§ Order for Second Reading read.
§ Mr. Speaker
Before I call the Home Secretary, may I tell the House that I have a very long list of hon. Members wishing to participate in the debate. I hope hon. Members will realise that I shall do my best in the selection, but they can help if they will bear in mind their colleagues who also wish to speak. The Home Secretary.
§ 3.52 p.m.
§ The Secretary of State for the Home Department (Mr. Roy Jenkins)
I beg to move, That the Bill be now read a Second time.
The Bill gives effect to the principles contained in the White Paper on Racial Discrimination which was published last September. A great deal has changed in the decade since the introduction of the first Race Relations Bill in 1965. The character of Britain's coloured population has altered dramatically.
Ten years ago, less than one-quarter of the coloured population was born in Britain. More than three out of every four coloured people were immigrants, a substantial number of them fairly recent arrivals. By contrast, today about two out of every five of the coloured population have been born here, and the time is not far off when the majority of the coloured population will be British-born.
The first principle upon which the Government's policy is based is the clear recognition that the vast majority of the coloured population will remain permanently in this country, and that a substantial and increasing proportion of that population belongs to our country in the fullest sense of being born and educated here as fellow citizens.
The second principle is that the members of Britain's racial minorities are entitled to full and equal treatment regardless of their colour, race or national origins. Racial discrimination and the disadvantages experienced by sections of the community are morally repugnant to a civilised and democratic society. These evils are also a form of economic and social waste which a society with any 1548 sense of enlightened and far-sighted self-interest cannot afford. They are a source of individual injustices for which there should be effective legal remedies.
The third principle of Government policy is that there is a clear limit to the amount of immigration which this country can absorb, and that it is in the interests of the racial minorities themselves to maintain a strict control over immigration.
Only two substantial sources of Commonwealth immigration remain—the close dependants of immigrants settled here, and United Kingdom passport holders from East Africa. Successive Governments have recognised that both of those groups have special claims to be admitted for settlement—the claim of family life and family unity, and the claim of refuge for British nationals of Asian origin who have been deprived of the right to live and work in East Africa.
The fourth principle is that, although effective legislation against racial discrimination is a necessary condition of equal opportunity and good race relations, it is not in itself a sufficient or complete condition. The success of legislation depends on the one hand upon the leadership of Government and Parliament and on the other hand upon the response of society as a whole.
A wide range of administrative and voluntary measures is needed in order to give practical effect to the objectives of the law. These measures are needed not only to combat discrimination and encourage equal opportunity but also to tackle what has come to be known as racial disadvantage.
As we said in the White Paper, beyond the problems of cultural alienness there are the problems of low status and of material and environmental deprivation which coloured immigrants—and increasingly their children—experience. To that extent they share all or some of these problems with other social groups, and a general attack on deprivation would be relevant to their problems. But there may well be a special dimension to their problems to the extent that racial discrimination multiplies and accentuates the disadvantages which are shared in part with others.
Action is, therefore, needed to tackle racial disadvantages as well as discrimination. It is here necessary to devise 1549 policies which are coherent rather than spectacular, and to set targets which are relevant and realisable rather than dramatic. Nothing could be worse than bold promises without the means for follow-through and implementation.
The Select Committee of this House, in its trenchant analysis of the organisation of race relations administration, has criticised the absence of a sufficient commitment by the Government to devise effective race relations policies and the inadequacy of my own Department's coordinating role. I shall not anticipate our detailed comments on the Select Committee's Report, but the Government fully accept that race relations policy needs more effective co-ordination.
We shall shortly take what I think is an important step towards this by establishing the Standing Advisory Council under the chairmanship, for the moment, of myself as Home Secretary. The Council will include Ministers of other Government Departments concerned, local authority representatives, the CBI and the TUC, the chairmen of the Community Relations Commission and the Race Relations Board—and later of the new amalgamated Race Relations Commission—together with members of the minority communities concerned.
We now have behind us the experience of 10 years of the working of the present legislation. I am not too much impressed by those who harp continually on the weaknesses and imperfections of the Acts of 1965 and 1968. Of course, those imperfections exist. It would, indeed, have been surprising if they had been perfect in every detail for dealing with a new and unfamiliar problem for our country.
It is interesting to observe that even in the United States of America, which has much longer experience of the problems of racial segregation and discrimination, Congress found it necessary in 1972 to make important improvements in the civil rights legislation enacted some eight years earlier. By coincidence, the same period of eight years has elapsed between the introduction of the Race Relations Act 1968 and today's Bill.
Today we are in a substantially better position to remedy defects in the legislation, partly because of our better understanding of the problems and partly because of the efforts made by the Race Relations Board and by the Community 1550 Relations Commission to make the legislation work; and partly, too, because of what has been learnt during the preparation and passage of the Sex Discrimination Act, on the provisions of which the present Bill is closely modelled. The two statutory bodies have been valuable sources of information, advice and constructive criticism. Their tasks have been considerable and their achievements have been real. I should like to pay tribute to the permanent contribution which has been made by the chairmen and the members of the boards and the staff of both these organisations, as well as by the members of the local conciliation committees and the Community Relations Council.
Yet at the end of this decade, which stretches back to 1965, despite all our efforts both statutory bodies have forcibly drawn attention, as they should, to the inability of the existing legislation to deal with widespread patterns of discrimination, especially in employment and housing, to a lack of confidence among minority groups in the utility of the law, and, as they themselves have put it,to a lack of total credibility in the efficacy of the work of both the board and the commission".Not all the evidence, however, is grim and discouraging. I noticed that an encouraging report about general attitudes in this country appeared in the Press as recently as yesterday. I emphasise this especially for the sake of racial minorities themselves, because in my view it is important not to lend credence to unrelieved pessimism and prophecies of doom, and it is especially important not to associate the coloured people only with problems so that they come to be regarded only as problem people, which in my view they are not.
I turn now to discuss the general principles of the Bill.
§ Mr. Churchill (Stretford)
Before the right hon. Gentleman leaves that aspect, would he confirm that instances of racial discrimination arise from only a tiny minority of the people of this country? Would he at the same time pay tribute to the wonderful way in which the British people have accepted, for the greater part, a very substantial influx of alien culture and alien race into their midst without any open conflict or racial prejudice?
§ Mr. Jenkins
Yes, indeed I would. Attitudes of discrimination apply to only a small minority. Certainly, as I believe we would all have expected, the British people with their traditions of tolerance and a stable society, protected by sinews of tradition extending back over a long time, have had to confront many problems greater than that which they confront in this sector, but they have reacted to this with great tolerance. In talking about this problem of minority groups, it is important also to remember the majority and to pay tribute, as the hon. Member for Stretford (Mr. Churchill) puts it, to the attitude of the majority in dealing with these issues.
I turn now to describe the general principles of the Bill, the provisions of enforcement and the separate but related provisions on incitment to racial hatred. Wherever possible, the Bill has been drafted—because it would have been foolish to have contradictions between the two—on the lines of the Sex Discrimination Act. We said in the White Paper "Equality for Women", now about 18 months old, that the Government's total aim wasto harmonise the powers and procedures for dealing with sex and race discrimination".I believe that this Bill substantially fulfils that aim.
Except for good and specific reasons, the two statutes and the procedures for their enforcement have been framed in similar terms. On some procedural matters, relatively limited, the Bill contains improved versions of corresponding provisions in the Sex Discrimination Act, because even within a period of a year there are a few lessons that one can learn. The opportunity that the Bill affords has been taken to incorporate these improvements in the Sex Discrimination Act.
Part I of the Bill makes several important changes in the definition of "discrimination". The 1968 Act made it unlawful to discriminate on the ground of colour, race or ethnic or national origin. But—for example, in the housing case brought by the Race Relations Board against the Ealing London Borough Council—another place decided that the words "national origin" did not include nationality or citizenship. The resulting gap has created some anomalies and difficulties. For example, it is not at present 1552 unlawful to discriminate against someone because he is a Pakistani national, but it is unlawful to discriminate against him because he is of Pakistani national origin.
The relatively very fine distinction between nationality and national origin created an obvious pretext, a gap, through which one could discriminate in an unacceptable way on racial grounds, and in some circumstances it is as irrational and unfair to discriminate against someone because of his nationality as it is because of his national origin. Therefore, the Bill widens the definition to include discrimination on the grounds of nationality or citizenship but it excludes exceptions where a person's nationality or citizenship is a justifiable ground for consideration.
Other changes in the definition of discrimination follow the Sex Discrimination Act. The Bill covers not only deliberate and direct discrimination on racial grounds but also unjustifiable indirect discrimination. A particular practice may look fair in a formal sense, or at least neutral in its original intent, but may be discriminatory in its operation or effect and have no obvious or reasonable justification. Under the Bill, therefore, it will be unlawful to impose, for instance, dress requirements at work or the adoption of recruiting tests which operate to disqualify coloured applicants at a substantially higher rate than white applicants without their being significantly related to the job requirements or performance. Those are obvious examples of the kind of practice I have in mind.
In short, we have here taken a broad and, I believe, realistic rather than a purely narrow and legalistic view of discrimination. Part I also extends the definition of discrimination to cover victimisation of those who assert their rights under the legislation.
Part II of the Bill makes discrimination unlawful. [Interruption.]
§ Dr. M. S. Miller (East Kilbride)
Will my right hon. Friend confirm that is the intention of the Government to implement paragraph 63 of the White Paper in respect of the possibility of training facilities—discrimination in a reverse direction?
§ Mr. Jenkins
I am grateful for my hon. Friend's intervention. I can confirm that.
1553 Certainly, my hon. Friend the Minister of State will deal specifically with the White Paper in winding up the debate, in a way which I hope my hon. Friend will find satisfactory.
Part II of the Bill makes discrimination unlawful in the fields of employment, training and related matters. These situations are already covered by the 1968 Act, but the Bill follows the Sex Discrimination Act in applying the law of discrimination against contract workers, applying it against discrimination by partnerships of six or more persons and by occupational licensing bodies.
An exception in the 1968 Act for discrimination in selecting someone for employment requiring attributes especially possessed by persons of a particular nationality or descent has been replaced by a narrower and more precise exception where being of a particular racial group is a genuine occupational qualification for the job. Like the 1968 Act, the Bill contains an exception for employment for the purposes of a private household.
For the reasons given in paragraph 63 of the White Paper, the Government have decided to respond to the Board's recommendation to repeal the racial balance exception. After consulting both sides of the shipping industry, as promised in the White Paper, the Government have decided—again in accordance with the Board's recommendation—to repeal several of the existing exceptions allowing discrimination in employment on ships and aircraft. A single exception remains in the Bill for seamen recruited abroad. The Government will keep this exception under close review, and the Bill will enable it to be repealed by an order approved by both Houses of Parliament if both Houses are so disposed.
§ Mr. Arthur Blenkinsop (South Shields)
My right hon. Friend will be aware that there is strong feeling on this issue. Will he re-emphasise the point about this matter being kept under regular review so that it can be regarded as a purely temporary provision?
§ Mr. Jenkins
I am aware that there is strong feeling on this issue. That was why I stated my position upon it as I did. There are considerable arguments which have to be taken into account the other way. There is a strong feeling 1554 one way and there are strong considerations the other way. I have indicated an open-minded attitude. The fact that the Bill makes it possible for this matter to be dealt with in future without new legislation indicates that we have an open mind on it.
In Part III the Bill deals comprehensively with discrimination in the public and private sectors of education. This part of the Bill also deals with discrimination in the provision of goods, facilities and services to the public and in the disposal and management of premises. In these respects it is similar to the 1968 Act, and there are similar exceptions for the disposal of small dwellings.
The House will be aware that the House of Lords, in two cases involving alleged racial discrimination by social clubs, decided that the words "section of the public" in Section 2 of the 1968 Act do not apply, in the view of the House of Lords, to members or associate members of such clubs. As a result, some 4,000 working men's clubs with a total membership of about 3½ million are not covered by the 1968 Act. In some towns these clubs have replaced public houses as the main providers of facilities for entertainment, recreation and refreshment. In addition, thousands of golf, squash, tennis and other sporting clubs are almost certainly outside the scope of the 1968 Act, although the House of Lords has not pronounced specifically on that issue.
§ Mr. Ronald Bell (Beconsfield) rose—
§ Mr. Jenkins
When I have completed this point, I shall be glad to give way to the hon. and learned Gentleman.
In my view, clubs must be allowed to apply a test of personal acceptability to candidates. Individual members should be free to propose and second whom they please. But I do not think that it is in the public interest for clubs to be permitted to operate a colour bar or, say, a Jewish quota as part of their policy. Clause 25 of the Bill therefore makes it unlawful for a club or other body to discriminate on racial grounds. However, it does not apply to a small club with fewer than 25 members.
§ Clause 26 makes an exception for a club whose main object is to enable the benefits of membership to be enjoyed by 1555 persons of a particular racial group defined otherwise than by colour. The Bill will not, therefore, affect the activities of associations like the London Welsh, the London Scottish or the Indian Workers' Association, provided that they do not discriminate on grounds of colour. It could certainly be said that a person must be a Welshman to be a member of the London Welsh, but a black Welshman could not be excluded.
§ Mr. Ronald Bell
The right hon. Gentleman said that, in the opinion of the House of Lords, the words in the 1968 Act did not apply to clubs. Does this not go further? Was not an assurance given to us by the right hon. Gentleman himself or his predecessor—I forget which—in Standing Committee and, I think, on the Floor of the House that the intention was that the Act should not apply to clubs?
§ Mr. Jenkins
I did not conduct the 1968 legislation through the House. I was, in a sense, one of its parents, but when it was going through the House I was a somewhat distant parent as I was involved in other matters. I cannot recollect all the exchanges which took place. My impression is that the decision of the House of Lords aroused some surprise. However that may be, an important part of our constitution is that the courts have the duty to interpret legislation, but clearly Parliament has the right to make legislation. The House of Lords—in its judicial, not legislative, capacity—is the ultimate arbiter of what is right in law according to the statutes prevailing at the time. We are putting forward a proposition, and it will be for the Committee and ultimately the House in considering all the issues to decide what they think about it.
§ Mr. Ted Leadbitter (Hartlepool)
I have already informed my right hon. Friend that I am opposed to this part of the Bill. Does he agree that this part of the Bill is fraught with difficulties and dangers? We have not had difficulty in this area because the vast majority of clubs deal with membership applications reasonably well without discriminatory considerations. Therefore, should we not think again before legislating on this matter, because in practice the job is already being done satisfactorily?
§ Mr. Jenkins
I am aware of my hon. Friend's views on this matter. I am not sure whether he communicated them to me direct. However, he certainly communicated them to me powerfully, if indirectly, after publication of the White Paper. I agree with my hon. Friend that this area is fraught with difficulties. We have an admirable, wide-ranging club organisation of affiliated members which in normal circumstances allows members of one club to pay temporary visits to another club. I agree that most clubs do not discriminate on colour grounds, but in applying the affiliation test it is possible to apply direct colour discrimination. That is difficult to reconcile with any proper approach to the matter.
§ Mr. Gordon A. T. Bagier (Sunderland, South)
Does my right hon. Friend agree that the taking of the case to the Lords by the Club and Institute Union to establish the right of an individual club to determine its membership brought about a certain amount of uninformed opinion on why it was done? Does he know that the executive body of the Club and Institute Union is to recommend to its annual conference this year that any club which wishes to operate a colour bar should have its CIU membership discontinued? The CIU feels very strongly about this matter. It feels that its approach has been misconstrued. In the first instance it wanted to establish the right of a club to determine its individual membership, but, in the second instance, on the affiliation side, it agreed with the object of the Bill.
§ Mr. Jenkins
Since the White Paper was published I have had the opportunity of meeting members of the Club and Institute Union, for which I have a great respect, and we had a discussion about this matter. I take note of what my hon. Friend says, but I am quite clear that it is for the House of Lords or other appropriate courts to determine what is the state of the law and for this House and Parliament to determine what the law ought to be. I agree with my hon. Friend the Member for Hartlepool (Mr. Leadbitter) that it is a very difficult aspect of the matter. I appreciate that, but it is also a matter of considerable importance. I reiterate, as I said previously, that in my view clubs must be able to 1557 apply the test of personal acceptability to candidates but that this should not be on a colour basis.
I should like next to draw attention to Clause 23 of the Bill because it was not mentioned exceptionally in the White Paper. It exempts anything done by a person arranging to take children, elderly people or people requiring a special degree of care and attention into his home and to treat them as if they were members of his family. The problem arises here again as a result of a House of Lords case in which it was decided that child fostering under the local authority arrangements was within the scope of the 1968 Act—perhaps the reverse of the issue which we were considering a few moments ago. The Government consider that it is not in the interest of foster-children and others treated as part of one's family, or in the interest of good race relations, for the law to apply to such personal and intimate relationships.
Part IV of the Bill deals with other unlawful acts: discriminatory practices and advertisements, instructions and pressure to discriminate, vicarious liability of employers and principals and the aiding of unlawful acts.
Part V applies to charities. It exempts from the general provisions of the Bill any discrimination, other than discrimination on the grounds of colour, which is necessary to comply with the terms of a charitable instrument, and it provides for the removal of all colour restrictions in charitable instruments.
Part VI contains general exemptions from the scope of the Bill. Three kinds of exception require particular note. The first is the exception in Clause 35 of discrimination in affording persons of a particular racial group access to facilities or services to meet their special needs in relation to their education, training or welfare. I think that this deals with the point which was mentioned by my hon. Friend the Member for East Kilbride (Dr. Miller).
The second kind of exception which I should like to mention is in Clause 41. It is necessary to have an exception here because the Bill covers, as I have explained, discrimination on the grounds of nationality as well as indirect discrimination. It is therefore necessary to ensure that the Bill does not invalidate 1558 justifiable nationality rules or residence requirements, provided that they have received ministerial approval. The residence requirements for eligibility for National Health Service benefits, for example, need to be safeguarded.
The third kind of exception is closely analogous to similar provisions in the Sex Discrimination Act. It would be wrong to adhere so blindly to the principle of formal legal equality as to ignore the handicaps preventing many black and brown workers from obtaining equal employment opportunities. Clauses 37 and 38 therefore permit—they do not require—training bodies, employers, trade unions and employers' associations to provide training and encouragement to people in a particular racial group to help them to take up jobs or enjoy other opportunities from which they have previously been excluded or in which they have been significantly under-represented.
Part VII of the Bill establishes the new Race Relations Commission. The principal functions of the new Commission will be to work towards the elimination of discrimination, to promote equality of opportunity and good relations between persons of different racial groups generally, and to keep the working of the legislation under review. It will have a major strategic rôle in enforcing the law in the public interest. It will be able to assist and represent individuals in appropriate cases, but it will also be concerned with wider policy: to identify and deal with discriminatory practices by industries, firms or institutions.
The Commission will be empowered to issue non-discrimination notices and to bring legal proceedings against those who persistently violate the law. It will also be able to conduct general investigations and research, to advise the Government and to take action to educate and persuade public opinion. It will keep under review wider policies and practices in the public and private sectors, having particular reference to their implications and their effect upon racial minorities.
§ Mr. Dudley Smith (Warwick and Leamington)
Can the Home Secretary say why it has been decided to call this new body the Race Relations Commission when such a strong case was made out by the Select Committee on Race 1559 Relations for it to be called the Equal Rights Commission?
§ Mr. Jenkins
The main point was that that name would have been so close to that of the Equal Opportunities Commission in the sex discrimination field as to create confusion. What is inside bottles is more important than the labels, and I ask the hon. Gentleman to consider whether there might not have been confusion amounting almost to an infringement of the fair standards practices in this respect. However, I quite agree that this is a matter not of principle but of convenience.
The new body will also keep under review wider policies and practices in the public and private sectors having particular regard for their implications and their effect upon racial minorities. In all these respects the functions and powers of the Commission will be similar to those of the Equal Opportunities Commission under the Sex Discrimination Act, and, as recommended by the Select Committee, the two Commissions will be encouraged to co-operate closely and to exchange relevant information and experience so as to strengthen their respective rôles.
§ Mr. Michael Alison (Barkston Ash)
Could the right hon. Gentleman say a word about why there will apparently be no financial saving from the merger of the two bodies? Will the new body take on the same number of staff from both its predecessors?
§ Mr. Jenkins
I shall come to that presently and say why I think it is desirable to amalgamate the two bodies, but I can answer the hon. Member first.
I am not necessarily saying that there will be no savings at all. I think that the numbers employed will be approximately equal, although not exactly equal, because they will be carrying out the functions which have been performed by the two bodies concerned. It is quite desirable and not altogether usual, perhaps, to have in a new Act of Parliament something which puts one body in place of two, but I do not think I can promise any significant saving in numbers. However, it is quite unusual in an Act of Parliament not to have an increase in numbers. Therefore, it might not be too unsatisfactory from that point of view.
1560 The Commission will have greater powers and wider responsibilities than either the Race Relations Board or the Community Relations Commission. However, it will not have the Board's present obligation to investigate every individual complaint and to attempt to obtain settlements and assurances by means of conciliation. Nor will it have the Board's exclusive right to bring legal proceedings because, as under the Sex Discrimination Act, there will be a right of individual access to legal redress in industrial tribunals and county courts.
The Commission will have a wide discretion, however, in deciding whether, and, if so, in what way, to give assistance to complainants. However, in drafting Clause 65, which deals with this matter, we have been conscious of a widespread criticism of the White Paper that more should be done to assist alleged victims of discrimination.
Critics have arguably underestimated the extent of the new Commission's powers and the value of the procedure for questioning a respondent on his reasons for any relevant act as laid down under Clause 64. That said, however, I recognise that there has been some substance in the criticism put forward since the autumn. Accordingly the Bill will impose a duty on the Commission to consider applications for assistance and within two months to inform the applicant of its decision.
Where an application for assistance has been made, the period within which proceedings may be instituted in the courts will be extended by a period of two months, which may itself be extended by the Commission for a further month. These provisions, which have no equivalent in the Sex Discrimination Act, should enable the Commission to meet the special needs of alleged victims of racial discrimination without being distracted from its crucial and essential strategic rôle.
The White Paper when published left open the question whether the Commission should be, as the Community Relations Commission now is, the source of financial support, training and co-ordination for local community relations work. The recommendations by the Select Committee, by the Race Relations Board, by the Community Relations Commission 1561 and by voluntary organisations showed a wide divergence of view.
I should tell the House frankly that I have found the resolution of this issue more difficult than any other decision which has had to be made about the Bill. On the one hand, it can be argued that the new Commission, responsible for administering in the public interest a far more powerful piece of race relations legislation than we have yet seen, could be compromised in carrying out its law enforcement duties if it is also obliged to stimulate and co-ordinate local community relations work because its essential independence, impartiality and objectivity, so it is said, could be impaired.
On the other hand, it can be and has been argued that the new Commission should be responsible for co-ordinating and supporting the 85 local community relations councils. If its law enforcement, advisory and monitoring functions were divorced from a community base, the Commission might be seen as remote from the realties of life in the minority communities. The White Paper said that we were convinced of the need to ensure that any new arrangement did nothing to hinder the valuable work done by community relations councils and their officers at local level. That certainly remains the position. After further consultation and reflection, we came to the conclusion that the only practicable way of preserving this vital work was by giving the Community Relations Commission's present responsibilities for work at local level to the new Commission.
The other options which have been suggested were in my view unworkable, ineffective or unacceptable to those most affected by any change—the continued existence of two statutory bodies, which I should not have liked, the creation of a new national voluntary body supported by public funds, which would be yet another body, the placing of local community relations work under the Home Office, which, although I have great respect for that Department, over which I have presided twice, would not be entirely appropriate for this task, or placing them under local authorities, which I do not think would have worked satisfactorily either.
The Commission will be able to give financial or other assistance to organisa- 1562 tions concerned with the promotion of good relations between persons of different racial groups, and any public expenditure will of course will be subject to ministerial approval.
In empowering the Commission to support local work, Clause 44 provides for a special committee. I hope that this will go some way to satisfy the doubts of the hon. Member for Dorking (Sir G. Sinclair), for whose interest in this subject and good will towards it I have the greatest possible respect. That committee will be kept structurally distinct to exercise the Commission's fieldwork responsibilities. In this way, we hope that the Commission will be able to avoid being compromised or weakened. I see that the hon. Member for Dorking thinks that he has been compromised, but I believe that his back is broad enough to sustain such a relatively mild compliment.
In this way, we hope that the Commission will be able to avoid being compromised or weakened in carrying out its other functions.
§ Dr. M. S. Miller
I am glad that my right hon. Friend is dwelling a little on this matter. I am sure that he recognises that enforcement is the nub of this matter. Was the decision to scrap the Race Relations Board and the Community Relations Commission and replace them with the Race Relations Commission taken after adequate consultation with minority groups, taking into account the fact that the minority communities are often the last people to know that they have been discriminated against?
§ Mr. Jenkins
I do not like the word "scrap", which suggests that one is throwing these two bodies, which have done very good work over 10 years, on to a scrap heap. That is not so. We are moving forward into a new field, in which they have played an essential part in laying the foundations which will allow us to go forward. However, I can assure my hon. Friend, as I said earlier in this passage, that there was no decision about the Bill to which I devoted more attention—frankly, no decision I found it more difficult to make—and that, in advance, I had the fullest possible consultations with everyone who I thought could help me and with all those with knowledge and experience in this field.
I turn finally to Part IX, which amends the law on incitement to racial hatred.
§ Mr. John Loveridge (Upminster)
Many of us, while we deeply respect the aspirations and principles upon which the Bill is based, are none the less concerned about the proposed methods of enforcement. We have been told how the Commission will be able to help those who make accusations. What we have not been told, but should like to hear, is what redress there will be for those against whom false accusations are made.
§ Mr. Jenkins
I agree that it is important that in this, as in any other area, people should not be subject to malicious or frivolous complaints. Of course, in order to proceed in this matter, a complainant has either to get the assistance of the new Commission, in which case he has to go through quite an important sieve, or he has to take his own responsibility for bringing an action before an industrial tribunal or a county court. There is no legal aid before industrial tribunals. Some people think that there should be, but there is not, and there is no immediate prospect of it. So there is a considerable disincentive to people, most of whom in these circumstances are pretty badly off, to indulge in frivolous or pointless complaints. That preserves a fairly effective barrier against people doing things which are totally frivolous, malicious or without any essential basis.
Part IX amends the law on incitement to racial hatred. Under Section 6 of the Race Relations Act 1965, a person is guilty of an offence if, out of an intent to stir up racial hatred, he circulates written matter or uses words in public which are threatening, abusive or insulting and likely to stir up racial hatred. The burden of proving the necessary intent has been increased since the offence was created, as a result of Section 8 of the Criminal Justice Act 1967, which made it necessary to prove a subjective, rather than a purely objective, intent.
Prosecutions in this field may be brought only by or with the consent of 1564 the Attorney-General. The prosecuting authorities believe that the need to prove a deliberate subjective intention as well as the other ingredients of the offence have made it unlikely that prosecutions will succeed except in the most blatant and extreme cases. This view is reinforced by the observations by Lord Justice Scarman in his Report on the Red Lion Square disorders, that Section 6 of the 1965 Act is too restrictively defined to be an effective sanction.
The offence of incitement to racial hatred is closely akin to Section 5 of the Public Order Act 1936, which makes it an offence to usethreatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned".I emphasise the last phrase, because it shows that an offence may be committed under the Public Order Act if there is a likelihood of a breach of the peace whether or not there is an intent to cause a breach of the peace.
I have said that the two offences are closely akin because racial hatred contains the seeds of violence. It is a stronger and more dangerous emotion than ridicule or contempt. It creates the circumstances which engender racial violence. The Government have therefore decided to make a modest but significant amendment to Section 6 of the 1965 Act by removing the need for subjective intent. This will bring it into line with the offence under the Public Order Act.
§ Sir George Sinclair (Dorking) rose—
§ Mr. Jenkins
It will probably be more convenient if I complete this paragraph on the same point before giving way.
I know that the proposed change will not satisfy some hon. Members on both sides of the House. For example, a Bill has been presented by the hon. and learned Member for Beaconsfield (Mr. Bell) and others that seeks to repeal Section 6, which it describes as avindictive prescription…devised and insinuated into our laws by narrow and intolerant persons"—[Interruption.] I did not hear that comment. I am not sure whether it came from the Back Benches or from higher up.
1565 I do not regard myself as a narrow or intolerant person. I am deeply concerned in this, as in other fields, with the protection of freedom of speech. [Interruption.] I think that we have seen in that demonstration in the Gallery a few narrow and intolerant people, within whatever definition one cares to apply.
What I was concerned with was, in a sense, to argue the case against going further than that which I had described as the modest but significant distance I have gone.
It is not justifiable in a democratic society to interfere with freedom of expression except where it is essential to do so for the prevention of disorder or for the protection of other basic freedoms. I believe that Clause 69 satisfies that test. In drafting the clause we have been careful to ensure that regard will be had to all the circumstances in deciding whether there is a likelihood that racial hatred will be incited. We have also been careful to include specific safeguards for fair and accurate reports of legal proceedings and proceedings in Parliament, as well as affording a defence to the unwitting publisher or distributor of written matter.
§ Sir G. Sinclair
Perhaps the manifestation in the Gallery has reinforced the case I was going to urge upon the right hon. Gentleman. Has he recently reviewed the possibility of including such provision in the Public Order Act, where it seems more appropriate, instead of putting it into the Bill?
§ Mr. Jenkins
I shall look again at that aspect, but I said earlier that what we were doing in Clause 69 was to bring the racial discrimination legislation into line, on the question of objective or subjective intent, with that which has been in our law under the Public Order Act for the past 40 years. I shall consider the question that the hon. Gentleman has raised, but I think they will be now marching more closely together than hitherto.
§ Mr. Ivor Stanbrook (Orpington)
Is the right hon. Gentleman aware that even the meanest criminal in this country is entitled to rely on the fact that his accusers must prove his intention to commit the crime before he can be convicted? What justification is there for an exemption for race relations?
§ Mr. Jenkins
That is a more complicated doctrine. I am not a lawyer, but I am aware that a different point of view was taken by a Government of a different complexion as long ago as 1936 on this issue.
§ Mr. Sydney Bidwell (Ealing, Southall)
I am grateful to my right hon. Friend for giving way, particularly as I should like to take this matter out of the hands of the lawyers. Is there a possibility of finding an advisory role for the Commission? I have in mind a disgraceful broadcast on BBC2, which in my view was certainly an offence under the existing legislation—
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. I hope that hon. Members will not try to make speeches on the pretext of an intervention.
§ Mr. Jenkins
In moving the Second Reading of the Bill I shall not make pronouncements on particular programmes in my rôle as Minister loosely responsible for the two broadcasting organisations. No Minister should do that, and I have no intention of doing so, even in response to my hon. Friend. I think that, in view of what Mr. Speaker said earlier, I should now proceed rapidly to the end of my speech without giving way.
There will be others in the House besides those who have intervened, and people outside also, who will be disappointed that on the racial incitement point the Government have not gone further, particularly in penalising the dissemination of ideas based on an assumption of racial superiority or inferiority or statements, true or false, which may encourage racial prejudice or discrimination. The Government said in a White Paper that they would carefully consider any further representations that might be made on this subject. We have done so, and my present view is that it would be wrong to extend the criminal law in this way. False and evil racial propaganda of a subtle and insidious kind is more likely to be effectively defeated by public education and debate than by prosecution. I doubt whether the criminal law is the right instrument to deal with such material.
I also believe that it is fundamental to a democratic society that unpopular ideas should be freely expressed, even if they are regarded as false and evil by 1567 most people of sense and reason, unless they clearly endanger public peace.
I hope that after careful reflection the House will agree that Clause 69 maintains the proper balance between public order and individual freedom—
§ Mr. Nigel Lawson (Blaby) rose—
§ Mr. Jenkins
I shall not give way. I have said that I shall now proceed to the end of my speech.
It is almost 10 years since I had my first opportunity as Home Secretary to state my attitude towards racial discrimination and the problems of integration. I then set out what I believed, and still believe, to be the central objective of Government policy: the promotion of equal opportunity, accompanied by cultural diversity in an atmosphere of mutual tolerance.
I conclude today, as I did on that occasion, by emphasising that the task that confronts us all is crucial but should not be daunting. The problem that we are discussing makes less demand upon our capacity for tolerance and change than many problems which we have successfully surmounted in the past. However, the way in which we face it—both in Parliament and in the country—can have a great effect upon our future. If we succeed, we and our children will live in a decent and tolerant society. If we fail, we shall create vast difficulties for future generations of our citizens.
I am confident, in commending the Bill to the House, that it will create—it cannot do the whole job, because only public opinion and public response can do that—a better framework within which the real work must be done where people of different races meet in their everyday lives.