§ 4.20 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD DOUGLAS OF BARLOCH in the Chair.]
§ Clause 1 [Meaning of "discriminate"]:
EARL JELLICOE moved Amendment No. 1:
Page 1, line 9, after ("the") insert ("sole").
§ The noble Earl said: Not having been among the 28 or 29 speakers on Second Reading, I think that perhaps I should explain my presence here on this Bill to-day. This is a subject of deep concern to me, as I think it must be to anyone who is concerned with the health and quality of life in these islands, but my presence on this Committee stage of our discussions is, your Lordships will be glad to hear, purely temporary. It is due to the fact that my noble friend Lord Brooke of Cumnor is attending a Garden Party in the neighbourhood. But being here, however temporarily, I feel I must stand up and be counted, and, in three or four sentences before I introduce this first Amendment, declare my attitude towards the Bill as a whole.
§ I believe that we must control and curtail immigration to this country a great deal more stringently than we have done in the past. I believe equally strongly 1271 that we must do all in our power to see that there is no discrimination against those immigrants who are here or who may come here. It is quite clear to me from the P.E.P. report, from the Street report and from my own experience that substantial discrimination at present exists. If it persists, and above all if it extends to the children of the immigrants—to the second and third generations—these islands will be an extremely unpleasant place for our descendants to live in. Finally, I believe there is a place for legislation here. However, for the reasons so admirably presented by my right honourable friend Mr. Hogg in another place, and so cogently expressed on Second Reading by my noble friend Lord Brooke of Cumnor, this particular Bill is in my view not without its defects, and I hope we shall be able to improve it during our Committee stage.
§ There was a longish discussion on Clause 1 during the Committee stage in another place, and it was subject to quite severe criticisms. It was amended there rather at the last moment, and it has again been criticised. The purpose of the Bill, as I understand it, is not to prevent discrimination in general. We all discriminate. My noble friend Lord Brooke, for example, is discriminating against your Lordships' Committee at this moment in accepting some iced coffee not far from here. This Bill is not aimed at discrimination as such: it is aimed specifically at discrimination "on the ground of colour, race or ethnic or national origins". I believe that this should be made absolutely clear, beyond question, in this definition clause. It should be made clear that this Bill is in no way intended to restrain or inhibit anyone's normal commercial judgment so long as that judgment is not based on the ground of colour, race or ethnic or national origins. It should be made clear that this Bill was not designed to restrain or indeed inhibit discrimination on the grounds of personal whims or personal prejudice, so long as that whim or that prejudice is not in its turn based on the ground of colour, race or ethnic or national origins.
§ That means, as I understand it, that if the application of a coloured immigrant for housing or employment, for example, is rejected, no complaint or action will 1272 be sustainable under this Bill unless that rejection is on the sole ground of colour, race or ethnic or national considerations. In short, it should be made clear that this is the discrimination which this Bill is designed to catch. That is the purpose, and the sole purpose of this Amendment. I beg to move.
§ LORD MITCHISON
The first five Amendments on the Order Paper are about Clause 1, and the noble Earl, Lord Jellicoe, in a disarming and attractive speech, if he will allow me to say so, said that it had been discussed considerably in Committee below. So it was, and this clause was introduced, after hearing that discussion, on Report. This is the clause which the Government produced after what was really quite a long and very cross-purposive (if I may use that expression) discussion, largely among the lawyers. I am sorry to have to say it, but this Amendment strikes me personally as the worst of the five which have been produced, for this very simple reason. What we are trying to do is to deal with discrimination. Suppose a man has mixed motives—and he usually has—for refusing, let us say, goods, services or whatever it is, and that one of those motives is colour. I should have thought that we all wanted not to allow that to influence him at all.
Suppose one takes it a stage further. Suppose he says, in some case in court, that he did not want any Africans or Asians, or whatever race it was, in the lodgings he was letting. Then, under examination, somebody says to him: "It was not only the African element, was it? You knew about this man, and the fact that he had given a lot of trouble in the lodgings he has been in before?", and he says, "Yes". Of course, if that was a motive, too, then he would be taken out of the Bill under this Amendment.
I agree that Clause 1 is of very limited effect because its provisions themselves state fairly clearly what is required. But I would have thought it very dangerous indeed to put in the word "sole" here, because you really might exclude cases which you did not want to have disregarded; and you would be putting on the judge, if it came to court and he had to construe this clause, the difficulty of deciding whether it really was the whole reason. Nowadays, judges have to quantify a good many things, including the 1273 relative carelessness of two drivers in an accident, and they tend, I think, rather to avoid putting the whole blame on any one person. They would tend, I believe, in a case like this, to avoid saying the sole motive was the discriminatory one if there possibly was any other reason. I think that is a sound view of human nature; and, therefore, I suggest that this Amendment is mistaken, misconceived—the politest word I can use about it, at any rate, in deference to the noble Earl who moved it so delightfully. But I think it is a dangerous thing to allow in, and I hope the Government will reject it.
§ LORD BROCKWAY
I want to intervene for only one moment. I appreciate the fact that the Opposition now recognise the need for legislation. For many years they opposed that altogether. May I just say, in regard to this particular Amendment, that I recognise the Bill refers only to the ground of colour, race or ethnic or national origins. I should have preferred a Bill which also dealt with religious discrimination and even with sex discrimination. I recognise this does not. But there are very many cases where it is difficult to draw the line between religious and racial discrimination. There are the cases of Pakistanis who wish to wear turbans when they are serving on buses. Is that racial, or is that religious? To insert the word "sole" here would encourage in the minds of magistrates or of those responsible for the decisions of courts a very rigid interpretation. I hope that the Committee will reject this word "sole" because it might encourage decisions that discrimination which is fundamentally racial might also have a religious element.
§ 4.30 p.m.
§ LORD ELTON
It seems to me that this Amendment goes to the very root of the Bill, exposing in one word the many obstacles and difficulties and, indeed, impossibilities that it may encounter in its administration. I think that we are too ready to assume that once you prove, say, that a man has not sold to an immigrant or has not employed an immigrant, a case is made out. What continues to puzzle me is that in so many cases, as adumbrated by the noble Earl, Lord Jellicoe, it will not be the ethnic origin of the immigrant against which there is discrimination; but some characteristic 1274 associated with his ethnic origin. It seems to me that you are going to get some obstacles here.
There is an example reported in the Press to-day. Fifty French students had to be dispersed by the police at Bournemouth. They had stormed a café on the ground that they had been banned from using it by its owner. Its owner said that these fifty French students were filthy, that they had behaved like pigs. They came for about three hours at a time, mixed up the salt and the sugar and spilt ash everywhere and so he banned the lot, saying, "I will not have any French students here." One of the French students afterwards said to a reporter, reasonably enough: "Well the proprietor is justified in what he said. A lot of our people are filthy and they did the things that he said; but not all of us. We are being discriminated against unjustly." That is certainly a case in which it will be extremely hard to say that there is justifiable ethnic discrimination and where the noble Earl's Amendment would clear up the matter.
There is another instance to which I referred on Second Reading. Your Lordships may remember it. It was reported not long ago that a tenants' association at a place called Warley, Worcestershire, claimed, with what accuracy I do not know, that after two or three years' investigation they believed that there were some 300 polygamistic immigrants in their neighbourhood. They wanted to know where they would be under the Act if they objected to a polygamist because he was a polygamist; although it would be easy to argue that they were really objecting because he belonged to a certain race and had certain ethnic origins.
Without this word "sole" then; will be an immensity of obstacles and injustices. As I look through the rest of the Bill I find clause after clause in which the insertion of this word would clear up what is at present extraordinarily obscure. I do not want to argue about another clause but may I say that under Clause 3 it appears to me that if you do not employ an immigrant who is qualified for a job you have broken the law. I should have thought that it ought to be drafted to say that you must employ the better-qualified man, whatever his race, colour or the rest of it. I am qualified up to a point to play cricket, but I 1275 am not so qualified as is Colin Cowdrey and I should not expect, if I were an immigrant, to be put into the team because I was qualified, as I might be, for the parents' team at my grandchildren's prep school. That is the sort of obstacle it seems to me that you are going to get all through the Bill. I hope the Government will give some consideration to what the noble Earl has said.
§ LORD ALPORT
I was one of those who in another place on a previous occasion opposed an attempt by the noble Lord, Lord Brockway, to introduce legislation to deal with race relations. I must confess, having seen this Bill and, not least, having studied the first five Amendments which are proposed to be moved, that my feelings that legislation on this particular subject is likely to be ineffective are reinforced rather than weakened. I do not believe, frankly, that this Bill will be a success in achieving what we want in this country, which is greater tolerance in racial matters. I regard it rather as a declaration of intent than as a piece of effective legislation; and the contradictions which are inherent in the, Amendments which are proposed to the key clause of the Bill support, I think, that point of view.
The noble Earl, Lord Jellicoe, took the opportunity of expressing his point of view in general when he introduced this Amendment. I hope the Committee will forgive me if I have referred in somewhat general terms, on the occasion of the moving of this particular Amendment, to the general view that I have on the Bill. I should regret it if the noble Lord, Lord Brockway, felt that I have been converted or that I have moved in any way from my original standpoint on this matter.
§ 4.37 p.m.
§ LORD STONHAM
I have long known that the subject of race relations was a matter of deep concern to the noble Earl, Lord Jellicoe. I have also long known that there is very little difference between us in our detestation of discrimination on grounds of race and the other matters which are the concern of this Bill. I welcome and completely accept the words he uttered in introducing his Amendments. Equally, I accept what has just been said by the noble Lord, Lord Alport. No one in this House, or anywhere else, 1276 could ever accuse him of racial prejudice. But I hope that we shall forbear, except when absolutely unavoidable, from making Second Reading speeches in these matters because we have 71 Amendments to get through—although, of course, we must fully consider every one.
I should like to say to all noble Lords who take part that I trust that every debate on every Amendment will be conducted in the belief that we all hate racial discrimination; that we are all determined to do our best to outlaw it; and that to-day we shall differ only on the detailed methods to achieve that objective. I also noted what the noble Earl had to say in explaining the absence of his noble friend Lord Brooke. He suggested that in attending a Royal Garden Party he was discriminating against your Lordships' House. I have to confess that I, too, received a Gracious Command to attend the Garden Party; but I am not discriminating at all. With permission I am doing what I regard as my first duty in this House.
The noble Earl's purpose in moving this Amendment is to emphasise, as I understand it, that discrimination on grounds other than colour, race, ethnic or racial origin—that discrimination, for example, on the basis of normal commercial judgment or personal judgment—will not be unlawful. I can assure the noble Earl at once that the Bill already achieves this as at present drafted and the inclusion of the word "sole" is therefore unnecessary. I disagree entirely with the noble Lord, Lord Elton, in the view he expressed on this point. I thought that the example he gave of the 50 French students banned from a café because they were fifthy and riotous and because they mixed up the salt and the sugar—
§ LORD ELTON
The point was that they were banned because they were French. The man said: "I will not have French students here."
§ 4.40 p.m.
§ LORD STONHAM
I heard what the noble Lord said, but I am talking about legislation and what would be upheld on a complaint of discrimination. My point is that cases like that would be covered without any reference at all to discrimination on the grounds of racial or ethnic origin, and I regard it as unhelpful to 1277 suggest that they would not. I have assured the noble Earl that his Amendment is unnecessary and that his purpose is achieved by the existing provisions in the Bill. But I go further and agree with my noble friend, Lord Mitchison, that if the Amendment were introduced it would be very dangerous indeed and could have a major weakening effect on the Bill, because it would provide a loophole in cases where it could be falsely argued that race or colour was only one of the reasons for discriminating. That would be the argument. To paraphrase the Bill with the inclusion of the word "sole":…a person discriminates against another if on the sole ground of colour, race, or ethnic or national origins he treats that other…less favourably…We might just as well tear up the Bill, because anyone so disposed could discriminate with impunity by merely inventing another reason or two, whereas the real reason might well be that the person discriminated against was coloured. I know that the noble Earl, Lord Jellicoe, could not possibly wish his Amendment to have that effect, but I assure him that it would have. With that explanation I trust that he will agree to withdraw it.
I confess that I am a little puzzled by the reply of the noble Lord, Lord Stonham. He said that the purpose I have in mind was covered by the Bill as drafted and therefore the proposed Amendment was superfluous. Then he went on to say, and it seemed to me to contradict his first statement, that the Amendment was extraordinarily dangerous in some way. I do not think that these two strictures are altogether compatible, and I find it rather puzzling. The noble Lord said that were the Amendment accepted, it would perhaps disastrously weaken the effect of the Bill. If someone were to put up an entirely fictitious argument as a defence against discrimination, surely that would be for the courts to test and decide, and it seems to me essential that here there should be real clarity. I think the Amendment tends to introduce clarity where there is none at present, and the arguments used by the noble Lord. Lord Mitchison, and the noble Lord, Lord Brockway, have convinced me that that is right. Nevertheless, we have a great many Amendments 1278 to deal with, we have four more on this clause, and I would at this stage—
§ LORD CONESFORD
Before my noble friend asks leave to withdraw the Amendment, I should like to make one suggestion for the consideration of the Committee. I can see the point put for Her Majesty's Government by the noble Lord, Lord Stonham, that this particular Amendment might make the position very difficult, for some of the reasons given by the noble Lord, Lord Milchison. Men's motives are very often mixed. Nevertheless, it seems to me that what my noble friend is seeking to guard against is a very real danger. I was wondering whether, if the Amendment were withdrawn, at the next stage consideration might be given to adding, after the word "if", some such word as "substantially"—" if substantially on the ground of colour". If it is an important motive I agree that the Government may wish to stop it, but it seems to me rather dangerous to suggest that there are no legitimate reasons why discrimination should be all right. I do not rise to suggest that the noble Earl should not withdraw his Amendment if he wishes to do so, but I hope that some such Amendment as I have suggested may be considered before the next stage of tie Bill is reached.
One likes to understand what one is doing. The noble Lord, Lord Stonham, said the Bill would not stop a restaurant proprietor in the position of the gentleman in Bournemouth from saying that he would have no Frenchmen in his restaurant. I should like to understand it. It seems to me that the Bill would stop him from doing just that.
§ LORD STONHAM
I did not say what the noble Lord, Lord Saltoun, alleges I said. If he will look at the OFFICIAL REPORT to-morrow morning he will see that I said that that kind of conduct would not support a charge under this Bill of discrimination on racial grounds; and that I still maintain.
§ LORD STONHAM
My noble friend Lord Mitchison drew attention to the fact that this particular matter was exhaustively discussed on Committee and on Report in another place, and the 1279 clause as we are now considering it is what virtually amounts to a consensus of opinion among citizens of the same mind who differ on the legal means to achieve what they all have in mind. No one legal luminary agrees with another as to the precise terms, and that is why I say this is a consensus; it is an essence, a distillation in words, of what it was they attempted to achieve. The Theft Bill, on a subject which had been considered for ten years by some of the greatest legal minds in the country, came to your Lordships' House, and we discussed that non-controversial Bill for nine successive days.
The noble Lord, Lord Conesford, has put forward another suggestion and, as always, I will look at it; but I reassert to the noble Earl that, according to the best legal advice I could obtain, and certainly according to the consensus of opinion in another place, the words we now have achieve the purpose which the noble Earl has in mind. I made clear that that is certainly my own opinion and that the interposition of the word "sole", and drawing particular attention to that aspect opens the way to the kind of abuse I suggested. Of course I will read again what has been said, but when so much consideration has been given to a particular point I cannot hold out great hopes that I may come to a different conclusion. But certainly I will consider it.
§ LORD BARNBY
I pay particular attention to the request of Lord Stonham that any intervention should be brief, because this is going to be a long Committee stage, but I pay equal attention to the words of my noble friend, Lord Jellicoe, that this matter goes right through the Bill. Bearing in mind what was said by the noble Lord, Lord Conesford, I want to express the hope that my noble friend Lord Jellicoe makes sure that he gets proper assurances that in the passage of our deliberations he will get satisfaction about this matter later. I feel, and I have felt, very strongly (and I have read it carefully) that the Bill is an extremely complicated measure to interpret. It is very difficult to see the difference between discrimination and freedom of choice. I am puzzled as to its effect and I have growing misgivings as to the 1280 interpretation which will be given to its provisions on common sense grounds. This strikes at the root of the whole matter.
I avoided saying anything during the Second Reading debate but I should like to give two illustrations of judgment between discriminaton and liberty of choice. This is not bringing in the question of colour, but has to do with interpretation in practice. I remember that after the war there was a natural sympathy with the Poles and an attempt was made to teach them to become miners. Many of them became very good miners and were accepted into the South Yorkshire trade unions. Then, when unemployment came, the first people who were thrown out of employment were the Poles. I thought at that time, having always been interested in Poland, that that was discrimination. I throw that out in support of the attitude that I take to the whole Bill and the practice and cost of its administration and in support of Lord Jellicoe's Amendment. May I just add this. The first Lord Vestey built up a large business and gave employment to perhaps 8,000 people in this country. But he had a rule of the house: no redhead must be employed. I call this idiosyncrasy discrimination. I see redheaded Jews, and I think I have seen reheaded Negroes. But it is discrimination. There is the difference: what is discrimination, and what is freedom of choice?
I am grateful to the noble Lord, Lord Stonham, for his further explanation. He said that this clause as it has now emerged represents not only a great deal of careful thought which was given to it in another place, but also a consensus of opinion. Having read the discussion on Clause 1 on the Report stage in another place, I must say that I cannot entirely endorse his view that it represents a consensus of opinion. Grave disquiet was expressed about this particular formula. It is important that we should get it right, because a great deal stems from it right through the Bill. Therefore I hope that between now and the Report stage the noble Lord will be able to give further attention, in particular, to the suggestion, or something like it, which was advanced by my noble friend Lord Conesford. Having said that, and having listened to what the 1281 noble Lord hail to say on this point by way of assurance, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.53 p.m.
§ BARONESS BIRK moved Amendment No. 2:
Page 1, line 13, at end insert:
("Provided that the treatment of any person separately on the ground of colour, race or ethnic or national origins, but in all other respects in the like manner as other persons, shall be deemed to be less favourable treatment.")
§ The noble Baroness said: I suggest that it may be for the convenience of the Committee if we discuss Amendments Nos. 2, 3 and 4 together. The object of Amendment No. 2 is to clarify Clause 1 in order to make sure that treating anyone not "less favourably" could not be equated with "equal but separate". The Government's intentions on this are definitely that this should not be so. But the question is whether separate but equal treatment could be interpreted as not being less favourable if this clause stands as it is. For example, there could be separate toilets for black and white, yet all the fittings and equipment could be absolutely identical. There could be two bars separated in the same way; and this could apply to cafés. Any number of examples could be given.
In another place, on the Report stage, the Home Secretary said:
If honourable Members will stop their reading at the new clause and do not read on to the other clause, then I agree that there might be a problem.
Unfortunately, I think this fails to recognise that in some parts of Clauses 2, 3, 4 and 5, as they stand now, the wording could be used to support a defence of separate but equal. For example, in Clause 2(1),
…services or facilities of the like quality, in the like manner and on the like terms…
could be interpreted as separation, although the facilities might be identical. Then, in Clause 3(1)(b):
…like conditions of work and the like opportunities for training and promotion…
could possibly be interpreted as having coloured teams with similar, but again separate, conditions; and so far as promotion is concerned, they could have equal chances, but in their own streams. Those parts of these clauses are contigent on the definition in Clause 1. This
is why to get Clause 1 right is of the greatest importance.
§ Clause 1, as it stands, is ambiguous. Therefore, it is not possible to ascertain, as it is worded at the moment, whether it would exclude the defence of separate but equal. This was the interpretation given to the words, "equal protection of the law", in the Fourteenth Amendment to the United States Constitution by the Supreme Court in 1896, and it was not until 1953 that this interpretation was reversed. Even though it is probable that an English court would not adopt this attitude, the possibility cannot be ruled out. Surely, so far as is humanly possible, any trace of ambiguity in legislation should be ruled out during the passage of a Bill.
All this Amendment does is to make the wording more explicit; in other words, it brings the wording more into relevance with the intention. It is absolutely essential that people outside Parliament, as well as those inside, should understand the precise meaning of any Act. If I may take, quite briefly, the example of the Gaming Act 1960; on the Report stage the Joint Under-Secretary of State for Home Affairs, Mr. Dennis Vosper, explained that under the Bill we could not have in this country casinos of the sort that we know there are on the Continent. He went on to say:
A private individual who organises a casino would find it a singularly unprofitable venture.
We saw how wrong he was about that. It took seven or eight years to reverse this decision, and in the interim a great many people made a great deal of money.
§ On the Bill we are discussing to-day some distinguished lawyers have taken one view, while equally distinguished lawyers have taken another view. I am expressing this afternoon part of the opinion of my noble friend Lord Lloyd of Hampstead, who apologises that he is unable to be here. The fact that there is a difference of opinion between lawyers at this stage means that there is a doubt which should be eliminated before the Bill becomes law. I am sure that plenty of doubts will arise afterwards, but I do not see why we should knowingly add to the field day which will be provided for lawyers in the future. It is absolutely essential, again, that 1283 people outside Parliament should understand it; and in this Bill, in which emotions are highly involved, the people with whose protection it is concerned must feel that the Act in its final form is without any discriminatory loopholes, however unintended they may be. Only then, I believe, will they feel confidence in the Act.
I agree with my noble friend Lord Stonham, who said on Second Reading:
The key to success lies in conciliation and settlement.
It is therefore essential if the Race Relations Board is to be able to do its work successfully that there should not only be no doubt but that there should quite clearly appear to be no doubt about this very important first clause which, as has been said by the noble Earl, Lord Jellicoe, is really the keystone of the whole Bill.
§ As we are discussing the other Amendments at the same time, perhaps I may comment now, in order to save the time of the Committee, on the following Amendments. Amendment No. 3 in the name of my noble friend Lady Gaitskell, which has great similarity to the Amendment in my name and that of my noble friends, has, I feel, one unfortunate disadvantage—and this, I may say, is also the opinion of my noble friend Lord Lloyd of Hampstead. The word used here is "segregating" rather than "separating"; I think that in this context "separating" is a much better word. "Segregating" means totally cutting off. With this interpretation, taking, for instance, a hotel where an annexe was built with bedrooms, and that annexe was for black people, you could have a communal dining-room and get round it that way; whereas "separating" would mean, as it says, separating the people, not segregating them en bloc. Also, by omitting the phrase in this Amendment "like manner", which is in Amendment No. 2 in my name, I think we make it less clear, and it is again important in this particular Bill, as I have already said, that the position should be clear to the people who are likely to need the help of this Bill in order to cut down discrimination.
§ As to the Amendment in the name of the noble Lord, Lord Byers, and the noble 1284 Baroness, Lady Asquith of Yarnbury, although again the intention is the same as that of the other Amendments I do not think it is as explicit or as clear as Amendment No. 2. I must say that though this was the Amendment which at the early stage of the Bill I should have favoured, I now feel that the Government definition, with Amendment No. 2 added to it, makes the position as clear as one can make it when one is dealing with this very difficult subject. The principle that separate treatment, although in like manner, shall be deemed to be less favourable is, I believe, more strictly defined in Amendment No. 2 than in the other Amendments. For that reason, I beg to move.
§ LORD BYERS
If we are taking all these Amendments together I shall willingly give way to the noble Baroness and follow her.
§ 5.2 p.m.
§ BARONESS GAITSKELL
I think my Amendment comes next. I wish to speak to Amendment No. 3 standing in my name on the Order Paper. I wish to move it because fears have been expressed in another place and in your Lordships' House—
On a point of Order. We have one Amendment which has been moved already. I do not think, therefore, that the noble Baroness can move another Amendment now. She may speak to this Amendment and cover her own Amendment and then move it when the time comes. But there is an Amendment before the Committee which we are discussing.
§ LORD STONHAM
With all respect to the noble Lord. I understood that that was precisely what my noble friend was doing.
§ LORD LEATHERLAND
If my noble friend were to say "I would be moving my Amendment for the following reasons…", she would be in Order.
§ LORD CONESFORD
May I suggest to the noble Baroness that she would be perfectly in order in making the speech she wishes to make if she just omits the word that she is "moving" her Amendment.
§ BARONESS GAITSKELL
I apologise to the Committee. I did not know about all these details. I wish to speak to this Amendment because fears have been expressed, both in this House and in another place, that the definition of "discrimination" which now appears in the Bill is open to the interpretation that the separate but equal treatment of different racial groups would be lawful. It has been argued that this could lead to the development in this country of a form of apartheid or segregation, and I stress this word in spite of what my noble friend Lady Birk said. "Segregation" in this sense is a very useful and pertinent word—segregation on racial grounds.
It is, of course, quite clear that that is not the intention of the Bill, and the Home Secretary has said in another place that such an interpretation could not be put on it. He has pointed out that the definition in Clause 1 must be construed in conjunction with Clauses 2 and 5, and that when that is done it is not possible to argue that the Bill would authorise separate but equal treatment. I do not wish to challenge that, but the fact remains that doubts have been expressed about the effect of the clause as drafted, and it would be unfortunate if the Bill became law without those doubts being resolved. Other noble Lords clearly share this view and I welcome the other Amendments on the Order Paper which seek to redefine "discrimination" in a way in which their sponsors consider would remove the fears which have been expressed.
The spirit of the three Amendments actually on the Paper is the same, even though the words are different, and I personally should be quite happy if the Government could see their way to accepting any of these Amendments. I do not claim that there is any particular virtue in my own Amendment as compared with the Amendments put down by the noble Lords, and I should willingly leave it to the Government to decide which of the various Amendments on the Order Paper would best achieve the purpose which we all have in mind; or whether that purpose can perhaps be achieved by some other means. But I ask that some Amendment should be made so that there is no doubt in anyone's mind that once this Bill becomes 1286 law there will be no question that separate but equal treatment of different racial groups would be lawful.
§ 5.7 p.m.
§ LORD BYERS
My noble friends and I put down Amendment No. 4 for the very same reasons as have been given by the noble Baroness who has just spoken. As the Lord Chancellor said on the Second Reading of the Bill, the Government approach this whole matter of the Race Relations Bill in a spirit of humility, and I should like to reciprocate that. We do not feel in any way that we have the only or the certain answers to any of these problems. But so many of us have been advised, as the noble Baronesses have said, that the new definition of "to discriminate" introduced by the Government in another place constitutes such a grave risk of allowing something like apartheid to come into this country that we do not feel that we can accept it as it stands without amendment or clarification.
I referred on Second Reading to the question of providing bars in pubs which had equal facilities, and all the rest of it. There is a grave danger that that could happen, and I prefer the word which the noble Baroness, Lady Gaitskell, used "segregation", to "separation"; but I am not going to split hairs on that point. The Amendment which we have put down is an adaptations of the definition of "discrimination" given in Article I of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination. I take the Lord Chancellor's point, that in fact this adaptation only defines "discrimination" and does not in fact define "to discriminate", and would therefore cause some difficulty to the draftsmen with the rest of the Bill. But I would hope that, if one of the other Amendments is not going to be accepted, the Government would have a look at this adaptation and see whether it could be changed to fit in with the Bill. On the other hand, if the Government E re prepared to take the view that Amendment No. 2 or Amendment No. 3 would achieve the principle which we desire and the Government would accept it, then we should certainly accept that position very gratefully indeed. Our sole concern is to ensure that people are treated in all respects as equally as possible, irrespective 1287 of their colour, race, nationality or ethnic origin.
I have referred to this United Nations' adaptation and it gives me the opportunity of asking the noble Lord, Lord Stonham, whether the Government could at some time indicate whether or not they are going to be in a position to ratify this United Nations' International Convention. Certainly, if the Government are going to take the view that they can ratify it at some time in the near future, there are many people here who would be extremely grateful to them for their action.
§ LORD MITCHISON
May I interrupt for a moment? There are three Amendments here and this really is rather a drafting point, because I do not think that anyone in this House, or anyone below, differs much as to the desirability of getting rid quite definitely of the doctrine, which seems to have prevailed for some time but no longer prevails in the States, that if you provide people with equal but separate facilities that is enough and there is no discrimination. That was put very clearly in Committee by a number of honourable Members in another place, and the result of it was the introduction of this clause on Report. Therefore, there is no doubt that this represents the attempt of the Parliamentary draftsman and the Government to meet a particular difficulty which had arisen. It also no doubt deals with other points. I feel, if I may say so with great respect to everyone concerned, that in those circumstances, when the matter has been fully considered by the draftsman—
§ LORD BYERS
With great respect to the noble Lord may I suggest to him that this really is a matter on which we ought to hear the Government, because representations were made on Second Reading that I would hope were taken seriously by the Government. The noble Lord is saying that nothing can be done about this because it was all fixed in another place.
§ LORD MITCHISON
With great respect that is not what I am saying and I conceive it my duty to finish.
The Amendment which is being put forward from the Liberal Benches is, of 1288 course, the same one that was put forward by the Liberals in Committee below. Therefore that, too, had consideration before this final Government draft appeared.
My conclusion about that point is that I think it is rather rash to try to improve on the matter by some further drafts, all of which differ from one another in detail—to improve on what was decided by the first Chamber. I see the noble Lord is shaking his head. I do not agree with him on this point, and he has always recognised the virtues of disagreement.
There is another point in regard to this. I think we should be careful not to take away too much from the courts. We try to safeguard every possibility and to close every loophole. There are some questions on which that kind of tactic works and others on which it does not: the second part of this Bill is about conciliation and enforcement, and the Race Relations Board as well as the courts have a considerable part to play. I cannot believe that any judge or the Board would treat the provision of equal but separate facilities as anything but discrimination, unless there were a quite separate reason for it. I can conceive of such a reason. I believe that in India it is thought ill of Brahmins that they should eat with people of a lower caste, or at least that used to be so. That would undoubtedly be discrimination, but it would be discrimination both by the Brahmins and by the others.
In my view, this is a matter where the court or the Race Relations Board or the Government of the day would be bound to look at the broad intention of the Bill, and the effect of these Amendments might be restrictive rather than helpful. In particular, on the second Amendment "without some saving words such as "without prejudice to the generality of the foregoing" it certainly would be restrictive. I do not think we ought to try to stop the lawyers at every point. They are not as bad as they are painted and they certainly look at the Act as a whole and at the intention for which it was passed. Therefore, I think this should be left to the courts, without what is intended to be additional clarification but might well be additional confusion.
§ LORD BROCKWAY
I only wish to say one thing in reply to my noble friend 1289 Lord Mitchison. Is it not the case that both in another place and in the speech which the noble and learned Lord, the Lord Chancellor, delivered in this House on Second Reading, the Government were prepared to look at this matter again?
§ LORD CONESFORD
I rise for one reason. The noble Baroness, Lady Birk, in an admirably clear speech indicated that she would have been supported by the noble Lord, Lord Lloyd of Hampstead. Therefore since she has not been supported by a lawyer so far, I should like to say, speaking as a lawyer myself, that I think the clause as now drafted is capable of the ambiguity of which she complains. I am as eager as the rest of your Lordships to hear what the Government have to say, but I thought it would be unfair to those who have to move these Amendments not to say that there are at least some lawyers now in the Committee who agree with her in her complaint of a possible ambiguity of the clause as it stands.
The other matter (although why I should help the Liberals I do not know) is that the objection that their Amendment does not include the word "discriminates" is not very difficult to deal with. May I give them an Amendment that would do it? I think that if they said:For the purpose of this Act a person discriminates against another if he practises discrimination as defined in the next subsection',and then started the next subsection with the words as they now are, except to omit the words "for the purposes of this Act", that would do what is desired.
§ LORD STONHAM
My Lords, I was exceedingly grateful to the noble Lord, Lord Byers, for saying that he approached this matter in a spirit of humility. It is exactly in that spirit that I approach it, and I do not suggest in any way that the Government have the right answer. I will merely try to convince your Lordships and to give reasons for thinking that we shall get to the right answer.
I have listened carefully to everyone who has spoken in this debate and there seems to be no difference of opinion at all about the objective, and there has been almost no difference of opinion at all in the speeches we have heard that there is 1290 a belief, or a conviction, or a certainty that the clause as now drafted leaves some doubt as to whether equal but separate treatment might be regarded by the courts as being non-discriminatory on the grounds which are in the Bill. That is the particular point, and the only point that we have to consider, and I am glad that my noble friend Lady Birk, in introducing her Amendment, suggested that we might consider these three Amendments together. She has quoted my right honourable friend the Home Secretary and suggested that in her view, and on the legal advice she has had, there could be separate bathrooms or separate lavatories which could be identical in all particulars but would in fact be used to separate the races.
My own lay view—and I have studied this matter very carefully over the weekend, when I looked at it for about two hours—was that the Bill is all right. Looking carefully at Clauses 2, 3, 4 and 5 I just could not see how the courts could decide in the manner that my noble friend Lady Gaitskell and others have said they would. All these clauses are related to Clause 1. Clause 5 makes it unlawful to refuse to dispose of housing accommodation on like terms and in like circumstances, and it makes it unlawful also deliberately to treat differently from others in the like circumstances. I just could not conceive how you could say you were not treating a person differently from others by providing the same type of bedroom, bathroom or lavatory and saying "You must not use that one, but you must use this".
I agree with the noble Lord, Lord Byers, that we must approach this in a spirit of humility. The noble Lord also indicated that his Amendment was based on the words used in Article 1 of the United Nations Convention on the elimination of all forms of discrimination, which the United Kingdom has signed but not yet ratified.
The grounds in the Bill on which discrimination is to be unlawful are based on an early draft of this article in the Convention—precisely based on that. I know, for example, the Amendment that the noble Lord moved is supported by the United Kingdom Committee for Human wording adopted in the Convention would Rights Year, who consider the use of the 1291 facilitate the United Kingdom's ratification. I gave the noble Lord a categorical assurance that it would in fact have no effect whatever on the ability of the United Kingdom to ratify the Convention. A decision on this has only been deferred until it is finally clear what form this legislation will take. Once the Bill is passed, ratification will be reconsidered. There are still some difficulties about Rhodesia, and possibly some other overseas territories, but so far as United Kingdom legislation is concerned, the present Bill, with this definition in its present form, will open the way to early ratification. That is our intention and I hope that the categorical assurance will satisfy the noble Lord, and in fact satisfy all your Lordships.
To come back to the crux of the matter: as I say, the Bill, as it left the other place, in the Government's view, meets the points that have been raised. But because there is this doubt, we are quite willing to remove any possible shadow of doubt, and put the matter beyond peradventure. So, all it amounts to is the form of words to be used in the Bill to remove the doubt. I think the noble Lord, Lord Byers, would accept he no longer wants to remove the clause and substitute his own clause.
We therefore come down to the two Amendments moved by my noble friends, Baroness Birk, and Baroness Gaitskell. My noble friend, Baroness Birk, criticised the other two Amendments on the Order Paper—as she was perfectly entitled to do—and said, for example, that she much preferred "separate" in her Amendment to "segregate" in Lady Gaitskell's Amendment. My understanding is that "segregate" means "set apart", and in the example quoted by my noble friend Lady Birk—the annexe set apart for the coloured people—there would be both segregation and separate treatment in the provision of sleeping accommodation, even though there was a dining room shared by both white and black people.
"Segregation" and "separate treatment" do not always mean the same thing. Separate treatment can be achieved without segregation. In other words, "segregation" is greater, is stronger, than separate. For example, at 1292 a hairdressers a man could be given different treatment without being segregated from other customers, although he could be separate. Also, preferential treatment might be "separate" without amounting to "segregation". So as I have said, we could go on discussing this for a long time, but the Government, having given very, very careful and renewed consideration to this, and out of an overwhelming desire to remove any possible doubt, agrees to add the words to the Bill, and they regard the Amendment moved by my noble friend, Lady Gaitskell, as technically satisfactory, clear, and that it achieves the purpose we all have in mind. I would recommend your Lordships to accept it.
§ 5.25 p.m.
I do not propose to detain your Lordships for long, but I would say I am very glad that the Government have adopted the attitude that they have done. I find no difficulty in understanding Lady Gaitskell's Amendment. I should have had a look about as to what was separate treatment, but, fortunately, I have reached the age when I am not likely to have to interpret that!
§ VISCOUNT SIMON
I am not sure whether we shall have a discussion on the noble Baroness's Amendment in due course, or whether we should discuss it now.
§ LORD STONHAM
This is a matter for the Committee. If your Lordships feel it is right, and my noble friend Baroness Gaitskell's Amendment meets your wishes, and my noble friend Baroness Birk is also satisfied, it would be then for my noble friend Baroness Birk to withdraw the Amendment, and my noble friend Lady Gaitskell to move hers formally.
§ BARONESS BIRK
In view of the undertaking given by my noble friend, Lord Stonham, I should like to thank him and the Government for having put the minds of so many of us at rest over this, and for having taken a great deal of the doubt out of Clause 1. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.1293
§ BARONESS GAITSKELL moved Amendment No. 3:
Page 1, line 13, at end insert—
("( ) It is hereby declared that for those purposes segregating a person from other persons on any of those grounds is treating him less favourably than they are treated.")
The noble Baroness said: I beg leave to move my Amendment.
§ VISCOUNT SIMON
I only wanted to ask the noble Lord, Lord Stonham, whether he can help me about one matter that worries me. I listened to the discussion on the Second Reading, although I could not take part as I was not here all the time. I also read the discussion in another place I appreciate very much the anxiety of noble Lords that we should not introduce into this Bill anything that could open the door, as it were, to apartheid in any form. There must be noble Lords here—the noble Lord, Lord Craigmyle, would certainly be one—who know, for example, that Indians and Pakistanis, many of whom have come to this country, regard the European form of toilet as a very insanitary and unpleasant affair, and much prefer a form of their own. It seems to me an employer, who was employing people with both ethnic backgrounds, would be quite entitled to think it right to provide both types of facilities. They are in fact both provided in the docks of London. So far as I can see, if this Amendment is carried, it will be unlawful to do that. The same might apply, perhaps, to an employer who provided food for his employees; he might think that the employees from India and Pakistan like some particular food, and he would provide that for them and provide ordinary English food for his English employees. Again, he would be committing an unlawful act.
§ LORD STONHAM
I must interrupt the noble Lord. He is introducing a lot of imagination. I do not think he has fully studied the Bill, with respect. If an employer provided a number of different kinds of food on a menu he would not compel one type of employee to eat one kind of dish, and others another. We have curry on the House of Lords menu for lunch, but that is not discriminatory. I do hope, with the greatest respect to my noble friends, we can just really deal with this Amendment now, and I hope accept 1294 it, and then, if there are any matters of the kind he wishes to raise, he could raise them on the relevant clauses of the Bill.
§ VISCOUNT SIMON
I do not want to hold up the Committee. It seems to me that the point I was raising does arise out of this Amendment, and out of the general conception behind this. It would have been quite different if the Government had felt able to accept—and I think this was accepted in another place —a saving clause which would save any act done in good faith for the benefit of the members of the minority community. I understand the Government felt that that was not a practical thing to do.
I take the noble Lord's point about food, but may I with respect pursue the point about toilet facilities. This is a matter that is very difficult, because while it is perfectly true that any member of any community could use whatever toilet facilities he liked, under the Factories Act and the Shops, Offices and Railway Premises Act it is necessary to supply so many toilet facilities according to the number of people employed, and it seems that it would be necessary, without finding out what people wanted, to double the facilities so that everybody had the opportunity of using whichever they liked. It is this idea that there are no circumstances in which immigrant communities may want to have some different separate facilities.
§ LORD BYERS
With all respect to the noble Lord, I think he is making a mountain out of a molehill. There are many parts of the world—I base just come back from Persia—where they provide both facilities and people use whatever they want and it is perfectly natural and normal.
§ LORD STONHAM
The key lies in the words the noble Viscount uttered, "they use them if they want to". There is no statutory compulsion. If the facilities are needed and people care to use them, that is all right. There is no offence under the Bill about provision of facilities. Her Majesty the Queel does not commit an offence because in Her Majesty's prisons she gives different food to Moslems. and others according tp their religion. They ask for it, and they are riven it and it is not discrimination.
THE EARL OF SELKIRK
Some of these lavatories are marked "Asian" and some "European". That might appear superficially to be segregation.
§ LORD MITCHISON
As this is really a drafting discussion, may I call the Government's attention to one point? If segregating a person from other persons is treating him less favourably than they are treated, presumably at the same time you segregate other persons from him and they, too, are less favourably treated. This seems to be a rather curious conclusion which could be avoided by the better use of language.
§ LORD WALSTON
Surely the only point here is whether it is compulsory or voluntary. You provide any facilities, any sort of food you like, and leave it to people to go into what sort of toilet they like. The only thing the Bill sets out to make illegal, and quite rightly so, is to provide a certain type of toilet which can be used only by Pakistanis and another which can be used only by British, with the Pakistanis not allowed to go into the British toilet and the British not allowed to go into the Pakistani one. That is illegalised, as it should be, but if it is left free for people to go where they like, so long as men do not go into the women's, that is a different thing.
§ VISCOUNT SIMON
I do not want to delay the Committee. I did not think it was clear from the Bill as amended, but I accept that separate facilities may be offered provided it is not compulsory to use them.
§ On Question, Amendment agreed to.
§ 5.33 p.m.
LORD STRANGE moved Amendment No. 5:
Leave out Clause 1 and insert the following new clause:
§ "1. The purpose of this Act is to provide Emergency Laws which may be used against any person who discriminates against another on the grounds of Colour, Race. Ethnic or National Origins—Actions which may be 1296 deemed Provocative of Discrimination are detailed in sections 2, 3, 4, 5 of this Act."
§ The noble Lord said: May I have the courtesy of the House to explain the background behind this Amendment? It is simply that I do not believe it is possible to suppress hereditary instincts. They come to us from the dark world, through the animal world and to homo so-called sapiens and so to us. They have been with us and instilled in us before our bodies were in the present form. They are part of us. They are of the evolution system, which means that tribal instincts drive tribes together, they form into empires, the empires collapse and go back into tribes and form other empires, and so it goes on.
§ But each empire leaves a little bit more in the material evolution system. The Greeks left behind architecture, the Romans laws and roads, and the British Empire has left behind cricket and football. This is the way we have progressed from caves to egg box concrete and I do not think we can ever stop it; it goes on that way for ever. The particular instincts which we are upset about in this country which may prove a lot of trouble are the instincts of the tribe. They are part of the system and I do not think they can be suppressed.
§ The instincts of the tribe are that they have to take a few people into their tribe; otherwise they get so in-bred. The good genes double up and the bad genes double up and they become effete and of course they are washed out by some other tribe. They want, in taking this new blood, to be very careful. They do not know who they are going to get in; if they are getting in enemies or getting in diseases. All the people they take into the tribe have to be very carefully vetted to see if these people will be an improvement for their tribe. That is the thought that comes from instinct into their mind. and I do not think there is any way of stopping it.
§ I can put it from another angle. This terrible rat race we live in, and can never apparently get out of, has another side. Man has always believed from the earliest days that he could get out of it in a spiritual way, which is a slight comfort. The earliest men buried their dead with food to take into the next world. People in those days were very materially minded, I suppose; I did not know them. 1297 I would think that nowadays we can understand that when you take materialism down to its basic form, the atom and further on, it just becomes a form of radiation, and the idea of transforming one form of radiation into another is not very difficult. I based my views on suppression after reading the works of a sort of Indian Victorian Yogi type saint who became so holy that he was never quite sure whether he was in his own body or not, and I thought that his views might be worth listening to. He said all religions in the world were the same thing: to get out of the rat race into another sphere, another form of existence, and they all use different methods of doing it. Some of the methods just would not work. One of the methods that would not work was suppression.
§ He said suppression was impossible and nobody had ever been able to make it work. He said in religious parlance that the devil is the hereditary instinct, symbolised as half man, half beast. At one time in the middle ages it was very fashionable to try to tread the devil under your feet. Some of these holy men had thought the devil was firmly held down in the hereditary instinct and they found he was loose, and they were terribly worried about it and they used to flog themselves and torture themselves. And it is just the same with the Government. The Government will find that however cleverly they stand on the devil it will get loose and become wild.
§ But of course the method which has succeeded is recognition. To recognise all the instincts, wherever you get them from and why you have got them, that are influencing you, and to recognise all your complexes and biases motivating you, if you recognise all these you get a new form of power over them which was not there before, and that is the basis of the Christian religion, and that is, of course, what people have got to get in time. Once they recognise what they are doing, discrimination does not take place. And of course all these Churches from their different religions have something to keep them happy and quiet. I suppose the Christian church preaches brotherly love, to give mercy and show justice—I suppose Christian teaching amounts to that—which softe is the blow of the terrible life, the terrible rat race. We are all in this terrible rat race.1298
§ I do think that we have to have this Bill. But the object of my Amendment is to suggest to your Lordships that we cannot do it in too much of a hurry. We must treat this as an emergency measure which can be used. The public should know these powers are there, but if they are all enforced at one time with a lot of prosecutions all over the country, these powers are going to cause a great deal of injustice.
§ Our people are charming, nice people. We must in fact have a trickle of immigrants coming in all the time. It is part of the evolution system. They bring in new blood. Two successive Governments have put shiploads of them on us without any proper planning. Can you imagine how ordinary people must feel? How young married people feel? They feel that they may have to live with their mother-in-law for ever, that they will never get a house with all these people coming in. And it is not fair on the immigrants. The immigrants have their ways of life. They have beer carefully brought up. They have their tribes, and these tribes have been broken up and put together again.
§ The Jamaicans are charming people. They have a great sense of humour, and a great sense of rhythm. They have a peculiar, charming music of their own. The Pakistanis are nice people, too. But they are purely business people. They have no time for a sense of humour, and their musical sense is something in the nature of snake-charmer music. It is felt that they can be dumped, but that is illogical and people object to it.
§ I am coining to the end of my remarks. The world is on edge to-day. We are in one of these evolutionary cycles when we are breaking back into small tribes again. We will break back throughout the world, I am certain into small tribes, and then we will merge into another empire again. I would say to your Lordships that it would be a great mistake to cause trouble where no trouble exists. I await your Lordships' pleasure and I beg to move.
§ LORD STONHAM
I am in a position of some difficulty because my brief consists of five lines, the first of which says:The intention behind this new clause is obscure".1299 I do not think the obscurity has been in any way removed by the most entertaining speech to which we have just listened. I always listen to the speeches of the noble Lord, Lord Strange, with great sympathy, much appreciation and but little agreement, and so it is on this occasion. In fact, because he knows what a high regard I have for his native land, and what a heavy responsibility I have for it, too, it seemed to me much like the Isle of Man symbol—three legs and no discernible head.
I noticed that the noble Lord said "heredity comes to us from out of the dark world." That is, of course, true. But if we go back far enough into the dark world we were all apes, and so far as I am aware in those days there was no discrimination on grounds of colour, race or national origins. The noble Lord also suggested that all the good genes had triumphed and you could not change it. We are not trying to change it. What we are trying to say in this Bill is that it is unlawful to treat a black gene differently from a white gene. Although the noble Lord agreed that they are all charming people, they are all wonderful, I think he made some observation about Pakistani music with which I am not in a position to agree or disagree, because I am not an expert on it. But obviously he loved them all. What we are trying to do is to legislate so that those of us who do not treat these people as well as we would treat anyone else, are prevented from so doing because it is an unlawful act.
Having discussed the noble Lord's speech so far as I have been able to do so in a few words, I would also add that the effect of the clause if it were accepted —and this is a Bill on racial discrimination—would be to leave the Bill without any sort of a definition of discrimination, which would certainly, as I have suggested, leave the Bill without a head at all. I would submit to the noble Lord that although his new clause was an excellent vehicle for his views, which were extremely interesting, I do not think it has a place in this Bill; and I hope, if he shares my view, that he will agree to withdraw it.
§ LORD STRANGE
I would thank the noble Lord, Lord Stonham, for the extreme kindness which he always shows 1300 to me and to every Member of the House. How he puts up with my peculiar speeches I have not the faintest idea! It is a failing to have a sense of humour and also to have ideas; and these are ideas and I have managed to express them. Some people may have listened to them, some may not. They are there in Hansard. Those are my views. I know that this is the sort of legal gruyere cheese of an Amendment which any good lawyer, indeed anybody, can see through almost at once. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Provision of goods, facilities and services]:
§ 5.46 p.m.
EARL JELLICOE moved Amendment No. 6:
Page 2, line 3, leave out lines 3 and 4.
The noble Earl said: I think it might be convenient if with the permission of the Committee we considered this Amendment and Amendment No. 7 to-gether because they bear closely on the same general point. These Amendments are of a probing nature. The both relate to subsection (2) of Clause 2, and I should like to say straight away that, to this layman at least, the structure of this subsection reads most oddly. It starts off by saying:
The following are examples of the facilities and services
where discrimination à la Clause 1 will in future he unlawful.
§ I am not a lawyer, nor am I Parliamentary draftsman, but I must confess that I find this process of proceeding by example a curious and, I would think, a rather unusual one. I know that this process was recommended in the Street Report, but Street has no Biblical authority; and I am inclined to think, unless the noble Lord can persuade me to the contrary, that it is likely to lead to difficulties of interpretation. Will these examples be held by the courts to be merely declaratory, or may they not be interpreted by them, as I think my right honourable friend Mr. Quintin Hogg suggested in another place, as limiting? I think the Under-Secretary at the Home Office, Mr. Ennals, when he was 1301 speaking in Committee said that he would look at this again. I am not quite clear whether the Government have done so.
§ That said, I should like to turn to the examples covered by these two Amendments: that is, banking, insurance and credit facilities, on the one hand, and facilities for education, instruction and training, on the other. I personally accept the need for some extension of the field of legislation covering services. Equally so, I believe that this new and almost totally unexplored field, and one where the unsuspecting traveller might bump up against a lot of potential booby-traps, it is wise for us to proceed with care. It is important that the net of legislation should not now be cast so wide that the law becomes unenforceable. It is important, therefore, that we should catch within this net only what it is necessary to catch. Where, for example, discrimination carries with it its own built-in financial or commercial penalties, we should be wise, in my view, not to legislate. Above all, we should especially at this quite early stage in legislation in this field where we are proceeding really by trial and error, avoid legislation where legislation is likely to be counter-productive; where it may exacerbate relations between the races more than it will allay racial tensions. Such;in area is where intimate close and personal relationships are concerned. That is why I should like to ventilate some doubts about the examples given in lines 3, 4 and 5 in page 2 of the Bill.
§ Take insurance as one example. I know that the P.E.P. Report found that there was discrimination in motor insurances. But I wonder, by the same token, whether it is really wise to bring insurance within the scope of this Bill. Is this not an area in which we could count upon the market to do its work for us? If, for example, some insurance companies are discriminating against immigrants, will not others, realising that good business is going begging, step in and take their place? Is not discrimination, in the Clause 1 sense, going to prove an appallingly difficult task to prove in this field of insurance? Who has not felt on one occasion or another that he has been discriminated against by his insurance company? Is not to include insurance, there 1302 fore, to invite an avalanche of claims? If the Government persist, if they insist on including insurance, banking, and credit, should they not at least consider.the institution of some such initial machinery of investigation as they are proposing in the case of employment? I should very much like to hear the noble Lord's comments on that.
§ Then there are the line five examples, "education, instruction and training". I do not think that the question of the inclusion of education was really discussed —it may have been just touched on—in another place, and I should like to ask why it is included, and how the Government view this. It is not covered in Street, and discrimination in education in the public sector is already, as I understand, ruled out. Is the discrimination in the private sector of education, the 5 per cent. or so, what the Government fear; and, if so, how do they view this? There is another side to this particular coin. I think most of us recognise that special educational facilities for many of cur immigrant population are urgently necessary. There is requirement for special pre-school training in English; there is a requirement for special English classes for immigrant parents, including not least immigrant mothers. This, of course, involves a measure of discrimination, or at least it could be held to do so. On this matter also I wonder how this potential dilemma is resolved in the Government's mind.
§ What about "instruction and training"? What is that phrase desigled to cover? Much instruction and training is of a very personal and private nature. May I take two examples of the sort of difficulty which I could foresee?—and here the noble Lord may be, able to allay my anxieties. There are, for example, the private tutors, private coaches, of whom there are nunly in London. Most of these are admirable people and, like doctors, and like most of your Lordships, devoid of most racial prejudice; but some may harbour strong prejudices. A private coach of Greek-Cypriot origin, for example, may find it quite intolerable to coach a Turkish-Cypriot in ancient Greek. Is he going outside the law if he refuses to do so? Frankly, I do not know. I do not know whether he would be held to do so as a result of the inclusion of education, tuition, instruction and training. I hope 1303 that the noble Lord, when he replies, will be able to satisfy me on some of these points which, I will be very frank with him, I am ventilating in an exploratory sense because I do not know the answers to them.
§ He may, of course, argue in this last context of training and instruction, that it is absolutely necessary to include in the Bill some phrase of this sort if industrial training is to be brought within it. I hope that the noble Lord will not lean too much on that argument. We are all, I think, agreed on the importance of industrial training. We all, I think, believe that everyone in employment in these islands should have equal access, without fear of discrimination, to industrial training; and I readily grant that if employment is to come within the scope of the Bill, so should industrial training. But if that is so it would, of course, be perfectly easy to draft a special provision for that in the Bill.
§ I very much hope that the noble Lord, when he comes to reply, will be able to explain how the Government view the matters on which I have touched. I think that some of them were not raised in another place at all, and I very much hope that the noble Lord will be able to avail himself of the invitation which I now extend to him. That said, I beg leave to move these Amendments.
§ 5.56 p.m.
§ LORD WALSTON
I hope that my noble friend will remain firm in answering the noble Earl, Lord Jellicoe, although he has put forward his Amendments in a most moderate way and, as he says, in an exploratory way. But it seems to me that the examples given in the Bill as it stands are eminently reasonable and right.
To deal first with banking and insurance, as I understand it the insurance companies are not opposed to this clause and are behaving in an extremely responsible manner over it. Undoubtedly there are many categories which have to be singled out as being higher risks, either in lending money or insuring motor cars, or anything else. And there is no reason whatever why an insurance company should not say that undergraduates between certain ages, or people who have less than a certain number of years' driv 1304 ing experience, or people who have held a licence only in certain other countries, or other countries as a whole, should have to pay a higher premium.
Nobody would criticise that, and I do not think this Bill interferes in any way with their liberty in doing that, or in charging higher interest rates for loans, or even refusing loans on the grounds that people are not sufficiently stable, that they have no assets in this country which can be distrained on. But to single out people as an unduly high risk, either in lending money or insurance, not because they have not had experience of driving in this country, not because they have no assets in this country which can be distrained upon, but solely because they belong to one particular immigrant group runs completely counter to the spirit of this Bill, and is not an essential part of good and efficient business.
With regard to the educational side, I must say that I think the noble Earl was straining his examples a little far when he talked of the Greek and Turkish-Cypriot private coach. I would remind him that it is not so very long ago—whether it happens now I do not know —that certain public schools tacitly, though without making it public in any way, put a restriction on the number of boys of Jewish origin whom they took into their schools. That is the type of discrimination which I think all of us here now, having heard noble Lords on all sides speak on this, would deplore. That is the type of discrimination which, if it were still to exist, would be outlawed by this Bill. Whether it is in private tuition of that sort directed against, shall we say, Jews, or in industrial training directed against West Indians, whatever it may be, such discrimination runs counter to the spirit of this Bill. It is right that this example should be given, and I hope that my noble friend will remain firm in his resistance.
§ VISCOUNT MASSEREENE AND FERRARD
I support this Amendment, but what I should like to know is where there has been any evidence that there is in fact colour discrimination as regards insurance and banking and general credit facilities. I assume that there has been evidence of discrimination regarding housing or jobs. I find it very difficult to imagine that any banker or insurance company would discriminate on grounds 1305 of colour. The average person discriminates on the ground of colour—quite wrongly in my opinion—only regarding housing and employment because, of course, he is in personal contact with another person. But if one is insuring somebody's car and one is not in personal contact with him, that is a different matter, and I find it very hard to believe that there is any colour discrimination in banking and insurance.
As I said on Second Reading, the Bill will make matters very difficult for insurance companies because, as my noble friend Lord Jellicoe pointed out when he was talking about various categories of insurance, insurance companies may find that perhaps Pakistanis are wilder drivers than Cypriots, although I should personally imagine that they would be about the same. If that is so, are insurance companies then to be debarred from charging higher premiums to a Pakistani because, as a member of a group, he has been proved to be a wilder driver than a Cypriot? If so, it will be extremely unfair. I was rather surprised to hear the noble Lord, Lod Walston, say, as I understood him, that the insurance companies welcomed this.
§ LORD WALSTON
I do not think I said that they welcomed it, but, so far as I know, they have no objections to it.
§ VISCOUNT MASSEREENE AND FERRARD
That is slightly different, and my information was slightly different. I will not detain the House any longer, but I should first like to have evidence that there is discrimination on the grounds of colour, race or ethnic origin before this provision becomes law, as regards banking, insurance, general credit and so on. I will not go into the question of education, because I know little about it; but I certainly support the first Amendment.
§ THE EARL OF IDDESLEIGH
I wonder whether the noble Lord, Lord Stonham, could give me an assurance on a point regarding education. The benefits of this Bill, so far as I am aware, are not confined to British subjects or to residents in these Islands. Your Lordships may or may not be aware that, whatever opinion we may have about the English public school system, those schools, both boys and girls' schools, are very highly esteemed 1306 indeed in Latin America and Spain. For reasons which the noble Lord will Appreciate I am well acquainted with schools which could take in very large numbers of Spanish and South American boys and girls if they wished.
In the past there has been a certain tendency to ration the intake of these Iberians, who are after all foreigners with very different ideas from our own, very different backgrounds and very different homes. There has been a tendency to ration the intake on the ground that too many persons coming from an alien culture would detract from the English character of the schools. I hope no one will describe me as a racialist. I fully accept that all British subjects should have the right to benefit from the Act and that no one should discriminate against them, but is it really the intention of Her Majesty's Government that an English public school or an English convent school should not have the right to discriminate against alien children seeking education in this country? I assure the noble Lord that it is a very real problem, and I hope I shall get some reassurances.
§ 6.6 p.m.
§ LORD STONHAM
I am grateful to the noble Earl, Lord Jellicoe, for indicating from the very beginning that he had put these Amendments down in a spirit of inquiry. I will try to deal with the points which he and other noble Lords have raised. It is quite true that the clause of the Bill from which he proposes to delete lines 3, 4 and 5 lists examples. They are not finite: they are, as it were, declaratory. He criticised them on those grounds, and other noble Lords appeared to agree with him.
I was rather surprised to hear him quote in aid in this matter Mr. Quintin Hogg, because when a similar Amendment was discussed in the Standing Committee in another place Mr. Quintin Hogg indicated, regarding education, that though he might have preferred education to be left out of the Bill and dealt with administratively he opposed the particular Amendment to delete this_ line on the grounds—grounds which I agree are important—that facilities for instruction or training are covered by the Bill. In other words, he favoured leaving this declaration.
1307 We often talk about the obscurities of Parliamentary Bills, but I think there is nothing obscure about this clause. It indicates that as regards the services set out in this part of Clause 2, if there is discrimination in them on grounds of colour, race or ethnic origin, then it is unlawful; and as far as education is concerned (line 5) we think that presentationally it is important to show that education is one of the main areas in which discrimination has to be made unlawful in the Bill. The noble Earl also spoke about instruction and training and, in particular, industrial training. Whether it was education or employment—that is to say, whether the training was regarded as education and in other circumstances could be regarded as employment—and similarly with instruction, they would both be caught by the Bill. Certainly we could not agree to discrimination on the grounds of the basis of the Bill.
The noble Earl, Lord Iddesleigh, put very clearly his question about public schools and the position that would arise of schools limiting the intake of foreign children, for example, Spaniards. This has arisen, as I think my noble friend Lord Walston mentioned, in respect of Jews. The answer is that if schools continue to do so after the Bill becomes law, they will have to show that in applying this policy they are not discriminating on racial grounds but have some other justifiable grounds for doing so. That is absolutely fair. This was part of the discussion on the first Amendment to-day over the proposed introduction of the word "sole". This was one of the reasons that I argued against it. It seems to me that schools which, for sound reasons, chose to maintain a balance in this way would have very good reasons for saying so. One of the arguments which would indicate that they were not discriminating on racial grounds is that they had admitted a fair proportion of these children.
I come to the question of banking, credit and insurance. The noble Earl, Lord Jellicoe, is aware that if his Amendments were accepted—and he has indicated that they were put down only on a probing basis—the effect would be to exclude from the examples of goods, 1308 facilities and services to be covered by the Billfacilities by way of banking or insurance or for grants, loans, credit or finance.If the noble Earl wished to exclude those facilities from Clause 1 he would have to put down another Amendment to except them from Clause 2(1), because the list in Clause 2(2) is not a finite list. The Government are pledged to include insurance and credit facilities in the Bill since they are one of the main areas in which there is evidence of discrimination on racial grounds. The argument that this can be safely and entirely left to the operation of ordinary commercial considerations is not supported by the evidence.
The noble Viscount, Lord Massereene and Ferrard, said that he could not believe that there was any discrimination in banking facilities. He did not add credit facilities or insurance. But there is substantial evidence—for example, in the P.E.P. Report. Although I accept that insurance companies do not operate an overtly racial policy, in practice racial groups are being identified, sometimes as a matter of administrative convenience, as creating special risks, and being charged higher premiums accordingly. The noble Viscount quoted Pakistanis and Cypriots, with some advantage to the Cypriots as lesser risks. I hope that he will let me say that that was a hypothetical case, otherwise he will get a lot of letters of protest. He would have been much better in this matter to have stuck to P and C or A and B.
To take that as a hypothetical case, this is the kind of thing that is happening. They are charging these higher premiums, and although they can put their hand on their heart and say, "We send to all our agents and branches precise written instructions that they must not do this", in fact people of a certain race can be charged more. That is the kind of discrimination which the Bill intends to make unlawful. But it does not mean that insurance companies, banks and credit houses should not continue to operate under normal commercial judgment. A man can be a bad credit risk irrespective of the colour of his skin, or he can be a good credit risk without regard to his race. That is quite proper. Equally, the removal of discrimination in 1309 respect of loans and mortgages for housing is also an important corollary of the main housing provisions of the Bill. We certainly do not intend that anything in the Bill should interfere with the exercise of ordinary commercial judgment, and this is provided for in Clause 2(1) in particular in the use of the word "normally". The word "normally" governs this matter. I suggest that we can safely rely on the Race Relations Board and the conciliation committees to take account of legitimate commercial considerations which may properly influence the judgment of insurers and providers of credit.
The noble Earl, Lord Jellicoe, asked, on the subject of banking credit and insurance, whether the Government could not consider some initial means of investigation such as occurs in employment. But there is no real analogy with the proposals for employment. The Government are committed to give the industry the first opportunity to deal with allegations of discrimination in employment, and industry is accustomed to using well tried procedures for settling disputes. Since there are often two bodies concerned in these disputes, the ordinary negotiating procedures within industry can usually be successful over disputes about employment. There is no comparable argument for insurance and credit, and indeed no comparable organisations, and they must be treated in the same way as other services to the public and not be singled out for special treatment.
In any case in which expert knowledge is required the Race Relations Board or its committees can call on the advice of assessors who can be appointed under Clause 17. In any case of this kind where this advice is needed they can call in assessors and pay them—quite independent experts, who can look at the facts of the case in the industry or profession of banking or insurance and say whether a decision was based on commercial judgment, without involving any other factor, or whether a decision was, in their view, coloured by something else—racial discrimination. I have tried to answer all the points which were put to me. I trust that if the noble Earl is not satisfied with all my answers he will at least be satisfied that his probes have got a fairly detailed reply.
I am afraid that the noble Lord, Lord Stonham, may think that I am opposing him on this Bill, but in fact I am not. I am merely seeking clarification. If I write to one of those gentlemen who offer you £10,000 on your note of hand alone, I have no doubt that he might give me the £10,000 because I am British and because he knows the law under which I live. But if is were a case of gentleman A (I accept the noble Lord's suggestion) whose original home was 10,000 or 12,000 miles away, I think he would be slow to give him his £10,000 on the ground of his race and ethnic origin. Mr. A may accept the £10,000 and then nip off to his place of origin where the lender could not pursue him without going to very great expense and without encountering a law about which he knew nothing. That clearly comes into the question of finance. I should like to know how the noble Lord separates commercial judgment and ethnic origin, because the two things seem to me in this case to be identical.
§ LORD STONHAM
May I say, first of all, to the noble Lord, that if he knows someone who will give him £10,000 on his note of hand, I should like the address for reference later on myself.
§ LORD STONHAM
But I submit that there is a difference—I am not talking about race or colour—if you are lending money commercially, between dealing with the head of the House of Fraser, and dealing (I am still talking commercially) with someone, whatever his colour, who perhaps came here only last year and may be going away quite soon. That would be a commercial consideration, and the reply I gave to the noble Earl, Lord Jellicoe, on this point was that if there were a complaint—and noble Lords must remember that not all complaints are upheld by any means—which was looked at by a conciliation committee, who can appoint an assessor, or by the Race Relations Board, who can appoint two assessors, it would he considered by experts. They would know about the business and would know whether or not in the circumstances—that is, the commercial circumstances, as this will be a matter of commercial judgment—the refusal of credit facilities or the complaint about 1311 the higher interest charge for credit facilities was justified by commercial considerations. If it was not so justified, it would be discrimination.
§ LORD SANDFORD
My noble friend said, when moving these Amendments, that they were probing Amendments, and so they are, but I think our probing in respect of Amendment No. 7 has not had an answer from the noble Lord on the point which my noble friend described as "the other side of the coin". When we were discussing the urban programme the other day the noble Lord confirmed to me that the Government were sticking, rightly, to the view that housing must be provided without any favourable treatment at all towards the immigrants. But when it conies to education we are surely in a different position.
Do we not all recognise that if the children of immigrants are going to grow up in our primary schools and secondary schools on a level basis, without whole classes being held back, they must have extra special discriminatory education at the nursery level? We must provide nursery schools specifically for children of coloured immigrant families. This has been asked for in the annual report of the N.C.C.I. It seems to me that if Amendment No. 7 is not accepted, and if "education, instruction or training" remain in the Bill, it will be illegal to provide nursery schooling specifically for coloured immigrants, for it will be quite impossible to do that without discriminating against our native population. I believe we should discriminate in this respect at that stage, in order that the rest of our educational facilities should be available evenly and with advantage to all ethnic groups in our community. We must discriminate on this point. If this Amendment is not accepted, it seems to me that it will be illegal to provide this kind of facility. There are other examples I should have liked to quote, but that is one example.
§ LORD STONHAM
I agree with the noble Lord that it would be wrong, but I do not agree with him about the Bill. If he looks at subsection (3) of Clause 2, he will see that it provides for a type of positive discrimination for the benefit of a particular group, which it is the purpose of subsection (3) of Clause 2 to protect.
§ LORD STONHAM
I am sorry. Subsection (3) was removed in another place. In the original draft, subsection (3) of Clause 2 provided that it should not be unlawful to do anything in good faith for the benefit of a particular section of the public which had the effect of promoting integration. The subsection was deleted in Committee in the Commons, on the grounds that it was unnecessary and that it could be left to the commonsense of the education authority and, indeed, of the Race Relations Board, because there would be no complaints about this. What I am really saying is that the point was covered in the original Bill but it was decided in another place that there was no need for the subsection because the problem would not really arise.
§ LORD SANDFORD
I cannot help thinking that the noble Lord is being very sanguine if he thinks there will not be complaints about this. Nursery schools are one of the things in shortest supply but in greatest demand, and if it is not made absolutely clear what the position is, and whether or not it is illegal, there is going to be a lot of trouble.
§ LORD STONHAM
The point is that if preference were written into the Bill, positive action to help minority groups would become unlawful. That is why we have not written preference into the Bill, and that is why subsection (3) was taken out. We are perfectly satisfied, and they were perfectly satisfied in the Commons, that there would be no danger at all, as envisaged by the noble Lord, from this highly desirable and essential practice of providing in some cases special facilities in education, just as we do now when we have special language classes for young children; and, indeed, for adults and older children. No doubt the noble Lord will remember that subsection (3) was removed on a vote in the Commons, and it was a vote against the Government by a combination of Opposition and Government Members. The Government have accepted the position and have not altered it, because we have become convinced that it will be all right.
§ LORD CONESFORD
I feel that this is very unsatisfactory. We have to deal with the Bill as it comes before us. The 1313 noble Lord spent a good deal of his time in answering my noble friend's Amendment, by saying that we should find it all right if we looked at subsection (3). It was then pointed out to him that subsection (3) did not exist.
§ LORD STONHAM
Yes, and I corrected that mistake. I expressed my regret for my slip, and since then I have said when the subsection was deleted and how.
§ LORD CONESFORD
I was coming to that. I think the noble Lord knows me well enough to know that I am not unfair in that way. When it was pointed out that his justification was quite wrong, because the subsection on which he relied did not exist, the noble Lord then told us that it had been deleted in the House of Commons because they were satisfied that it was unnecessary. I hope he will satisfy us that ii is unnecessary, but the way in which he attempted to satisfy us that it was unnecessary was by saying that the Race Relations Board would not treat as illegal a thing which was so obviously convenient.
But what we are complaining of is that Clause 2 declares that it is illegal. It is all very well to say that the Race Relations Board, in its wisdom, will not complain of the illegality. But surely that is a very odd way to legislate—to make illegal something which the Minister himself says is desirable, and then to say that it is all right because the Race Relations Board will not object to it. Nor, I think, are we very much concerned with what combination of Members defeated subsection (3), of which, until its absence was pointed out to him, the noble Lord was so fond. It is really a very odd way indeed of legislating.
§ VISCOUNT SIMON
It seems to me that the decision of the Government to abandon subsection (3) was taken before the Amendment of the noble Baroness, Lady Gaitskell, was accepted. Her Amendment says in terms that dealing with people differently constitutes discrimination.
§ BARONESS GAITSKELL
I wish only to make a short comment on the remarks of the noble Lord, Lord Sandford, about the education of these immigrant children who need special facilities and have 1314 special needs. This is not really a subject for the Bill but for the educational authorities. They can deal with the difficulties; they can deal with such things.
§ LORD SANDFORD
That may be what the noble Baroness thinks, but we have not yet had a satisfactory answer from the noble Lord to my point; namely, that with the Bill as it is drafted now, with this provision about education in and subsection (3) out, it would appear to me to be quite clearly illegal for any authority to provide nursery schools for coloured immigrant communities if they had to do so at the expense of the native community. My knowledge of this particular subject, with which we have been dealing in another sphere, is that there are very few areas in the country—certainly not in the areas which are suffering general deprivation—where nursery schools can be provided for one section of the community without the other sections of the community feeling deprived. They are almost certain to complain, and I do not see how the Race Relations Board can do anything but uphold their complaint. This runs flatly counter to our educational policy in this sphere.
§ LORD GIFFORD
I appreciate the point made by the noble Lord, Lord Sandford, but surely the answer to it is this: if special nursery schools are required for young immigrant children on the grounds that they do not speak our language properly, then that is not discrimination under the Bill. If the nursery schools are required because the children live in an area of special need, then I should hope that the nursery schools would be provided by the authority to black and white children alike, irrespective of their colour.
§ LORD GARNSWORTHY
I wonder if the noble Lord, Lord Sandford, could give us an indication of any local education authority which he knows that has under consideration a proposal to provide a nursery school for coloured children on the basis that they are coloured, that being the only condition for their entry.
§ LORD STONHAM
I do not think that there is the room for misunderstanding which the noble Lord, Lord Conesford, suggested. I say again that 1315 I made a mistake in referring to subsection (3) of Clause 2, which is no longer in the Bill. The provision for immigrant schoolchildren is, of course, made on educational grounds. As far as the subsection which was removed in the Commons is concerned, it was inserted only to remove any doubts on this subject, and in another place they decided that it was unnecessary—that the remaining part of the clause as it stood, and the Bill, left no room for doubt that there would be any difficulty arising out of it, because it was educationally necessary. It is not a question of providing the special educational facilities because the children are black but because they need it, just as special educational facilities are provided for educationally sub-normal children and others who are even more sub-normal.
But I find it somewhat remarkable that, although this subsection was removed in the Commons mainly by the votes of Opposition Members there, Members of the Opposition in your Lordships' Committee are now arguing that it is necessary.
§ LORD STONHAM
I am much obliged to the noble Lord. It is not necessary, then, to put any special provision in the Bill to meet the point the noble Lord had in mind. If it is educationally necessary it will be quite all right, and there will be no question of a prosecution. If such a case was referred to the Board—and I can see that it could be—then of course they would indicate to the complainant that there was in fact no offence.
THE EARL OF SELKIRK
I wonder if I might ask a question. Suppose someone wanted to started a private school and he advertised—"School to train young immigrants from Pakistan". That is a possible advertisement. Would that be illegal?
§ LORD STONHAM
I think I should have to consider whether that offended against the clauses with regard to advertisements, let alone education. I think it might well do so. But there would be nothing otherwise against setting up an 1316 educationally necessary school. The noble Earl brought an advertisement into it. It might well be special language classes. Indeed, it need not be in private schools; an education authority can set up special language classes. But I should think it highly unlikely that they would say they were specially for Pakistanis. They would set up the classes for those who needed to be taught English.
I said to the noble Lord when I introduced these two Amendments that they were of an exploratory nature, but having made this exploration I must say that I am not altogether happy with the results of it. In some respects, I have returned rather more empty-handed than I expected. I said by way of introduction that I was rather worried about the way this subsection was constructed—the examples of procedure—and that in another place my right honourable friend Mr. Hogg had expressed the view that, because of this, these examples might be interpreted as limiting. The noble Lord, by way of rejoinder on that point, explained that Mr. Hogg had particularly requested that a particular area should be included as an example. If one has a fear that the effect of this procedure is to be limiting, naturally one would wish to have included as an example any particular area which one particularly wishes to have caught within the Bill. But that does not necessarily mean that it removes my doubts—or, I suspect, those of my right honourable friend—about the way subsection (2) is constructed.
On the specific examples, in the field of banking, insurance and credit I suspect we must agree to differ. I do not think the noble Lord, in his very full reply on that point, has really met our view that in many respects there is an inbuilt machinery here, the self-regulating machinery of the market, which will adjust any discrimination if it in fact takes place. But—and here I say so frankly—I think he has met my suggestion, and met it squarely, about some initial investigating machinery being specially designed in this area on the lines of what is being, done for employment. I take the point he made there.
But turning to the other field—education, instruction and training—I must 1317 frankly say that I have certain residual disquiets which have been reinforced by the replies which the noble Lord has given. I do not think we wish to go over this any longer at this stage, but I must frankly say that I have not as yet in any way had my anxieties allayed on the question of reverse discrimination, which was the question raised by my noble friend Lord Sandford; and the noble Lord has not so far as I know dealt at all with my questions on private instruction and training. This is a particularly sensitive field involving very close personal relations, whether it be the private coach, the dance instructor, the golf professional or whoever it may be; and I should like to know whether these types of personal relationships, which I would have thought would be covered by the general heading of instruction and training, will be caught within the scope of the Bill or not. I do not know whether the noble Lord would like to reply now or whether he wishes to take it up later.
§ LORD STONHAM
I can only say this. If those arrangements could be regarded as domestic they would be excepted from the Bill. If, on the other hand, they came within the broader field of education and were not purely domestic, then in my view they would be caught by the Bill. It might depend on the particular circumstances. I will look at this and will write to the noble Earl.
THE EARL OF JELLICOE
I am grateful to the noble Lord. I think I have heard enough to say that many of my doubts have now been allayed. However, in seeking leave to withdraw these two Amendments, I should like to make it clear that I and my noble friends reserve our right to put down Amendments covering this general area at the Report stage.
§ Amendments, by leave, withdrawn.
§ Clause 3 [Employment]:
§ 6.42 p.m.
LORD ILFORD moved Amendment No. 8:
Page 2, line 16, at end insert "and suitable".
§ The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. Clause 3 makes it unlawful for an employer to refuse or 1318 omit to employ an applicant for work which is available and for which the applicant is qualified. My Amendment seeks to add after the expression "qualified" the words "and suitable". Your Lordships may think at first sight that there is not very much difference between "qualified" and "suitable". But, on reflection, I think it is clear that "qualified" is not a sufficiently comprehensive expression. There are many persons who are qualified for a job but not suitable for it. Let us, for example, take teachers. A teacher may be qualified as a teacher but may not be suitable for the particular post for which the employing authority desires to employ him.
§ This Amendment was put down to meet the apprehensions of the Inner London Education Authority and the Greater London Council. They feel that they may meet difficulties when engaging their staff unless there is some provision in the Bill for them to reject an applicant who is not suitable for the particular post they have in mind, although he may be fully qualified for it. That difficulty arises in the case of all professional persons. An architect may be fully qualified as an architect but may not be suitable for the particular post in which the employer desires to employ him. One can think of a number of cases of that sort.
§ It really is a very short and simple point. I hope the noble Lord will appreciate the difficulties which may arise if the clause is left in its present form and that he will agree to add these two words at the end which I think will clear up any difficulties in which the employer may find himself when he is engaging technical staff in particular. I beg to move.
§ BARONESS GAITSKELL
I should like to comment on the remarks of the noble Lord, Lord Ilford. Of course, it is unquestionable that when somebody comes up for an interview not only his qualifications are taken into account but also a great many other things: his personality, his character and so on—as much as the employer can gauge. All the same, I do not support this Amendment because I think the word "suitable" lays the whole thing wide open for an employer not to accept somebody on account of colour—unless, of course, the noble Lord's Amendment could be re-phrased or re-drafted in a way that would not allow this. To use the word "suitable" 1319 would enable any employer to say, "This man is not suitable"—and to say it entirely on account of his colour. Therefore, I would not support it.
§ LORD ILFORD
With respect, the employer would have to show that there was some ground of unsuitability. For example, the man might be single, and the post be for a married man; or vice versa.
VISCOUNT MASSER EENE AND FERRARD
I would support this Amendment. I was going to answer the noble Baroness on her point in the way that my noble friend did. It is quite true that there can be two people who have exactly the same qualifications, but it is extremely unlikely that they will have the same personality or the same character. I do not think the word "suitable" is too wide—although the noble Baroness may he able to think of some other word which is not quite so wide. But one is bound to get a lot of friction if one changes the position from what it is to-day when, as I pointed out on Second Reading, the employer can refuse to employ somebody if he does not like his face. Of course, when this Bill is enacted (and I have said this before), if the employer has a white applicant and a black applicant with the same qualifications he will have to employ the black applicant—otherwise he may be open to be taken before the Conciliation Board. I think that if we included the word "suitable" it would be a great help to the employer. As the noble Lord behind me said, the employer would have to prove why the white man or the black man was not suitable; he could not just say that he was not suitable. I can see no objection to the word.
§ LORD AIREDALE
I suggest that the Government have brought this Amendment upon themselves by the confusion of their own thought which has led them to include in the paragraph the word "qualified". If a person is refused employment because he is not qualified or because he is not suitable—it does not matter which—that is not racial discrimination. I should like to suggest that this Amendment is quite unnecessary and that at the next stage the Government themselves should move an Amendment to take out the words "for which he is 1320 qualified". In my submission those words are quite unnecessary in this paragraph.
§ LORD MITCHISON
I agree with my noble friend Lady Gaitskell that this Amendment would open the door to some difficulties. I also agree with the noble Lord, Lord Ilford that "qualified" is perhaps not enough. The difficulty arises from the fact that "qualified" has two meanings. I am not qualified to heave sacks of coal about: I am not strong enough. An architect is qualified in quite a different sense. He may have professional qualifications, as indeed the noble Lord indicated, yet be unsuitable for a particular job. I rise only with diffidence and some terror at my own Front Bench to suggest that the best way out would be to put in a proper definition of "qualified" that would include in it "suitable".
§ LORD SOMERS
My noble friend when he proposed his Amendment brought in the question of teaching. I should like to bear him out, since I can remember well the case of a certain girls' school where an application for the post of second music mistress was made by a young woman who was a Bachelor of Music. She had had teaching experience and therefore, on paper, was perfectly well qualified for the position. But she turned out to be the most hopeless failure because she was utterly unable to control the girls. She was one of those unfortunate people who believe that others are always against them, and she gave the director of music at that school a very difficult time. This young woman was white, and I do not think that anybody in your Lordships' House would have raised an eyebrow had the director of music realised the position and refused to employ this young person because of that shortcoming. If the Bill stands as it is at present drafted, it will be impossible for an unsuitable white person to obtain employment but quite possible for the unsuitable coloured person to do so. Therefore the coloured person will have a right that the white person has not got. Is that not in itself discrimination?
§ LORD FERRIER
When listening to the noble Lord, Lord Ilford, I recalled the debate on the first Amendment, when Lord Stonham suggested that he might think again about the word "sole", or 1321 the word put forward by the noble Lord, Lord Conesford. If something of that sort were introduced to alter the wording of Clause 1, perhaps an Amendment of this nature might not be necessary.
§ 6.52 p.m.
§ LORD STONHAM
The noble Lord, Lord Ilford, is quite right. We know that the Inner London Education Authority have had some difficulty in matters of this kind. In my view they brought those difficulties on themselves by not making their needs clear. Had they done so, there would not have been any difficulty. The noble Lord seeks to add the words, "and suitable" because he thinks it not enough to say "qualified" for the job, in order to have grounds of complaint if the job is not offered. The clear intention and, I think, the clear meaning of the Bill is that "qualified" must include suitable and therefore the Amendment is quite unnecessary. Again I agree with my noble friend Lady Gaitskell and with my noble friend Lord Mitchison that adding the words "and suitable" would lay the whole thing wide open. The decision about which of several qualified people to engage would involve quite a number of subjective opinions as to their suitability, and employers would be able to make their own judgments, provided that they did not base them on race or colour.
It is extraordinary how fertile are the imaginations of noble Lords who think up marginal cases—and not only marginal, but wholly irrelevant cases. The noble Lord, Lord Ilford, asked us to suppose that a single man would apply for a post which was advertised for a married man. The single man would not, of course, be qualified and therefore he would not be able to complain of discrimination. I am assuming, of course, that the job was advertised.
§ LORD ILFORD
With respect, the man might be fully qualified as a teacher or an architect, or whatever was required, and be unsuitable on some quite different ground, but irrespective of colour.
§ LORD STONHAM
I am talking about being qualified for the job for which he is being considered; and if the necessary qualifications included, for example, that he had to be a married man, then, clearly, if he was a single man he would not be qualified for the job. That is just as 1322 plain as if there was an advertisement for a Master of Arts and a man who asked for the job said, "I am a Bachelor of Science". He would not be qualified for the job. In my opinion it is absurd that the time of the Committee should be taken up in discussing examples of that kind.
The important thing about my objection to writing in the words "and suitable" is that it would make it very difficult for a complainant to claim or make a good case that he was suitable in the eyes of a prospective employer, whereas it would be easy to establish whether he was qualified. It would merely be a case of whether he had the qualifications for the post advertised, or the qualifications which he was told at the labour exchange were necessary or which were given in the advertisement. There have been cases where immigrants have applied for an educational post and they may have had the academic qualifications and passed examinations, but they were not qualified for the post because they could not speak English or because their command of that language was imperfect. It would not involve discrimination if they were turned down on that ground. But it we included the words "and suitable" it would give some people (I am not thinking of the Inner London Education Authority, who would not use such tactics) an opportunity to take advantage of the loophole and to get away with personal criteria of suitability which might include a discriminatory element quite irrelevant to the qualifications of the applicant.
I must confess that I thought the noble Lord, Lord Airedale, hit on the point when he said that the words "for which he is qualified" had no effect. That is quite true. They were put in purely for presentational purposes, because it was thought that it would give an indication to industry. I am perfectly willing to have a look between now and Report stage at the question of deleting the words, "for which he is qualified", but for the reasons which I have given I cannot agree that we should add the words "and suitable".
§ LORD BROOKE OF CUMNOR
I am sure that my noble friend would not wish to press the Amendment, provided it is clear that the Government have taken the point about which at least one great 1323 education authority is troubled. I think that the noble Lord, Lord Mitchison, put his finger on the point when he said that the words "or qualified" are ambiguous. The phrase "a qualified teacher" is accepted, but it does not mean that the teacher is qualified for whatever job he may apply for. I can well understand that somebody may have applied for a job in a school and that there might be no question of competition for the job. He might be the only candidate, but the education authority might consider that he was not suitable for that post, whether he was white or coloured, and he would reply, "But I am a qualified teacher and that is what the law says."
I think that the noble Lord, Lord Stonham, would satisfy everyone if he would agree to examine the matter from the point of view which the noble Lord, Lord Mitchison, mentioned and which I have endorsed. I am not at all certain that we can solve this problem simply by taking out the words, "and for which he is qualified", though I certainly accept that if the words "and suitable" were added (though it might put the position right for the Inner London Education Authority and other education authorities), it might create difficulties. I am quite certain it is the ambiguity in the word "qualified" which is the trouble here.
§ LORD MITCHISON
May I rise again, at the risk of being accused of stabbing my noble friend in the back—which is the last thing that I want to do. We all want the same thing here, so far as I can see; I think that goes for everyone who has spoken. I should have thought that there was an ambiguity, and you cannot remedy it easily as a matter of drafting in this clause. What we want is a proper definition in the definition clause later on. I think that is much the best way to do it. I think that to try and do it in the middle of this clause will lead to difficulty. I have had a little experience of drafting in another place, and I hope my noble friend will not mind for once considering my humble advice and. indeed, perhaps answering a suggestion from behind him.
§ LORD STONHAM
I take it rather hard that my noble friend should say 1324 that I should consider "for once" a suggestion that is made behind me. I have done it already earlier this afternoon. One thing that I have learned, like my noble friend, is never to attempt to draft on your feet, because you never see the snags. Therefore, I am tempted to say that I think the right answer is to leave it as:It shall be unlawful for an employer or any person concerned with the employment of others to discriminate against any other person—(a) if that other person is seeking employment, by refusing or deliberately omitting to employ him on work of any description which is available …That sounds to me to be all right, because it gets rid of the ambiguity by getting rid of the words. In my submission, there is no ambiguity there. I was glad to hear the noble Lord, Lord Brooke of Cumnor, say that he agreed with me about not having the words "and suitable"; but he disagreed with me as to whether the word "qualified" should be there at all. My noble friend Lord Mitchison suggests that we ought to define the word "qualified". I have indicated what I think is favourite, but I will look at all these suggestions and try to come up with a solution that will satisfy everyone.
§ VISCOUNT SIMON
Before the noble Lord withdraws, as I imagine he will, I risk being gently reprimanded by the noble Lord, Lord Stonham, for detaining the Committee, but there is one point on this clause that I should like to mention. We are all anxious to see it work, and we must, I think, look at individual cases to see how it will work. Has any consideration been given to the entertainment industry? This seems to me to be a difficult point. I know that in the United States American Equity are anxious at the present time to see that negro actors and actresses are given the chance to appear in parts other than what they call "typically negro parts"; and they may be making some progress in that direction. But consider someone who is casting Othello. He might well say: "Here is a brilliant coloured actress, but really she is not suitable to act as Desdemona."
§ VISCOUNT SIMON
He would be qualified as an actress? This perhaps again is what we mean by "qualified". He would not be suitable. Take a corps de ballet where you have 16 charming girls, and, if you like, the Ballet Négre. If a white girl applied, she might be a brilliant dancer and perfectly qualified, but she may not be suitable. It does seem to me that in the entertainment world there is a real problem unless you can import into the idea that there is some point of suitability.
§ LORD ILFORD
I think the discussion that we have had on this subject has shown that the language which the Bill uses is not sufficiently precise, and this calls, as two or three noble Lords have pointed out, either for the omission of the word "qualified" or for its expansion in further definition. I must say that I am not entirely satisfied with the reply given by the noble Lord, particularly as it is coupled with what seems to me to be rather unnecessary criticism of the local authority who will have to carry this out. The noble Lord has promised that he will look at this again and see whether by some further expansion of the clause or some omission we can get a clause which people will understand, and in those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6 [Advertisement and notices.]
LORD CONESFORD moved Amendment No. 9:
Page 3, line 33, leave out ("whether or not") and insert ("if").
The noble Lord said: This Bill makes certain acts unlawful, and it is quite logical and proper that, if acts are made unlawful, it should also be made unlawful to publish or display an advertisement or notice that indicates an intention to perform an unlawful act and nobody could complain if that were what this clause did. But this clause makes a notice or an advertisement unlawful if it discloses
an intention to do an act of discrimination; and then come the words which I criticise,
whether or not it would be unlawful by virtue of any other provision of this Act".
I think that probably most members of the Committee would agree with me in saying that, if the Government think it necessary to make unlawful a notice which states that you are going to do something perfectly lawful, at least the burden is on them to show that such an extraordinary provision is justified, In the ordinary way, quite obviously, you can advertise or give notice of an intention to do something lawful. My first objection, therefore, to this subsection as it stands is that it seems to be unprincipled and wrong. Nevertheless, I shall listen with interest to whatever is given as the justification for having some clause of this nature, and perhaps for saying that my Amendment is too drastic. However, I hope I can show to the Committee that the words in the clause as it stands cannot really be satisfactory or do what any wise Legislature would intend.
§ Let me call attention to a simple consequence. It is sought to make the result of subsection (1) less absurd by the provisions of subsection (2). Subsection (2), as will be seen, provides for certain exceptions from the illegality of these notices. In the case of an advertisement or notice which indicates that Commonwealth citizens or any class of such citizens are required for employment outside Great Britain, or that persons other than such citizens are required for employment in Great Britain, the prohibition would not apply.
But let me give an example which would not be saved by subsection (2), of something which would be prohibited, but which members of this Committee, and I hope of the Government, would say ought not to be prohibited. There are many British families living with their children in all parts of the world. If members of the Committee will turn to subsection (6) of Clause 8 they will see that Clause 8 gives the exceptions to the rules on discrimination in the case of employment, and subsection (6) says this:
that is Clauses 2 and 3 of the Bill—
shall not apply to the employment of any person for the purposes of a private household".
I think that that exception will be generally recognised as right and proper. But let us take a British family living abroad. This clause as it stands will make it unlawful for them to advertise for a governess of French nationality. Now is it really desirable that that should be made an unlawful act: an advertisement for a French governess? I say it is perfectly absurd, and I give that example to show that the clause simply will not do as it stands.
§ I have proposed the simple Amendment of leaving out "whether or not" and substituting "if". That is exploratory to the extent that I certainly will not decide about it until I have heard what the Government have to say; I will not say that my Amendment may not be too wide, but I hope I have said enough to show that some Amendment of this clause is essential. I beg to move.
§ 7.12 p.m.
§ LORD STONHAM
The noble Lord, Lord Conesford, seeks to ensure by his Amendment that only those discriminatory advertisements should be unlawful which refer to an action which would itself be unlawful under the Bill. That is the effect of his words. Lord Conesford argued quite reasonably that where it is not unlawful to discriminate—and he gave some examples; there are many: say, domestic employment or in the letting of lodgings in a small boarding house—it is illogical to make it unlawful for the employer or lessor to advertise the fact that he will discriminate. That is what it would amount to. I know it can also be argued that coloured people will be put to unnecessary trouble in applying for certain jobs or certain posts—some domestic posts—or for types of accommodation from which they can lawfully be excluded—a Pakistani, for example, who seeks lodgings with his compatriots and will be unable to make this clear in his advertisement.
All these things are quite true, but the Government's position is that discriminatory advertisements are a particularly blatant and objectionable form of discrimination which give very great offence; and also that all discrimination on grounds of race or colour is undesir- 1328 able even though for specific reasons the Bill does not provide for certain acts to be made unlawful. Clause 6 will force the employer or the lessor to exercise his, albeit lawful, discrimination personally, instead of impersonally by means of an advertisement which would give considerable offence. There are many other difficulties, quite apart from the basic one of the objectionable nature of these advertisements, and many other objections to the noble Lord's proposal. One of them is that the distinction which the noble Lord wishes to make would make it very difficult for newspapers and other advertisers who have no way of knowing whether a discriminatory advertisement (for example, in respect of lodgings) might be related to a lawful or unlawful act; that is a position of difficulty.
Then the noble Lord spoke about the position overseas. I think he also spoke about a family inquiring for a French governess and advertising in this country for her. I should have thought it most likely that they would have advertised in France for her. If they advertised for somebody to teach French, the position of course would not arise, but the noble Lord said "a French governess". But with regard to overseas advertisements generally, and in particular those which might involve coloured people, the position of the Ministry of Overseas Development, for example, is protected by subsection (2), and they are not prevented from advertising for experts from the United Kingdom for posts in developing countries. It is international practice that aid to developing countries should reflect the character of the country from which it comes, and the need to advertise clearly for suitable people is in our view acceptable. Of course, there are many cases like that. But, although discriminatory advertisements must in general be unlawful, we are anxious that the clause should be consistent with the purposes of the Bill and that innocuous advertisements should so far as possible not be made unlawful.
It has been found impossible to achieve this without negating the whole purpose of the clause, but the exception for advertisements which say that aliens are required for employment in Great Britain goes some way towards relieving the position. It would be possible, for example, to advertise for an Italian waiter or a 1329 German au pair girl. But the exception will not permit advertisements, for example, for a Pakistani chef. I know that these anomalies will exist, but we have given a great deal of thought to this matter.
The noble Lord was good enough to say that he thought his Amendment might be too wide. Indeed, I think I have indicated that it would be. And having given a great deal of thought to this matter, we have found absolutely no way—short of the way that he is suggesting, which is quite unacceptable—of meeting some of the points of anomaly that understandably will occur. We think, however, that this clause is so wholly desirable in the interests of educating public opinion that it is right, and we do not expect that in practice difficulties will arise in respect of advertisements which are, and which are seen to be, unobjectionable.
THE EARL OF SELKIRK
Do I understand that it is illegal to advertise for a French governess or a Scots nurse? If so, plainly it is crazy. May I ask whether an advertisement or a display saying "Americans go home" also becomes illegal under this Bill?
§ LORD STONHAM
Oh well, I have seen displays of that kind with regard to coloured people. If such displays are not already illegal they will certainly become so, and in any case they are objectionable. I said that it is possible under this Bill, without creating an offence, to advertise for a German au pair girl.
§ LORD DRUMALBYN
The noble Lord says it is all right to advertise for a German au pair girl but not for a Pakistani chef. Would it be all right to advertise for a Pakistani au pair girl and would it equally be illegal to advertise for a German chef? We really are getting in a most frightful tangle. There must be 1330 cases where the particular qualifications are related to ethnic or national origins, and what one wants to advertise for is a person with that particular qualification. It is the ethnic or national origin which gives them the fullest possible knowledge of the culture and language of that nation. That must be so.
I am speaking now with a certain interest, because part of my function outside this House is to try to keep advertising lawful. This is going to put a most extraordinary strain on advertising. How is an advertising medium going to judge whether an act of discrimination is involved or whether in fact the advertiser is seeking someone with a particular qualification that derives from his ethnic origin? I think one must limit the prohibition under the law to what is contained in the Statute and not say that any form of discrimination that is not caught by the Statute is illegal. The form of discrimination may be of the essence of the requirement, and if that is what is advertised for then surely it should be all right.
§ LORD MITCHISON
I think what one has to consider here is the practical act, and one has to consider it in the light of the position of a newspaper. Advertising can be a very powerful thing indeed. What the newspaper is supposed not [...]o do is to publish an advertisement which indicates, or which could reasonably be understood to indicate, an intention to do an act of discrimination. I have not forgotten the words that follow, but that is supposed to be the mischief. What is being asked for by this Amendment is that the newspaper should be called upon to enquire whether the act of discrimination would be unlawful by virtue of any other provision in this Bill. I do net see how in practice they could do it. This is not a simple Bill by any means, and they would not have the knowledge to do it. Therefore we may have to chose between the newspaper's being able to say, "We cannot publish this because it is unlawful", and thereby preventing something which would be lawful under the provisions of the Bill from being advertised, or, on the other hand, the newspaper's being able to refuse, on the score of illegality, to publish something which it knows could well be deemed (and may even know that it is) unlawful under the Bill.
1331 As a matter of common sense and in view of what we are all trying to achieve, I think my noble friend is right in saying that we cannot do absolute justice because of the limitations in the position of the Press in this matter. But we have to look at the major evil, and the major evil is likely to be the objection to advertisements of this kind—and it is on the whole a minor one—that in some cases they might, with full knowledge of the facts, be justifiable on the grounds that there was a provision in the Bill allowing that particular act of discrimination to be done. It has to be an act of discrimination, and I should have thought the basis of this Bill was that you must not have acts of discrimination. It is in fact a Race Relations Bill and that is what we are all concerned about.
It would be better, therefore, in the interests of the broad object we have in mind, to take the smaller risk of newspapers having to refuse to publish something which would in fact be lawful if they knew all the facts. I should have thought it would have been rare for them to know all the facts. Then there is the other case of a newspaper publishing a general advertisement, and some of the general advertisement would amount to inciting people to acts of discrimination which would be lawful and some would amount to inciting them to acts of discrimination which would be unlawful. Under this provision they would have to refuse that advertisement.
I hope my noble friend will appreciate, if I may humbly and respectfully say so, that this is a rough judgment. It is something of a judgment of Solomon, as it were. If we accepted this Amendment and took out the words which the noble Lord seeks to take out we should then be letting in advertisements which ought not to be there, and on the balance of the object we have in mind and the whole provisions of the Bill I think, personally and frankly, that one must do rough justice; that in the interests of the Press itself and of decent advertising we must let this clause through in this form. Although I am sure the Amendment is not intended to make their task impossible, it would in fact make it very difficult indeed.
I am in some difficulty over this matter. The noble Lord 1332 indicated that it is not unlawful to advertise for a Scots nurse or a German cook or a French governess but it is unlawful to advertise for a Pakistani cook. That has been my problem all through, and I find it personally quite offensive because it is a thing that does not enter into my normal calculations. This will be a Public General Act applying to everybody of all ethnic groups, and it has been argued by your Lordships as if it depended entirely on the colour of a man's skin. I dislike it very much. It is not the way to discuss a law and I do not understand why, if it is lawful for me to adopt a fashion which is followed by a great many of my friends and advertise for a Scottish nurse, I should not also be allowed to advertise for a Pakistani cook.
§ LORD MITCHISON
I am not sure if the noble Lord is referring to me, but I did not say anything of the sort.
§ LORD BROOKE OF CUMNOR
I think there must be a way through this, although I agree with the noble Lord, Lord Stonham, that it is not easy. I probably do not go quite so far as my noble friend who moved the Amendment. I see the force of the Government's objection that we want to render unlawful the sort of advertisement which says "No coloured", and I appreciate that if this Amendment were made somebody could still put in an advertisement including the words "No coloured", and when a complaint was made might say, "Oh, but I am exempted under Clause 7 of the Bill." It would be offensive, I entirely agree, if that sort of Amendment were to appear and if that kind of defence were made.
Nevertheless, if this clause remains entirely unamended it seems to me that the certain result will be that no newspaper will ever accept an advertisement for an Indian or a Pakistani or a Malay; it will be too risky for them to do so. I would ask the noble Lord, Lord Stonham, whether there has been any discussion on this clause with the newspaper organisations, because it is most important that we should get it right. I am not pressing the Government to open this clause wide to all kinds of objectionable advertisements, but I strongly agree with the noble Lord, Lord Saltoun, that 1333 it should not be rendered impossible for the perfectly normal and unobjectionable advertisements to appear which nobody for one moment would regard as discrimination. It may be difficult to get the drafting right, but Parliament should have a shot at it, and as this is at the Committee stage of the Bill and I imagine certainly the Bill cannot now become law until October, I greatly hope that between now and the final stages further thought may be given to the possibility of finding a solution which would satisfy everybody.
§ LORD CONESFORD
I am grateful to all those who have taken part in this debate. May I say to the noble Lord, Lord Stonham, that he knows from my speech on Second Reading that I do not regard this as a wise Bill. Nevertheless, I had no doubt whatever that it ought to have a Second Reading in your Lordships' House, and I have equally genuinely tried to accept the intention to legislate and, to the best of my ability, to improve the Bill. The best way of improving the Bill is to remove things that the public will find to be really nonsensical. I said, in moving this Amendment, that I should fully understand, and should not contest, the view that my Amendment might be too wide in seeking to strike out these words. I agree with the noble Lord that there is evidence that my particular Amendment is too wide, and I should not dream of pressing it. The main part of my speech was to show that the clause, as it stands, without any amendment, produces fantastically foolish results. Even with the acceptance of my Amendment, much too much would still be prohibited, in my view. I think it is quite absurd that there must not be an Indian restaurant in London which is entitled to recruit, and to say it wishes to recruit, an Indian cook. I regard that as absolutely absurd, tyrannous and ridiculous.
I am sorry to differ from the noble Lord, Lord Mitchison, because with many of his speeches I have found myself in a considerable measure of agreement, but what I am seeking to permit is not some offensive advertisement. If there is a British family living abroad, is it really offensive to advertise in The Times or the Telegraph that they wish to find a French governess? Is it not absolutely absurd to say that is unlawful? 1334 Yet that is what this clause does. The noble Lord, Lord Stonham, seemed to think it was a sufficient answer to say, "Why do they not advertise in France?" I dare say they would advertise in France, but the family might rather like to have for their children somebody with a certain amount of experience in England.
Are we really to say we are so incompetent that the Government, with all the resources of Parliamentary draftsmen, cannot think of any way whatever of stopping offensive advertisements without saying that nobody must advertise in a British newspaper for a French governess? I think the thing is so absolutely idiotic that if we take this line, this Bill, when it becomes an Act, will not only he disliked but will become an object of contempt. People will say, "How could Parliament be quite so incompetent as to pass this nonsense?". I should like to find the noble Lord, Lord Stonham, a little more encouraging and seeing some need for improving the clause, and perhaps he and I could get together and see whether I might even be able to persuade him that some change is necessary. Let me say at once that if the Government cannot find any change to meet the point I have made I shall certainly have another shot, and I hope many other people will too. On Report stage, I will not refrain from a Division if the Government have not introduced some sense into this clause. Meanwhile, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clause 7 [Exception in the cue of residential accommodation]:
§ 7.38 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 10:
Page 4, line 11, leave out from ("premises") to end of line 15.
§ The noble Lord said: I beg to move Amendment No. 10. Amendment No. 15 is consequential on it. I do not know whether it would be convenient or embarrassing to the Government if we were to debate at the same time the other three Amendments relating to housing exemptions, Nos. 11, 12 and 13. I am rather anxious to press on with the Bill, and it might save time. If the noble Lord, Lord Stonham, is agreeable, let us discuss 1335 Amendments Nos. 10, 11, 12, 13 and 15 together.
§ Clause 7 deals with various acts which are not unlawful in the case of housing. Broadly speaking, as regards subsections (1) and (2), there is to be an exemption for small premises, and subsections (1) and (2) together, supported by the rest of the clause, seek to make clear what small premises are. My first Amendment is to leave out the requirement in subsection (1)(c), that there must be a sharing of accommodation between the landlord and others residing on the premises, who are not members of his household. If there is a sharing of relevant accommodation (and "relevant accommodation" is defined in subsection (5): that is why my Amendment No. 15 is consequential) then in certain circumstances the accommodation may be regarded as exempt. But as the Bill stands sharing is an essential test before the accommodation can be exempted from the requirements of the Bill.
§ The first point I want to raise is whether it really is essential to include shared accommodation in the definition of small premises. The noble Lord, Lord Stonham, will be familiar with the Street Report and with the account that is given there of American measures in this context. That Report uses the defining phrase, "intimate personal proximity". There can be intimate personal proximity in a small house even though there is no shared accommodation. In a small house, even though the flats or flatlets or rooms are quite separate from one another, people are living to a much greater extent on top of one another than in other kinds of houses. There may be thin floors, thin walls, and everything said in one room or flat may be easily heard in the next. That is my first point, that there are small premises, where intimate personal proximity undoubtedly exists, and where I am suggesting there should be an exemption from the requirement of the Act on that account although there is no actual sharing of accommodation.
If I may pass to Amendment No. 11, that deals with subsection (2)(a), and the Bill exempts small premises if, having satisfied the requirements in subsection (1),
in addition to the accommodation occupied by the landlord, there is not normally residential accommodation for more than two such households …
I wish to ask the Government why they specify two households and not, for example, three. There may be quite small premises where the landlord or landlady is resident and there are two or three separate households there, and I find it hard to say why a case of the landlord and two other households should qualify for exemption as small premises whereas a case of the landlord and three other households should not, as the Bill stands, qualify for exemption. That is the point raised by my second Amendment.
I wonder whether in passing I might ask a question not about line 22, to which Amendment No. 11 refers, but line 23, which says:
and only the landlord and any member of his household reside in the accommodation occupied by him".
I have been unable to understand why the word there is "member" in the singular and not "members" in the plural. There may be a very good reason for that, but it is puzzling to the uninstructed reader like myself. I would not press for the answer now, provided the point can be looked at.
The third of this trio of Amendments refers to the case where there are not separate households or separate lettings and where a house is, I presume, let off in rooms. In that case there is exemption if:
there is not normally residential accommodation on the premises for more than six persons in addition to the landlord and any members of his household.
On this point your Lordships will notice that in line 29 the word "members" is in the plural, whereas in line 23, as I pointed out, it was in the singular.
§ Subsection (3) modifies the limit of six in the first two years and would enact that in the first two years the limitation shall not be six but shall be twelve. I presume that that is there because it is thought that it would be extremely difficult from the outset to enforce or police all these cases, and it would be better if the Board had some time to get its eye in, as it were, before it had to take oversight of all these smaller roomed houses, as they are called. The point I am raising by this Amendment 1337 is whether in fact after two years it will be either possible or desirable to bring the limit down from twelve to six. The Government again may have good reasons for choosing these two particular figures. They appear to me to be arbitrary figures. If in fact the Government think it will be difficult to police roomed houses with accommodation for more than six people in addition to the landlord during the first two years, I cannot help thinking it will be nearly as difficult after the first two years.
§ It will be perceived that in all these Amendments I am not challenging the principle of Clause 7. What I am anxious to do is to see that Clause 7 is drafted so that it shall be both workable and sensible. All the five Amendments, which in fact are three material Amendments and two consequential ones, are directed to the same general point. They are all directed to trying to get the definitions in Clause 7 both sensible and workable. I beg to move.
§ LORD STONHAM
I am very grateful to the noble Lord, Lord Brooke of Cumnor, for suggesting that we should consider these four Amendments together. Broadly speaking, they are all on the point of rented housing accommodation in small houses and the point at which they cease to be excepted from the provisions of this Bill. I would say at once that, broadly speaking, and taking them collectively, the noble Lord's Amendments would remove a very substantial part of the available housing from the field in which discrimination would be unlawful, and particularly the cheaper rented accommodation, especially in the large towns and the older houses. This, of course, is just the kind of accommodation in which immigrants, are to be found: because it is cheap; because it is in the large towns; because it is in older houses, and some of the houses are larger and can be let off in lettings, tenements or shared rooms. Generally speaking, therefore, the effect of these Amendments would be to reduce the amount of accommodation available in this way, not by reducing the number of houses (you cannot do that), but by reducing the number of houses where it would he unlawful for the landlord to discriminate. We feel that if we mean business over these housing provisions—and we certainly do—there is no justification for excepting pre- 1338 mises in which the landlord does not share any facilities other than storage accommodation and means of access with any of his tenants.
The first question the noble Lord, Lord Brooke, addressed to me was: is it essential to include shared accommodation in the definition of small premises? We certainly think it is absolutely essential, and we think it is only when there is real sharing in this way that the proximity is intimate and therefore justifies the exception in the Bill. If it were possible and workable, we should prefer no exceptions, but we think it is right in small houses, where the landlord with his family shares accommodation, such as bathrooms and toilets, and so on, and perhaps the kitchen, with his tenants, and in really intimate circumstances, that it is right that they should be able, without committing an offence, to choose and to say, No.
The noble Lord said that these are small houses. But we are thinking in terms of a house with three families, because it is the landlord's family and two more families; that is to say three households. In those circumstances they are excepted. The noble Lord asked; why do we not make it three families in addition to the landlord? He said that that would be a small house. But it could not be a very small house if there were four families in all. He said that these should be excepted. The point is, when does a home become a business? Certainly, when it is a business, or at least partly a business, we do not think it should be excepted. I know that it is difficult to strike a balance, but we think we have the balance right in taking the three families.
The noble Lord said that in his view, in a fairly small house, and even if the tenants did not share the landlord's accommodation—even if there were separate bathrooms—it was still quite intimate: because of thin walls, and so on. There are blocks of flats with large numbers of people living in them who scarcely see each other, and certainly do not talk with each other from one year's end to the other. This can be done in houses where there are four households under one roof. There is far more intimacy in some rows of terraced houses, especially back-to-back houses, and similar places, than there is in 1339 accommodation in a larger house where the intimate accommodation is not shared. That is the answer to that point.
It is also the answer to the noble Lord's suggestion that we should remove the provision that after two years the total number of persons in a house for it to continue to qualify as a small household should be reduced from 12 to 6. As the Bill was originally drafted, the permitted number was 4; but it was altered in another place when the Home Secretary undertook to consider the possibility of raising the ceiling of 4 and introducing phasing arrangements. That is why we have the present permitted number of 12, to be reduced after two years to 6. I think this was a major alteration and concession. We went at once, at least for a period of two years, from 4 to 12, and thereby trebled the number. The noble Lord asked, would it be possible or desirable after two years to get down to the 6-person limit? It would certainly be desirable, and I also believe that it would he possible. The noble Lord also asked me about subsection (2)(a), and the reference in it to "any member". The point is that "any member" includes the plural, and can be read as "any members".
We therefore, if I may sum up, get to the point that we feel that, for justification of small households and thereby exception from the housing provisions of the Bill, the essentials are, first, that the landlord must share accommodation with his tenant other than means of access. We think this is absolutely essential. Secondly, there must be limitations as to size; and we think that a total of three households, the landlord's and two others, and a total of 12 persons presently and 6 persons after two years are the right level to exempt from the provisions of the Bill, and for a level of intimacy and smallness which is essential if there are going to be any exceptions at all.
The collective effect of acceptance of all three of the points in the four Amendments would be that a large part of the type of accommodation which in our view will be available to immigrants without discrimination, because discrimination will be unlawful under the Bill, will be greatly reduced if these Amendments are accepted. I am quite sure that that is not the noble Lord's purpose. We 1340 believe this most firmly, and I hope, therefore, that the noble Lord will feel able to withdraw his Amendment.
§ 7.58 p.m.
§ LORD LLOYD OF HAMPSTEAD
I should like to add a word in support of what my noble friend Lord Stonham has said on the question of shared accommodation, simply by drawing the attention of your Lordships' Committee to the fact that the distinction between shared accommodation and occupying part of someone else's premises without shared accommodation is already a well-established concept in our law. If one considers our landlord and tenant law it was always the position under the Rent Restriction Acts that where there was vital shared accommodation with the landlord the tenant did not enjoy the protection of the Act, the reason being that sharing vital accommodation created an entirely new situation. And even though a modified form of protection has now been given to a tenant in such circumstances, whereby he can apply to a rent tribunal, it is still entirely recognised in our legislation that there is all the difference in the world between occupying a portion of a person's premises as a separate entity and, on the other hand, occupying a portion of those premises and also sharing some accommodation such as a kitchen, a bathroom, a toilet, or something of that kind.
I would submit to the Committee that this provision recognises that distinction and recognises that it is really only in the case of that rather special degree of intimacy that occurs where people are actually sharing some essential accommodation that there is any need to qualify the fundamental provision of this Bill that there should not be discrimination in regard to letting a portion of one's premises. I would respectfully support my noble friend when he opposes an Amendment based on eliminating the concept of shared accommodation from the restrictions of the Act imposed in regard to residential accommodation.
§ LORD BROOKE OF CUMNOR
I am grateful to the noble Lord, Lord Stonham, for having replied to my Amendments so fully, and I think it was a good plan to discuss them all together. Despite what has just been said by the noble Lord, Lord Lloyd of Hampstead, I am doubtful whether the existence of 1341 "sharing" accommodation should be a necessary prerequisite to exemption, but I will not take that further now, nor do I intend to press my second Amendment, three households instead of two. I remain concerned, however, about the type of accommodation that is referred to in subsection (2)(b) and in subsection (3). I do not believe that there is any real evidence that precisely two years after the commencement of the Act it will be sensible or practicable for the reduction to six to be policed and enforced. I see the case for a tapering arrangement; I do not see the case for fixing this at two years precisely.
Indeed, I listened carefully to what the noble Lord, Lord Stonham said and he appeared to me to be expressing a hope that it would be possible after two years to enforce the reduction to six persons rather than a certainty. I should have thought that it would be wiser, if one is going to accept the same numbers and the tapering arrangement, to provide that the reduction from twelve to six should be made by order at such time as the Government of the day had satisfied themselves that it would be practicable. That might be in less than two years or it might be beyond two years. But it would at any rate give a flexibility which subsection (3) does not give. I should he grateful if the noble Lord would consider that point. I think that subsection (3) is too rigid, but apart from that I do not wish to pursue these matters further, and I beg leave to withdraw Amendment No. 10, and I do not intend to move Amendments 11, 12, 13 or 15.
§ Amendment, by leave, withdrawn.
§ 8.4 p.m.
THE EARL OF IDDESLEIGH moved Amendment No. 14:
Page 5, line 3, after "daughter" insert "any foster son or foster daughter".
The noble Earl said: For a short moment, and I intend to be very brief, we leave the subject of race and come to the subject of relations. This clause lists various kinds of parenthood; adoptive parenthood, illegitimate parenthood, step-parenthood, and other varieties of parenthood. I believe that the time has come when we should insert for some purposes "foster parenthood". I am glad I have some sympathy from my left.
§ In moving this Motion I want to say that I am quite aware that it is an incomplete Amendment, there should be a definition Clause, and that definition Clause should be of such a nature as to exclude temporary foster parents while including long-term foster parents. The temporary foster parent is a most useful person and indispensable when there is a crisis in a child's home and a child needs temporary accommodation, but we cannot expect there to be the warm and close bond of affection which arises in the case of long-term fosterings.
I have not attempted to draft a definition clause myself, because I hope that the Home Office will do the work for me if they accept the principle of my Amendment. I am quite certain, that that most efficient body, the Children's Department of the Home Office would devise a far more useful definition Clause than I myself could undertake. By the way, let me express a warm hope that it will remain the Children's Department of the Home Office and not be moved to any other Ministry. I believe that that hope may find some echo in official quarters. The kind of definition I have in mind would be on these lines:
For the purpose of this Act, a person shall be deemed to be a foster child if, during his childhood, he was for not less than seven years in the custody of a family other than his own.
That would be the lines on which I would like to see foster parenthood defined for the purposes of this Act.
§ In two capacities I believe I am the right person to move this Amendment. In the first place, for many years I was a member of a case committee which dealt with children deprived of normal home life. I know how much we owe to foster parents, and I believe it to be a proper object of public policy to enhance the status of foster parenthood. My second reason is that I am myself a foster parent, and a very long term one, and I know how very deep a bond of family love and affection exists between the foster parent and the child to whom he has had the privilege of performing parental services. I beg to move.
§ LORD STONHAM
We all agree with the noble Earl, Lord Iddesleigh, that there are many cases when foster children 1343 live with their foster parents for years, and are treated and almost regarded as actual members of the family: there is a very close relationship. But it is also the case that there are tens of thousands of children fostered out with foster parents for a short period; and however well they may be treated they are not in any real sense regarded as members of the family.
My noble friend Lord Iddesleigh said that he realised he ought to have had a definition of foster son or foster daughter. Presumably his definition would contain some reference to a period of years or something of that kind. I would say to the noble Earl, however, that the point of principle here is that we are providing a limited exception from the provisions of the Bill for the landlord and his family, and the definition of "family" in this clause is identical with the one used in Section 7 of the Leasehold Reform Act which was passed only in 1967. It is intended that the exceptions should be confined to the landlord and his immediate family, and if the definition were extended to foster children it would be difficult to resist extending it to other relatives.
There is another point. The noble Lord asks for a definition, but what happens to the exemption when a member of a family lives apart from the landlord? And if, after all, the foster son or foster daughter then goes to live somewhere else, is he, or she, still a member of the landlord's family? This is a very difficult point, and I do not think I can accept the noble Earl's offer to try to draft something for him in the Home Office on this point because, quite frankly, it seems to me to be outwith the intentions of the Bill, and it would be virtually impossible to meet the noble Earl on it.
I should like, if I may, to put in a plea for favourable consideration of what the noble Earl says. I would say that fostering is a very ancient practice in our country, and a very important one. It has gone on certainly since the reign of King Athelstan, which is a long time ago. The noble Earl suggested a definition based on a period of, I think, seven years which would meet most of what was said by the noble Lord, Lord Stonham. Therefore 1344 I would add my plea that favourable consideration should be given to this proposal.
May I add a simple personal plea, on the ground that the noble Earl mentioned the words "immediate relation"? I should have thought the foster child, even for a short time, was an immediate relation, in the sense of being a close one, and if the relationship goes on for a time—which might or might not be definable as the noble Lord, Lord Saltoun, suggested—it would be seriously worth considering drafting something on this.
§ THE EARL OF IDDESLEIGH
I am very grateful for the support that I have received. I will not prolong the discussion. I did not anticipate success with this Amendment, but it was my aim to plant in the official mind certain thoughts which I hope will bear fruit in some later Bill. I am quite certain that this is only the first of many Bills which may be required to deal with this difficult and thorny subject. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.14 p.m.
LORD SANDFORD moved Amendment No. 16:
Page 5, line 13, leave out ("an") and insert ("in")
§ The noble Lord said: I beg to move Amendment No. 16, but not the Amendment which is printed on the Marshalled List. The word I want to leave out is not "an" but "on", and the word I want to insert is "in". This is an Amendment in which I hope I shall have the support of all those in the Committee who are lovers of English and all former Naval persons, because those people, I think, recognise that sailors and their passengers do not live on ships but in ships. I beg to move.
§ LORD LEATHERLAND
I wish to raise a point which I raised on another Bill a few days ago. I do not want to be pedantic but this Amendment asks us to leave out the word "an" in line 13, yet in line 13 of the Bill the word "an" does not appear. Where are we?
§ LORD SANDFORD
I began my remarks by making it clear that I wanted to leave out the word "on" and put in the word "in". It is a misprint.
§ LORD STONHAM
I am sorry to break in on this private argument, but I agree with the noble Lord, Lord Sandford, that people travel in a ship. In effect, so far as this Amendment is concerned, there is no real difference. I am really saying that it does not matter whether we say "on" or "in". The Board of Trade have been consulted, and I learn that though "in" is used by purists and is preferred, "on" can also be used in practice—both "in" and "on" are used. There is little to choose between the two words, and nothing would be gained by amending the Bill in this respect. That being so, I would be quite prepared to accept the Amendment but for the fact that it would involve a number of consequential Amendments in similar references in other parts of the Bill. There are some seven of these already in the Bill together with others in Government Amendments which are down in my name for Committee stage. Most references are to aircraft as well as ships, and it is invariably the practice to refer to "on an aircraft".
If the Amendment were accepted, it would be necessary to refer in different parts of the Bill to "in a ship or on an aircraft" and this would be extremely cumbersome. Therefore, although I am grateful to the noble Lord for bringing this to my notice, and though there is not really a lot in it—in fact with respect there is nothing in it one way or the other—I am sure he would not want me to accept it and with it the need to make perhaps a dozen or more Amendments. I hope the noble Lord will withdraw the Amendment.
§ LORD CONESFORD
The noble Lord said that the Board of Trade had been consulted. Did he have a word with the Admiralty?
§ BARONESS GAITSKELL
Might I suggest that perhaps we could now adjourn for an hour so that those noble Lords who have been sitting here the whole day and have not been out to have dinner could now do so?
§ LORD BROOKE OF CUMNOR
May I follow that by saying that I fear we are not going to be successful in finishing this Bill to-night? I feel sure that the noble Lord, Lord Stonham, will acknowledge that I have been anxious 1346 to hasten the Bill rather than to slow it down. As we shall not finish it to-night it seems to me that it would be desirable to make some arrangement so that those of us who are closely concerned should have some food and that we might resume afterwards, though perhaps we need not continue for quite as long as was originally proposed. There would be a firm undertaking, so far as I can give a firm undertaking on behalf of the Opposition, to finish it within a reasonable period on some day next week.
§ Amendment, by leave, withdrawn.
§ LORD STONHAM
I am most grateful to the noble Lord, Lord Brooke, for his attitude, which I am glad to say is the sort of attitude he always adopts on occasions like this when we are working together. I agree with him that we cannot finish the Committee stage of the Bill at a reasonable time to-night without imposing gross burdens on everybody, not only noble Lords. I should have thought that if we adjourned during pleasure until 9 o'clock, and if the noble Lord was willing to return for another two hours and we conclude it at about 11 and finish the Bill on another day, that would meet noble Lords' convenience.
§ LORD BROOKE OF CUMNOR
It would be very helpful to adjourn until 9 o'clock. I wonder whether it would be desirable to go on as late as 11 o'clock, but perhaps we can see how we get on. The desirable thing would be to adjourn at some convenience point in the Bill, rather than to drop an issue in the middle, and to continue not later than 11 o'clock. We might find some time between 10 and 11 which would be better.
§ LORD SHACKLETON
I entirely agree with noble Lords. Perhaps we ought not to decide exactly how far we go, but there are limits to human endurance on all sides and I think that my noble friends would be quite happy to adjourn for a bit. I beg to move that the Committee now adjourn during pleasure until 9 o'clock.
§ Moved accordingly, and, on Question, Motion agreed to.1347
§ [The Sitting was suspended from 8.22 p.m. until 9 o'clock.]
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AIREDALE)
I have to inform the Committee that Amendment No. 17 pre-empts Amendment No. 18, so that if No. 17 were to be agreed to I should not be able to call No. 18.
§ 9.1 p.m.
LORD CONESFORD moved Amendment No. 17:
Page 5, line 20, leave out from ("him") to end of line 23.
The noble Lord said: This Amendment seeks to strike out of subsection (7) all the words after "him" in line 20. Subsection (7) says:
It shall not be unlawful … for any person to discriminate against another with respect to the disposal by the former of his interest in any premises owned and wholly occupied by him.…
In other words, that is a perfectly legitimate activity. But it is made conditional on two things: first, that the person referred to does not use the services of an estate agent; and, secondly, that he does not publish an advertisement or notice in connection therewith.
§ I suggest to the Committee that these are provisions of very doubtful wisdom. If you authorise an activity and say that it is legitimate, it is generally very foolish to say that the man who indulges in it must not employ professional services in connection with his lawful activity. On the whole, estate agents are known as a profession with some standards. What will be the effect of saying that a man must not employ them? It will not mean that he will not seek any help, but it may mean that you will drive underground a perfectly legitimate activity and have that activity performed by what I might call a black market. It seems to me that such a limitation will not achieve any object that is really desired by Her Majesty's Government.
§ The next Amendment, of which the acceptance of my Amendment would preclude consideration, as the Lord Chairman has pointed out, gives one example of a perfectly legitimate cause for consulting an estate agent, but it is not the only legitimate cause. I ask the Government to consider very carefully whether there is good sense in this exclusion of professional help for a man who is in- 1348 dulging in what the Government themselves say is a legitimate activity. I beg to move.
§ LORD BROOKE OF CUMNOR
As Amendment No. 18 would fall if Amendment No. 17 were carried, it might be to the convenience of the Committee if I were to say a word about Amendment No. 18 at this point. I will not seek to develop my noble friend's argument, but I trust that, whatever they do with the subsection as a whole, the Government will consider the importance of making some sort of exception such as is indicated in Amendment No. 18.
As the clause is drafted, and if my noble friend's Amendment were not accepted, it appears to me that the house-owner would bring himself within the scope of the discrimination law if he simply used the services of an estate agent to advise him as to the price that he should ask for his house, or as to the figure that he should accept for it. I think the Government will agree that there is no element of discrimination there. The Government have accepted that if you are selling a house privately and not through an estate agent, that should be exempt from the Bill; and, if that is so, it seems to me that, either in the words which I am seeking to suggest in this Amendment or in some other words, it should be made quite clear that there can be no question of an owner bringing a sale within the scope of the Bill if he simply consults an estate agent, not about putting his house on the market but about a reasonable price which he might accept for it.
§ BARONESS GAITSKELL
I should like to make only two very brief comments, the first on the remarks of the noble Lord, Lord Conesford. The operative words would surely not be "black market". The other comment is that I have a good deal of sympathy with these Amendments. I do not understand why a man cannot sell his one house and have both the advice and the use of an estate agent. I have never understood this particular clause in the Bill, and I should be very grateful if my noble friend would explain it to us.
§ Loan STONHAM
The noble Lord, Lord Conesford, in moving his Amendment, said that the exclusion of professional help was wholly wrong, and 1349 would agree with him, if that were what the Bill did. But, as I shall endeavour to explain, we do not exclude professional help, as my noble friend Lady Gaitskell surmised—and she is right. I am grateful to the noble Lord, Lord Brooke of Cumnor, for suggesting that we might consider his Amendment No. 18 at the same time, but he will accept from me that it is not quite on the same point as that of his noble friend, because the Amendment of his noble friend Lord Conesford would exempt from the Bill any disposal of premises by an owner-occupier. Nearly half of all the houses in this country are owner-occupied, and if we exempt nearly half the houses in the country from the provisions relating to discrimination under this Bill then we take an enormous slice of accommodation which would be available to immigrants out of the market, in the sense that discrimination would still be lawful in respect of them. That is something which is quite unacceptable.
Clause 7(7) and Clause 7(8) were introduced on Report in the Commons to provide a limited exception for purely private sales effected without advertising or using the services of an estate agent. As always when in Parliament a concession, a limited exception, is introduced, it becomes an invitation to push the door wide open and let the flood come in. That is something we have to resist. The noble Lord's Amendment goes much further by removing almost all the privately-owned accommodation from the scope of the Bill. We cannot accept that. It is a cardinal principle of the Bill that such accommodation should be covered.
The Race Relations Board Report for 1966–67 said that housing discrimination lies close to the heart of the whole problem of racial discrimination. Nearly half the dwellings in Great Britain are owner-occupied and in 1967 nearly 400,000 mortgages on such dwellings were granted by building societies and local authorities. If we had discrimination there it would mean that many of these houses would not be available to the people we desire to help. The tension we want to relieve we could not relieve, for they could not get mortgages. The noble Lord's Amendment would seriously weaken the effect of the Bill. Much more important, it would seriously damage the country's image and would also greatly damage the legisla- 1350 tion as a statement of principle. Such a wide exception would enfeeble the Bill as an instrument of education and guidance to public opinion. It would be of great concern to immigrants who would hardly be satisfied with a Bill which said in effect that racial discrimination is acceptable in the disposal of owner-occupied dwellings in the open market.
The Amendment of the noble Lord, Lord Brooke, is a different kettle of fish. I think the Committee will not mind if, in response to the invitation of my noble friend Lady Gaitskell, I stated whit was the law on this subject. In the Commons my right honourable friend the Home Secretary was asked what the position would be if a surveyor were brought in to make a valuation for both parties. In reply the Home Secretary said:The surveyor is a person who is engaged by both parties to give a valuation. He is not a person who, in the words of the Amendment'… brings together or takes steps to bring together the person proposing to dispose of the interest and the prospective purchaser thereof, or acts as an auctioneer.'Therefore, the surveyor engaged professionally in order to give a valuation is excluded."—[OFFICIAL REPORT, Commons, col. 373; 10/7/68.]That is the point that I was making with the noble Lord, Lord Conesford. We do not exclude professional help. We do not say that an owner cannot get professional advice to know what price he should ask for his property.
Now I come on to the estate agent. The definition in the Bill of an estate agent follows, except for an important omission to which I shall return, the definition used in the Estate Agents Bill introduced by a Private Member in the House of Commons in 1966. In the 1966 Bill the definition of an estate agent wasFor the purposes of this Act, practice as an estate agent shall be taken to be, and only to be, the doing in connection with the sale or proposed sale of land of any of the following steps:—Bringing together or taking steps to bring together the vendor or a prospective purchaser, negotiating as to the terms of the sale with the vendor or a prospective purchaser and acting as an auctioneer.The definition of an estate agent in this Bill deliberately omits the words. "negotiates the terms of sale" because the Government agreed that a person 1351 who intends to make a bona fide private sale within the exception provided in Clause 7(7) may very well and properly desire to use the services of a third party to give advice as to the value of the property. That is the professional advice about which I was speaking.
For the purposes of the Bill an estate agent means a person who in connection with the disposal of an interest in land brings together, or takes steps to bring together, the person proposing to dispose of the interest and the prospective purchaser thereof, or act as an auctioneer. Therefore a person who desires to make a bona fide private sale within the terms of the exception we provide in the Bill is not precluded from seeking professional advice as to the value of the property, and the Amendment is accordingly unnecessary.
The Amendment of the noble Lord, Lord Conesford, is quite unacceptable. I think it is unacceptable to him, because of what it would do in excluding from this field such an enormous number of houses. Regarding the Amendment of the noble Lord, Lord Brooke of Cumnor, I believe that the position is covered, but I should be quite prepared, without positive commitment, to give further consideration to the noble Lord's Amendment to see whether it might improve the Bill and remove possible uncertainty. If so we could attend to it on Report stage.
§ 9.17 p.m.
§ LORD BROOKE OF CUMNOR
I should like to thank the noble Lord, Lord Stonham, for what he has said. I appreciate that subsection (8) may secure the position of the person who simply consults an estate agent about the price, but I have a feeling that unless we put in some such words as I have suggested, solicitors may advise owners that they had better keep clear of estate agents altogether. The kind of case I had in mind was that I might have a house which I wished to sell and I knew a friend anxious to buy it. I did not know what would be a fair price to ask for it and so I would go to an estate agent, not to ask him in any sense to settle the price as between my friend and myself but to tell me what would be a fair price for me to ask. That seems to me an entirely reasonable and sensible thing to do; it is the right use of the services 1352 of a professional man. It would be helpful if the Government would consider whether some words could be introduced to make absolutely clear to all concerned that the law meant to put no restraint at all on that kind of action.
§ LORD STONHAM
That is exactly what I had in mind—something which would virtually be of a declaratory nature.
§ LORD CONESFORD
I am grateful to the noble Lord, Lord Brooke of Cumnor, and I observed very carefully the answer of the noble Lord, Lord Stonham. The fact that he is prepared to meet my noble friend, or at least to consider meeting his Amendment at a later stage, provides me with ample justification and willingness to withdraw my Amendment at this stage, which I shall do in a moment. But I should like to make two comments to the noble Lord.
He said that this Amendment would take a great deal of property out of the field of discrimination law. That is not strictly true, because the exception from the general law of discrimination is contained in the words that I am not attacking. What I am attacking is the prohibition of the employment of a particular professional service. I remain very dubious whether it is advisable to have such a prohibition, but I am not going to challenge the noble Lord on that to-night, especially as he wishes to meet my noble friend. Valuation is not the only legitimate matter on which the owner may wish to consult a house agent. He may want a report on dilapidations, which is something that he might wish to have for the fairest of reasons. The only other thing I would very tentatively suggest to my noble friend Lord Brooke of Cumnor is that he might consider substituting the word "otherwise" for "other". In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 7 shall stand part of the Bill?
§ 9.21 p.m.
§ LORD FERRIER
Concerned as I am with an undertaking which is in daily touch with the problem of providing and looking over accommodation for overseas students in Scotland, there are three 1353 points in connection with this clause that I should like to raise, quite briefly. My task in raising the first one would be made much easier if I knew exactly how the noble Lord, Lord Stonham, is going to cope with the problem raised in Clause 1 and Amendment No. 1. In this connection, one noble Lord suggested the word "sole", and my noble friend Lord Conesford suggested a word which was substantially fitting; and if any one of these were incorporated, this point would probably not arise. The problem is this. Should not a householder who is letting furnished accommodation have the right to satisfy himself that a prospective tenant is capable of maintaining the property, including the furnishings and furniture, in good condition? As I say, this would not he necessary if Clause 1 were amended in the way suggested, but it presents a problem to people providing accommodation for overseas students, and it is one that I think might well be looked into.
The second point concerns Clause 7(2)(a). Although this obviously covers what I may call bed-sitter accommodation, let with cooking facilities to be shared, I wonder if the noble Lord would look into the question of whether this also covers the letting of a self-contained flat within a building in which the landlord himself resides.
The third point is much more tricky, and concerns Clause 7(6), to which my noble friend Lord Sandford moved an Amendment. There is a problem where a landlord or a landlady lets accommodation to students, providing some sort of simple study, with cooking facilities, and there is sleeping accommodation with two beds. With a landlord or landlady in that position, fully willing and perhaps anxious to let the accommodation to a coloured student, it is just possible that there might be a complication in regard to the lessee of the other bed. I suggest that this might be looked at under Clause 7(6), and that some such provision as is contained in that clause might apply to this sort of accommodation, which is commonly let to students.
§ THE EARL OF IDDESLEIGH
With regard to the point about the lessee of the other bed, I can only say that a good many years ago I had the experience of entertaining a variety of students in my house, of whom two were of African origin, and the white students competed 1354 fiercely to share the room with the African students.
§ LORD STONHAM
If I may say so with great respect to the noble Earl, he has the right kind of home and the right kind of friends. But, in reply to the three points of the noble Lord, Lord Ferrier, may I say that I should like him to read what I said about Amendment No. 1 and the use of the word "sole". Of course, I indicated that I would read the debate, but I think that what I said on this point—in fact, I think I used these words—was that I could hold out very little hope of changing this matter. Indeed, I would say to the noble Earl that, in my view, the insertion of the word "sole" into Clause 1 would make the field of discrimination very wide. I go so far as to say that it would almost drive a barn door through the Bill. That is the fear I have.
May I now come to the three points raised on this clause? He asked first: Should a householder not have the right to satisfy himself that the tenant would be likely to maintain the accommodation? Of course he has that right, and of course it would not be discrimination; it would be a perfectly proper thing to do. There are the kind of considerations that the landlord might have good reason to think that his rent would not be paid, or he might have heard from someone else, another landlord, that that particular tenant had abused his property and that he would be likely to be a bad tenant. They would be perfectly proper reasons for refusing to let the premises to him.
On the question of the self-contained flat, if the dwelling comes within the terms of the Bill as a small house, then the self-contained flat would not be excepted if the other provisions of the Bill applied. But if the landlord, for example, shared accommodation with one household and then the self-contained flat was the third household with whom the landlord did not share accommodation—in other words, it was a self-contained flat—it would be excepted. I am assuming a three-household dwelling, one being the landlord's and two others. With one household the landlord shares some accommodation; with the second household he does not share anything, but it is still excepted.
1355 The third question the noble Lord put to me was virtually answered by the noble Earl, Lord Iddesleigh; it was about the double-bedded sleeping accommodation. I am afraid that there would be no exception there. The only exception would be this. If the boarding house, up to two years after the Bill is passed, had a maximum of 12, it would be excepted; and after two years, six. But apart from that, if it is said to a man of colour, "This is a double-bedded room and you cannot have it because somebody else of another colour has a bed in that room", that would be discrimination.
§ LORD FERRIER
I thank the noble Lord for his explanation, and I would assure him that the points I have raised are all points which have actually arisen in considering the Bill as it applies to conditions in Scotland.
§ LORD AIREDALE
I have just a small point. Clause 7 begins:It shall not be unlawful by virtue of section 2 or 5 … to discriminate against any other person … ".I think that the word "other" has been inserted by mistake, because Clause 2 says that it shall be unlawful to discriminate against "any person", not "any other person". And Clause 5 says that it will be unlawful to discriminate:(a) against any person seeking … accommodation …(b) against any person occupying … accommodation …and(c) against any person in need of … accommodation …".So I would imagine that the expression "any other person" in Clause 7 needs to be amended.
§ LORD STONHAM
I should be surprised, but nevertheless delighted, if the noble Lord proved to be right. The "other person" in this respect I think has a relationship to the residential accommodation and the landlord. There is this particular relationship and that is why we have the word "other". I will certainly look at what the noble Lord said and will let him know. If he is right, he will have the pleasure of moving an Amendment on Report.
§ Clause 7 agreed to.1356
§ Clause 8 [Exceptions in the case of employment]:
§ 9.31 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 19:
Page 5, line 35, leave out from ("apply") to ("to") in line 37.
§ The noble Lord said: Amendment No. 20 is consequential to this Amendment, and I should say at the outset that I have no intention of pressing Amendment No. 19 to-night. I am moving it simply in the hope that I can persuade the Government between now and the Report stage to give fuller consideration to two matters in relation to these exceptions in the case of employment.
The first is what appears to be the undue rigidity of these two-year periods. This was a point to which I called attention on Clause 7. The second is the contrast between the Government's proposals here and the Street Report. I think all of us who are studying this Bill pay a good deal of attention to the Street Report, which was a document of very considerable value, and I think it will shorten my speech if your Lordships will allow me to read a short passage from the Street Report, dealing with this matter of small firms. The Street Report says:
Many American States exempt employers of no more than four persons. To do so might be consistent with the aim of not intruding in close personal relationships. A seperate question is whether, in the early stages of such legislation the supervisory organisation could reasonably be expected to assume responsibility for employment in small units even though their employees exceed four. It is not suggested that that organisation would have a mandatory obligation to seek out discriminatory practices, nor would it be required to proceed where the burden of establishing discrimination, which might clearly be more onerous for small units, had not been discharged.
For these reasons there may be no need to write in the legislation any provision which initially exempts small units which have more than four employees. Alternatively, the Act might originally apply to establishments which employ more than fifty persons and provide for the subsequent reduction of that minimum, either by stages defined in the Act itself or by order of the supervisory organisation.
§ Your Lordships will note that there are considerable differences between those outlines of policy produced by the Street Report and the proposals here in Clause 8. That passage in the Street Report assumes that no attempt would be made 1357 to enforce an anti-discrimination law in the case of firms employing no more than four employees. About the difficulty of enforcement with all such small firms, the Report says that to do so might be consistent with the aim of not intruding in close personal relationships. So if one were to apply the Street Report there would be an absolute exemption for firms employing no more than four persons. Again, if one reads the Street Report one finds that it contemplates the legislation perhaps starting with an obligation in relation to firms employing more than 50 persons and then tapering off from that.
§ All this is very different from subsection (1) of Clause 8 here. It is proposed in Clause 8 not to start with establishments employing more than 50 persons, but to start with employers employing not more, than 25 persons. Again, at the other end, whereas the Street Report contemplates, in line with American practice, exempting firms employing not more than four persons there will be no such exemption under this Bill after the first four years of operation. I personally think that it would have been wiser on the part of the Government to start with 50 and taper downwards from that, rather than to start with 25. I feel strongly that the Government would have been much wiser to enact a permanent exemption for the very small firms, where, as the Street Report says, the intimate personal relationship is likely to be particularly important.
§ I should like to repeat what I said in connection with Clause 7. I believe the Government are making a mistake, whatever figures they introduce, in fixing these two-year periods. I assume (I do not know whether am right) that this is to enable the Race Relations Board to learn its job, and not to be required to police or enforce the Act, in the initial stages, in the very small cases. It seems to me to be pure guesswork to suppose that after a period of two years it will be practicable and sensible for the Race Relations Board to drop the limits of policing and enforcing from 25 to 10, and that after another two years, no more and no less, it will be reasonable, sensible and workable for them to drop the limit from 10 down to one. I should have thought it would be very much better, whatever figures were introduced, to take 1358 an order-making power in the Bill, a power which could be exercised at the end of two years, it may be, or perhaps four years, as the Board gained experience. I believe that that element of flexibility would be a definite advantage. I said at the outset that at any rate at this stage I was not going to press any of these Amendments, but I greatly hope the Government will give careful consideration to what I have said. I beg to move.
§ 9.37 p.m.
§ LORD BESWICK
May I say immediately that I appreciate what the noble Lord has said about the necessity for a flexible approach here, and to eliminate rigidity, but I am sure he will agree that there has been nothing absolutely rigid about this. In the first place, the Bill did not provide for any exception it all; it was because representations were made by the Opposition in another place that on Report stage the Secretary of State himself put down Amendments. Those Amendments were intended to bring in a certain amount of flexibility—two years in the first place and then for the 25 limit a further two years for the limit of 10. The matter is not entirely a question of guesswork. I do not think noble Lords would wish to press this definition of guesswork. There is an element of judgment here, and learning from the experience of other people. I gather that, despite the Street Report in the United States, not all States have a permanent limit. In the case of Canada they have now removed their permanent exemption altogether, so that we have a certain amount of experience to go on, and I would have thought that here 25 employees for the first two years, and then another two years for which the exemption is 10, gives the opportunity to live together and exercise tolerance and to enable the Board to acquire experience in the administration of this Act.
I would just add that if there were a permanent exception, as the noble Lord's Amendment would provide, it would mean that 20 per cent. of all employees in the country would be exempted. This seems to me to be rather a wide exemption, and 7 hope that, on consideration, the noble Lord will feel that we, have gone sufficiently far to meet the very reasonable points which he has put forward here and which were put forward in another place.
§ LORD BROOKE OF CUMNOR
I welcome the fact of the noble Lord's intervention in the proceedings of this Committee, and I wish to encourage him rather than otherwise. I am bound to say, however, that he did not seem to me to be advising the Committee correctly when he said that none of these limitations was in the Bill as originally presented to another place. I have a copy of that Bill presented by Mr. Secretary Callaghan, and that contains the same type of provisions as in the Bill which has reached us from another place, with the exception that as originally presented the Bill provided for the first two years an exemption for those who employed not more than 10 persons and during the next two years those who employed not more than 5 persons. The rigidity therefore has been there from the beginning.
I realised when I tabled these Amendments (because I had read the proceedings in another place) that if my Amendments were written into the Bill this would exempt 20 per cent., as the noble Lord has said; and I do not think it would be right to do that. That was why I mentioned at the very beginning of my first speech that I had no intention of pressing these Amendments. But I do not think the noble Lord has answered my first point; namely, that it would have been wiser to start with a higher figure than 25, as mentioned in the Street Report; and secondly, that it would have been wiser to give a permanent exemption to employers of not more than 5 persons.
However, as I say, I am not going to pursue these points. What I am much more concerned about is the rigidity of the time limit. I may have used the wrong word when I said that it was a guess, but I do not see how anybody can forecast with any degree of certainty that at the end of precisely two years the Race Relations Board will be able to police and enforce the Act as regards all employers who employ between 10 and 25 persons, or that after another two years they will be in a position to police and enforce the Act in regard to all those exceedingly numerous employers who employ fewer than 10 persons.
It seems to me that it would have been far better to introduce an order making power in the Bill which would not be tied to two years or four years 1360 but might be exercisable sooner or later in the light of experience. In a moment I am going to beg leave to withdraw the first Amendment, and I shall not move the second one, but I sincerely hope that the Government will, between now and Report stage, give further thought to what I have said, especially with regard to the rigidity of these time limits. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.50 p.m.
LORD BROCKWAY moved Amendment No. 21:
Page 6, line 1, leave out subsections (2) to (5).
§ The noble Lord said: I rise to move Amendment No. 21. It may be for the convenience of the House if this Amendment is taken with Amendments 22 and 23, and I have the consent of my noble friend Lord Gifford to that course, if it would suit the convenience of the House. I intend to be brief in moving this Amendment, partly because I am so keen that this Bill should be carried and I do not want undue delay, and partly because I have great sympathy with those on the Front Bench who are responsible for seeing it through this Committee stage. Some of us on the Back Benches, who are young and still active, often find the proceedings in this House a burden. I honestly do not know how the members of our Front Bench, who are responsible for legislation and for seeing it through the Committee stage, dealing with Amendment after Amendment, are able to perform their tasks.
§ SEVERAL NOBLE LORDS: Hear, hear!
§ LORD BROCKWAY
And because I have some sense of human consideration for them, though I feel very strongly about this Amendment, I will be brief in submitting it to the House.
The effect of this Amendment would be to delete from the Bill the provisions which give firms the power to allocate a certain proportion of their employees on the ground of colour, race, ethnic or national origins. The very fact that they do that is a denial of the principle of the Bill itself. The original definition of the Bill ensured that there should be no discrimination on those grounds. My case 1361 against these subsections has been immensely strengthened through this Committee stage by the acceptance of the Amendment by my noble friend Lady Gaitskell, which adds to that original definition that it should apply against any segregation of persons on the grounds of colour, race, ethnic or national origin; and yet the provisions in this Bill, which I am asking the Committee to delete, declare against the principle of the original definition and declare more aggressively against the addition to that definition which was moved by my noble friend, Lady Gaitskell, and which has been accepted by this House. It is quite impossible to say that these subsections which give firms the right to say, "A certain proportion of our employees shall be white and a certain proportion of our employees shall be coloured" are not a repudiation of the basic definition of the Bill as emphasised by the Amendment which my noble friend Lady Gaitskell has moved and which has been accepted.
I want to be reasonable about this matter. As the Committee know, I have been intimately concerned in this whole problem of race relations, and in the course of my contacts in these matters I have discovered that there are firms which have found it difficult, despite all their good will, to employ non-white workers, and they have been able with their tolerant attitude to employ such workers only if in their particular firms they have said, "We will employ only a certain percentage."
I recognise that difficulty. But recognising that difficulty and the need to give firms some opportunity to try to adjust the the different portions of their employees by agreement with their workers, is it possible for any member of this Committee to accept the fact that a Bill which is against discrimination on the grounds of colour, race, ethnic or national origins should include subsections which actually not only permit, but accept, that a firm shall be allowed, in the employment of workers, to say that a proportion shall be white and a proportion shall be coloured? Is that not discrimination on the grounds of race, colour, ethnic or national origin? Is it not segregation, which has been ruled out of this Bill in definition by the Amendment which my noble friend Lady Gaitskell moved today and which has been accepted?
1362 May I put this point to the Committee? A firm decides that 50 per cent. of its employees shall be white and 50 per cent. shall be non-white. May it not easily be that there may be entitled to be employed by that firm on his merits, on his on his experience, a white who would be the most effective worker in that employment for the increased productivity of that firm? But no! Fifty per cent. white workers have already been engaged. That white worker, who would be desirable for the productivity of the firm, would be ruled out because that proportion would not be met. Similarly, might it not be that a coloured worker, by his experience, by his skill and by his knowledge, had a contribution to make to that firm which, on his merits, would be most effective, but because of this allocation in the Bill, which is an application of discrimination between whites and non-whites, he would not be employed?
I am submitting briefly, but very strongly and very forthrightly, that these subsections which I seek to delete are a denial of the very principle of the Bill which we are discussing, and which does retain the principle of discrimination. I beg to move.
§ 9.56 p.m.
§ LORD GIFFORD
I did not speak on the Second Reading of this Bill, and I hope that I may take this opportunity of saying to my noble friends on the Front Bench that I welcome this Bill most heartily. This is a subject which is very dear to my heart and my mind, and my way of life, and I am sure my noble friend Lord Stonham will accept that I believe the Government have done, on the whole, a very good job on this Bill, and if I may say so, a courageous job. I am sure he will take it from me that putting my name down to Amendments, or in moving Amendments to-night, I do so, I hope, moderately and with a purely constructive purpose.
So far as my Amendment No. 22 is concerned, to which I am now speaking, I have great sympathy with the arguments raised by my noble friend Lord Brockway for the complete deletion of these subsections concerning the balar ce of racial groups. In particular, I find it most regrettable that this Bill should refer to such a phenomenon as a "racial group", when of course the whole philosophy of the Bill is that a man should 1363 be selected for a job on his merit and not because of the colour of his skin or because of his racial group. It is therefore unfortunate that this blemish, this phrase "racial group" should appear in the Bill.
As I understand it, the argument put forward by the Government to justify these provisions is that in factories, in particular, up and down the country, there are shifts—or whole factories—which employ a very large proportion, possibly even an overwhelming proportion, of coloured immigrants, and that when the proportions rise to 80 or 90 per cent. the white employees tend to leave, there being problems of communition. It is said that in those circumstances the employer should be allowed to say, "I cannot take any more coloured immigrants, I must take white employees to redress the balance". This argument was in fact put by the Under-Secretary of State, Mr. Hattersley, on Report stage in another place on July 9. He said: (col. 399):… it is important that they should be encouraged to take their place in a genuine cross-section of industry, …"—And with that, of course, I agree—and that we should avoid some jobs becoming immigrant jobs, becoming thought of as 'black' jobs.Mr. Ennals, the Under-Secretary at the Home Office, talked frequently of these shifts in these plants which have 85 to 90 per cent. immigrants, possibly not speaking the English language. I accept that the Government have a case in relation to that kind of factory but my contention is that these subsections, as drafted, open far too wide a defence which will be used not only by these liberal employers who have a large number of immigrants in their plant, but by employers who seek to evade the lawful force of this Act.
Let us take as an example, which might be paralleled all over the country, an office typing pool of 30 girls and an employer who employs 5 coloured immigrant girls. I accept that the exception covers only immigrants and not second-generation coloured citizens. Let us assume that when he has employed the five out of 30, the other workers in the office make representations to him and say, "This is enough. We accept 1364 that we must have some of these coloured immigrants, but things are going to get very difficult if you employ more than this". The employer gives way to their demands and says to the next coloured applicant, "You cannot have the job". I should not think that that was striking a reasonable balance, but there would be no doubt that the employer was doing it in good faith. He would be wanting to avoid trouble, and he might say in any action that in the circumstances, with fellow employees very reluctant to have more than a limited number of coloured workers, this was a reasonable balance.
There is no way of knowing how the word "reasonable" will be interpreted by the courts. I do not believe that subsection (3) helps us very much in saying that regard shall be had to the proportions of persons employed. The proportion must be a very small one in which the employer will be seeking to say that in the circumstances of his plant it is a reasonable one. It also says that regard shall be had as to whether an employer has discriminated in the past. It may well be that he has not discriminated, that he has employed this limited number, but then says, "Stop; this is enough". I am sure this is not the kind of circumstances in which the Government wish to see an exemption, but there is a real danger that by the use of the word "reasonable" a wide loophole is created. Mr. Ennals, the representative of the Home Office, said quite frequently during the Committee stage in the other place that the defence in the Bill is not intended to be available to an employer unless he already has a substantial proportion of immigrants in his work force as a whole. That may be the case, but there is no mention of "substantial"; there is no mention of any proportion with any minimum which must be there before this exemption is allowable. The only word used is "reasonable".
My Amendment seeks to reconcile what I believe to be a glaring gap between the intentions of the Government—I accept that the Government have put forward this clause in good faith to deal with the kind of circumstances which I have described—and the use which may be made of this clause. It says that where the purpose is to prevent the work force from being wholly or mainly 1365 composed of one racial group, then it will be permissible to discriminate. In other words, when this situation arises, or is in danger of arising, with the danger of having what has been called a "black factory", then the clause will come into play. But I submit that it is far preferable to have some kind of clear indication that this is to be used only in the circumstances outlined by the Government spokesman in the other place. If we do not have this, I feel that there is a serious danger that employers will employ a token number of immigrant labour and then say, "That is enough. This is reasonable in all the circumstances at my factory. We will not have any more, and we shall be able to get away with this defence with the words of the Act." I am glad that this clause does not apply to any but first-generation immigrants. It seems to me slightly illogical that it does not, but I am glad that it does not. I believe that it will get employers seeking to evade the Act, thinking in terms of racial groupings, employing a token number and then saying "That is enough. We will employ no more." I am sure that is not what the Government have in mind.
§ LORD AIREDALE
Other things being equal, I have no doubt at all that the words of the Amendment of the noble Lord, Lord Gifford, are vastly to be preferred to the words of the Bill, because the words in the Amendment are precise and the words in the Bill, with the greatest respect, can really only be described as woolly. If there is a carpenter's shop containing 15 Englishmen, 7 Pakistanis arid one gentleman from Hong Kong, how is the Race Relations Board or a judge to decide, in the words of the Bill, whether that isa reasonable balance of persons of different racial groups"?How on earth does a judge begin to decide that question?
The words of the Amendment present a reasonable task for a judge. He has only to decide whether the persons are or are notwholly or mainly members of the same racial group.That is something that a judge can get hold of and make a sensible decision about. If the Amendment is not acceptable to Her Majesty's Government, they 1366 really must try to improve on that woolly phrasea reasonable balance of persons of different racial groups",because I do not know how any judge is going to think that he can do justice in deciding a question of that kind.
§ 10.7 p.m.
§ LORD STONHAM
I am grateful to my noble friends Lord Brockway and Lord Gifford for agreeing that these three Amendments should be taken together. It is the case that the Amendment of my noble friend Lord Brockway pre-empts the other two, because they are lesser deletions and alterations than his over-riding one. I am also grateful to my noble friends for the general welcome that they have given to the Bill, and for their understanding of the efforts of the Government in this matter. I am quite sure that in general principle, in objective and in intention there is absolutely nothing between us. But I am bound to say, having listened to their speeches on these Amendments and also having regard to my own experience over many years as an employer, that on this point I think their views are impractical and that, very far from achieving the objective which they have so dearly at heart—that of helping immigrants in employment and furthering integration—the effect of their Amendments would be the reverse, and I shall endeavour to show why.
My noble friend Lord Brockway said that if a firm said, "A certain proportion of our employees shall be coloured and a certain proportion white", it was impossible to say that that was not completely contrary to the whole spirit of the Bill. That is the basis of my noble friend's argument. He asked: is at not discrimination which has been ruled out by the Bill? My answer is that it is discrimination which, in certain circumstances, is permitted under the Bill for good, constructive and even benevolent reasons. My noble friend used examples such as 50 per cent. and so on. This Bill does not prescribe proportions, either 50 per cent. or any other percentage. It says, "a reasonable balance".
The noble Lord, Lord Airedale, made fun of that expression and asked what a judge would make of it. I think judges have very much more difficult tasks to 1367 decide than that. But even before a case got to a judge, there is the whole question of conciliation; and the great point about this whole Bill is to avoid discrimination everywhere, and where it occurs, or where it is thought to occur, to endeavour by conciliation to see that it does not happen again in that area. With particular reference to employment matters, even before the conciliation committees and even before the Board, we have the machinery of trade unions and other organisations to look at these matters in a very practical way before they get to a judge.
§ LORD AIREDALE
I was very careful to ask: how would the Race Relations Board or a judge decide this difficult question?
§ 10.15 a.m.
§ LORD STONHAM
I did not want to misquote the noble Lord and, though I perhaps paraphrased his words somewhat, I think I got the sense of what he said. The Bill does not authorise or encourage discrimination. It provides a defence for a good employer. My noble friend Lord Gifford said that the clauses as drafted provide far too wide a defence, which will not only help the liberal employer but encourage evasion. In my submission it will not, because if they do not employ—and they can be manifestly seen, because these matters will be investigated—a fair proportion of immigrants, it will be discrimination. The employer would not be able to say, "I must take white people". He would have to say, "I must take people wholly or mainly educated here". That means white or coloured. I ventured to say on Second Reading that I regarded this as one of the most important provisions in the Bill. The phrase "racial group" means people whatever their colour, who are mainly or wholly educated here. This is another great barrier to discrimination which is in this Bill.
My noble friend Lord Gifford said that if we have this sort of provision at all the Bill ought to specify a percentage. In practical terms it would be utterly impossible to specify a percentage which would not be over-rigid and limiting and which would not in fact prevent the employment of a proper proportion of immigrants. It is not only in those cases 1368 where there is a proportion of 80 to 90 per cent. of coloured people that there are problems meriting the use of the "racial balance" clause. There can be problems in a factory where coloured people have never been employed before, and where white workers leave in large numbers when coloured people are first engaged. I do not approve of that: I am merely stating a fact. I am merely stating what the good, liberal, decent employer is confronted with when he begins to do what all your Lordships would like to see him do. An employer needs some facility in this case to phase recruitment of coloured workers; and this is also a justification for not including the term "substantial proportion" in the Bill.
In this, I have had years of experience of actually doing it. In my case, if a white worker had to my knowledge discriminated against a coloured worker, or had badly treated him, he stood in a very great danger of being discharged. There was no question of my permitting discrimination at all. But I remember an occasison when it was almost a matter of life or death to separate different racial groups of black people in my employ. It would have seemed that the only way out was to discharge one lot or the other; but that is not always possible. There must be this kind of provision if we are to achieve and maintain a racially balanced labour force.
I am sorry that my noble friends do not agree with this. I am sorry that they have tabled and moved these Amendments, because in my view the provisions in the Bill about racial balance in employment have been included for one reason only: to promote integration; and integration is hindered if certain areas of employment, or certain types of jobs, are allowed to become recognised as immigrant jobs. This, as my noble friends know, is already happening in a great many places—far too many places—and it happens for two reasons.
One is that immigrants tend to find all too often that the better jobs—jobs for which they are qualified—are closed to them, and they see no alternative but to settle for the less attractive kinds of work. Then, once in it, they find it difficult to change. The discrimination which leads to this kind of situation will be made unlawful by Clause 3 of the Bill. The other factor is that, as experience 1369 has shown, immigrants, especially those newly arrived in this country, tend to seek employment in firms and in jobs where other immigrants are already employed. There are good and natural reasons for this. The result is that an employer finds in time not only that a substantial proportion of his work force on particular jobs, or in particular parts of the factory, is composed of immigrants, but that immigrants tend to become the main, or even the only, persons seeking to be recruited into that part of his undertaking. That is not good. This is the one thing we want to prevent.
The final result, unless the employer takes action to keep a balance, is one which conflicts with the whole spirit of this Bill; namely, a sharp line of demarcation within a single workplace between "immigrant jobs" and "non-immigrant" jobs, or, within a locality, between immigrant factories and nonimmigrant factories. We must avoid this. There must be discretion within the over-all terms of this Bill in order that we can help prevent this over-concentration. It is in the interests of the immigrants themselves to allow an employer to regulate his recruitment so that he can preserve—or, it may be, regain—a balance in his factory or in particular sections of it, and Clause 8(2) will allow this.
There is a case quoted of a factory where the overwhelming majority of workers were Pakistanis and where the employer, who certainly was not a racialist, found it necessary to impose a limit. I would emphasise that this provision is not intended to be available to any employer unless he already has a substantial proportion of immigrants in his labour force as a whole, or in the particular part of his works for which he wishes temporarily to suspend recruitment of further immigrants. There is no question, for example, of an employer being able to excuse himself from recruiting a coloured accountant or engineer on the grounds that he regards himself as having too many immigrant workers on the shop floor. Nor is it true to say that the provision will in some way legalise a colour bar. The essence of the provision is that it will introduce flexibility in an employment situation where the Bill's provisions would otherwise work rigidly and against 1370 the integration of immigrants. I can assure my noble friends that intend to discuss with the Race Relations Board and with both sides of industry the detailed application of the racial balance provisions. We shall make available as much guidance as possible on he subject before the Bill comes into force.
Perhaps I have spoken longer than I should about this. I know how deeply my noble friends feel about it. It is a matter of concern to them and it is possibly the only issue on the Bill where we are at variance—at least I hope so. There must be a difference of opinion. We believe that in this section of the Bill we are doing the right thing. We shall certainly do our utmost to prove that we are doing the right thing. I said to Lord Brockway in 1965, on the occasion of the previous Bill, that if he were right that that Bill was not enough, then we should come back and produce another. We have done so. If we are wrong about this, then we shall admit it and we shall do something about it.
§ BARONESS GAITSKELL
May I add a few sentences before closing the debate on this particular clause? Although I have some sympathy with both my noble friends who have spoken, I have not yet completely made up my mind about the racial balance clause. But I believe that, just as some Conservative noble Lords are full of exaggerated fears about the inroads they feel this Bill will make into personal freedom, some of my noble friends exaggerate the fear of this racial balance clause in the Bill. I am not sure that it will give employers, certainly not all employers, a chance to discriminate. I also think that some of the accusations against employers of discrimination refer to something which is not really discrimination but rather a kind of restrictive-practice attitude by the workers they employ. So far as the employers do give way to the workers, it is not a very good thing, but the employers are very often in a position of giving way on all kinds of restrictive practices that their workmen go in for.
§ 10.20 p.m.
§ LORD BYERS
My Lords, I should like to follow the noble Baroness, Lady Gaitskell, and ask the noble Lord, Lord Brockway, and the noble Lord, Lord Gifford, not to push this argument too 1371 far at this stage. If there does prove to be injustice, I am sure that the Bill will have to be amended later. The noble Lord, Lord Stonham, speaks from practical experience which is very much in line with my own experience. I do not believe that, in practice, this is likely to be a problem, provided that we do not weaken other parts of the Bill. If we can stand firm on the other parts of the Bill, I do not believe that the noble Lords have anything to worry about.
§ LORD GIFFORD
Earlier to-day, my noble friend Lady Gaitskell and the noble Lord, Lord Byers, pressed Amendments to parts of the Bill where they thought there was a danger of a loophole and that the Bill was inadequately drafted to cover the situation the Government wanted to cover. I think they were right to do that, and they secured from the Government satisfactory Amendments. I hope that neither of them feels that I am doing other than the same thing. I feel, as they did earlier, that there is a danger of a loophole, and I was not proposing to move the Amendment in any spirit of acrimony against employees or the Government or anything of that kind.
My noble friend talked at some length about the jobs, which may he called immigrant jobs, where there is an overwhelming majority of immigrant labour. I hope that he accepts that my Amendment as put forward would still allow that situation to be covered. He said at a later stage that this defence would be available only if the employer already had a substantial (and I hope that he will hear that word) number of immigrants in his work force. I was just repeating the noble Lord's words that the defence would be available only if the employer already had a substantial proportion of immigrants in his work force—I think that those were his words. In these clauses there is no mention of the word "substantial", and in view of the Government's policy as declared by my noble friend I feel that some such word as "substantial" should be inserted. I should be much happier if it were.
In view of the fact that he and his friends in another place have talked about this defence being available only if the employer has a substantial number of immigrants in his employ I would ask my noble friend whether he would at 1372 this stage consider redrafting the clause slightly so that it contained the word "substantial" rather than the more vague word "reasonable". I hope that he will consider that because he has not mentioned it.
§ LORD STONHAM
If my noble friend means consider it between now and Report stage, I will look at what he says but I cannot give any undertaking because we have provided in subsection (5) for the Secretary of State to repeal these provisions if need be. We must have some experience of their operation before there is any question of repeal. We already have the machinery in the Bill to wipe them out without any trouble, and I think that we are, as it were, backing the thing both ways.
§ LORD GIFFORD
I am not going to press this matter to-day, I felt I was making a simple point, but since my noble friend in this House and his friends in another place both used the word "substantial" I, and I believe other noble Lords also, would be much happier if some such word as "substantial" were used. I should like to thank my noble friend for his reply and say that I do not propose to move my Amendment.
§ 10.25 p.m.
§ LORD BROCKWAY
I will be brief. First, I want to say to my noble friend that I appreciate his own experience in this matter. As he knows, some thirty or forty years ago I had knowledge of the industry in which he is an employer, and I very much appreciated not only the absence of any colour discrimination but also the fact that he had gone very far to provide the workers in his industry with self-government, and indeed was almost a pioneer in that respect. Because I am aware of that, as 1 think my noble friend realises, I appreciate the experience which he has contributed to this debate.
There are two reasons why I shall at the conclusion of these brief remarks be ready to withdraw this Amendment. The first is that I regard this Bill as so important in itself that I should not want any Amendment to the Bill which might be an obstruction to its becoming law to be pressed in this Committee. Far more important than any Amendment is the 1373 great contribution which the Bill itself makes against race discrimination.
The second reason is that in subsection (5) the Secretary of State is given power by Order to repeal Clauses 2 to 4, which is my main reason for moving this Amendment, and I am assuming that he will do this as a result of the experience of the Bill. To introduce an Order, it will have to be approved by both Houses of Parliament, but I accept so entirely the 1374 dedication and spirit of my noble friend and his colleagues in introducing this Bill, which I believe is going to make a profound change in the whole issue of race relations in this country, that I am quite sure that if experience shows that these subsections are not necessary such an Order will be introduced. For those reasons, I ask permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1375
§ 10.28 p.m.
LORD BESWICK moved Amendment No. 24:
Page 6, line 38, leave out subsection (8).
§ The noble Lord said: I move this Amendment with a certain amount of confidence, because it is a technical Amendment. I hope it will be agreeable to take this Amendment with Amendments Nos. 26, 64 and 65. Clause 8(12) makes it clear that British territorial waters are to be treated as part of Great Britain for the purposes of the clause. Clause 8(8) defines "British ship or aircraft", for the purposes of that clause. The references to Great Britain, territorial waters and a British ship or aircraft in the Government's proposed new clause to be inserted after Clause 10 necessitate corresponding definitions for the purposes of that clause, and these Amendments insert appropriate definitions in Clause 26 (which contains general interpretation provision) in substitution for those in Clause 8. I bee to move.
§ On Question. Amendment agreed to.
§ LORD BROCKWAY moved Amendment No. 25:
Page 7, line 8, leave out from beginning to ("employment") in line 9 and insert:
("During the five years beginning with the commencement of this Act, sections 2 and 3 above shall not apply to".)
§ The noble Lord said: This subsection deals with the difficult subject of employment on ships where there have been both white and coloured employees. A little strangely, many years ago one of my journalistic assignments was to make some study of conditions on ships, and I am very familiar with the fact that white workers and coloured workers on ships have the traditional practice of sleeping in different accommodation, of having food in different accommodation and of having different sanitary accommodation. I would say that that is so traditional and so deep-rooted that it is impossible on the passing of this Bill to end it immediately. But one hopes that even on ships with those different conditions, in the new climate of racial harmony which will develop, it may he possible to end those circumstances.
§ The Amendment which I am proposing does not suggest that this differentia 1376 tion should be ended immediately. The subsection of the Bill does not lay down any time limit, and the purpose of my Amendment is to suggest that during the first five years of the operation of this Bill when it becomes an Act one should recognise that these conditions will still prevail, but that by the end of those five years the new experience in racial harmony which we hope this Bill will develop will allow us to end them then. I beg to move this Amendment.
§ LORD GIFFORD
May I briefly endorse the Amendment moved by my noble friend. I have no experience of life at sea but I appreciate that very particular problems are involved here. On the other hand, this is a unique clause. Unlike the clause we have just been discussing, it is a clause which enshrines a permanent exemption and not just a temporary one, and, unlike the various other exemptions, it does not follow the pattern that the most personal relationships should be left out of account. It was said very frankly by the Home Secretary on the Committee stage in another place that there is a long tradition in the United Kingdom that seamen of mixed races are segregated according to race. That is something which I am sure he deplored, which we all deplore and which is most unfortunate.
But when we are legislating in this field, what is the best thing to do about it? I submit that it is not right to accept that this discrimination exists and give way to the pressure which may come from certain quarters, though not, I believe, the National Union of Seaman, that it should continue, and enshrine a permanent exemption in this form. Surely the best approach is to give a generous time—and I believe that five years is generous—for the shipping industry to adjust to the situation. They should learn, like many other citizens who will find it difficult to adjust to this new Act, what the policy of the Government is. They should by all means be given a period of time in which to adjust to the new situation, but having been given this period of grace I do not see any reason why they should be permanently exempted from the provisions of this Bill.
§ 10.35 p.m.
§ LORD STONHAM
This Amendment and this situation is one which, on the surface, causes a great deal of concern, and my noble friend proposes to make the exception for the Merchant Navy in Clause 8 a temporary exception for five years. This exception for employment in a ship is to avoid persons of different colour being compelled to share sleeping, messing or sanitary accommodation. This is an application of the principle of proximity; that is, where people are living so closely together that it is not unreasonable to accept their right that they should decide with whom they should associate. This is a principle that we have accepted already with regard to domestic employment, which is a permanent exception, whereas my noble friend Lord Brockway is suggesting by his Amendment that this is a temporary difficulty in ships at sea which can be overcome in the space of five years. It can be overcome, in my view, but it by no means can be described as temporary. It is too deep-seated to be described as that, for many other considerations come in which are quite beyond our control, as I should like to point out. In many ships where different groups of persons of colour are employed, they insist on separate accommodation, and they are not citizens of this country.
The National Maritime Board is fully representative of all sides of the shipping industry, employers and employed. It is unanimously and fully opposed to racial discrimination in employment, but because of difficulties perculiar to the Merchant Navy they see the achievement of integration in the Merchant Navy as following their assimilation of the habit of integration ashore, and the policy of the industry to accept for registration and training coloured boys bred in this country, and the implementation through that of effective racial discrimination complaints procedure.
There are two main categories with whom we are concerned in the Merchant Navy: the recruitment in this country of merchant seamen for United Kingdom registered ships and the recruitment overseas of seamen domiciled abroad. Only a small proportion of coloured seamen are in the first category, but nearly one third of all the ratings employed in ships registered in the United Kingdom are 1378 recruited overseas. In the main they are Indians, Pakistanis, Chinese, West Africans and West Indians; and of course there are manning scales and rates of pay different from those applicable to seamen engaged in this country. They form whole crews or man whole departments, and on some lines, like the British India Steam Navigation Company, more than half their ships never come to ports in this country; they are going about the seas of the world and they do not come here.
Of the 63,000 ratings at present on the M. & E.A. register, 2,000 are coloured, or about 3½ per cent. This is the home register. Of that number about 400 coloured ratings have been fully integrated with white crews but they have to be born here. Of course, there are specialist ratings, such as Chinese cooks who are petty officers, who are entitled to single-berth accommodation. But almost all the remaining 1,800 coloured ratings were not born in this country, and it is customary for them to be employed on ships in which the ratings of different races are segregated in departments on this basis: catering staff, Chinese; deck ratings, Indians or Pakistanis; the engine room ratings might all be Arabs or Indians. Such segregation facilitates the provision of suitable cooking and living arrangements for members of the different races.
There is no problem with Merchant Navy officers. There are about 450 coloured Merchant Navy officers in service now. But there is a problem particularly with Indian and Pakistani seamen who are engaged under the 1894 Merchant Shipping Act, because a condition of their service is that the shipowner is responsible for their return to their own country, and the detailed conditions of service for them are negotiated direct with the Governments of India and Pakistan and their shipowners and seafarers' organisations by members of the London Committee for Asian Seamen. In other words, it is overseas Governments which are concerned in this matter, and one overriding consideration with these Governments is their desire to ensure that this long-established avenue of employment for their seamen shall be maintained.
If the proposed legislation were to upset these arrangements which have been 1379 very carefully worked out over the years, it is thought that there would be a very serious reduction in the number of foreign seamen employed, which would have quite important repercussions on their home countries. Indeed, the United Nations Committee for Trade and Development has quoted this employment of foreign seamen as an example of the way in which traditional maritime countries can assist underdeveloped countries. All that I have said in relation to what we would like to do must have sounded as reactionary to your Lordships as it sounded to me. But, again, we have to face these facts. We cannot—I am quite sure my noble friends would not want—by changing our legislation here, by completely ignoring, as it were, the facts of life in these other countries, being distress and unemployment to them.
I think that through this Bill, through integration of all immigrants and their children here into our communities, this is the only way in which we can overcome this almost century-old prejudice which exists at sea, and on which in many ways the Merchant Navy has been built and nurtured. I think it is wholly wrong, but it is a fact, and I am quite sure that we cannot alter it in five years, as this Amendment demands. I would hope that, although the intentions of the Government in this matter cannot be doubted, my noble friend will realise that it is not possible to accept his Amendment.
§ LORD WILLIS
May I ask the noble Lord one question? I appreciate very much what he has said. What would be the position of a coloured Englishman signing on a ship's crew? I am not talking of someone recruited abroad, but a coloured Englishman; in other words, a second or third generation Englishman completely integrated in this country, and to all intents and purposes as English as you and me. What would be his position?
§ LORD STONHAM
Such people will of course be exactly the same as the white seamen, and treated in exactly the same way on British ships. They are already being so treated. I quoted the numbers that are in fact born in that way.
§ VISCOUNT SIMON
May I just add one word in support of the noble Lord, 1380 Lord Stonham? I have some knowledge of this problem, and I do not think we should forget that the object of this Bill is to promote racial harmony. I cannot think of any worse way of promoting racial harmony than to make a Goanese Christian share a cabin with a Pakistani Moslem. To be quite frank, that is not practicable, and I am sure the noble Lord, Lord Stonham, is right in saying that it may be just a matter of history, but I think it will be a long time before that particular lion will lie down with the lamb.
§ LORD GIFFORD
In view of what my noble friend has said, may I just ask him two questions? First of all, might not a lot of the difficulties, which I do not deny, be covered by the racial balance which we have just been discussing? Secondly, if the list is a test of proximity, may I ask him why the criterion provided for in Clause 7(6), the sharing of a cabin, is not used? I feel that the extension of the sharing of a cabin with that of a messroom or sanitary accommodation is possibly going too far. But perhaps my noble friend will think about one or other of those two points.
§ LORD STONHAM
We were not discussing Clause 7(6), and this is a totally different thing. I was not asked to look at that subsection, but I will do so. My remarks just now were entirely concentrated on my noble friend's Amendment, and I put the position gravely. I said things that I was reluctant to say, but I thought that they had to be said.
§ LORD BROCKWAY
I appreciate what my noble friend has said, and I think I recognise the conditions which exist. I would only say to him that among the men who are serving on the ships, both those who are white and those who are coloured—and in this respect I am speaking mostly of the Indian seamen—I think there is a development of opinion towards racial co-operation more rapid than I think my noble friend has expressed tonight. It may be that my period of five years is too early; but, on the other hand, I regard the permanent period that is within the Bill as too late. May I say to my noble friend that I am confident that, just as the 1965 Act has been amended by this Bill, so I am quite sure that experience will show that 1381 we must amend the Bill which is now before this Committee. In that hope, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
Page 7, line 14, leave out subsection (12).—(Lord Beswick.)
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 8, as amended, stand part of the Bill?
§ LORD BROOKE OF CUMNOR
I rise only to invite the attention of the Government to the wisdom of what they are doing in subsection (5), where they are securing flexibility of time tinder their own control, the very thing which I suggest they should consider doing in the previous clauses, instead of the rigidity of the time schedule which they have laid down there.
§ Clause 8, as amended, agreed to.
§ Clause 9 [Charities and acts done for charitable purposes]:
§ 10.50 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 27:
Page 7, line 22, after ("object") insert ("or as one of its main objects").
§ The noble Lord said: I hope that this is an uncontroversial point. It deals with the clause concerning charities. The history of this is that in the Bill as originally presented in another place the clause safeguarded solely charities which were already in existence. My right honourable friend Sir David Renton took a special interest in this clause as the noble Lord, Lord Stonham, will recollect. As a result of representations by him and others, the Government voluntarily redrafted the clause and on Report brought it forward in this form, a form which not only safeguards acts done to comply with the provisions of an existing charitable instrument but also safeguards (if that is the right word), any future charitable instrument having as its main object the conferring of benefits on persons of a 1382 particular race, particular descent or particular ethnic or national origin.
§ I have been in touch with my right honourable friend in connection with this Amendment of mine, and it is really a further pursuance of his ideas. He was, I know, very pleased with the Government's action in extending the clause, but it is a little too restrictive. That is why I am suggesting that subsection (1)(a) should refer not only to a future charitable instrument which has as its main object these various things, but also a charitable instrument which has them as its main object, "or as one of its main objects".
Perhaps it will become clear if I give an example. The Government clearly accepted the argument that it was undesirable to put a stop to the charitable action of a man who wished, let us say, to create a trust for some charitable purpose in favour of his own nationals. There was no question of discriminating against anybody; he was seeking to help his own people, and that is entirely preserved by my Amendment. But to take an entirely hypothetical case, let us consider a Welshman who wishes to leave his money half and half as between two charitable purposes, one to assist Welsh boys who are going out into the world with whatever may be their needs, and, secondly, some educational or charitable provision for his own home town. That would be a perfectly reasonable laudable and undiscriminatory purpose. But if Clause 9 is not amended, it seems to me that his lawyer would advise him that if he took action of that kind he might be in trouble with the Race Relations Act. If my Amendment is accepted, and instead of "its main object" we say,
its main object or one of its main objects the conferring on persons of a particular race",
then that difficulty will disappear. I would remind the Committee that in any case the instrument must be a charitable one, otherwise it does not get the benefit of this clause at all. I beg to move.
§ THE LORD CHANCELLOR
I am sure that in relation to this clause we all want the same thing. We want to enable some perhaps wealthy Pakistani to be able to provide for the education of 1383 Pakistanis. At the same time we do not want to leave a loophole or enable people racially to discriminate under the guise of charity. The difficulty which we feel about the noble Lord's Amendment is that this would appear to make it possible for a charitable trust to be set up to do two different things. In one clause it might be a beneficial object of the kind proposed; in the next it might be to set up something for the benefit of everybody except Jews. If that were permissible, as I think it would be, under the noble Lord's Amendment, that would be a loophole which none of us would want. A court can be asked what is the main object of the charity, but I am not sure that, strictly, there can be more than one object. The word "main" means "chief" or "principal." I doubt whether it is possible to have more than one main object.
The noble Lord has referred to Sir David Renton, and indeed it was at his suggestion, I think, that the Amendment was made in another place where my right honourable friend the Attorney General put it this way:… it protects such instruments and acts done in order to comply with them if they are instruments having as their main objective the conferring of benefits on persons of a particular race, particular descent or of particular ethnic or national origin.This will, I hope, cover cases of the kind referred to in Committee—for instance, schools for the education of Frenchmen, homes for elderly Jews, trusts in favour of future immigrants from Pakistan. But it will not protect instruments intended to exclude particular sections of the community on the grounds of race, colour and so on."—[OFFICIAL REPORT, Commons, 9/7/68, col. 245.]In reply to that (though I must not quote him literally), and immediately following, I observe that Sir David Renton used the words "wise and satisfactory solution." As the clause stands, it covers what was intended by both Parties in another place. For the reasons I have ventured to give I am apprehensive that the Amendment moved by the noble Lord would leave a loophole which none of us would really want.
§ LORD BROOKE OF CUMNOR
With the greatest respect to the noble and learned Lord, I thought that he was venturesome in quoting what was said by a private Member in another place in the current Session of Parliament.
§ LORD BROOKE OF CUMNOR
The noble and learned Lord having perhaps given me a certain advantage in that way, it would not be wrong for me to say that my right honourable friend Sir David Renton, having had time to consider this new clause which was introduced only on Report, has written to me expressing the view that the clause is still too restrictive on this ground, that it may be one of several good objects, but not the main object or the sole object. I entirely accept what the Lord Chancellor says about the undesirability of a person getting away with it by setting up a trust, one of its objects being the desirable one covered by subsection (1) (a) and the other an entirely undesirable one. It would not be impossible to get over that difficulty by better drafting than my Amendment represents. I certainly would not press this Amendment: I am not anxious to undermine the clause in any way.
I hope the Government will agree that it would be undesirable if a charitable trust, acting in all good faith, were found to be in conflict with the Race Relations Act, because it was argued that the "conferring of benefits on persons of a particular race" et cetera was not its main and exclusive object. I have ventilated the matter, and I should be grateful if the Government would be good enough to see whether there is a way round this. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 agreed to.
§ Clause 10 agreed to.
THE LORD CHANCELLOR moved Amendment No. 28:
After Clause 10, insert the following new clause:
§ Conduct relating to acts abroad
§ ".—(1) This Part of this Act shall not render unlawful—
- (a) any refusal or omission—
- (i) to provide goods, services or facilities, other than travel facilities, outside Great Britain elsewhere than on a British ship or aircraft;
- (ii) to provide any banking, financial or insurance facilities for a purpose to be carried out, or in connection with risks wholly or mainly arising, outside Great Britain; or
- (iii) to dispose of land outside Great Britain;
- (b) any contract or term therein the main object of which is to do any act mentioned in paragraph (a)(i), (ii) or (iii) above;
§ (2) This Part of this Act shall not render unlawful an act done on a British ship while in the national waters or territorial waters of a country outside Great Britain, or on a British aircraft while in, or in flight over, such a country (or its territorial waters) it the act was done for the purpose of complying with the laws of that country."
§ The noble and learned Lord said: I beg to move this Amendment standing in the name of my noble friend Lord Stonham. The effect of this new clause is to except from the provisions of the Bill conduct relating to certain acts done abroad. I am doubtful whether this point really received sufficient consideration originally. Ordinarily, of course, things done abroad are not subject to proceedings here, but in Committee Mr. Hogg raised this question and the Government said they would consider it. It had certainly never been intended that the Bill should extend to discriminatory acts outside Great Britain. This is, after all, a Bill to deal with race relations in this country, and not race relations anywhere else. The Bill as drafted does, however, bite on discriminatory acts done here even if they relate to facilities, services and so on abroad. The only exception to this is in Clause 8(7)(a) in respect of recruitment in this country for employment abroad.
§ This situation has undesirable effects in respect of contracts made here for performance abroad. As the Bill stands, discriminatory clauses in such contracts would be unlawful, and the effect of this would be that a discriminatory term in a contract would be held to be void and unenforceable; and in certain circumstances the contract as a whole might be unenforceable. As a result, the term or contract would be unenforceable by either party. This could have inequitable results and could be contrary to the interests of the person who had been discriminated against.1386
§ In the case of contracts for performance in this country it is possible to provide for the revision of discriminatory terms, as is proposed in a new clause to follow Clause 21. This solution is, however, not available in respect of contracts for performance abroad, since the performance of many of these contracts is bound by local foreign law, and action in our courts would not be practicable. Moreover, such a provision would not provide sufficient protection for our export trade—for example, with Arab countries—and maritime insurance.
§ It has, therefore, been decided that the only practicable solution to this difficulty is to follow the precedent of Clause 8(7)(a) and make action in this country in respect of the provision of goods, facilities and services and the disposal of land abroad outside the scope of the Bill. This is the effect of subsection (1) of the new clause, except that in respect of the provision of insurance facilities the exception applies so long as they are in connection with risks wholly or mainly outside Great Britain. It has also been thought right that travel facilities should not benefit from the exception so as to preclude discrimination by travel agencies in respect of foreign tours.
§ Subsection (1) of the new clause does not apply to acts done on a British ship or aircraft, but subsection (2) provides that the Bill does not make unlawful anything done in a British ship while in foreign territorial waters (or in foreign inland waters), or in a British aircraft in flight over a foreign country, if the act of discrimination was done for the purpose of complying with the laws of that country. This subsection replaces the present provisions in Clauses 18(3) and 19(3) which confer jurisdiction on a court in respect of discrimination in circumstances in which it would have had jurisdiction in respect of tort or (in Scotland) delict. The position in tort, in broad terms, is that an action can be brought here in respect of an act done abroad if it would have been actionable if done here and is not justifiable by the law of the country where it was done. The new subsection states the intention with regard to discrimination more clearly, and the references to tort and delict (which now become unnecessary) are to be omitted.1387
§ Without a provision of this kind there could be a conflict of jurisdiction when a British ship was in foreign territorial waters or a British aircraft was in foreign airspace. In these circumstances, a shipping company or airline might face the alternative of proceedings under the Bill if they discriminated or criminal or civil proceedings under the foreign local law if they did not. Such a dilemma would be clearly undesirable, and the subsection removes any possible conflict of this kind. I beg to move.
§ LORD BROOKE OF CUMNOR
May I thank the noble and learned Lord for attending the Committee at this hour of the night to explain so clearly this new clause? I should like to examine it further in the light of his explanation. All I have to say now is that I am sure it is wise that we should solve the problem in some such way as this, and I welcome the new clause.
§ LORD BROCKWAY
I want to put only one point for the consideration of my noble and learned friend. I appreciate the necessity for these subsections. Would he consider in relation to them British territories abroad, the British Colonies? I do not want to be controversial, but I have in mind another territory which is much in the minds of people just now. Would he consider, in connection with these subsections, whether, in certain of the provisions regarding British ships, aircraft and other matters, it would not be desirable to include some reference to the fact that it might also be applicable where British concerns are affected in British territories as well as in Great Britain itself?
§ THE LORD CHANCELLOR
I will certainly consider both those points. My feeling would be that, this being a Bill to help us with race relations in this country, in the circumstances which exist 1388 here, it is very doubtful whether it would be likely that the same sort of provisions would have the same effect in territories where the proportions as between races are entirely different and the general social and living conditions are quite different. But I will certainly consider those points.
§ On Question, Amendment agreed to.
§ Clause 11 agreed to.
§ LORD BESWICK
This would seem to be an appropriate time at which we might break. I hope that we might complete the Bill on Tuesday next. In the meantime, I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.