§ '() Whenever any notice of the holding of a formal investigation is served upon any person under section 49(3) of this Act, such person shall have the right—
- (a) to give evidence orally or in writing to the Commission, to call witnesses on his own behalf, and to cross-examine other witnesses; and
- (b) to be represented by counsel or solicitor or other; and the provisions of the
1691 Legal Aid Act 1974 shall extend to any such person, and the relevant notice shall inform him of each of the rights conferred upon him by this subsection'.—[Mr. Mayhew.]
§ Brought up and read the First time.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I beg to move, That the clause be read a Second time.
The new clause is concerned with the power of the commission to conduct a formal investigation. We have brought it forward for two main reasons. First, we wish to avoid injustice. Secondly, if an investigation is held under the procedure provided in the Bill we wish to ensure that it gets to the truth. It might be helpful if I remind the House of the circumstances in which an investigation may be held under the Bill. I shall indicate what may be involved for the person whose activities are to be investigated and explain why we believe the new clause to be necessary.
The House will remember that Clause 48 confers power upon the commission to conduct a formal investigation. That power is limited to any purpose connected with the carrying out of the commission's duties. We have already considered its duties, which are to be found in Clause 43. Perhaps it is not necessary to take the time of the House by reciting them.
An examination may be directed to the activities of a specified person. That may be a person in the ordinary English sense of the word—namely, an individual. But it may be a "person" in law—namely, a company. That is to be found in Clause 49. If the investigation is to be directed to the activities of a person, a notice must be given by the commission of that fact. If such a notice is given and if the investigation is to be directed to the activities of an individual person, obligations may be imposed upon that person which we regard as being of a most serious nature.
By Clause 50 he may be required to furnish written information. He may be required to furnish oral evidence or to produce documents, the evidence and documents relating to matters specified by the notice. All this is to be found in Clause 50. If he does not do so, or delays in doing so, all the apparatus of the law may be invoked against him. We see that from later passages in the same clause.
All these things may be required of a person if it is believed by the Commission 1692 that he may have done, or may be doing, any or indeed all of the following things. One is committing unlawful discrimination as defined in Parts II and III of the Bill. The matter of following an unlawful discriminatory practice is another category covered in Clause 28. It will be noted that within the drafting of this Bill a "discriminatory practice" is different from a "discriminatory act". Another category relates to the publishing of discriminatory advertisements, or giving instructions for or applying pressure to other persons to commit discriminatory acts. For that we look to Clauses 29, 30 and 31.
If the investigation, once carried out, satisfies the commission that the belief is well founded, serious consequences may ensue to the persons concerned. This is why we say that the new clause is needed. Those consequences are contained in Part VIII of the Bill, which relates to the enforcement provisions. The commission may in those circumstances first issue a non-discrimination notice under Clause 58. We do not mind too much about that because nothing very much turns upon it, but it is worth bearing in mind that the non-discrimination notice can impose significant restrictions upon the person who receives it and it can act as the foundation stone for proceeding against that person later.
Secondly, if the matter in question is a contravention of Clause 29, 30 or 31—provisions relating to discriminatory advertisements, instructions to discriminate and pressure to discriminate—in any of those circumstances it can lead the commission to proceed against that person in either an industrial tribunal, a county court or a sheriff court.
By Clause 63 it is only the commission that is allowed to take proceedings in such cases. This is a serious feature in that the evidence extracted from the person investigated in the course of investigation could be used in cross-examination against him in any of those proceedings.
Lastly, I notice that the commission has to make a report of its findings. That would be a public document and could have harmful consquences. In these days, when so many firms depend for much of their income on Government patronage, an obvious source of harm is there revealed. The provisions of Clause 12—if we do not succeed in deleting them 1693 later this evening—could prejudice the discretion of qualifying bodies as defined in the Bill in executing their functions. They could seriously damage the reputation of the person investigated, and there is no appeal from the findings. There is a sad topicality about that feature.
§ Mr. John Page (Harrow, West)
Will my hon. and learned Friend explain to a layman how the "collective person" may be drawn? Would it be possible for the commission to ask for reports to be kept on all garages or launderettes so that they might have to be named specifically rather than that the reports should relate merely to garages and launderettes in a particular area?
§ Mr. Mayhew
The person the commission is entitled to investigate may be either a person or "a person" in law—for example, a company. If the garage concerned were operated by a company, it is the activities of the company that could be investigated under that provision.
§ Mr. Mayhew
That is a nice point, depending on the construction of the trade union. I am not sure whether trade unions have articles of association. Since they represent a corporate entity, I should think that the answer is "Yes". However, I do not know for sure. Perhaps the Minister will give us that information in his reply.
In Standing Committee we took the view that this power should be restricted. We also took the view—which did not prevail—that no such formal investigation should be launched or instituted without the prior authority of the Secretary of State. Since that view did not prevail, by tabling the new clause we now seek to mitigate the potential injustice which that power might occasion.
If I may turn to Clause 50 in this context, there is no right conferred on the person to be investigated to give evidence himself. He may be required to give evidence, but no right is conferred on him to give evidence on his own behalf or, indeed, to call evidence on his own behalf.
§ Mr. John
I hate to intervene, because it will probably not shorten what the 1694 hon. and learned Gentleman is saying, but if he looks at Clause 58(5) he will see that a non-discrimination notice will not be served unless the commission has first offered a person an opportunity of making oral or written representations in the matter.
§ Mr. Mayhew
It is a non-discrimination notice, and I think that the Minister has a point there. I am saying that the non-discrimination comes only as a consequence of a finding. What I am saying is that a finding can be made and a report can be published and submitted to the Minister without any right having been conferred on the person investigated to give evidence himself or on his behalf. We believe that the fact that that can be done only after investigation has been completed is a blemish. We say that if the powers are warranted and it is a proper case, there should be fair play for the person investigated. He may often be a small employer and not a powerful person; he may not be a man of great education, and may not have any resources to back an investigation of this kind. Therefore, such a person should be able to take advice on the questions he must answer and the documents he must produce.
Clause 50(3) provides that the person investigated need not give information or produce documents, save those he could be compelled to give or produce in civil proceedings in the High Court. We say that not everybody carries the necessary rules in his head or has the ability to take advice. That is why we believe that a person in this position should have the right to give his side of the matter or to bring his own witnesses to give such information, if that is desired. At this stage the Bill gives him none of this—indeed, it is the other way. Let him have the right to representation and to legal aid if he cannot afford to do these things himself. That would assist the commission as much as it would assist him. Lastly, let the notice of the investigation tell him that he has those rights. These are the reasons that lead us to believe that the new clause is necessary.
§ Mr. Powell
I believe that this clause, which has been moved with great lucidity and persuasiveness by the hon. and learned Member for Royal Tunbridge 1695 Wells (Mr. Mayhew) deserves our support, and, as did the preivous new clauses, it points somewhat deeper into the nature of legislation of this kind.
It will not have escaped attention that the clause to which the new clause is attached, namely, Clause 49, carries with it in the margin the tell-tale reference "S" for "sex", which tells us that it is one of those almost standard clauses that are now repeated as we legislate against discrimination in one sphere after another.
I, like other hon. Members, over the months have received a number of dossiers of investigations that have been undertaken by the Race Relations Board under the present law. Nothing that I am saying implies that I consider that the Race Relations Board has behaved unreasonably or oppressively, and my criticism is not directed at the board. Nor am I in any way seeking to condone a breach of the law, whether it is a law of which I approve or disapprove, or regard as wise or foolish.
Having said that, I must say that the proceedings in these dossiers make pretty unpleasant reading. So often they reveal the individual—and it may be, in fact, that he has not been in compliance with the Act—caught in a web of investigation, in which he feels helpless and suffers from a sense of being unfairly treated. This leaves him with a quite different sense from that with which he would have been left if he had been the object of the normal processes of law.
I do not think the kind of procedure that would be initiated under Clause 49, or the corresponding provisions of the similar anti-discrimination Acts, really satisfies natural justice or fair dealing. This is not because of any intention to be unfair on the part of the Race Relations Board—indeed, it is patently clear from its correspondence that it has no such intention.
I believe that the error lies deeper. It lies deeper than would be totally cured by the new clause which the hon. Member has moved. But at least the new clause would alleviate the reasons for unease which I am not alone in feeling.
In all this legislation, we have departed from the general principle that if a citizen is to be damnified for a breach of the law, he should be dealt with by the 1696 normal due process of law if at all possible.
This legislation proceeds on the opposite assumption. It proceeds on the assumption that if at all possible breaches of the law should be corrected or repressed, not through the ordinary process of law but by the activities of special bodies which the respective Acts set up.
The reason why I believe this development has occurred in our legislation is that these bodies are deliberately given two separate and incompatible functions. If we read Clause 43, which sets up the commission, we see that it gives the commission the duties of working towards the elimination of discrimination and promoting equality of opportunity. To use a broad and inaccurate expression, these duties are hortatory and administrative. They are duties distinctive in character, indeed, incompatible in character with the duty of detecting a breach of the law and following it up to the proper conclusion.
In all this legislation we have mistakenly given both these separate functions to the same body. I speak fresh from the examination of one of these Bills—the Fair Employment Bill (Northern Ireland)—which has exactly the same combination. This is a fundamental mistake in legislation. Even if we were not prepared to entrust to the courts —as we should have done—the business of ascertaining the facts, applying the law and producing the remedy, we should, nevertheless, have separated totally that function from the functions of exhortation, encouragement and education which occupy so large a bulk of this legislation.
As a result we have what is, in effect, an administration of the law being conducted very largely by bodies which do not apply the normal process of law, and which are not recognised by the citizen as having the majesty and justification of the courts of law. The persons concerned do not necessarily have a legal training or a judicial approach; indeed, they hardly go for the judicial approach but for the hortatory approach, which is a part of their function. This approach arouses more hostility than it need on the part of the public. It arouses avoidable hostility, not only among those who come within the purview of the commission, and are subjected to investigation, 1697 but also among a much wider circle of people who have heard second-or third-hand of such investigations. These are people who know that the investigations take place and who are likely to say "There is the Race Relations Board, and it will have you up for this or for that." Very often it is likely that the things they mention are things for which one could not be brought before the board.
As a result, the area to which the legislation is directed is damaged. The legislation is therefore counter-productive from the point of view of those who promote it. Therefore, I hope that, even at this stage of the Bill we will, as far as possible, introduce into the Bill opportunities, safeguards and an atmosphere of due process of law in respect of which the Bill, as it stands, is lacking. I hope that the Government will see their way clear to adopt the new clause.
§ 8.0 p.m.
§ Mr. John
The formal investigation processes which comprise Clauses 48 to 50 of the Bill have to strike a difficult balance between the need to respect the rights of those involved and the need to ensure that the commission has adequate powers to carry out its functions. But I cannot assent to the hon. and learned Gentleman's shorthand formula that, in fact, individual rights are failing to be safeguarded.
Clause 49(2), for example, requires terms of reference to be set up as to the holding of an investigation. Clause 49(3) deals with the giving of notice about the holding of an investigation. Representations can be made to the commission. Clause 52 deals with limiting the commission's power to require information. Clause 53 also limits information which can be required. The hon. and learned Gentleman mentioned the criminal law, but apart from Clause 70—which does not bear on this problem—and some minor exception about the deliberate destruction of records, the Bill imposes only a civil liability.
If I had one objection above all others to the clause it would be that the full panoply of a procedure which is more suited to the criminal law is to be imported into a Bill which imposes only a 1698 civil liability. The commission's strategic rôle to deal with wider questions, such as the promotion of good race relations, does not involve full civil liability. The only action which the commission could take in such a case, as opposed to individual investigation, would be to require the action to stop. It cannot penalise or obtain compensation. The procedure in the new clause is extremely complicated and would make formal investigation quite unworkable.
Let me now turn to the other aspect of this matter. There is no equation between the law here and full-blown civil proceedings in terms of the commission's strategic rôle. Where the investigation was concerned with an individual, before any question of civil proceedings arose there would first have to be a finding of unlawful discrimination by the commission. Before the commission could issue a non-discrimination notice under Clause 58(5) it would have to give the affected individual the opportunity of making oral or written representations, and that could of course involve being represented at the body. But even then—and this is where I disagree with the hon. and learned Gentleman when he said that there was no appeal—there is an appeal against the issue of a non-discrimination notice. The hon. and learned Gentleman accepted that in Committee. It is possible for an aggrieved individual against whom a non-discrimination notice has been issued to appeal against that issue to the proper court. That would then, of course, be dealt with in the normal way.
But the other leg of the new clause concerns the question of legal aid being available to those who are caught under this provision and who want to go through the formalities of the clause. The absurdity that that may produce is that people may be legally aided at a formal investigation, and if it were an employer and the matter were referred thereafter to an industrial tribunal, he would not be legally aided in dealing with the substantive part of the action.
For all the reasons I have outlined, and particularly the reasons which show the safeguards that the individual has on this procedure and the comparatively limited effect of a finding under it, I believe that the individual is well taken care of. To import the sort of formal machinery that the hon. and learned 1699 Gentleman is proposing would make the procedure itself unworkable and would mean that there was a very great loss in the number of disputes which were resolved before they reached the stage of a full-blown pitched battle.
If the hon. and learned Gentleman says that bitterness is engendered by seeking to have the matter resolved before a commission or board, how much more would there be if that matter were needlessly and prematurely aired before the courts?
§ Mr. A. P. Costain (Folkestone and Hythe)
The sort of people who will get caught by this provision are not usually involved in other offences. Will they be allowed to consult their solicitors, and get legal aid for that part of the process?
§ Mr. John
They could consult their solicitors, but legal aid is not available for such a process. They have to be given notice of any such formal investigation before it takes place, so that they would have the opportunity of making representations and of having legal advice in making them.
I believe that the Bill as drafted and without the addition of the new clause provides an additional safeguard and the flexibility of procedure which is necessary to help in this situation.
§ Mr. John Page
The Minister of State has given an extremely unsatisfactory reply to the clear, reasoned and measured proposal advanced by my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew). The Minister left many buttons undone. He did not say that there was a right by a person who was being investigated to give evidence, orally or in writing, to the commission. He said that such a person would receive a notice and could make representations. I do not see the provision for the making of representations. I suppose the hon. Gentleman means that if someone gets a letter from the commission he will be expected to answer it. That is hardly a proper opportunity for an individual who is being investigated to make proper representations on his behalf. Although one could possibly call a response to notification of investigation evidence in writing, nowhere is it said that it would be possible for someone investigated to call witnesses. 1700 Employers, trade unions and others would, I believe, prefer to be certain that they could make representations and call witnesses on their behalf before the commission.
It is then said that there is no need for them to be represented by counsel or a solicitor at their own expense. We are told that they would be able to get legal advice, but one can get legal advice on anything, so I do not think that the Minister is being particularly generous there. What is really required is that a person who should be believed to be innocent until proved guilty should be able to have some advice and to have what is known as the prisoner's friend sitting behind him when the charges against him are being investigated. By whom will they be investigated? It seems that it will be done by one of eight to 15 full-time or part-time members of the commission. Let us suppose that there are 10 members of the commission. They are likely to be too busy to be continually carrying out these investigations.
An investigation may be carried out by only one of the commissioners, appointed by the Secretary of State. If the commission is like the Race Relations Board or any of the other boards we have seen established recently, its membership will be drawn from almost statutory classes. We shall have a lawyer, a trade unionist, an employer, at least one woman and, presumably, representatives from a fairly large number of individual ethnic racial groups.
It is undesirable that a semi-judicial investigation such as this should be carried out by a person who has been chosen almost in order to be partisan. That is why the appointees will have been nominated to the commission.
I hope that commissioners—like Mr. Speaker and his deputies when they are in the Chair—will forget their old partisanship and friendships and be totally impartial. But I find it difficult to believe that all those who will be chosen for their partisanship will not sometimes, for one minute in each hour of the investigation, allow the burning passions which might have caused their appointment to come out like steam from the spout of a kettle. I do not like the fact that we can have merely one commissioner conducting an investigation.
1701 With the approval of the Secretary of State, the commission can appoint a number of full-time or part-time commissioners to carry out formal investigations. I am concerned that these people are to become commissioners. They will not be part of the commission in any of its work except the carrying out of investigations. They should be called investigators, deputy-assistant commissioners or some other such name. If they are known as commissioners by the public and the newspapers—
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. I have allowed the hon. Member a great deal of latitude, but I believe he is going well wide of the proposed new clause and even beyond a reasonable extension of its limits.
§ Mr. Page
I am sure I have hammered home that point with unnecessary vigour, Mr. Deputy Speaker. I apologise.
In view of the loopholes which I apprehend, it is right that those who are to be investigated should have the opportunity of giving evidence and having proper legal advice and assistance during the hearing and not afterwards.
§ 8.15 p.m.
§ Mr. Tebbit
The Minister gave a rather odd reply to a new clause which deals with investigation. Almost everything he said referred to enforcement. Clauses 48 to 52 refer to investigation, yet in his intervention in the speech of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) the Minister referred us to Clause 58, which is about enforcement.
The heart of this matter is that before an enforcement notice is issued there must be a finding as a result of an investigation. Surely we are not expected to be satisfied that procedures are being brought in at the time the enforcement notice is issued. It is too late then. We have to ensure that we get the right timing. It is at the time of the investigation leading to the finding that the unfortunate person being investigated needs to be protected.
The Minister referred to Clause 58(5)(b) and said that when an enforcement notice was being issued the person concerned had to he offered the opportunity of making oral and/or written 1702 representations within not less than 28 days. But that is not what the new clause suggests. It proposes not only that this right should be given much earlier but that there should also be the right for the person concerned to call witnesses on his behalf and to cross-examine other witnesses.
Where do these rights appear in Clause 58(5)(b)? Where is the right to be represented by counsel or solicitor? Where is the provision for legal aid? It is nowhere at all.
The Minister's intervention was irrelevant to the point of frivolity. I hope he will consider how this legislation would have been treated by his right hon. and hon. Friends if it were a measure to set up a body charged with the improvement of industrial relations and not only with persuading people to improve industrial relations but with investigating the cause of bad industrial relations and issuing enforcement notices against people guilty of such bad relations.
Does the hon. Gentleman say that there is no need for legal representation or for a right to call witnesses and to cross-examine at the stage of the investigation because there is a provision for writing to the commission when the enforcement notice is issued? I doubt it. I certainly do not think he would have the sauce to stand at the Dispatch Box and tell hon. Members not to worry too much because it is only a matter of issuing enforcement notices.
I seem to remember that under previous legislation, in which there were no criminal sanctions, people occasionally went to gaol because they did not obey court injunctions. That is precisely what can happen under the Bill. The Minister knows that, and he knows that he would be talking in a totally different manner if this were about trade unionists instead of ordinary human being who do not have the power in the Cabinet that the TUC has today.
§ Mr. Edward Lyons
What astonishes me about the speeches that I have just heard is that neither of the last two speakers said one word when these clauses, word for word, were put into the Sex Discrimination Act and became law. I am holding a copy of that Act. It is true that the draftsmen of the Bill, whether they were lazy or wise, have 1703 simply taken the clauses wholesale out of the Act, word for word—the very point made by the right hon. Member for Down, South (Mr. Powell)—and have put them into this Bill.
Consequently, a person who is criticised under the Bill is in no wit a different person from a person criticised under the Sex Discrimination Act. In other words, women and immigrants are given, word for word, like protection. I am not saying that the section concerned is marvellous, or that it cannot be criticised. However, hon. Members should search their consciences. This House has passed the present Clause 49, which it is now sought to amend, word for word in relation to women. It would seem very curious, indeed, if the House said that it is perfectly appropriate for women but that in relation to persons of minority groups they shall not be treated in the same way.
The proposal in the new clause envisages the granting of legal aid to those appearing before the new commission. However, I have not heard any Opposition Member explain, in respect of the various types of tribunals, including industrial tribunals, how an employee who goes to a tribunal and faces an employer, who often has with him a barrister or solicitor—the employee having no right to legal aid—can cope in that situation. We must bear that in mind. I am not arguing whether or not it is a good thing not to have legal aid; I am simply suggesting that one should have similar standards.
If it is wrong to appear in front of a tribunal without legal representation because one does not have the necessary money, we must apply that principle more extensively. For example, in the Standing Committee on the Bail Bill this morning, it was proposed, by a Labour Member, that people appealing against the rejection of bail in a magistrates' court should have the right to legal aid for an appeal. The Government rejected that proposal, but the proposal received no support from Conservative Members.
Are we saying, therefore, that suddenly, in this kind of case, there should be legal aid, but in no other sort of case? All I am saying is that there should be equivalent standards throughout.
§ Mr. Tebbit
Although legislation has gone through the House in the past and some of my hon. Friends have opposed that legislation—the Sex Discrimination Act—that is no good reason for saying that to apply similar legislation to a different case is necessarily right. We can learn from our experience. If we did not learn from it, no law would ever be changed. In any case, I am not of the mind that that which applies to sexual relations must necessarily apply to race relations. Frankly, I am prejudiced about matters of sex. I married a woman. If I were to marry again, I would do the same again.
§ Mr. Lyons
No doubt the hon. Gentleman's wife would be a very fortunate woman. However, this matter has nothing to do with sexual relations, and I do not think that it is necessary to introduce that kind of sex or questions of domestic harmony into the debate.
We are discussing the procedures of an investigation. I should be horrified if any person confronted with an investigation under either the Sex Discrimination Act or this Bill did not have the opportunity to state his case. It would be in breach of the rules of natural justice. I hope that I would be the first to scream loud and long if that opportunity were not granted. However, that has nothing to do, basically, with what one thinks about women or minority groups. We are talking about the techniques of investigation. If the House were to come to the conclusion that the particular technique laid down in the Bill was wrong, in order to be consistent it would have to go back to the Sex Discrimination Act and alter the technique therein. That is the point.
§ Mr. Fletcher-Cooke
The hon. and learned Member for Bradford, West (Mr. Lyons) has made two very important points. Legal aid is a matter of financial priorities, as to whether one extends it or restricts it, and it is not the heart of the new clause. The heart of the new clause, which should certainly be extended to the Sex Discrimination Act at a suitable moment, is having something entitled a "formal investigation", and not just an inquiry by correspondence or anything like that. It is something—to use the noun of the Minister of State—called the full panoply of a formal investigation. That is a very serious matter. In the 1705 publication of the report which is clearly envisaged in Clause 51(3)—The Secretary of State shall cause the report to be published"—in certain circumstances immense damage could be done to individuals, companies, corporations, perhaps trade unions, and all sorts of people, long before any question of an enforcement notice is reached.
The Minister of State said that the individual, the corporation or the company, or whatever it be, was perfectly well protected, because by the time one comes to the enforcement notice procedure there are certain opportunities for making representations and defending oneself. However, that is much too late. From recent events we know perfectly well that, rightly or wrongly, people's good names can be irretrievably taken away by the publication of reports on investigations.
There are examples of that all round us, whether under the Companies Act or under the Tribunals of Inquiry (Evidence) Act 1921. To say that persons involved in a formal investigation, the report of which is likely to be published, should not have a basic right of self-defence is wrong. That is why I support the clause.
It is not enough for an individual to know in general terms the charge against him. He has to know in specific terms the evidence against him, and he must have a chance to meet that specific evidence in a formal investigation.
At this stage I would not insist on legal aid, because that is a matter of financial priority. The hon. and learned Member for Bradford, West gave us examples of the way in which legal aid might be extended which have a greater priority. An individual involved in a formal investigation should have the opportunity to know who are the witnesses, and he should have a chance to confront them. Otherwise, his good name may be taken away by the publication of the report. It is a matter of natural justice. Subject to what the Minister of State may say, I hope that we shall divide.
§ 8.30 p.m.
§ Mr. Jonathan Aitken (Thanet, East)
I support the new clause so ably moved by my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew). Until I heard the Minister of 1706 State's woefully inadequate reply, I had not intended to intervene. The clause is concerned with the protection of the rights of an individual faced with the undesirable consequences of a formal investigation.
My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) was right to draw a parallel, when speaking of formal investigations, with the serious nature of the consequences that can befall individuals when formal investigations are held into companies. He was referring to the recent Lonrho report. I have no doubt that the company concerned and the individuals were big enough to be able to muster adequate legal advice and be well represented by solicitors and counsel, Here, however, we are talking about the small man. He is not getting the protection which he deserves.
In replying to my hon. and learned Friend's argument, the Minister said that the assurances given by the clause were not necessary because we were dealing here with civil rather than criminal procedure. We are in a curious twilight zone of law which is neither quite civil nor quite criminal but which is a new departure in legislative terms.
When my hon. Friend the Member for Folkestone and Hythe (Mr. Costain) asked the Minister what legal support could be expected, the hon. Gentleman replied that the person involved could get a solicitor's advice. Of course he can get a solicitor's advice—anyone can do that at any time—but does he have the right to call witnesses and to be represented by counsel? The answer is "No".
I take the case of Mr. Robert Relf, for whom I hold no brief and whose activities I in no way defend. Most British people are probably convinced that Mr. Relf was involved in criminal matters, but I understand that it was his involvement with civil matters which led him into contempt of court. He appeared to have been involved in criminal procedures, but he was not. That is the way the public see it. That is an illustration of the difficult twilight zone. The assurance given that special provisions are unnecessary because this is civil rather than criminal procedure will not do.
The hon. and learned Member for Bradford, West (Mr. Lyons) seemed to think that we should not implement the 1707 clause becouse it would conflict with the Sex Discrimination Act. There is a certain logic in his point of view, but, as my hon. Friend the Member for Chingford (Mr. Tebbit) said, there are differences between sex discrimination and racial discrimination. Many people feel that the Sex Discrimination Act is one of the great laughing-stocks of our national life. To say that because a certain provision appears in that Act we should slavishly duplicate it in this Bill is nonsense.
I warmly support the clause. We are sent here to preserve liberties. The clause goes a small way towards preserving the liberty of the individual faced with the undesirable consequences of a formal investigation.
§ Mr. Stanbrook
I also support the clause. I am forced to intervene in the debate because of what was said by the hon. and learned Member for Bradford, West (Mr. Lyons), who propounded a theory which I believe to be false. His theory was that because the House has passed a Bill which is now on the statute book it must be presumed that it was passed unanimously, or that its spirit, effect, meaning, purpose and motive are binding upon every Member of Parliament. That takes no account of the experience we have had in the application of the Sex Discrimination Act or of the fact that such a measure may have been opposed by nearly 50 per cent. of the Members of the House during its passage. It takes no account of common sense. It is a completely false theory that we should not follow.
It is all the more necessary, therefore, to consider the clause in relation to the Bill itself. I do not believe in the leapfrogging theory—that because something appears in one Act we must apply it to another. That is nonsense. We should debate everything on its merits. Considering the balance in the Bill, as between the complainants and the persons complained against, I think that the Bill is very unjust indeed. The new clause tries at least to ensure justice for the person complained against.
Looking ahead to Clause 65, it provides forHelp for persons suffering discrimination".In other words, it provides help for those who are being discriminated against. 1708 Despite that description, the wording of the clause is thatWith a view to helping a person…who considers he may have been discriminated against in contravention of this Act",the Secretary of State may make certain regulations which assist the aggrieved person.
That assistance is available not to someone who has been discriminated against but to someone who considers he has been discriminated against—to someone who is prepared to complain, whatever the grounds and the justice of the complaint. This is a quite blatant interference on one side alone in the process of adjudication of a dispute.
In subsection (2) Clause 65 goes very far indeed, because it provides thatWhere the person aggrieved questions the respondent…In other words, the clause is wholly on one side in an argument which probably will not yet have been put before the tribunal. It is giving extra power to one side, to the complainant, and not to the person complained about, who may be sullering much more than the complainant. It is giving extra power to him to direct questions to the other side. If the other side does not reply, or appears not to do so, without reasonable excuse, or does not do so within the time specified, there is an inference against it.
- (a) the question, and any reply by the respondent…shall…be admissible as evidence in the proceedings;
- (b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
So much for the right of silence which people such as the hon. and learned Member for Bradford, West are so anxious to preserve in criminal proceedings. Here we are condemning people before they have even been tried. We are giving to the other side advantages which are not available to those who in the long run suffer to a far greater extent. But that is not all. Clause 66 provides for assistance by the commission on a truly huge scale. It can give advice and assistance of all kinds. Is this to both parties? Of course not. It is only to the person who considers that he has a complaint.
1709 It is quite clear, simply from a superficial reading of the Bill, that it is very one-sided in regard to giving assistance to parties who may be involved in proceedings under it. For these reasons, therefore, I heartily support the new clause.
§ Mr. Mayhew
When I opened this debate, which has proved to be interesting and valuable, I said that we had two purposes in moving the new clause. The first was to avoid injustice, and the second was to help the investigation get at the truth.
The right hon. Member for Down, South (Mr. Powell) made a point, with which I for one had considerable sympathy, when he pointed to the danger of joining, in one body, functions that were judicial and functions that were policy. That must always be an arrangement at which we in this House should look with great suspicion. However, the Bill as a whole does this and, technically at any rate, the procedure with which we are dealing at the moment is that of an investigation. But the point made is one that obliges us to look all the more carefully at the procedure laid down in the Bill.
I do not believe that any of the instances that I ventured to give of the need for this new clause, in the context of avoiding injustice and helping the investigation to get at the truth, have been answered in the speeches made by the Minister of State or by the only Back Bencher who spoke from the Government side of the House—the hon. and learned Member for Bradford, West (Mr. Lyons). The Minister of State began by saying that protections for the individual were to be found even in the preliminary procedure because the terms of reference had to be published. I frankly do not find very much to avail the individual in that fact. The Minister went on to make his major point, which was that while the safeguards contained in the new clause might be appropriate to a criminal jurisdiction, they were not appropriate to the jurisdiction with which we are concerned in this debate, because it gives rise only to a sanction of a civil rather than a criminal nature. I find that a very strange argument. It seems to follow from that argument that repre- 1710 sentation by counsel is an unnecessary luxury and that legal aid is quite an unnecessary advantage where a sanction is simply a civil sanction.
When we take into account, even in the context of this Bill, what could befall someone against whom a finding of a discriminatory practice, or some other infringement of the provisions in the Bill, is made I do not believe that it can be seriously argued that representation by counsel, or by solicitor, is out of place in the course of that investigation or that there should not be a right to give evidence on one's own behalf or, indeed, even the extravagance to call witnesses on one's own behalf.
In my opening speech I said that in these days of Government patronage it was no light thing to have a report made to the Secretary of State, or otherwise published, that an infringement of the Race Relations Act had been committed, or was being committed, by an employer. I pointed to the fact that unless we get rid of them, as I hope we will, qualifying bodies are obliged, by the provisions of Clause 72, to take account of any evidence suggesting that at any time a candidate with the qualification which they have it in their power to bestow was guilty of a discriminatory practice.
I pointed to the fact that matters of considerable legal complexity could arise in the course of an investigation, as recognised in Clause 50(3) which says that a person shall not be requiredto give information, or produce any documents, which he could not be compelled to give in evidence, or produce, in civil proceedings before the High Court…".I was hoping that the Minister of State might have the goodness to deal with what seemed to be a serious point. If he is not allowed legal advise, how is the ordinary person, such as a small employer running a small garage or launderette, to know whether or not the documents he has been called upon to produce under this procedure are the documents that he might be compelled by the High Court to produce? Those are points on which we had no answer, and that was very disappointing.
Then the Minister of State said that it could not be alleged that there was no appeal against a finding of discrimination or other infringements, because of the 1711 safeguards in Clause 58(5)(b). My hon. Friend the Member for Chingford (Mr. Tebbit) said that that was equivalent to saying "We shall not give you leave to call evidence or speak in your own behalf during the trial to establish whether you are guilty of an infringement, but before we proceed to sentence we shall ask you to make representations about whether you think you were guilty." That is an absurd way to conduct an essentially judicial procedure.
No party point is involved here. Nothing would be easier for me, as a Tory, than to condemn this Bill and all its works, and that would win me a great deal of popularity. I do not do that. I propose to vote for the Bill on Third Reading. But I believe that we have a deep responsibility never to pass legislation that makes bad law and makes for unjust judicial proceedings.
My hon. Friend the Member for Harrow, West (Mr. Page) said that only one commissioner may be appointed to conduct the investigation. That goes back to the right to challenge a demand that documents should be produced, and the fact that evidence may be given contrary to what may be compelled in the High Court.
The hon. and learned Member for Bradford, West said that we are ruled out of court because the Sex Discrimination Act contains identical provisions. That hardly speaks well of the radical approach to the problems of politics that one has learned to expect from those who profess the Socialist faith.
§ Mr. Edward Lyons
I said nothing of the kind. I said that a number of Conservative Members took objection to clauses that are represented exactly in the Sex Discrimination Act, yet so far as I knew they had made no objection to those earlier clauses. I did not suggest that the House could not alter in a subsequent Act what it did in a previous Act.
§ Mr. Mayhew
The trouble seems to be that the hon. and learned Gentleman believes that because one has made a mistake once one may never admit the fact. I was not in the House at that time. Had I been here, I like to think that I would have spotted the defect and acted accordingly.
§ Mr. Ronald Bell
I was in the House at that time and I can assure my hon. and learned Friend that we did not overlook those clauses. They were criticised, and criticised strongly.
§ Mr. Mayhew
It is not necessary to take longer on this point. Whether or not it was voted against in the Sex Discrimination Act, if it is wrong now it should be voted against now.
§ Mr. Budgen
My hon. and learned Friend said that he proposed to vote for the Third Reading. Was that a slip of the tongue? Did he mean to say that he proposes to vote for the new clause? Will he clear that up?
§ Mr. Mayhew
If it is necessary to clear it up, I gladly do so. I said that, notwithstanding what I saw as blemishes in the Bill, I proposed to vote for the Third Reading, although I would achieve a great deal of popularity if I did not.
But that is water under the bridge—[Interruption.] It will be water under the bridge. To bring what has been an enjoyable debate to an end before it gets too long, I would say that we have raised important and serious aspects of injustice in the Bill, as drafted. No answer has been given to the points made in support of the new clause, and I hope that my right hon. and hon. Friends will support it in the Lobby.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 67, Noes 93.1713
|Division No. 222.||AYES||[8.52 p.m.|
|Alison, Michael||Bulmer, Esmond||Fraser, Rt Hon H. (Stafford & St)|
|Arnold, Tom||Burden, F. A.||Glyn, Dr Alan|
|Atkins, Rt Hon H. (Spelthorne)||Carlisle, Mark||Goodhew, Victor|
|Bell, Ronald||Clark, Alan (Plymouth, Sutton)||Gow, Ian (Eastbourne)|
|Bennett, Sir Frederic (Torbay)||Clegg, Walter||Hall-Davis, A. G. F.|
|Biffen, John||Cope, John||Hannam, John|
|Biggs-Davison, John||Costain, A. P.||Hawkins, Paul|
|Boscawen, Hon Robert||Dean, Paul (N Somerset)||Hayhoe, Barney|
|Bowden, A. (Brighton, Kemptown)||Eden, Rt Hon Sir John||Holland, Philip|
|Brotherton, Michael||Eyre, Reginald||Hutchison, Michael Clark|
|Budgen, Nick||Fietcher-Cooke, Charles||Knight, Mrs Jill|
|Lane, David||Neubert, Michael||Taylor, R. (Croydon NW)|
|Langford-Holt, Sir John||Page, John (Harrow West)||Tebbit, Norman|
|Lawrence, Ivan||Page, Rt Hon R. Graham (Crosby)||van Straubenzee, W. R.|
|Le Merchant, Spencer||Parkinson, Cecil||Viggers, Peter|
|Letter, Jim (Beeston)||Percival, Ian||Wall, Patrick|
|Lloyd, Ian||Powell, Rt Hon J. Enoch||Weatherill, Bernard|
|Macfarlane, Nell||Rossi, Hugh (Hornsey)||Whltelaw, Rt Hon William|
|Maxwell-Hyslop, Robin||Sainsbury, Tim||Winterton, Nicholas|
|Mayhew, Patrick||Shaw, Giles (Pudsey)|
|Miller, Hal (Bromsgrove)||Silvester, Fred||TELLERS FOR THE AYES:|
|Moate, Roger||Sims, Roger||Mr. W. Benyon and|
|Molyneaux, James||Stanbrook, Ivor||Mr. John Corrie.|
|Morrison, Charles (Devizes)||Stokes, John|
|Anderson, Donald||Hamilton, James (Bothwell)||Prentice, Rt Hon Reg|
|Atkinson, Norman||Harrison, Walter (Wakefield)||Price, C. (Lewisham W)|
|Bagler, Gordon A. T.||Hayman, Mrs Helene||Radice, Giles|
|Bates, Alf||Henderson, Douglas||Rees, Rt Hon Merlyn (Leeds S)|
|Bean, R. E.||Hooley, Frank||Reid, George|
|Bidwell, Sydney||Hughes, Roy (Newport)||Robinson, Geoffrey|
|Blenkinsop, Arthur||Jenkins, Hugh (Putney)||Roderick, Caerwyn|
|Booth, Rt Hon Albert||Jenkins, Rt Hon Roy (Stechford)||Rodgers, William (Stockton)|
|Buchan, Norman||John, Brynmor||Rooker, J. W.|
|Callaghan, Jim (Middleton & P)||Johnson, James (Hull West)||Ross, Stephen (Isle of Wight)|
|Carter-Jones, Lewis||Johnston, Russell (Inverness)||Short, Mrs Renée (Wolv NE)|
|Cocks, Michael (Bristol S)||Judd, Frank||Skinner, Dennis|
|Coleman, Donald||Kerr, Russell||Snape, Peter|
|Cook, Robin F. (Edin C)||Kinnock, Neil||Spearing, Nigel|
|Crowder, F. P.||Latham, Arthur (Paddington)||Stallard, A. W.|
|Cryer, Bob||Lee, John||Summerskill, Hon Dr Shirley|
|Davidson, Arthur||Lestor, Miss Joan (Eton & Slough)||Thomas, Ron (Bristol NW)|
|Davis, Clinton (Hackney C)||McElhone, Frank||Tinn, James|
|Dormand, J. D.||MacFarquhar, Roderick||Walker, Terry (Kingswood)|
|Eadie, Alex||Mackenzie, Gregor||Ward, Michael|
|Edge, Geoff||Madden, Max||Watkinson, John|
|Edwards, Robert (Wolv SE)||Marshall, Jim (Leicester S)||Weitzman, David|
|Faulds, Andrew||Mendelson, John||Wellbeloved, James|
|Flannery, Martin||Miller, Dr M. S. (E Kilbride)||White, Frank R. (Bury)|
|Foot, Rt Hon Michael||Miller, Mrs Millie (Ilford N)||Willey, Rt Hon Frederick|
|Freud, Clement||Moonman, Eric||Wise, Mrs Audrey|
|George, Bruce||Morris, Alfred (Wythenshawe)||Wrigglesworth, Ian|
|Ginsburg, David||Newens, Stanley||Young, David (Bolton E)|
|Graham, Ted||Palmer, Arthur|
|Grant, John (Islington C)||Pavitt, Laurie||TELLERS FOR THE NOES:|
|Grimond, Rt Hon J.||Pendry, Tom||Mr. John Ellis and|
|Grocott, Bruce||Penhaligon, David||Mr David Stoddart.|
§ Question accordingly negatived.