HC Deb 09 July 1968 vol 768 cc417-37
Mr. Hogg

I beg to move Amendment No. 81, in page 10, leave out lines 29 to 32.

The Deputy Speaker

With this Amendment we can discuss Amendment No. 86.

Mr. Hogg

As you have said, Mr. Deputy Speaker, this Amendment goes with Amendment No. 86, which is really a corollary to it. It raises a bone of contention between the parties which was discussed first on Second Reading and which occupied the Committee for a certain amount of time. I deployed the case at considerable length in Committee and do not want to detain the House for the same length of time now, but it is a matter to which my hon. Friends and I attach a certain amount of importance, and, therefore, I shall deploy the case shortly so that hon. Members who were not on the Committee may understand how we feel.

Those who are concerned with the desire to remedy a wrong created by discrimination are concerned also that there should be an individual remedy. Although I am not sure that it would have applied to everybody, I was always prepared to compromise on the basis of out-of-pocket expenses. The Attorney-General, who is paying his usual courteous attention to what is said, will remember that I proposed a separate Amendment on that in Committee, and it would always have been acceptable to me, although it was a minor matter.

But what we have to consider is the remedy proposed by way of damages in Clause 18, to which Amendment 81 refers, and Clause 21, to which Amendment 86 refers. The first thing I would say to hon. Members opposite, which I ventured to say in Committee, is that they, too, recognise, although in somewhat different fields, that there may be cases of injustice where the provision of a remedy by way of damages is inappropriate and cases of very serious injustice which can yield serious financial loss. Less than three years ago, at about the same time as the first Act on the subject of race relations was being passed through this House, hon. Members opposite insisted on driving through this House a Measure designed to reverse the decision of the courts in the well-known case of Rookes v. Barnard in which the courts had found that damages of several thousands of£s yielded to a person who had suffered by reason of intimidation.

We did not agree with that, but the argument which existed between the two sides of the House then, as it was presented to us from the other side, was that, although a wrong might exist in legislation dealing with social conditions, it was not desirable that a remedy by way of damages should adhere to it. We did not agree then. It may be that they will not agree with us now. At any rate, they will not pretend, therefore, that in saying that, although there may be a wrong of some kind, as we do, the remedy of damages should not adhere to it, we are asserting something which is wholly foreign to their way of thinking, because it is not.

The substantial question before the House is whether it is desirable to attach to an individual who complains of an act of discrimination—one must remember in this connection that a single act is enough to give rise to a complaint under the current Bill—a remedy by way of damages for compensation for the loss of chance of employment. In this connection it is important to understand what it is that the Government propose. They have never pretended—and we have never sought to pretend either, of course—that a person who applies for a job or a person who applies for a house should be able to compel a prospective employer to give him that job or the seller to give him that house. That is common ground between the two sides. It is because shot gun marriages of this kind would be bound to yield nothing but bitterness and hatred, and both sides wish to avoid it.

1.30 a.m.

It follows, therefore, that when someone applies for a job or a house but does not get it because the other party to the proposed arrangement discriminates against him on ground of race, he is not being deprived of that job or house by way of damage but is being deprived of a much more notional conception—the right to compete for it with other persons, it may be of his own race or colour or of some other race or some other colour. Such a right is not so much of an artificial character, because it could be enforced by assurance, declaration, injunction or conciliation, but a right of such doubtful character as regards money that to attempt to quantify it in terms of money is of necessity purely speculative.

I recognise that there are fields of law where judges are compelled to make somewhat similar calculations. Where a man is injured as a result of an accident, he is deprived not merely of employment but of his chances of getting some future employment. When a woman loses her husband, a great deal of resentment is caused because the courts have felt bound to speculate on her chances of remarriage, and this is translated by an act of arbitrary calculus into£s shillings and pence. This circumstance has given rise to reasonable resentment and has been embarrassing to those taking part in the proceedings. In actions for breach of contract, there are fringe benefits attached —sometimes a share of profits or chances of future promotion—which enter into the calculations of damage.

Although I have never like it or welcomed it, although on the whole I think it a highly embarrassing and difficult calculation, it is something which the law probably has to accept as the lesser of two evils. But when I am asked in this novel and wholly uncharted field of legislation to introduce a right of general damages which are not general damages by reference to any ascertainable amount but to a purely abstract conception of what the chances of competing with an unknown number of potential competitors of different race, colour and language might be, I shrink from the calculation. It is pure speculation.

So the first proposition is that it is doubtful whether one could right such a wrong by way of damages and the second is that the damages themselves would be highly speculative. The third factor, as those of us which have been at the Bar a long time know, is that we have gradually moved in the legal profession away from speculative actions. When the Attorney-General and I went first to the Bar, many years ago, the ambulance chaser was a reality. He was a social menace. In those days we did not know how to get rid of him, but we have got rid of him by way of the process of legal aid and we are all very glad to have done so.

But a claim for damages, even in the county court—and at the moment these proceedings are to be in the county court —is a weapon of oppression against a person of moderate means, and I do not believe that, except where necessity demands it, it is a desirable thing to introduce into our legal system. I am sure that all hon. Members, whether they ultimately accept the Amendment or not, will have a certain sympathy with me when I say that it is a weapon of oppression. It is used as an instrument of blackmail; it is used as a means of extracting money in support of frivolous complaints, and it is undesirable.

I am sorry to take a little time about this, but I attach importance to it and it is a little more complicated than would seem at first sight and were I to try to oversimplify it, I should not be doing my duty to my own side, or to the House as a whole.

It is said in answer to this, and there is a certain measure of sense in it—I do not want to underestimate the case on the other side—that in this instance the potential target for speculative actions is fully safeguarded, because there is a provision in the Bill that these race relations proceedings can be initiated not by the complainant himself, but only by the Race Relations Board, which will have had a preliminary investigation. I concede that that is an important safeguard and it would be wholly unjustified for me not to recognise the force of that answer.

But my reply to it is that it is fundamentally a nonsense within a nonsense. Having arrived at a wholly irrational remedy, the Government realise that it is so oppressive that it cannot be applied, and they therefore arrive at a protection which in itself is an affront to almost every established principle of law. Let me establish why I say that.

When a man is entitled to damages, it may be for libel, it may be for breach of promise of marriage, it may be for a motor accident, he brings the action himself. He brings it on his own behalf and if he wins, he gets damages, and that is either right or wrong according to what is thought of the type of action which he brings. But in this instance it is not open to him to bring an action. The remedy is not his. It is operated at the whim—I do not say that in an offensive way;"discretion" may be the more appropriate word—of a public body.

That would be all right if the only thing which the public body had to consider was the complainant's interest. If it were simply proceeding for the complainant, if its natural interest were to consider justice and the complainant's interest, there might be something in it;but that is not so. The interest of the Board is quite different from that of the complainant and might diverge from it and might diverge from it on the absolutely critical question of whether to apply for an action for damages.

The Board's interest is the public interest of creating a set of social conditions. Its prime interest is conciliation. Its secondary interest is a satisfactory assurance for the future. It is only when those two things break down that it asks for damages. It then asks for damages which belong not to the Board, but to the complainant. It therefore becomes a complete matter of chance whether an individual complainant gets any damages.

Quite properly influenced by its public duty, the Board may or may not proceed and, although the complainant's interest may be one factor which enters into the Board's calculations, it will not be the predominant factor, nor the only factor. The result is that the Bill will propose that a right of damages, in itself highly speculative and difficult of calculation and which may be used as an instrument of oppression against the other party, will become operated by a third party and that a public body which, in the nature of things, must be animated not by a desire for justice between the potential complainant and the potential defendant, but by whether it has achieved a public purpose which is separate from either of them.

This is fundamentally a nonsense within a nonsense, and I would come back—although I apologise first for having taken a length of time at this hour—to a proposition which I advanced on the Second Reading of this Bill because I believe that it is the true philosophy which should underlie proceedings of this kind.

I do not always agree with what my hon. and learned Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) has to say, but I fully agree with something which he said on the Second Reading, namely, that this particular remedy by way of damages is an alien body from the American code. That code encourages complaints because the legal system in the United States depends upon the individual complaint with the complainant acting, as it were, as a common informer for that against which the law is aimed. This serves no purpose in this Bill because we have handed the initiative to initiate complaints before a court to a public body, the Race Relations Board. That is a public body, disinterested in profit, and acting in the public interest. That is right. The Race Relations Board already exists and fulfils an important public function under the terms of the 1965 Act.

In that Act, there is no right to pursue a claim for damages for oneself or for anybody else and it operates by way of injunction, by way of assurance, and by way of conciliation. This is a retrogressive step and something imported from a foreign code which serves no useful purpose and creates at the same time a number of anomalies both by way of application and by way of initiation.

The true philosophy is surely what I tried to make clear during the Second Reading of the Bill, namely, that we are working in a novel field of public law and that it is not right to create a statutory tort. The 1965 Act did not do so, and neither that Act nor this Bill have created a criminal offence. May I put it this way? What we are doing is to set up something akin to the Restrictive Practices Court, to which the hon. Member for York (Mr. Alexander W. Lyon) has referred me. It is an analogy for what this legislation is trying to bring about—something in the nature of the resale price maintenance legislation. A characteristic of this new branch of public law is that one does not create a criminal offence with an individual remedy attaching to a complainant, but attach an enforcement apparatus, the purpose of which is not to obtain damages but to enforce an acceptable set of social conditions.

I apologise again for speaking at length at this hour of the morning, but I am trying to put the serious argument that what is here proposed is a retrogressive step. It adds complications to the Bill. On occasions it will be used as an instrument of speculation and oppression. It adds an element of uncertainty where uncertainty is undesirable, and it will tend, on occasions, to create antagonism between person and person, when the object of the Bill is to create a set of social conditions where antagonism does not exist. I have said all I wanted to say. I hope that I have presented my case in an orderly and rational way.

1.45 a.m.

The Attorney-General

It may be convenient if I were to say at an early stage in this discussion what are the Government's reasons for recommending that the Amendment should be rejected. As the right hon. and learned Member for St. Marylebone (Mr. Hogg) has said in a moderate, and if I may say so, ingenious speech, the effect of the Amendment would be to eliminate the provisions of damages altogether.

On this side of the House we think that it is appropriate and imperative that there should be room for an ultimate award of damages, in appropriate cases arising under the Bill, to those whom it can be shown have suffered loss, but that the damages should be limited to the headings indicated in Clause 21(l)(a) and (1)(b). I say that there should be room for an ultimate award of damages because I am sure that the House will appreciate that the question of damages will arise only in a limited number of cases, at the end of a very long process.

The process will start with the complaint by the person discriminated against. That complaint will be considered by the conciliation committee, and if the attempt at conciliation fails, it will be reported to the Race Relations Board. In turn the Board will no doubt attempt to settle the matter by negotiation. If that also fails, it will fall to the Board, in appropriate cases, to go to court, and I can imagine that it would take only the clearest cases to court.

It will be at that stage that the question of suing for damages will arise and that issue will fall for determination by a county court judge, sitting with two assessors. It seems to us that, if at the end of that process the victim who has suffered loss through discrimination is to get nothing, he will feel that the provisions of the Bill are mere humbug. This is the real danger in the right hon. and learned Gentleman's proposal. The House will remember that although it is true that Clause 18 provides other remedies against discrimination, injunction and declaration and a combination of injunction and damages, in the single act of discrimination, damages will be the only remedy. I emphasise that the damages recoverable at the end of that long process are limited. There is no room for exemplary damages or punitive damages, of the kind common in the law of tort. They are rewardable on the occasion of defamation or malicious prosecution, assault or even negligence and nuisance. There is no room for that kind of head of claim for damages under the Bill, no solatium for wounded feelings, no penal damages to punish a discriminator who may have acted outrageously and in aggravating conditions in a given case. The reason why the Government took that view and limited the horizon of damages is that the main essential purpose of the Bill is conciliation, the avoidance and elimination of racial discrimination. It is not the intention to encourage an onset of litigation. The damages recoverable are strictly limited under the Bill, to compensate the victim for the loss that he has suffered.

Mr. John Lee rose

The Attorney-General

I should like to develop this point. I will resume my seat in a moment.

In the situations covered by the Bill, the loss the victim suffers by reason of the act of discrimination is essentially the loss of the opportunity of obtaining the benefit, be it a house or a job or any other facility which he is seeking, and we on this side of the House take the view that it is reasonable that where the Board can prove that he might reasonably be expected to have obtained or retained the benefit but for the act of discrimination, the court should have power to award such damages as it thinks just, for loss of opportunity.

We also think—and I gathered from the right hon. and learned Gentleman that he was disposed to go as far with us on this road as this—that he ought to recover his special damages for fares that he has incurred, for surveyor's fees that have been wasted and matters of that kind as an additional factor.

Mr. John Lee

The question that I want to ask my right hon. and learned Friend is this. Are the damages limited as in the county court limitation?

The Attorney-General

No, they are not limited as in county court jurisdiction. But frankly, I think it will be a very rare case indeed where the damages awarded would exceed that limit. I imagine that they would be on a very much lower level.

The right hon. and learned Gentleman has pointed out, as indeed is the case, that ascertainment of damages will be difficult, that, as he has characteristically and fairly pointed out, that is not an unusual situation arising in the courts. A court, doing the best that can be done with insufficient material, may have to form conclusions on matters on which there is no evidence and make allowances for contingencies even to the extent of making a pure guess. That is happening in the courts day in and day out. This is a common occurrence, as the right hon. and learned Gentleman has indicated, in claims made, for example, in respect of pain and suffering or loss of expectation of life—almost metaphysical concepts that have got to be translated into terms of pounds, shillings and pence.

There is a claim for damages for loss of a chance of winning a prize. There was the case of Chaplin v. Hicks and the actress who was eliminated from the final elimination contest for selecting actresses for a part. The assessment of damages for loss of a chance of winning a prize is difficult, but the courts have faced the difficulty and have done their best with it. So that there is no insurmountable problem here that the experience and skill of learned judges cannot cope with.

Then the novelty of the claim, the creation of this new statutory wrong, whatever we call it, this new statutory duty, is in keeping with the development of our law. Whether this is a tort or a quasi-tort, or by whatever technical term one likes to describe it, the fact is that the history of the law of tort—this is not my language but language of a far more eminent legal source—is studded with new causes of action, both judge-made causes and statutory new causes of action. New problems and new changes in society demand new rights and remedies in the courts. The challenge that our contemporary society faces by racial discrimination and the threat which it provides to the order of society make necessary the new remedies that the Bill provides.

The final matter which worried the right hon. and learned Gentleman was the risk that the provision of this new cause of action, this new basis for claims of damages, might result in a flood of speculative cases. He readily provided the answer to that fear by pointing out that the individual has no right to sue. The Government have been under pressure to give him that right, but we felt that that also would involve some risk, at least, of impairing the process of conciliation and might provide encouragement to those who thought to make some quick money out of this exercise with the opportunity of going to the courts.

It is the Board alone that can bring the proceedings on behalf of the victim of discrimination. The Board will be manned by responsible people and at the end of the day, if the Board brings actions which it loses, there will be an award of costs against the Board. It is true that in the long run it will come out of the taxpayers' pocket, but the Treasury will not be unwatchful, I hope, of what goes on in this way.

Therefore, I invite the House to take the view that that responsible body, the Race Relations Board, would launch proceedings for recovery of damages in only the clearest cases and the obviously provable cases and that the risk of speculative actions is a risk which does not seriously exist.

Accordingly, I earnestly hope that the right hon. and learned Gentleman and hon. Members opposite will not divide the House on this matter. To do so would create a profound sense of injustice and denial on the part of those whom we seek to protect. The circumstances in which damages will be awarded are, as I have tried to say, hedged round with careful provisions against abuse, limited in their prospect of recovering sums and responsibly placed in the Bill as part, but only a small part, of the machinery of the Bill, which is essentially machinery to achieve conciliation. In the circumstances that I have indicated, the award of damages will not conflict with that but is an essential element in the Bill for what, I hope, will only be the rare case.

Sir D. Walker-Smith

If doubts were capable of being assuaged on this matter, they would be assuaged by the calm and dispassionate tones of the Attorney-General at 2 o'clock in the morning, but my own doubts remain entirely unaffected even by right hon. and learned Gentleman's formidable combination of charm and forensic persuasiveness. He has not met the main criticisms brought so clearly by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) against the novel concept in Clause 21(1)(b) which, in my view, will impose a virtually impossible task upon the county court judges when claims for damages have to be tried.

2.0 a.m.

After all, the tests for damages in the ordinary courts are difficult enough, as the case books show, as to whether they arise in the ordinary course, whether they are reasonably foreseeable, and so on, but at least in those cases the court starts from a solid basis of contract and breach of contract, and the court is able to put itself in the shoes of the parties. I will give two or three short and simple examples to show the practical difficulties involved.

I take first the simplest case of house purchase. The would-be purchaser is discriminated against. Under his duty to mitigate his loss, he buys a slightly smaller but cheaper house in the same locality. How is his loss to be evaluated? How can the less expenditure he has had to incur be equated and related to the slightly less result which he has achieved? In fact, this is an exercise that never has to be gone through. There is no such exercise in a case of breach of contract for the purchase of a house. It is achieved by the automatic method of the forfeit of the 10 per cent. paid if the contract is breached and does not go to completion.

Take the case where there are three bidders. The vendor discriminates against one of those bidders and therefore the offence is committed and the right to damages accrues straight away, but the other bidder, in ignorance of that, raises his bid and buys the house at a higher price than the discriminated bidder has ever offered. Has he suffered any loss of benefit by that, or has he, on the other hand, as a result of that discrimination been saved from buying a house for more than its proper value? How can the court know whether or not he in his turn would have raised his bid? How can the court know whether he would have been prudent to have raised it? How can the court know whether the successful bidder would have raised it yet again?

I remember years ago in the House when we were debating the Local Government Bill, in 1948, Aneurin Bevan described the hypothetical tenant as a very fugitive character, but he is a solid figure compared with the phantoms and phantasies involved in these calculations.

Take the slightly less probable but not impossible case of four bidders, one of whom is white, three of whom are coloured. The owner unfortunately discriminates against the three and sells the house to the one. How can the right of the damages of those three possibly be evaluated? Only one of them could conceivably have bought the house. Therefore, it would be completely unrealistic to apportion the damages into three. How is the judge to select the lucky recipient—by a pin?—or perhaps by calling in those assessors and inviting them to discriminate between the three on the basis of what the sonorous language of Clause 18 calls their: …special knowledge and experience of problems connected with race and community relations. I do not want to prolong this catalogue of hypothetical absurdities which could arise, but one finally comes to the case of five bidders this time, the same four as in the last illustration plus a Yorkshire-man. The owner of the house in this case is a Lancastrian and will not sell his house to a Yorkshireman, so he discriminates against the three coloured bidders and the one Yorkshireman. The difference is that there is no offence, no unlawful act, in his discrimination against the Yorkshireman, because it is not a discrimination on grounds of colour, race or ethnic or national origins.

Mr. Grieve

Is my right hon. and learned Friend sure about the ethnic argument?

Sir D. Walker-Smith

My hon. and learned Friend asks if I am sure about the ethnic argument. I do not remember my Greek in the same way as the right hon. Member for Wolverhampton, South-West (Mr. Powell), but my recollection is that "ethnikos" means heathen; so unless my hon. and learned Friend is saying that Yorkshire is heathen, I think I am right in my proposition. There would be no damages for the Yorkshireman and it would be impossible to calculate damages for the other three.

One could give many other examples. In transport, for example; suppose that a man is discriminated against by a taxi driver and takes a bus instead. How would one evaluate the three elements of the loss of time, the saving of money and the additional discomfort? These exercises are not on, nor are they on in employment. The courts are not able to evaluate matters such as the likely length of stay with a firm, had the man succeeded in getting the job, the prospect of pay increases—that is, when the prices and incomes policy is no more—the possibility of the liquidation of a company, a take-over or redundancy. The courts are not equipped to do this.

Subsection (2) will work inequitably and haphazardly. There might be two applicants for similar jobs in different firms discriminated against at the same time, one being held entitled to damages for loss of benefit and the other being denied damages because the employer is able, under this subsection, successfully to plead that, having regard to the proportion of employees, discrimination was necessary to secure or preserve a reasonable balance. This means that damages will not depend on the degree of injury suffered but on fortuitous circumstances, so reducing the processes of the law to a lottery.

It is clear that this provision will give the courts and county court judges an impossible task. Nor will they get any help from the assessors. What their qualifications will be to enable them to pass judgment and render assistance on these intractable problems is far from clear.

The Attorney-General

Does the right hon. and learned Gentleman think that in any of the cases he has given of alleged absurdity the Race Relations Board would authorise the bringing of proceedings?

Sir D. Walker-Smith

They are the sort of cases that will arise. They will go to the Board and we do not know how the Board will act in these matters. It might feel under considerable pressure not to be charged with denying the right of people to have their damages assessed by the judges. We cannot tell. We are probing into the unknown. The right hon. and learned Gentleman may have great confidence in the working of the Bill, but I cannot share it in view of the anomalies that are bound to arise.

It is anomalous and undesirable in principle that a public board should sue for damages for the benefit of a private person and at the instigation of that person, paying the costs out of public funds. This whole concept of damages is regrettable and misconceived and I hope that my hon. Friends will not yield to the Attorney-General's suggestion that we refrain from dividing the House on this issue.

Mr. John Lee

I do not propose to follow the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) in all his ingenious arguments, although I concede that this is a difficult field of law. As one who generally welcomes the Clause, I foresee considerable difficulties in interpreting it. One of the problems which worries me I approach from a different standpoint from that of hon. Members opposite. The greatest objection to the proposal as it stands is the fact that the individual who suffers, or is alleged to have suffered, a loss as a result of discrimination has no part or lot in the decision whether or not an action should be taken. Hon. Members opposite appear to welcome this in so far as it would represent a restraint on frivolous, or possibly vexatious, litigation. The Board, being so mindful of social and political considerations, might decline to take action in any circumstances where it ought because the individual had suffered loss. Where there is common ground between the two sides about our reservations is that different criteria apply between what the Board might regard as desirable circumstances for taking action and what the individual will regard. Their views will obviously diverge.

Courts have had to embark on uncharted seas in assessing damages. My right hon. and learned Friend has advanced numerous instances of this happening, but this is a most unusual situation. One can well understand many city court judges proceeding "by guess and by God" for quite a while. I wonder whether it would have been better to have included some round figures, some upper limit, specific figures. Although they might be hard to justify, they would at least have provided some basis by which the courts could be guided. Earlier we had a long debate on whether it was appropriate to put in examples of discrimination. It might not have been a bad idea if in this Clause there were examples of the kind of damages which could be awarded. This would be an innovation, but we are embarking on an unusual field of activity.

An Amendment which we shall come to later provides for other remedies, injunctions and so forth, as an alternative to damages, but also for an element of punitive damages. I would have wished that this element had been included. I would have thought that there was a good deal to be said for saying in circumstances where discrimination occurs, this is the kind of conduct which is not only damaging in the sense of depriving a person of certain pecuniary benefits, or benefits which can be assessed in monetary terms, but which is indicative of conduct which should be discouraged, just as damages for libel bear on the conduct of the person who commits the libel which affects the status of the individual victim.

I do not know what the attitude of my right hon. and learned Friend will be to that Amendment. We shall have to wait until it is moved. He has been unduly defensive and apologetic because this Clause does not provide damages of that kind. Although we have our reservations and believe that the courts will be faced with a difficult task, we thoroughly welcome this provision. In the last analysis what is at stake is that someone will have suffered loss and, unless we make provision for remedying it financially, it is difficult to see how the Act will carry much weight for the kind of people it is designed to protect.

Mr. Grieve

As I listened to the hon. Member for Reading (Mr. John Lee) I wondered whether some of his right hon. Friends on the Government Front Bench would not say, "God save us from our friends". When they heard him urge on the Government that damages should be arbitrary and punitive, I realised some of the pressures which have been responsible for the many defects in this legislation.

2.15 a.m.

I want to make only one point in addition to the points which have been so well and fully made by my right hon. and learned Friends the Members for St. Marylebone (Mr. Hogg) and Hertfordshire, East (Sir D. Walker-Smith). Quite apart from the difficulties of enforcing claims for damages, quite apart from the difficulties of assessing damages, the prime objection which I see to the whole concept of damages in this legislation is that it puts those whom it is desired to protect in a privileged position in the community. It has been said several times in the House and in the Press that it does nothing of the kind, because everybody belongs to some race and, therefore, the whole community is covered by the Bill.

This is wholly artificial. We all have various capacities. If we are discriminated against in 999 out the 1,000 capacities in which we exist and have our being, we have no claim for damages. If someone refuses to sell his house to me because I am a white man of Scottish descent and not because I am a Tory or a lawyer, I am given a claim for damages. What damages? The law of England over centuries has never recognised that anybody has lost anything by not getting that which he did not have before, unless he had a contract to get it. The argument founded upon the fact that this is creating a privileged class in the community is valid. The ultimate result of this, as of many of the Clauses dealing with housing, will be the very reverse of what is intended by the supporters of the Bill. It will create bitterness and worsen race relations.

Mr. J. J. Mendelson (Penistone)

On this occasion the right hon. and learned Gentleman the Member for Hertfordshire, East (Sir D. Walker-Smith), whose clear arguments I normally follow with great interest, has not done justice to either his own intellect or the normal forcefulness of his case. He has piled case upon case to show what might be the difficulties of this legislation. One thing which the House should not let pass is that the right hon. and learned Gentleman brought a Yorkshireman into one of his examples. This was particularly unwise. If ever a report was to be published which proved that in six cities or towns Yorkshire men were strongly discriminated against, there would be legislation which would not be half as mild as this. I cannot believe that Yorkshire Members, no matter from which side of the House, would not wholeheartedly support such strong legislation. The right hon. and learned Gentleman should not introduce too much artifice into his argument. It weakens rather than strengthens it.

The hon. and learned Member for Solihull (Mr. Grieve) brought up again the shoddy argument about creating a privileged class and a privileged section of the community. That is not an argument which anyone who takes part in these serious debates should advance. We are dealing with a subject which is, perhaps, among the most serious in community and individual relations in the world today. The Government are introducing pioneering legislation. It does not do justice to the situation for an hon. Member to try to create absurd examples and to trot out the kind of propaganda which the hon. and learned Gentleman uttered at the conclusion of his speech when he sought to damage the serious attempt made by a responsible Government to deal with this situation. If there are opponents of this legislation let them come clean and not pile up these artificial arguments. I hope that without any further delay the House will proceed to reject this Amendment and to support my right hon. Friend.

Mr. Hogg

The Attorney-General always fascinates me. He is absolutely charming; one presents what is intended to be a serious argument to him; he gets up to reply; he answers none of the points; but coos like a wood pigeon, and by the time he sits down has so mesmerised his supporters into an orgy of enthusiasm that they cannot see that they have been palmed off the branch. But he is not going to have me this time. This time we are going to divide.

Question put, That the Amendment be made:—

The House divided: Ayes 121, Noes 182.

Division No. 273.] AYES [2.21 a.m.
Alison, Michael (Barkston Ash) Grant, Anthony Noble,-fit. Hn. Michael
Allason, James (Hemel Hempstead) Grant-Ferris, R. Onslow, Cranley
Astor, John Gresham Cooke, R. Osborn, John (Hallam)
Baker, Kenneth (Acton) Grieve, Percy Page, Graham (Crosby)
Baker, W. H. K. (Banff) Griffiths, Eldon (Bury St. Edmunds) Pearson, Sir Frank (Clitheroe)
Bell, Ronald Gurden, Harold Peel, John
Bennett, Sir Frederic (Torquay) Hall, John (Wycombe) Percival, Ian
Biffen, John Hall-Davis, A. G. F. Pink, R. Bonner
Biggs-Davison, John Harrison, Brian (Maldon) Pounder, Rafton
Black, Sir Cyril Harrison, Col. Sir Harwood (Eye) Powell, Rt. Hn. J. Enoch
Boardman, Tom (Leicester, S.W.) Heath, Rt. Hn. Edward Pym, Francis
Body, Richard Hirst, Geoffrey Rees-Davies, W. R.
Bossom, Sir Clive Hogg, Rt. Hn. Quintin Renton, Rt. Hn. Sir David
Brinton, Sir Tatton Holland, Philip Rhys Williams, Sir Brandon
Bromley-Davenport, Lt.-Col. Sir Walter Hordern, Peter Ridley, Hn. Nicholas
Bryan, Paul Howell, David (Guildford) Ridsdale, Julian
Buck, Antony (Colchester) Iremonger, T. L. Russell, Sir Ronald
Bullus, Sir Eric Irvine, Bryant Godman (Rye) Sandys, Rt. Hn. D.
Burden, F. A. Jennings, J. C. (Burton) Scott-Hopkins, James
Campbell, B. (Oldham, West) Jones, Arthur (Northants, S.) Sharpies, Richard
Chichester-Clark, R. Kerby, Capt. Henry Silvester, Frederick
Cooke, Robert King, Evelyn (Dorset, S.) Smith, John (London & W'minster)
Corfield, F. V. Kirk, Peter Taylor, Sir Charles (Eastbourne)
Craddock, Sir Beresford (Spelthorne) Kitson, Timothy Taylor, Edward M.(G'gow, Cathcart)
Crosthwaite-Eyre, Sir Oliver Knight, Mrs. Jill Teeling, Sir William
Crouch, David Legge-Bourke, Sir Harry Thatcher, Mrs. Margaret
Cunningham, Sir Knox Lewis, Kenneth (Rutland) van Straubenzee, W. R.
Dance, James Maddan, Martin Walker-Smith, Rt. Hn. Sir Derek
Dean, Paul (Somerset, N.) Maginnis, John E. Weatherill, Bernard
Deedes, Rt. Hn. W. F. (Ashford) Marten, Neil Wells, John (Maidstone)
Dodds-Parker, Douglas Maude, Angus Whitelaw, Rt. Hn. William
Drayson, G. B. Mawby, Ray Williams, Donald (Dudley)
Elliot, Capt. Walter (Carshalton) Maydon, Lt.-Cmdr. S. L. C. Wolrige-Gordon, Patrick
Elliott, R. W. (N'c'tle-upon-Tyne, N.) Monro, Hector Wood, Rt. Hn. Richard
Errington, Sir Eric Montgomery, Fergus Woodnutt, Mark
Eyre, Reginald More, Jasper Worsley, Marcus
Farr, John Morrison, Charles (Devizes) Younger, Hn. George
Fortescue, Tim Mott-Radclyffe, Sir Charles
Gibson-Watt, David Munro-Lucas-Tooth, Sir Hugh TELLERS FOR THE AYES:
Goodhart, Philip Murton, Oscar Mr. Authony Royle and
Goodhew, Victor Nabarro, Sir Gerald Mr. Humphrey Atkins.
Gower, Raymond Neave, Airey
Abse, Leo Carmichael, Neil Fletcher, Ted (Darlington)
Allaun, Frank (Salford, E.) Chapman, Donald Foot, Rt. Hn. Sir Dingle (Ipswich)
Alldritt, Walter Coe, Denis Foot, Michael (Ebbw Vale)
Anderson, Donald Coleman, Donald Ford, Ben
Archer, Peter Concannon, J. D. Forrester, John
Armstrong, Ernest Crosland, Rt. Hn. Anthony Fraser, John (Norwood)
Atkins, Ronald (Preston, N.) Cullen, Mrs. Alice Freeson, Reginald
Atkinson, Norman (Tottenham) Dalyell, Tarn Galpern, Sir Myer
Bacon, Rt. Hn. Alice Davidson, Arthur (Accrington) Ginsburg, David
Bagier, Gordon A. T. Davidson, James (Aberdeenshire, W.) Gordon Walker, Rt. Hn. P. C.
Barnes, Michael Davies, G. Elfed (Rhondda, E.) Greenwood, Rt. Hn. Anthony
Barnett, Joel Davies, Dr. Ernest (Stretford) Griffiths, David (Rother Valley)
Baxter, William Davies, Harold (Leek) Griffiths, Eddie (Brightside)
Bidwell, Sydney Davies, Ifor (Gower) Griffiths, Will (Exchange)
Blackburn, F. Dell, Edmund Hamilton, James (Bothwell)
Blenkinsop, Arthur Dewar, Donald Hamling, William
Booth, Albert Diamond, Rt. Hn. John Harman, William
Boston, Terence Dobson, Ray Harrison, Walter (Wakefield)
Bottomley, Rt. Hn. Arthur Dunnett, Jack Haseldine, Norman
Boyden, James Dunwoody, Mrs. Gwyneth (Exeter) Hazell, Bert
Braddock, Mrs. E. M. Dunwoody, Dr. John (F'th & C'b'e) Heffer, Eric S.
Bray, Dr. Jeremy Eadie, Alex Hilton, W. S.
Brown, Hugh D. (G'gow, Provan) Edwards, William (Merioneth) Hooley, Frank
Brown, Bob (N'c'tle-upon-Tyne, W.) Ellis, John Homer, John
Brown, R. W. (Shoreditch& F'bury) Ennals, David Howarth, Robert (Bolton, E.)
Buchan, Norman Evans, loan L. (Birm'h'm, Yardley) Howell, Denis (Small Heath)
Buchanan, Richard (G'gow, Sp'burn) Faulds, Andrew Howie, W.
Callaghan, Rt. Hn. James Fernyhough, E. Hoy, James
Cant, R. B. Fletcher, Raymond (Ilkeston) Hughes, Rt. Hn. Cledwyn (Anglesey)
Hughes, Emrys (Ayrshire, S.) Mallalieu, J. P. W. (Huddersfield, E.) Short, Mrs. René e (W'hampton, N. E.)
Hughes, Roy (Newport) Marks, Kenneth Silkin, Rt. Hn. John (Deptford)
Hunter, Adam Marquand, David Silverman, Julius
Jackson, Colin (B'h'so & Spenb'gh) Mendelson, J. J. Slater, Joseph
Jeger, Mrs. Lena (H'b'n& St.P'cras, S.) Mikardo, Ian Small, William
Jenkins, Hugh (Putney) Millan, Bruce Spriggs, Leslie
Johnson, James (K'ston-on-Hull, W.) Miller, Dr. M. S. Steel, David (Roxburgh)
Johnston, Russell (Inverness) Milne, Edward (Blyth) Summerskill, Hn. Dr. Shirley
Jones, Rt. Hn. Sir Elwyn (W.Ham, S.) Mitchell, R. C. (S'th'pton, Test) Swain, Thomas
Judd, Frank Molloy, William Taverne, Dick
Kerr, Dr. David (W'worth, Central) Morgan, Elystan (Cardiganshire) Thomson, Rt. Hn. George
Lawson, George Morris, John (Aberavon) Urwin, T. W.
Lee, Rt. Hn. Frederick (Newton) Moyle, Roland Varley, Eric G.
Lee, John (Reading) Murray, Albert Walker, Harold (Doncaster)
Lestor, Miss Joan Newens, Stan Watkins, David (Consett)
Lewis, Ron (Carlisle) O'Malley, Brian Weitzman, David
Luand, Evan Orbach, Maurice Wellbeloved, James
Lubbock, Eric Orme, Stanley Wells, William (Walsall, N.)
Lyon, Alexander W. (York) Oswald, Thomas Whitaker, Ben
Lyons, Edward (Bradford, E.) Palmer, Arthur White, Mrs, Eirene
Mabon, Dr. J. Dickson Parkyn, Brian (Bedford) Whitlock, William
McBride, Neil Peart, Rt. Hn. Fred Willey, Rt. Hn. Frederick
MacColl, James Pentland, Norman Williams, Alan Lee (Hornchurch)
Macdonald A. H. Perry, Ernest G. (Battersea, S.) Williams, Clifford (Abertillery)
McGuire, Michael Richard, Ivor Wilson, William (Coventry, S.)
Mackenzie, Alasdair (Ross&Crom'ty) Robinson, Rt. Hn. Kenneth (St.P'c'as) Winnick, David
Mackenzie, Gregor (Rutherglen) Robinson, W. O. J. (Walth'stow, E.) Winstanley Dr. M. P.
Mackintosh, John P. Rose, Paul Woof Robert
Maclennan, Robert Ross, Rt. Hn. William Yates, Victor
McMillan, Tom (Glasgow, C.) Ryan, John
McNamara, J. Kevin Shaw, Arnold (Ilford, S.) TELLERS FOR THE NOES:
Mahon, Peter (Preston, S.) Sheldon, Robert Mr. Joseph Harper and
Mahon, Simon (Bootle) Shore, Rt. Hn. Peter (Stepney) Mr. Charles Grey.
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