HC Deb 08 December 1977 vol 940 cc1839-48

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Tinn.]

12.37 a.m.

Mr. Hugh Jenkins (Putney)

Six years ago my constituent, Mr. Selvarajan, made a complaint of racial discrimination by his employer, the Inner London Education Authority. The complaint was investigated by a committee consisting of a group described in Professor Griffith's highly praised book, "Politics of the Judiciary ", as a group of able men and women holding positions of responsibility". They included Lady Nancy Seear and Dr. Bayliss, a senior civil servant in the Department of Employment.

As Professor Griffith says, the committee received representations in writing and orally from all concerned from May 1971 to February 1972. The sub-committee then reported to the full committee that unlawful discrimination had taken place. The committee accepted the recommendation, but the Inner London Education Authority rejected it and the matter then went to the full Race Relations Board.

The Board, instead of taking a decision, referred the matter to another committee—the Employment Committee—which then invited the Inner London Education Authority to reply once again to the complaint. It did so in 16 pages.

On 4th December 1972, Mrs. Coussey, an officer of the Board, made a recommendation That the Committee form an opinion of no unlawful discrimination. In other words, on the investigation of a single officer, the recommendation was given to the employment committee that it should reverse the decision which had been reached by the committee which had carried out the full inquiry. Four of the six members present at that committee had not had the papers, as Professor Griffith points out in his damning indictment of the procedures which took place in this matter.

In January 1973, the committee confirmed its acceptance of its officer's recom mendation and, on this slender ground, the position was reversed.

In all the circumstances, my constituent naturally was gravely upset, and he decided to test the matter in the courts. The matter went to appeal, and Professor Griffith says on page 90 of his book: One of the most remarkable decisions of the Court of Appeal since 1965 was in Regina v. Race Relations Board, ex parte Selvarajan. The applicant, a graduate of Madras and London Universities, was appointed in 1961 to the City of Westminster (now Walbrook) College as a lecturer grade 1. Most lecturers are promoted to grade 2 with-in a few years. Mr. Selvarajan was never promoted during fourteen years"— now 16 or 17 years. He felt this was because of his colour or race, and he complained to the Race Relations Board. Then, after going through the story which I have already briefly summarised, Professor Griffith continues, on page 92: In all this story the matter which most troubled the Court of Appeal was that four members of the employment committee were not in a position to form an opinion of their own because they were not in possession of all the information. Professor Griffith concludes his summary of the matter by saying: The members of the Court of Appeal were clearly most reluctant to interfere with the decision of the Race Relations Board and no doubt this reluctance is often justifiable. But in this case the disparities between the ways in which the conciliation committee and the employment committee proceeded were so glaring that the propriety of the employment committee's actions was surely in question. The conciliation sub-committee had seen all the parties and had investigated the matter at great length. The employment committee saw none of those concerned, were presented with a prejudicial recommendation by an officer who had seen none of those concerned, and came to a conclusion although four of its seven members had not seen all the papers. How in the light of all this could Lord Denning conclude that the opinion of the Race Relations Board was ' manifestly correct '? How could he conclude that the applicant had been ' most fairly treated ' "? My constituent's case was dismissed.

My constituent is a very aggrieved man, for there is another cause for concern unknown to Professor Griffith. The court received a document from the Race Relations Board after the hearing and before giving judgment. This became known to my constituent by accident. In that document, it was admitted that the Board had not acted correctly and that it was desirable in future that the person responsible for the alleged racial discrimination should be named.

My constituent was kept in ignorance of this admission and kept in ignorance, too, of the Board's apparent promise of good behaviour in future which, of course, implied incorrect behaviour in this case. It was claimed that this document did not influence the court. But what was the effect on my constituent, already convinced by the evidence which convinced Professor Griffith that the cards were being deliberately stacked against him?

Even worse was to come. Lord Denning awarded costs against my constituent, and he added, more than once, words suggesting that those costs might not be collected. He said, for example Whether they will enforce it is another matter. Counsel for the Board said that this would be taken into consideration, but apparently it was not. The Board went for my constituent, taking out a distraint warrant attaching his property. I appealed to the successor to the Board, the Commission for Racial Equality, which has replaced the earlier organisation and taken over its duties.

I urged the Commission to wash its hands of the whole matter and to cease trying to collect the amount, or any part of it, from my constituent. But Mr. Selvarajan is a man of strong principle. He is convinced that he has been gravely wronged and he will not pay, for, he says, the body set up to protect him has not only refused to do so but has now become his persecutor.

Mrs. Selvarajan has not slept very well for a long time. She has a little money of her own, and she wrote to me privately asking to be allowed to try to settle the matter. The Commission agreed, after this motion appeared on the Order Paper, to accept £250. Mrs. Selvarajan's cheque for that amount has been sent to it. The sum is about a quarter of the amount originally awarded. That money was sent so that my constituent and his wife might not have to live in a house without furniture, since that furniture was to be dis trained by the Race Relations Board which was set up to protect racial and ethnic minorities, to which my constituent belongs.

This is a melancholy tale. I ask my hon. Friend the Minister to do three things. Will he take the costs on to public funds? Will he ask the Commission, which has foregone its pound of flesh, not even to retain the quarter pound it now has, which means more to Mrs. Selvarajan than to it? Will he ask the Commission to respond to the thrice-repeated hint of Lord Denning, regard the matter as closed, and return to Mrs. Selvarajan her cheque, or an equivalent sum? Will my hon. Friend draw the attention of all concerned to this worrying affair so that they may consider that the only people who took evidence and saw witnesses directly concluded that unlawful discrimination had occurred, and that my constituent believes that that discrimination is still being exercised against him to this day.

I do not know whether my constituent suffered racial discrimination, but I do know that justice was not seen to be done. Where that is the case, the presumption must be that justice was not done. As my constituent sees it, it was considered in 1972 to be intolerable that a public body such as the Inner London Education Authority should be found guilty of racial discrimination, and that the establishment closed ranks so effectively that the more he struggled to secure justice the graver the injustice he had to endure.

I ask my hon. Friend to take the matter into his own hands and to talk to his colleagues who are influential in these matters, including the Lord Chancellor, and to put the matter right at long last.

12.50 a.m.

The Minister of State, Home Office (Mr. Brynmor John)

I am grateful to my hon. Friend the Member for Putney (Mr. Jenkins) for raising the case of Mr. Selvarajan and for giving me the opportunity of clarifying the rôle of the Commission for Racial Equality in this matter.

As my hon. Friend has said, Mr. Selvarajan was, and still is, a lecturer within the Inner London Education Authority, and he considered that in not promoting him the authority was discriminating against him on racial grounds. However, I must rehearse a little of the history of this matter, because although there has been a fundamental change of law and of procedure since then, before the passing of the latest Act the complainant, as he was obliged to do, complained to the proper authority, namely, the Race Relations Board. That board then had a duty to consider the complaint and, where appropriate, to refer the matter to a conciliation committee or an employment committee. That procedure was carried out. Then, upon receipt of the report, the Board had a further duty. That was to decide whether to accept the committee's report or to reinvestigate the matter.

My hon. Friend has talked about the ILEA having been found guilty of racial discrimination. That was not the function of the conciliation committee at any stage, nor was it the function of the Race Relations Board.

The Board's function was to see whether there was a sufficient case for it to sue on behalf of the complainant. In fact, authoritatively, only a court could possibly have found the ILEA guilty of racial discrimination.

I hope that my hon. Friend accepts that distinction, because it is a vital one.

Mr. Hugh Jenkins

Will my hon. Friend give way?

Mr. John

I should like to develop my case.

Mr. Hugh Jenkins

It is on a point of fact.

Mr. John

I shall certainly give way to my hon. Friend before the end of my speech.

In this case, the Race Relations Board chose to reinvestigate and it eventually came to the conclusion that there was no unlawful discrimination. In that, as my hon. Friend said, it differed from the committee.

My hon. Friend complains, as have others, about the decision of the Board and the way that it was arrived at. But the decision was open to review by the courts, and Mr. Selvarajan exercised that right. He applied to the Divisional Court for an order of certiorari to quash the decision of the Board. This in itself formed a unique event in the Board's history, in the sense that it was the only time that the Board, the body set up to take up so many cases on behalf of persons who had been discriminated against, was the respondent to an action.

The Divisional Court dismissed Mr. Selvarajan's application and awarded costs against him. He was dissatisfied by that and he appealed against that decision to the Court of Appeal. He lost also on that occasion, the court finding, as my hon. Friend said in his valuable summary, that the case had been fully investigated in accordance with the statute, that he had been fairly treated, and that the Board's opinion was manifestly correct. That was the judgment of the Court of Appeal and, again, costs were awarded against him.

Mr. Selvarajan then sought leave to appeal to the House of Lords. That was refused, in November 1975.

When my hon. Friend comments about the Board's decision, I would say this to him: it has been upheld in two courts. Although my hon. Friend and, indeed, Professor Griffith may be dissatisfied with the outcome. I think that we have to draw a distinction between the rôle of a Minister, in this function, and that of a distinguished academic lawyer. Distinguished academic lawyers are able, for the benefit of their students, to analyse cases and to point out seeming errors and seeming inconsistencies in them. But it is no part of a Minister's function to interfere and put himself in the place of the court by usurping any decision. This is a matter that has a long tradition in this House, and it is one that is jealously guarded by Ministers in my Department because we value the independence of the judiciary.

The second point is—this is unfortunate for people who litigate—that is well known that if litigants lose and are not legally aided, severe consequences can be visted upon them if costs are awarded against them. That is something that the complainant must have been aware of when he embarked upon the litigation. The costs were considerable.

The Commission for Racial Equality came into existence only as a result of the 1976 Act. Previously, it was the Race Relations Board, which was abolished and had its affairs wound up in June 1977. Under the transitional arrangements, all the property, rights and liabilities of the Board passed to the Commission.

My hon. Friend has asked me to take account of the shortcomings of the procedures of the Board's consideration in the matter of this action. But the general lessons were already learned—not arising from this case but from the wider and subsequent Act. The new Commission does not have the same relationship with individual complainants as that which existed under the 1968 Act, which provided that a complainant had to report to the Board, which litigated on his behalf. Under the 1976 Act, the onus is placed upon the individual to bring his case.

There were two reasons for the change, the first was that the Commission has been empowered to undertake strategic investigations and is freed, to some extent, from individual investigations. The second—I know that my hon. Friend, who takes a keen interest in this legislation, supports us on this reason—is that the Government felt that it was paternalistic for any citizen to have to report to a body so that it could take up matters on his behalf.

The changes can best be illustrated by what would happen if the case were brought now. Mr. Selvarajan would now take his complaint direct to an industrial tribunal and would receive aid in bringing his case either from the appropriate trade union or from the Commission, which might consider assisting him but which would not litigate on his behalf. The decision to litigate in the tribunal would be his alone. That is evidence of the Government's determination to allow a judicial hearing for people with a sense of grievance.

Mr. Hugh Jenkins

I did not use the term "guilty". I simply reported the fact that the full committee accepted the recommendation that unlawful discrimination had taken place. That is a factual matter. I did not use the emotive term "guilty". I did not declare the Board positively to be guilty.

My hon. Friend indicated that the changes that have been made are an improvement. I agree it may be that this case provides one of the reasons for the change having taken place. Is that not all the more reason for the Board to exercise the clemency that I recommended and that I hope my hon. Friend will also recommend before he concludes his speech?

Mr. John

My hon. Friend was anticipating part of my speech. I took a note of the word "guilty", but I am happy to leave it that no authoritative judgment on unlawful discrimination could have been made at that stage.

My hon. Friend mentioned the change in the procedure of the Board. It certainly changed its procedure as a result of the Master of the Rolls recommending a change in a judgment. It is prudent and true of every body that it changes its procedures if it finds them wanting. Our decision to abolish the Race Relations Board should not be taken to imply a general criticism of the Board. I know that my hon. Friend would say that in general, if not in particular, the Board performed most valuable work throughout the country on behalf of those against whom discrimination had been practised.

The issue of costs is crucial in this matter, but as my hon. Friend said, events have taken a turn for the better. As I have indicated, the costs that were taxed for two appeals were very large. At all stages the Commission has sought to compromise on the matter. Mrs. Selvarajan has offered a sum in settlement of the case that is rather less than the one-quarter of the total sum my hon. Friend mentioned, and nearer one-eighth. I understand that a letter has been des-patched to my hon. Friend by the Commission. He will probably receive it tomorrow. The letter sets out the Commission's reaction. I wished my hon. Friend to be aware of the letter before I said anything further. The Commission is not the creature of the Home Office.

My hon. Friend has suggested that the Commission, as a gesture, might waive the sum even at this stage. I have no doubt that the Commission will read what my hon. Friend has said. As usual he has presented his case fairly and persuasively on behalf of Mr. Selvarajan.

I have no power in this matter. The Commission was set up as an independent body. It was set up quite deliberately to be independent of Government. My right hon. Friend the Home Secretary has a responsibility for the appointment of the chairman and the members of the Board, but he has no responsibility for carrying out the Commission's duties. That is an independent task for the Commission. My right hon. Friend could not and would not wish to intervene in the day-to-day affairs of the Commission. It is for the Commission to decide this case.

I am satisfied that even if it cannot accede to my hon. Friend's request, the way in which the Commission has approached the compromise will help Mr. and Mrs. Selvarajan. I shall undertake to draw to the Commission's attention my hon. Friend's remarks. However the decision is its decision.

My hon. Friend made two points, one about costs and the other about discrimination. I hope that I have shown by what I have said about the new procedure that there is a means whereby any person who is aggrieved can now take up his case directly without having to go through any other organisation. It must be for Mr. Selvarajan to consider his position in the light of the Race Relations Act 1976 if he believes that discrimination on racial grounds is being practised against him. I am satisfied that it has been no part of the Commission's function to be vindictive. It has been the inheritor of a uniquely unhappy event and it has tried its best to come to a compromise.

I hope that as a result of the debate and the events of the past few days this story will come to an end, so that the Commission can get on with its primary task that my hon. Friend and I applaud—that of tackling racial discrimination on a realistic basis, on a basis of authority and justice.

Question put and agreed to.

Adjourned accordingly at three minutes past One o'clock.