, in his introductory remarks, did not refer to the Amendment to new Clause 1 tabled in my name and the names of the hon. Members for Hampstead (Mr. Whitaker) and for Manchester, Blackley (Mr. Rose). I was hoping that the right hon. Gentleman would say that, on reflection, having seen my Amendment, he preferred my definition to his own. But that appears not to be so.
§ Mr. Callaghan
I was hoping to hear the hon. Gentleman's speech, and then perhaps the House will allow me to make a brief reply.
§ Mr. Hunt
I am glad that there is still hope.
I would point out to the right hon. Gentleman that the definition which I have suggested is supported by the United Kingdom Committee for Human Rights Year and is an appropriate adaptation of the definition of "discrimination" which is given in Article 1 of the United Nations International Convention on the Elimination of all Forms of Discrimination.
My main objection to the new Clause is that put forward by the hon. Member for Barons Court (Mr. Richard), namely, that it introduces for the first time into English law the separate but equal concept which, I believe, could establish a very dangerous and undesirable precedent. It also appears to run contrary to the like treatment principle which is the foundation of the other major Clauses of the Bill.
If the new Clause is adopted un-amended, my fear is that all the specific 227 prohibitions of Clauses 2 to 6 will have to be construed as excluding the provision of separate but equal facilities. In housing and employment, for example, this could encourage practices verging on apartheid in this country.
The hon. Member for Barons Court instanced the example of an employer who provides separate but equal toilet facilities. One could equally instance the provision of canteen facilities, or a local authority which provides a housing estate for coloured tenants only, but provides separate but equal accommodation in an all-white estate.
This new Clause has some real and considerable dangers. It establishes an undesirable principle which should be deplored. The alternative which I suggest to the Home Secretary's proposal embodies a clear and concise definition of "discrimination" and, because its phrasing is similar to that used in the United Nations Convention, it will help to provide an early opportunity for Parliament to ratify that Convention. The Home Secretary knows that the ratification of the United Nations Convention is one of the main objectives of Human Rights Year, to which all parties in the House have given their support.
For the reasons which I have outlined, I hope, even at this late stage, that the Home Secretary will have second thoughts and that, when he returns to the Dispatch Box, he will say that, on balance, he prefers my definition to his own.
§ Dr. David Kerr (Wandsworth, Central)
On a point of order. Mr. Speaker, you will forgive me if my hearing is terrible, but I understood you to say that we were also considering the Amendment. I have not heard the hon. Gentleman move the Amendment formally. I wondered whether this was in order.
§ Mr. Speaker
The hon. Member is quite right. He has not heard the hon. Member for Bromley (Mr. Hunt) move the Amendment, because the hon. Member knew that he was not entitled to move it.
§ Mr. Paul B. Rose (Manchester, Blackley)
I rise briefly to support the hon. Member for Bromley (Mr. Hunt) in speaking to his Amendment to the new Clause, not merely because it is based 228 upon the definition of "discrimination" given in Article 1 of the United Nations International Convention, but because I am not convinced that the new Clause proposed by my right hon. Friend meets the practical points made in Committee by various hon. Members, not least by my hon. Friend the Member for Barons Court (Mr. Richard).
I should like to see the United Nations form of wording enshrined in a Bill which is particularly appropriate to Human Rights Year. I am concerned about the term "not less favourable treatment", because the doctrine of apartheid, at least in theory though not in practice, is based upon the principle and philosophy of separate but equal. It is a principle which, as my hon. Friend the Member for Barons Court said, found favour over many years in the United States Supreme Court. "Like treatment" and "not less favourable treatment" are different, and I cannot understand this sudden lurching off into an unexplored alleyway in the law, an alleyway which is fraught with a great number of dangers. The main danger is that segregated but no less favourable facilities could be provided under this form of wording. Mention has been made of some examples. One might have white and coloured sections in restaurants or canteens, in buses, or in the allocation of housing on a housing estate under this form of wording.
My right hon. Friend seemed persuaded by the strength of the arguments put forward in Committee. He recognised the desirability of a definition Clause. I am sure that my right hon. Friend has done his best to meet the wishes of the Committee, but, unfortunately, he seems to have caused universal dismay to those most concerned with race relations, not least among those whom we are seeking to help by the Bill. I think that my right hon. Friend can put this error right today by accepting the Amendment of the hon. Member for Bromley (Mr. Hunt), which is supported by the United Nations Association Working Committee on Human Rights.
If my right hon. Friend is not prepared at short notice to do this, I would accept an undertaking on his part that when the Bill gets to another place an attempt will be made to find a form of wording which meets the points made in Committee and the point emphasised by 229 my hon. Friend the Member for Barons Court on the great dangers of the separate but equal principle. This raises a point of real difficulty and substance. I hope, therefore, that my right hon. Friend will deal with it accordingly.
§ Dame Joan Vickers (Plymouth, Devonport)
I am disappointed to see that the word "sex" is not in either the new Clause or my hon Friend's Amendment. It appears now that the only persons who will be discriminated against in the apartheid section are women, who have recently been involved in the trouble over the employment of women bus drivers. A woman recently passed her driving test to become a bus driver, but the trade unions and other members of the local bus association said that they would strike if she was allowed to drive buses. Therefore, in this Year of Human Rights, if we are to discriminate we should not discriminate against women. Apparently women will be the only people now left in the country who will be discriminated against.
§ Mr. Speaker
Order, we are not debating whom we discriminate against. We are debating two possible ways of defining "discrimination".
§ Dame Joan Vickers
I am suggesting that neither the new Clause nor the Amendment fulfil what I wish, Mr. Speaker. I suggest that "discrimination" is not adequately described, because it still discriminates against women.
I ask the right hon. Gentleman to reconsider the new Clause and the Amendment and to put in the word "sex" so that women will not be discriminated against in future. I hope that the right hon. Gentleman will consider this seriously, because it is becoming a major problem. As the right hon. Gentleman knows from the various strikes that have taken place recently, women are becoming very militant.
§ Mr. Speaker
Order. With respect, we are discussing a proposed new Clause, a proposed Amendment thereto, and in neither does the word "sex" appear.
Mr. Eric S. Heftier (Liverpool, Walton)
If I thought that my right hon. Friend was introducing a Clause which meant 230 separate but equal treatment I should be the first to vote against it, but I think that some of my hon. Friends, and some hon. Gentlemen opposite, are reading into the Clause far more than exists. The whole idea of the Bill is to do away with racial discrimination. It is, therefore, ludicrous to suggest that my right hon. Friend is introducing a Clause which, while laying down what is meant by discrimination, results in discrimination which does not exist now.
I understand that most hon. Members who are concerned about the Clause are members of the legal profession. I was a member of the Committee which considered the Bill. They were many lengthy debates and arguments, and it was amazing how confused my hon. Friends and others became over the various legal definitions advanced by members of the legal profession. Lay members found it difficult to get to grips with their arguments.
I think that my hon. Friends are overlooking the reference in the Clauses to Clauses 2, 3, 4 and 5, which contain the words which my hon. Friends say ought to be in this Clause. For example, Clause 2 contains the phrase:…to provide him with goods, services or facilities of the like quality, in the like manner and on the like terms…Clause 3, which deals with employment, refers to:like terms of employment, the like conditions of work and the like opportunities for training and promotion…The words "like terms" are used in Clauses 2, 3, 4 and 5. If my hon. Friends have not got beyond the definition in the new Clause, I suggest that they go on to read the other parts of the Bill which provide for exactly what my hon. Friends want.
I agree that there is always a danger of some local authorities going out of their way to discriminate in housing and other matters. This is precisely what we must ensure does not happen. It is not happening now. If I believed that we were laying down a principle of "separate but equal", a principle which was adopted in the United States with disastrous consequences, I should oppose the Clause, but I do not believe that is what is being done. I think that my hon. Friends should reconsider this and 231 not, as I think they are doing on this occasion, see something which is not there, but which perhaps some of them would like to see because they believe that the Government are constantly backtracking in this matter.
§ 4.15 p.m.
§ Mr. Norman St. John-Stevas (Chelmsford)
There is only one thing worse than a lack of definition, and that is a misleading and ambiguous one. I fear that the Home Secretary has escaped from one trap only to fall into a worse one. This definition, however unintentional, is clearly capable of being interpreted in a separate but equal manner. That is the interpretation which has been placed on it by leading organisations dealing with race relations, and by distinguished Members of the House.
If the hon. Member for Liverpool, Walton (Mr. Heffer) says that it is ludicrous to think that the Home Secretary intended to introduce into the Bill such a notion or definition of discriminaion, I say to him that it is not the intention of the Home Secretary that matters, but the words in the Statute.
In that respect, my mind goes back to the Obscene Publications Act, 1859.
§ Mr. St. John-Stevas
No. My mind has gone back further than has my right hon. and learned Friend's.
During the debate on that Act the point was made that the destruction order procedure which was then authorised could be used against works of literature. I believe that it was Lord Lyndhurst who pointed that out, and the then Attorney-General gave a guarantee that it was not his intention; but the Act was used in that manner. The danger is that in future the Bill now before us will be interpreted in the way that my hon. Friend's definition is intended to avoid.
There are two points to be made in reply to what the hon. Member for Walton said about the contrary wording in Clauses 2, 3 and 4. First, the definition in Clause 1 will govern the interpretation of the wording in those Clauses. If there is a conflict, the Interpretation Clause must prevail. But even so, it 232 surely cannot be a wise move in legislation of this kind to start by introducing what must, at best, be an ambiguity and oreate confusion right from the outset.
§ Mr. St. John-Stevas
I wish that I could say that that was clear. It may be clear to the hon. Gentleman, but it is not clear to me. In a Measure where there is a great deal of confusion, this is adding a further and gratuitous piece of confusion.
My hon. Friend's Amendment has the great merit of clarity and puts the point beyond doubt. I therefore hope that when the right hon. Gentleman replies he will say that he will reconsider the wording of the Clause, and that if the Bill reaches another place—I shall not say "when", as one hon. Member said—the matter will have been considered by the Home Office so that the appropriate wording can be introduced then.
§ Sir Barnett Janner (Leicester, North-West)
I, too, am worried about the Clause, for reasons similar to those expressed by my hon. Friend the Member for Barons Court (Mr. Richard). I do not think that my right hon. Friend intends to define "discrimination" any differently from the definition in the Amendment to the Clause. In my view, the alternative definition suggested by the hon. Member for Bromley (Mr. Hunt) and others has been accepted as being in line with the Declaration of the United Nations.
I have had the unhappy experience of being obstructed time and again over the years whenever I have suggested that the Government should accede to the Genocide Convention. I have always been told that it is necessary to alter the law of our country to enable us to accede to that Convention. Despite the fact that everybody agrees with its terms, the Convention cannot be ratified until the position has been cleared and the red tape of the law has been cut.
I am worried because in this Year of Human Rights a reasonable request will be made to us to accept the Declaration of Human Rights in respect of discrimination. Whatever hon. Members may 233 want, if we are to have a Measure of this nature its terms should be clear. The Amendment to the new Clause is clear and concise and I hope that my right hon. Friend will accept it and so not only avoid legal disputes elsewhere as to what the Clause means, but also be in a position later to accept the proposal that we should ratify the Declaration of Human Rights.
§ Sir Derek Walker-Smith (Hertfordshire, East)
I rise briefly to make it clear that the hon. Member for Liverpool, Walton (Mr. Heffer) is not engaged in a, so to speak, lone foray in upholding the layman against the lawyer. There is much substance in the point that he made. It is necessary to see what unlawful acts are committed, and to see that we have to go to specific Clauses, as defined in the new Clause.
For example, Clause 2 refers to discrimination against a personby refusing or neglecting to provide him with any of them or to provide him with goods, services, or facilities of the like quality, in the like manner and on the like terms in and on which the former normally makes them available to other members of the public.To constitute an unlawful act, that must be established. No general words can derogate from the precise effect of those special words.
I have many criticisms of the drafting of the Bill, but this is not one of them. I submit that the position is as put by the hon. Member for Walton and that the misgivings which have been expressed are unfounded, although genuine.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I am sorry that my right hon. Friend has put down the new Clause. Like my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), I think that it was absolutely unnecessary. I hope that I shall be forgiven, as another lawyer who was not on the Committee, for intervening and expressing a view. I carefully read all the speeches made in Committee on the new Clause moved by my hon. Friend the Member for Barons Court (Mr. Richard). I thought that my right hon. Friend the Home Secretary made an excellent speech, showing how totally unnecessary the present new Clause was.
234 What do the new Clause and the Amendment do? The right hon. and learned Member for St. Marylebone (Mr. Hogg) talked about "discriminating against" and "discriminating for", but the words in Clauses 1 and 2 are quite clear. The offence is that of discriminating against. There is no doubt about that. In Clause 2(1), we find the grounds on which discrimination may be exercised. What can be clearer than the simple words that are already in the Bill, namely, that the offence here is discrimination against, on the grounds set out? What do the new Clause and the Amendment add to it?
Hon. Members should examine the words of the new Clause and the Amendment. Do they make any difference to the present wording? The danger is that if we include words which are completely unnecessary we are providing scope for arguments being put forward against what the Bill really means. I ask my right hon. Friend to stick to his original view and not be tempted by what has been put forward in an Amendment to his new Clause, which is itself absolutely unnecessary.
§ Dr. M. P. Winstanley (Cheadle)
I am inclined to support the view of those who have said that the fears of the hon. Member for Barons Court (Mr. Richard) and the hon. Member for Manchester, Blackley (Mr. Rose) are unjustified. But if it should prove to be the case that the new Clause could have the meaning attributed to it, namely, that it in some way underlines, supports or sanctions segregation, I hope that before we end this discussion we shall hear the right hon. and learned Attorney-General saying that it does not have the meaning attributed to it, or the Home Secretary saying that he will do something about it.
I am one of those who criticised the original definition, and I pay tribute to the Home Secretary for doing something about it. I am inclined to share the view expressed today by the hon. Member for Leicester, North-West (Sir B. Janner) and by the right hon. and learned Member for St. Marylebone (Mr. Hogg) in Committee that it would have been nice if the Home Secretary had been able to bring forward a definition which embraced religion, sex, and so on, but the Long Title does not permit that to be done.
235 Nevertheless, we have had the assurance from the right hon. and learned Member for St. Marylebone that he feels so strongly about the matter that if he should ever be in charge of these matters in future he will bring in another Bill. I hope that we may hear from the Home Secretary that he will also consider bringing in another Bill if necessary.
My reason for speaking now is that the discussion which took place in Committee on the question of the definition embraced both Clause 1 and Clause 2. Clause 2 goes on to define unlawful discrimination, while Clause 1 gives the general definition of discrimination. It was inevitable that the general discussion in Committee should embrace both Clauses.
My anxiety in Committee was related to the words "normal" and "normally". I realise that this question may be debated when we reached Amendment No. 6, and I do not want to anticipate that debate, but since it is bound up with the question of definition I hope that the Home Secretary will say something about the new definition either now or later, because the word "normal" is unsatisfactory. What is normal is not necessarily average, and what is average is not necessarily normal. There is much confusion about what is usual or normal. I get this point arising constantly in medical matters. I am asked, "Is this thing normal?" I say, "Yes, it is quite normal, but it is not common." It might be right for me to say that the right hon. and learned Member for St. Marylebone is unusual. He would not object to that, although he might object if I said that he was abnormal.
I hope that the Home Secretary will be able to refer to this point of definition either now or later.
§ 4.30 p.m.
§ Mr. Raphael Tuck (Watford)
I support the Amendment. I take issue with my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), who said that a layman can understand the Bill. I would remind him that the words in the Statute will be interpreted by the people whom he calls lawyers. By that time they will be called judges. They will interpret the Measure. They will interpret it not necessarily according to the inten- 236 tion, but according to the literal interpretation of the Measure.
I am sure that it is not the intention of the Home Secretary to bedevil the issue by loading it up with terms which may be construed in a manner which we would consider to be bad.
§ Mr. Weitzman
Would my hon. Friend care to say what difference the Amendment would make to the original words of the provision?
§ Mr. Tuck
The difference is the need to overcome the concept of separate but equal facilities. Although Clauses 2, 3 and 4 seem quite precise, we must make the lead into them more precise. Clause 1, as drafted, which says thatIn this Act 'discriminate' means discriminate on…is not precise enough because it introduces into the definition of the word "discriminate" the word "discriminate".
I appeal to the Home Secretary to give close consideration to the Amendment, which is concise and precise, whereas the definition in the new Clause is somewhat vague.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
No hon. Member who took part in the Committee deliberations can doubt the need for some definition in this matter. It therefore seems hard on the Home Secretary that, having come forward with a definition, he should be condemned for doing so. I find his definition in the new Clause helpful and, while it does not go all the way, I must support the right hon. Gentleman.
The hon. Member for Barons Court (Mr. Richard) raised a red herring in talking about the whole question of separate but equal. He knows as well as I do that subsequent American judicial decisions discovered that if it was separate, it was not equal. Plainly, if it is not equal it is less favourable.
I am not sure what is the Conservative equivalent of a red herring—unless it is a blue trout or a white sole—but I am satisfied that the phrase "less favourable" has the merit of being understandable to the ordinary person. We all agree that if the Bill is to work it must be understood by the public and be seen to make sense to them. "Less favourable" is clear and we all know what is less favourable.
§ Mr. St. John-Stevas
I agree that the Measure must be comprehensible to the public. Even more important, it must be interpreted by the judges. Thus, the wording should not be ambiguous and allow for different interpretations being given by different judges.
§ Mr. Griffiths
My hon. Friend is underlying the point made by the hon. Member for Liverpool, Walton (Mr. Heffer). He is suggesting that judges are less capable of understanding the English language than the ordinary citizen. "Less favourable" is satisfactory. It is simple, comprehensible and it places the burden of proof where it should be; on the complainant, who must show that he is being treated worse, less favourably, than someone else on grounds of race or colour.
§ Mr. R. T. Paget (Northampton)
If, at a wedding, the bride's relations are put on one side and the bridegroom's on the other, that cannot be said to be treating them less favourably, although they are being treated differently. However, if one puts all the blacks on one side and all the whites on the other, would not the same argument apply? This being so, would it not be better merely to refer to "differently"?
§ Mr. Griffiths
It is reasonable that the House should outlaw acts which are less favourable on grounds of colour, and so on. I would not be in favour of outlawing acts which are different. Acts which are less favourable are those to which I am referring and with which I am mainly concerned.
§ Mr. Griffiths
I thought that I had dealt with that in explaining that it was clearly accepted in the United States—and I imagine that we would follow in this matter—that if it was separate it was not equal and that if it was not equal it was less favourable. That seems to be entirely watertight.
I cannot support the Amendment because it seems unreasonable to say that there should be no different treatment on grounds of preference. I propose to go 238 on preferring many people on grounds of national or ethnic origin. Preference should not be outlawed in this country and I hope that it never will be. What I wish to see outlawed is less favourable treatment on grounds of race or ethnic origin, but certainly not in connection with preference. I am glad that the Home Secretary has introduced the new Clause which, while it may not go all the way, will be of great help.
§ Mr. Stanley Orme (Salford, West)
Having heard my right hon. Friend introduce the new Clause—which, I understand, is designed to meet certain objections voiced in Committee and to define thet matter more precisely—and having heard the lawyers have a go—they have put three different interpretations on both the Clause and the Amendment—I suggest that it might be better to return to the original definition in the Bill, since that might, after all, specify the later Clauses more clearly.
As drafted, Clause 1 says:In this Act 'discriminate' means discriminate on the ground of colour, race or ethnic or national origins, and references to discrimination shall be construed accordingly.While my hon. Friend the Member for Barons Court (Mr. Richard) said that that did not define the matter clearly, I suggest that the subsequent Clauses go on to define it. Does not that overcome the objection? My hon. Friend went on to mention the different interpretations which lawyers could place on the phrase "less favourable", but that must be read in the context of the whole provision in which it appears.
The Home Secretary has tried to meet the wishes of the Committee. The right hon. and learned Member for St. Marylebone (Mr. Hogg) said that no suitable form of words had yet been found. Presumably he has not found a suitable form of words and I suggest, therefore, that we accept a form of words which is understandable to the general public and in common law.
§ Sir B. Janner
Would my hon. Friend indicate his objection to the Amendment? He has not dealt with that.
§ Mr. Orme
My hon. Friend is giving another lawyer's interpretation. There is no difference between us on what we want to achieve. It is obvious from what has been said that we shall not get an ideal set of words providing a definition which is acceptable and not open to various interpreations in law. If we are not to get such a clear definition, then I suggest to my right hon. Friend that he would best meet the point by using the original form of words, backed by specific instances in relation to housing and employment, for example.
§ Mr. Callaghan
We have had a full discussion on this subject, and I do not think that any new points are now being made. I hope that I may say that without it being taken as offensive. We are treading the same ground time and again. It is not my intention to join in the game of hunting the under-privileged lawyers in the House. They rarely agree about the construction of words. Whenever two lawyers are gathered together, one can always get three opinions.
It is my task to make the words clear both for the benefit of the judges who have to interpret the definition and also for the sake of the Race Relations Board and the ordinary citizen. The important part of the Bill is that concerned with the conciliation process and the process of understanding which the ordinary citizen must apply. I trust that the number of cases which judges will have to try, in which they will be interpreting the exact syntax of what the House of Commons laid down, will be infinitesimal.
At one point in the debate I was inclined to agree with my hon. Friend the Member for Salford, West (Mr. Orme) and to feel that perhaps I should have left it alone. In fact, I was trying to meet the convenience of the Committee, for I was asked whether I would bring in a better definition. I suppose I should have known better than to bring in 240 another definition for that was to invite a great deal more controversy.
My hon. Friend the Member for Barons Court (Mr. Richard) should know me well enough to realise that if I thought that this was a proposal which would make separate but equal treatment lawful, I should not have brought it forward. I have made sufficient speeches on that subject and my attitude should be sufficiently well known for hon. Members to realise that I would not be in that position. My hon. Friend may argue, "But you are such a simple chap that you do not understand it. Although you have the best will in the world, it is not your intentions which count, but your words, and they create a loophole for the establishment of separate but equal facilities." That is the argument advanced by a number of hon. Members, although others have taken a different view.
My advice is that no loophole is created by the new Clause as drafted. As my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) pointed out, reinforced by other hon. Members, one has to read the Clause in conjunction with the other Clauses. If hon. Members will stop their reading at the new Clause, and do not read on to the other Clauses, then I agree that there might be a problem. If a learned judge were to stop in that way, then I agree that it is just conceivable that in certain circumstances, late on a Friday afternoon, he might construe these words in the manner suggested by my hon. Friend the Member for Barons Court. But he could not construe them in that way if he read them in conjunction with Clauses 2 to 5, as was said by my hon. Friend the Member for Walton.
It seemed to me that my hon. Friend was qualifying for elevation very rapidly to the bench by the way in which he seized on the nub of the argument. It is quite clear from the Bill, from Clause after Clause, that it must be "in like manner" and "in like circumstances". The argument put forward by my hon. Friend the Member for Barons Court will not support the proposition that the provision of separate facilities would be legal under the Bill.
§ 4.45 p.m.
§ Mr. Richard
I should not dream of suggesting that my right hon. Friend was 241 either simple or a racialist. But I should like to put a serious point to him which I hope he will consider seriously. If discrimination, as he defines it, might allow for separate but equal treatment, perhaps the Attorney-General, or someone else legally qualified, would consider the situation under Clause 3 (l)(c), dealing with employment. Provided that the employer offers a black man and a white man like terms of employment, under the definition of discrimination which my right hon. Friend is introducing, might he not provide for separate but equal sanitary, toilet and canteen facilities, and might not that be permissible under the Bill? That is a serious point, and I hope that my right hon. Friend will consider it seriously.
§ Mr. Callaghan
My hon. Friend repeats the argument without adding to it. I have stated the conclusion which I have reached on the matter. It would be so foreign and contrary to the whole spirit of the Bill if such a defence were brought forward, if such a case ever got as far as the courts, that I would expect the courts to reject a defence against a complaint of unlawful discrimination if it were based on those grounds. I would certainly expect the Race Relations Board to do so.
I believe that my hon. Friend is spinning out words which, in fact, do not carry the weight which my hon. Friend is endeavouring to place upon them. But if, by the remotest chance, my hon. Friend proves to be right—and I am willing to have a modest bet with him that he will not—I think that any Government—a Government of right hon. Gentlemen opposite or the present Government—would clearly want to put that situation right. But I do not believe that that is likely to arise, because it is imperative to read the other Clauses in conjunction with this Clause.
May I take up the point made by the hon. Member for Bromley (Mr. Hunt), my hon. Friend the Member for Leicester, North-West (Sir B. Janner) and others in relation to the Human Rights Convention? Our definition is based on the terms of the then draft of the United Nations Convention on the Elimination of all Forms of Discrimination. The original draft in the Human Rights Convention is the same as our definition, and it was that definition which was 242 carried into the 1965 Act. Subsequently, the definition in the Convention of 7th March, 1966, on the Elimination of all Forms of Discrimination was altered. What we have decided is to carry forward the definition which was used in the 1965 Act, based, as it was, on the original United Nations Convention, rather than to introduce the new definition agreed by the United Nations Convention.
The important point is whether the words which we use would prevent us from ratifying the United Nations Convention. These, again, are like the words we have been discussing. This is a drafting provision to give a different definition to the word "discrimination", but I assure the House that it will have no effect, in our view, on the ability of the United Kingdom to ratify the Convention.
The decision on ratification was deferred only until the form of this legislation had been agreed, and, once the Bill is passed, ratification will be reconsidered. There are still some difficulties which lie outside the scope of the Bill in relation to some overseas territory, but it would not be proper for me to go into them now. But as far as United Kingdom legislation is concerned, the Bill opens the way to ratification as soon as possible, subject to those other difficulties being removed.
On these counts, I hope that the House is inclined to agree that I have tried to meet the case for an expanded definition. Although hon. Members may hold the view that, drafted in a different way, it might be even better, I hope that they will allow me to have the definition and move on.
§ Mr. Callaghan
The one is stated in general and the rest are stated in particular in relation to the various aspects covered by the Bill—provision of goods, employment, trade unions, employers' organisations, housing accommodation, advertisements and notices. Clauses 2 243 to 6 spell out Clause 1. That does not seem to me to be a bad thing.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.