§ 2.53 p.m.
§ LORD STONHAM
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL, in the Chair]
§ Clause 12 [Liability of employers and principals]:
LORD SANDFORD moved Amendment No. 29:
Page 8, line 6, after ("person") insert ("that he is required to do").
§ The noble Lord said: I beg to move Amendment No. 29 standing in my name on the Order Paper. I am afraid that here, once again, we are faced with an instance of the House not running quite so smoothly as it has done in the past, because there has been a misprint here. Amendment No. 29 is indeed my Amendment, but Amendment No. 30, which is also an Amendment to Clause No. 12, should be in the name of the noble Lord, Lord Saltoun. It was in his name on the previous Marshalled List, but the noble Lord's name has got left out of this second List.
§ I know it is the wish of the noble Lord, Lord Saltoun, that his Amendment, No. 30, should be considered at the same time as my Amendment, No. 29, and I believe it will be for the convenience of the Committee if that is done, because they both have the same purpose in mind. The purpose of each of them is to ensure, if possible, that responsibility for acts of discrimination that take place in, say, factories, should be properly apportioned, as between the employer and his employees. I myself would not question for a moment that the general policy in a place of work such as the engagement of staff, the promotion of staff and the provision of facilities for people from different races working in that place, should all be governed by the employer's policy and that he should be responsible for its carrying out.165
§ But that does not cover all the things an employee does in the course of his employment. Take, for example, the man employed at the gate of a factory whose responsibility is to let in and out consignments of goods, who has to satisfy himself as to the rightness or not of people who wish to enter the premises. It may well be that on the gate itself there would be a notice to the effect that welders or fitters, or people of such and such a description, are required to work in these premises. A person seeking employment may well accost this man who is guarding the gate, who may say something like, "None of you black bastards here!". That would, I think, be an act of discrimination. It seems to me to be quite unfair that that should be regarded as a remark made in the course of his employment for which his employer should be responsible. It is unreasonable to require the employer to guard against remarks of that kind, as seems to be required by subsection (3) if he is to avoid liability to himself under this clause for an act of discrimination of that kind. It would be no part, I suggest, of that employee's duty to act in that sort of way, because he was not required to do that as part of his employment. That is the kind of situation that my Amendment is designed to deal with. I beg to move.
I am not alone in this House in being very apprehensive about this Bill. It seems to me that unless great care is employed in its administration it may produce a situation so much worse that it approaches the situation in the United States, which would be a deplorable thing. It depends entirely upon the way it is handled if it is not to be a ghastly failure. The noble Lord, Lord Stonham, on Second Reading, emphasised the need of conciliation, and I could not agree with him more that that must be the essence of this Bill. I frankly do not see it manifested in the wording of the Bill as often as I should like. The conciliation of this Bill seems to me to approach the contemporary French criticism of their first revolution "Soit mon frère, ou je te tue", which, for the benefit of those noble Lords who have forgotten their French, means, "Be my brother, or I will slay thee". That seems to me to be the terms which this Bill is employing.
166 When we come to the point that the employer, as well as the man himself, whether or not it is done with the employer's knowledge or approval, is liable, those words "whether or not" seem to emphasise the point I am making. They appear to say quite frankly that the employer shall be held to be guilty whether he is guilty or not. The noble Lord, Lord Stonham, on the Second Reading pointed out to me that subsection (3), which was put in at the last moment in another place, says that he has a defence if he can show that he takes reasonable precautions. But what are reasonable precautions? You cannot prove that you did not say something. If I accuse the noble Lord, Lord Stonham, of last night saying the Lord's Prayer backwards in order to conciliate the powers of evil, how can he prove to me that he did not say it?
§ LORD STONHAM
If the noble Lord will allow me, he asked, "How could you take reasonable precautions?" When I was an employer a few years ago I employed a good many coloured people, and I made it a rule—a written rule—in the firm that anyone who conducted themselves in the manner suggested by the noble Lord would be subject to dismissal. That is a "reasonable precaution".
I was about to ask the noble Lord whether it is sufficient—it certainly is not proof—to have the relevant portions of the Act printed and framed and hung in the office? It seems to me that in these days of powerful trade unions there is one thing which no man can do, unless he is a part of a criminal organisation: no man can ask or direct his employee or servant to break the law. It is a thing that I should never dream of doing, and a thing which no responsible employer would dream of doing. It seems to me that subsection (1) of Clause 12 suggests that an employer has asked an employee to break the law, and that is something that it is impossible to do. I certainly think that one can take out the words, "whether or not" which on the face of it raise a question, and put in the simple word "if". That is the point of my Amendment, but the matter has been put into the hands of the noble Lord, Lord Sandford, where I am very content to leave it. Those are my reasons for 167 putting down my Amendment, but I shall leave myself in his hands at a later stage.
I see the noble and learned Lord Chancellor stripped for action, and when I read the words,by a person in the course of his employmentin the Bill, I realise that we are in deep legal waters. That does not get over the fact that we are dealing with some very likely facts, and that we must find some method of doing so. There are many manufacturers in this country who are almost exclusively employers of coloured labour. Any European or white man who has employed labour on the Indian sub-continent knows very little of what is going on at the bottom, but he knows that certain branches of his industry will be manned by certain religions, tribes, and so on, and that any attempt to get one of a rival religion or tribe into the "closed shop" of another one is likely to lead to severe trouble, probably murder. In one of the newspapers to-day there is an article about Bradford. It is quite obvious that that sort of thing is going to happen in this country. It is grossly unfair that the employer, who will not know what on earth these people are doing at the bottom, can be held responsible for the racial misdeeds of his employees who are only pursuing the customs which they have pursued for hundreds of years. Some method must be found of ensuring that the English employer is not made a victim in this way.
§ LORD PARGITER
When the noble Lord comes to reply, could he tell us whether or not it is the general law that an employer is held responsible for the actions of his employees, unless he proves to the court the contrary?
§ THE LORD CHANCELLOR (LORD GARDINER)
It is, of course, the general law that an employer is liable for what his employee does in the course of his employment. We all here want the same thing, certainly the Government and the Opposition. Here is a place of public resort, a café perhaps, and the doorkeeper is keeping out any coloured people. Here is a factory to which a coloured person wants to go to see whether there is a job going, and he is stopped by the gatekeeper. The conciliators, 168 these matters having been reported to them, do not know what the position is as between the employer and the employee—it is only they who know, particularly the employer. If the first Amendment is accepted, the employer will say: "Oh, the doorkeeper asked me whether or not he was to let coloured people in, and I said 'I leave it entirely to you'. I did not require him not to let them in, so you cannot touch me." None of us wants to leave obvious loopholes, and to put the onus on the coloured person or the Board to prove that the employer had required the employee to do something means a very large loophole indeed. The same would be true if Lord Saltoun's Amendment was accepted.
Originally, the Opposition had a perfectly good point about this, because at the Committee stage there were only subsections (1) and (2). It was precisely because of the point raised by these Amendments that at Report stage of the Bill the Government introduced subsection (3).In proceedings brought under section 18 or 19 of this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove"—and he is the only person who can do it—that he took such steps as were reasonably practicable to prevent the employee from doing in the course of his employment acts of the same description as that act.On that Amendment being introduced on Report, the Opposition said, "Thank you very much; that meets our objection." Now the same point is raised again. On Second Reading, the noble Lord, Lord Saltoun, said:… this clause gives a discontented employee or workman a chance of taking revenge on his employer, who may know absolutely nothing about what is going on and be no party to it."—[OFFICIAL REPORT, 15/7/68, co. 95.]If that was the position, he has a good defence under subsection (3). I venture to think that the noble Lord was considering subsection (1) without having regard to subsection (3).
As between making things too wide or too narrow, as one cannot foresee all the possible variety of circumstances, I am sure that the Bill is right in making things too wide rather than too narrow and leaving it to the good sense of the Race 169 Relations Board to take proceedings only in a case where anybody would say that proceedings ought to be taken. What we want is for the conciliator to change the mind of somebody who is discriminating and persuading him not to do so. If they cannot do that, we hope that the Board will. We hope that there will be as few proceedings as possible, but if no action could be taken in court at all, and everybody knew that, then discriminators would show the door to any conciliator. It is necessary for them to know that in certain cases they could be brought before the courts.
This, I submit, is quite reasonable. It is only an employer who knows how far he has been a party to this or not, and it is not unreasonable to expect him to prove that he took what steps were reasonably practicable to stop his employee from acts of discrimination. I hope that on those grounds, particularly because of the approval given to the clause as a whole by the Opposition when subsection (3) was introduced, the noble Lord, Lord Sandford, will be prepared to withdraw the Amendment.
The noble Lord did not deal with the point which I raised. He was talking from the point of view of the drafters of the Bill who have been concerned with discrimination by white men against coloured men. I am much more concerned with the fact that I think there will be much more discrimination between one form of coloured man and another form of coloured man. Is a Pakistani employer in Bradford to tell the foreman, "On no account are you to employ a Sikh or Hindu in this place", and thus himself come under the Race Relations Bill?
§ THE LORD CHANCELLOR
No, he has to take reasonable steps to stop this. We do not want to have first-class citizens and second-class citizens, whether the first-class citizens are white and the second-class citizens are coloured, or whether the first-class citizens are Pakistanis and the second-class citizens are Indians. We want them all treated alike. We should be just as much under obligation to take reasonable steps to prevent discrimination between coloured people of different races as between white and coloured.
I think nobody is treated alike. There are religious differences, and differences of every sort and kind, which go with race, and I do not see how it will be possible to disinguish between them.
§ LORD GRIMSTON OF WESTBURY
With all due respect, I do not thick the noble and learned Lord the Lord Chancellor has really understood the point that my noble friend made. There may be an employer in Bradford who is very frightened of the possibility of rioting or fighting in his factory if he allows in one shop mixtures of different sects which have been objected to by those sects for hundreds of years. This seems to me to be a very special problem, and I do not think the noble and learned Lord has met it. He is saying only that we must try to bring them together, but he is asking the employer to ignore something which has been indigenous to these races for perhaps 400 or 500 years. To ask the employer to do as is suggested, and possibly to bring him within the law if he does not do it, seems to me quite unreasonable. The employer, by declining to mix the sects, may be taking a step which is going to preserve the peace in Bradford, rather than the reverse. Can the noble and learned Lord not expand a little more?
§ THE LORD CHANCELLOR
The onus will be on the employer to take whatever the court considers reasonable steps to prevent racial discrimination. These people will have to understand that they have chosen to come to a country where we are not going to have racial discrimination, whether it is between white and coloured, or between coloured people of different races. If, in the event, the employer dismisses them, then he dismisses them. But it is as much discrimination to post a notice outside the factory saying, "No Pakistanis here", as to say, "No Blacks here."
§ LORD SANDFORD
I think it has been a useful short discussion, which demonstrates that this is a difficult area to deal with by legislation. I do not think it is absolutely accurate to say that when this point was raised in Committee in the Commons, and an Amendment was dealt with at the Report stage, all the points of the Opposition were fully met. They were met to some extent, but this 171 Amendment was an attempt to take the matter a stage further. In the light of what the noble and learned Lord has said, I beg to leave to withdraw my Amendment No. 29, but reserve the right to raise the matter again, perhaps in the form of another Amendment, at a later stage.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [The Race Relations Board and conciliation committees]:
§ 3.13 p.m.
LORD BROOKE OF CUMNOR: moved Amendment No. 31:
Page 8, line 32, after ("State") insert ("of whom at least two shall be women.")
§ The noble Lord said: I trust that this Amendment is relatively uncontroversial in its content. As the Bill does not cover sex relations I cannot be accused of discrimination in seeking that at least two members of the Board, rather than at least six, should be women when the membership may consist of 12 persons. The Race Relations Act 1965 provided for a small Board of three persons only, and I do not think that the point of sex was taken then in either House; nor, so far as I am aware, was the necessity for having women included in the membership of the Board considered.
§ It seems to me essential, if the membership of this Board is to be substantially increased and to have these much greater duties, including duties of dealing with women employees and with landladies, that it should include women. I have suggested two women, because it might be thought appropriate that there should be one white and one non-white woman on the Board, but I should be quite happy to leave considerations of that kind to the Government. I trust that I shall carry all of your Lordships with me in urging that this Board should not be a single-sex Board but that it should have an appropriate number of women included in its membership. I beg to move.
§ LORD CONESFORD
My noble friend considers that this Amendment would prevent the Board from being a single-sex body. It would do nothing of the kind. His Amendment could be accepted and the whole lot could be women. I think that this is a thoroughly retrograde 172 Amendment. I believe that when the Government come to appoint this body, they will undoubtedly find it convenient to choose some women whom I hope they will appoint on the grounds of their qualifications. I have always opposed, ever since I entered the House of Commons, the insertion of a provision for what A. P. Herbert well named the "statutory woman". I think it is absolutely wrong in principle. I should have thought that it was very much against the interests of the woman that it could be asserted, "Oh, yes; you had to be appointed because it was a statutory requirement." Why should a woman not be appointed on her merits? If it is desired to produce some sort of equality, the Amendment should not run,of whom at least two shall be women.In fact, I might move an Amendment on Report to add the wordsand two at least shall be men.I hope that this Amendment will not be accepted.
§ LORD STONHAM
The noble Lord, Lord Brooke of Cumnor, said that this Bill had nothing to do with discrimination on the grounds of sex, and of course I quite agree with him. Here we have a Bill which is expressly designed to outlaw discrimination on grounds of colour, race, ethnic or national origin, and as a prop to that the noble Lord suggests that we should introduce an Amendment to discriminate on grounds of sex. It really is a very poor way of supporting the Bill, and I agree with the noble Lord, Lord Conesford, about that.
If I may say so, with the greatest respect, there seems to be something of an obsession with this subject in the noble Brooke family, because I remember that on the Criminal Justice Bill the noble Baroness, Lady Brooke of Ystradfellte, moved an Amendment to seek an assurance that at least one woman, I think it was, should be a member of the Parole Board. I remember assuring her at that time that of course we would consider women on their qualifications. In fact, three women are members of the Parole Board. They do an absolutely first-class job, and I see them often. They were selected—indeed, I had something to do with the selection—because of their qualifications, and in a matter of this kind that is surely the right way, and the 173 only way, that the women would wish to be selected.
It is hoped—indeed, it must be reasonably certain—that some members of the Board will be women. I agree that they have a special contribution to make over the whole field of this Bill, but particularly in housing, in education, in health and in employment matters, as the noble Lord, Lord Brooke, suggested. But, surely, on every possible grounds, it would be unwise to write into the Statute a specific provision of this kind, which would limit the Home Secretary's freedom to appoint to the Board those he considered the right people to appoint.
There is another point which may appeal to the noble Lord, Lord Brooke. If you say that at least two shall be women, it creates a feeling that there must be two, and the minimum becomes a sort of maximum. The feeling is, "We have to appoint two, and the others shall be men". I think that would be a most unhappy result. I would remind the noble Lord that although no member of the existing Board of three is a woman, three members of the committee presided over by the most reverend Primate the Archbishop of Canterbury are women, and that under the Bill this committee is to be succeeded by the Community Relations Commission. I should have thought that we could accept that as a precedent, being quite certain that there will be women on the Board; but that we should not denigrate women to the extent that we have to write into the Bill an instruction to the Home Secretary that he has to appoint women. I think we should leave women to be appointed on merit.
§ BARONESS SUMMERSKILL
I must confess that what has forced me to rise on this occasion is listening to my noble friend generating this synthetic indignation. What an amazing thing to say to this Committee—and does he think that noble Lords accept it?—that the reason why women are not on a number of committees or boards of organisations is because they have not the necessary qualifications. We have only to look at the Bishops' Bench. Can it be said that there is no woman in this country with the qualifications of the Bishops? Or even with the qualifications of a Pope, for that matter.
174 I was not going to speak to this simple Amendment which, in 1968, has to be moved in order to put both the sexes on to a committee which is dealing with matters which concern both sexes. But, of course, I am not surprised that my noble friend is a little embarrassed in this matter and is a little on the defensive, because this very Bill itself is a disgrace in so far as it is going to be an offence to discriminate against anybody with any pigment in their skin bat not to discriminate against an individual who has female reproductive organs. We, have arrived at the stage here—and I would ask noble Lords to look at it—where we are passing a Bill which will make it illegal to keep a black man outside our medical schools, to discriminate on grounds of colour, but we still retain the discrimination against women on grounds of sex. In all our medical schools we have a small proportion of women, and it is laid down that no more must be allowed in. Yet we are passing a Bill under which it will be an offence if the governors of our medical schools keep out men with pigmented skins. When I hear, from both sides, that many noble Lords wonder whether this Bill can be operated, I sit back and just writ for the moment when the country will wake up to the fact that the Government—a Labourt Government—has been responsible for a Bill under which it will be an offence to discriminate against an individual because of the colour of his skin but not if that individual belongs to other than the male sex.
§ LORD ALPORT
I have some sympathy with the cynicism of the noble Baroness, Lady Summerskill, in this matter. After all, we have listened to a speech which I think I should be reasonable in describing as somewhat cynical on the part of the noble Lord, Lord Conesford, because the noble Lord gave, I thought, a most patronising description of the position of women in society and followed the normal male argument, which is that now that we have given them equality it does not really matter whether they do actually enjoy their rights or not. We do not include women specifically as a statutory provision in this particular case, and that gives us the opportunity to leave out all women if the necessity arises.
175 The noble Baroness, Lady Summerskill, is quite right in drawing the attention of your Lordships' Committee to the fact that, on the whole, our legislation is man-made in the interests of men, and very often contrary and antagonistic to the interests of women. In this particular case let me ask the noble Lord: why is it that there are only three women on the existing Race Committee? There are more women than men in the United Kingdom; the problem of race affects them more closely than men; they have a greater sensitivity to all the problems which race creates. Why are there so few women, therefore, on the existing committee? The truth about this committee is that it is not properly representative of the women's interests and that it is likely, or indeed almost inevitable, that women will be inadequately represented on the new Race Relations Board when it is set up.
I must say that I have listened on numerous occasions to speeches made in this House by my noble friends and noble Lords on the other side on subjects affecting women, and I have seldom heard from them any real understanding of the contribution which women can make as a sex to dealing with problems of this sort. My noble friend Lady Horsbrugh, who sits next to me, has protested all the way through my speech, but I am carrying on regardless of her opposition. This has become a characteristic of British legislation. The characteristic is that it is made by a predominantly male Parliament predominantly in the interests of males, and until we get a greater sense of proportion in dealing with these problems and consider more clearly and closely the interests of the women—the majority of the population—we shall continue to find that a great deal of our legislation is not fully considered or not properly conceived.
§ BARONESS HORSBRUGH
I should like to add a few words, as my noble friend thinks I have been protesting. I do not think I said anything, although I may have made noises. But I cannot think that in your Lordships' House or in the other place, at any rate in the last ten or twenty years, there has been this tremendous division between the points of view of men and of women. I 176 cannot help thinking that here in your Lordships' House, where, as in the other place, the large majority are men, it necessarily means that their opinion is completely different or opposed to the opinion of the women who are here.
I think we are getting back to the stage perhaps thirty years or more ago when, as my noble friend Lord Conesford has said, it was always thought necessary to put into a Bill, if it was setting up any committee, the words, "one of whom may be a woman". I was that statutory woman very often. But surely we have got beyond that, and there is not that immense gulf and cleavage between the intelligence and the interests of men and women which we had then. I remember that when I went into the other place many years ago, if I went to speak at any meeting I was always introduced as "a woman Member of Parliament". I used to say that it was quite true I was a Member of Parliament, and they could see I was a woman. Now, at least, we talk about them all as "Members of Parliament". I think we have got so far in that direction that it would be a great pity if we turned the clock back now and felt that on each occasion a committee was being set up we had to say, "one or two must be women"; because on the occasions when it was not put into any Bill it would be thought that no women were to be on that committee. I think it would be a great pity, and I hope that this Amendment will not be accepted.
§ LORD BROOKE OF CUMNOR
I am grateful to my noble friend Lord Alport for what I think was his support. However, I am inclined to believe that we should now get on. By this small Amendment of mine I seem to have both lightened and electrified the sombre atmosphere in which we have been discussing this rather difficult Bill. I have no intention of pressing the Amendment. I noted that my noble friend Lord Conesford described it as "retrograde". Looking forward in the Marshalled List I see that there are no fewer than four Amendments of his which I shall have the opportunity to describe as "retrograde", which I think he would regard as an insult; and also as "reactionary", which I am sure he would regard as a compliment. Although I was not wholly in sympathy with the speech of the noble 177 Lord, Lord Stonham, I inferred that there was a strong possibility that a sufficient number of women would be appointed to the Race Relations Board. On that understanding, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 3.30 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 32:
Page 8, line 32, at end insert ("of whom at least one shall be a person with special knowledge and experience of industrial relations who shall be appointed by the Secretary of State after consultation with such organisations representative of employers and trade unions as the Secretary of State may consider appropriate.")
The noble Lord said: It may be to the convenience of the Committee to discuss Amendments Nos. 32 and 33 together. We are now dealing with alleged questions of discrimination affecting employment. On the Second Reading of this Bill in another place the Home Secretary said:
I am therefore, glad to inform the House that Sir Roy Wilson, the President of the Industrial Court, has agreed to serve on the new and enlarged Race Relations Board … I further propose after consultation with the First Secretary, the Confederation of British Industry and the T.U.C., to appoint two other members to the Board, with special knowledge of industry. This procedure will need to be kept under review, but I believe that, with the co-operation of both sides of industry, we have forged a workable and practical scheme.
In approving the Board's arrangements under Clause 13(3), I shall require the Board to ensure that complaints about employment are dealt with under the general direction of the Board by a sub-committee which includes these two members and has Sir Roy Wilson as its first chairman."—[OFFICIAL REPORT, Commons. 23/4/68, col. 58.]
§ So far so good. But those are personal assurances given by the Home Secretary about the manner in which the Board will start to work on these matters. I think that the proposed appointment of Sir Roy Wilson has been universally welcomed, but the reason I have put down these Amendments is that it seems to me that, if the principle of what the Home Secretary has proposed is generally acceptable, it should be embodied in the Statute. It should not be left to the chance of future appointments whether the chairman of this group or sub-committee is 178 or is not a person who is as well qualified as Sir Roy Wilson unquestionably is. Let me make it quite clear that I am not for a moment questioning that what the Home Secretary has said will be fulfilled. I am certain that it will be, and I have every hope that they will get off to a good start. The reason I am moving these Amendments is that it seems to me that it will be more satisfactory to all concerned if these original personal arrangements which have been announced are made statutory and permanent. I beg to move.
§ LORD CITRINE
May I say a word on this Amendment before the noble Lord replies? On the face of it, I think that anybody associated with the trade union movement would feel it desirable to support this Amendment. There are two clauses of this Bill which specifically deal with the matter of employment: one, with employment directly, and the other with an employee's membership of a trade union or an employer's membership of an employers' organisation. It is reasonable to suppose that the field of employment may well prove the more difficult one in which to reconcile the situation between coloured people and white people. There are all sorts of troubles that arise to-day among white people alone; and, undoubtedly, undesirable as we all know that to be, there is to-day a great deal of feeling among the less educated sections of the community against coloured people.
Evidence of that were the resolutions passed by certain bodies of workpeople in respect of a speech by Mr. Enoch Powell. There were demonstrations even outside the doors of this House from a section of people employed in the docks in London. I would say that any person who has any knowledge of industry must see that it could easily prove to be a cockpit for disputes between people on all sorts of grounds which might be extremely difficult for any Board to resolve on the facts. Surely it would help that Board if at least one or two people on it were experienced both from the employers' side and from the work-people's side. I think it is a commonsense Amendment. Unless there is some reason which I cannot at the moment conceive, I cannot understand how the Government could resist an Amendment of this kind.
§ LORD STONHAM
The effect of these Amendments, as the noble Lord, Lord Brooke of Cumnor, made clear, would be to introduce a statutory requirement, an absolute requirement, that a sub-committee of the Race Relations Board should be established to deal with employment, that its chairman should have special knowledge and experience of industrial relations and be appointed after consultation with the relevant bodies. I agree with the noble Lord and with my noble friend Lord Citrine that this would be highly desirable—and that is what is going to happen in the first instance and what we should expect to happen, so long as it is necessary.
But one thing the noble Lord did not mention about the effect of the Amendment (and it is something that was overlooked also by my noble friend) is that if the Amendment were accepted the Board as a whole would have no functions at all in respect of complaints in the employment field. In other words, this field of complaint would be hived-off to three people—it might be three women, or it might be two women and one man; but it would be three people. It would be in the Statute, it would be immutable and could not be altered without another Act of Parliament. It seems extraordinary to write this into the Statute because the great—and, I think, valid—objection to these Amendments is that they would make explicit provisions in respect of one area of the Board's responsibility and would impose a mandatory and permanent restriction on how the Board would operate. Of course employment is very important. We know that it is one field in which discrimination exists. But so is housing, and so is health; and so are many of the things that affect the lives of us all. Here we are asked to hive-off one of these areas largely because the C.B.I. and the T.U.C. think it would be a good thing to do.
The noble Lord, Lord Brooke of Cumnor, was good enough to quote what my right honourable friend the Home Secretary said about this matter. I know that the noble Lord accepts completely the assurance given by my right honourable friend. It is a quite specific assurance: it is what we are going to do, and I think it is enough. It sets the pattern. It would, however, be quite inappropriate and quite wrong—and I 180 think that if the noble Lord, Lord Brooke, were now Home Secretary he would not disagree with this—at this stage, when we are building up and working out these matters, to embody such a categorical assurance in the Statute. This is particularly so since Clause 15 has specifically built into it facilities to enable a whole range of the employment field to be kept under review with a view to possible modification, or even eventual repeal, in the light of experience.
We said frankly that these are things which we think it necessary to do in the field of employment. We want to see how they work out. With the Ministry of Employment and Productivity, with the T.U.C., with the C.B.I. and all employers and trade unions, let us see how it works out. If we do well, then of course it may be that as the result of a review, modification, or even repeal, of the relevant clauses of the Bill may be possible and desirable. But in our view it would be wrong at this stage, before we have even started, and in this one limited field where, at least to begin with, we are entirely in agreement over what is to be done, and when we have said that we are going to do it, to say in the Statute: "This must be done for all time. Something else may change, but this remains".
I have the authority to repeat again, on behalf of the Home Secretary and the Government, that we shall always be concerned to ensure that employment cases are dealt with by suitably qualified members of the Board. We think, however, that in this as in other things the overall responsibility should remain with the Board, and that at all times they should have a voice in these other matters.
§ LORD BROOKE OF CUMNOR
I am particularly grateful for the support of the noble Lord, Lord Citrine for these Amendments. I hope it means that the general purpose embodied in them is acceptable to the Committee as a whole, as I believe it is to the Government. The simple objection of the Government is that they do not want them written into the Statute. I think that the noble Lord, Lord Stonham, made rather too much of the allegation that this would mean hiving-off certain of the Board's functions. Surely the new subsection in Amendment No. 33 would be read in 181 conjunction with, and would be covered by, subsections (3) and (4) of Clause 13.
Subsection (3) of that clause says:The Board shall discharge their functions in accordance with arrangements made by the Board and approved by the Secretary of State.Subsection (4) says:The said arrangements may provide for the discharge under the general direction of the Board of the Board's functions in relation to any complaint or other matter falling to be dealt with by them, or in relation to any class of such matters, by a group of members of the Board selected by the Chairman of the Board …My proposed new subsection follows exactly what was said in subsection (4). It would provide that:The Board's function in relation to any complaint concerning employment shall be discharged by a group of members of the Board …et cetera. I am not introducing any new principle of hiving-off. There is no hiving-off, except in so far as the arrangements described in subsection (4) could be called hiving-off. I appreciate that the Government do not want to go so far as to make statutory what is contained in my Amendment. It would help me if the noble Lord, Lord Stonham, would be willing to say that if the initial arrangements are to be reviewed in the light of experience at some later date there will be consultation with organisations representing the employers and the trade unions in the course of that review and before any change is made.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 13 shall stand part of the Bill?
I did not put down an Amendment, but I should like some assurance from the Government that on this Board there will be some people who know something of the origin and background of the coloured people who come to this country, because, as I read the Bill, it will be absolutely impossible for many of these people to carry on their existing manners and customs and religion without discriminating against other coloured people in this country. It is 182 essential that there should be people on the Race Relations Board who understand the background of these matters. Moreover, particularly in the Indian subcontinent, litigation has for centuries been, one might say, a common sport and a method of obtaining revenge upon one's enemy, and it is very important that somebody should be there to try to distinguish what is a genuine case and what is probably an attempt to obtain revenge upon another person.
§ LORD SORENSEN
Surely the difficulty with regard to the noble Lord's plea is that immigrants vary enormously, and as much as do the natives of this country. Therefore to appoint someone who is particularly acquainted with culture, background and history of immigrants makes no sense unless it is intended that more than one person shall be appointed. The difference between, for instance, the Sikhs, on the one hand—a very closely compact homogeneous community, who have, on the whole, very little interest in this country and who desire, I think, to go back to the Punjab as soon as they can—and, on the other, the peoples of the Caribbean Islands is as great as, if not greater than, the difference between the people in the South of England and those in Scotland.
I fully sympathise with the content of the noble Lord's plea, because it is necessary to have as wide a knowledge as possible of the cultural background, history and concepts of immigrants in this country. But I emphasise again that anyone who knows anything about this problem realises that there are a variety of immigrants, and to classify them all together as if they were one compact group is surely most misleading. Therefore the difficulty I see in the noble Lord's proposal is that it would require net one but several people on the Board. One can only hope that all members of the Board will do all they can to acquaint themselves with the necessary background.
I should like to point out that I did not specify any number, and I would certainly settle for several. I am afraid that this background cannot just be picked up by anyone.
§ LORD STONHAM
I am glad that my noble friend Lord Sorensen agreed at least in principle, with what was said 183 by the noble Lord, Lord Hawke, because I agree entirely with what he said. I listened to him very carefully, and I would repeat the assurance given by the Home Secretary in this regard: that it is his intention, in making or approving appointments to the Race Relations Board, and to the Community Commission, which is to succeed the Committee at present presided over by the most reverend Primate the Achbishop of Canterbury, to appoint persons with understanding, and, of course, persons who are themselves coloured. To use my right honourable friend's phrase (it was the same phrase as that used by the noble Lord) there will be "a number" of these persons. I also agree with the noble Lord that we must not merely have regard to questions of discrimination between, say white and black, or white and brown; we must have regard to, and be prepared to deal with, the possibility of discrimination between members of different coloured races in this country.
§ Clause 13 agreed to.
§ Clause 14 [General provision as to investigation of discrimination]:
§ 3.49 p.m.
LORD BROCKWAY moved Amendment No. 34:
Page 9, line 25, after second ("of") insert ("or within such further period as the Board may in special circumstances allow")
§ The noble Lord said: I rise to move Amendment 34 in the Marshalled List in the name of my noble friend Lord Gifford and myself. I think this Amendment is so reasonable that it will secure support from both sides of the Committee and, I hope, sympathetic consideration from the Government Front Bench. At present, under Clause 14 a complaint can be considered by the Race Relations Board or a conciliation committee only if it is made within two months of the act complained of. The effect of the Amendment is to suggest that there may be occasions when the Board should be allowed to consider an application within a further period.
§ All of us who have had any experience of the effect of laws, and particularly those dealing with social relations, have discovered, whether through our political surgeries as Members of Parliament or 184 as social workers, that there are many cases where justifiable applications are made outside the rigid limit which is laid down in an Act of Parliament. I appreciate that there must be a limit, but I suggest to the Committee that, particularly in the case of persons who are likely to be the victims of discrimination, there is no reason why we should not give the Race Relations Board at least the opportunity in special circumstances of allowing an appeal beyond the rather limited period of two months.
§ The first reason why I suggest this is that many of these people are new to this country and unaware of our laws. They often do not speak our language, and will be quite ignorant of the possibility of making a complaint under this Bill when it becomes an Act. The truth of this is obvious and needs no emphasising. My second reason is this. From my own experience I have found that these complaints are most often raised through voluntary committees, inter-racial in character, in the localities where coloured immigrants are. After complaint has been made to the chairman or secretary of such a voluntary committee the committee meet and considers it. The committee may have an official liaison officer, responsible to the local authority, and, if so, it will be referred to that liaison officer who will make some investigation. It is only after that process that the complaint is forwarded to the Race Relations Board or the conciliation committee. Inevitably, by following that procedure, the limit of two months which is laid down by this clause will be eaten into. Certain areas are affected where there are no liaison officers to the voluntary committees who can act in that way.
My third reason for urging this course applies not only to the immigrants who may be affected by the Bill, but as I think will be in the experience of all of us, quite widely. A justification for a complaint may arise, and the individual who is the victim may be in the middle of some domestic crisis—he may be ill himself, a member of his family may be ill, or there may be other difficulties in his home—which for a time puts the complaint in the background. I know that I am speaking of a human experience which often occurs in many families, and it means that complaints are not made within a limited and rigid period.
I am asking the Committee to add to the words of the Bill:
or within such further period as the Board may in special circumstances allow.
§ I feel that the case for this Amendment is so strong that it will have the sympathy of Members on all sides of the Committee, and I am sure it is likely to have the sympathy of Members on our Front Bench. I beg to move.
§ LORD GIFFORD
In endorsing my noble friend, may I tell your Lordships that the words of the Amendment come from Schedule 2, paragraph 10, of the Bill, which allows an extension beyond the time limit in which a complainant has to refer back to the Board if he is aggrieved by the decision of the voluntary machinery. I feel that if provision is made for a discretion to the Board in those cases it should certainly be given in the case of the original complaint.
I should like to add to the examples given by my noble friend Lord Brockway a further type of example which, in my submission, creates great injustice. This is the case where the person who is victimised is not aware of the fact until more than two months has elapsed. One can imagine, for instance, a man seeking to buy a house being told that a higher offer has been received and that his offer is unacceptable, who may learn some time later that no such higher offer has been received and the house was sold at a lower price. One can imagine, also, the example of a man with an Indian surname applying for a job by letter who receives no reply. He then follows up his original application with subsequent correspondence and it finally emerges that two months previously the employer deliberately omitted to consider him for the job.
The phrase "deliberately omitted", which occurs many times in the Bill, implies, it seems to me, that if someone deliberately omits to offer certain facilities a certain time must of necessity elapse before the person who is refused those facilities is aware that he has been so refused. In those cases, if a man went to the Board and said: "I have been victimised; the act took place two months ago, and I did not know about it.", under the Bill, as at present drafted, the Board could not take up that complaint. That, in my view, would be a grave injustice.
186 This Amendment seeks only to place in the hands of the Board a discretion which I am sure it would use wisely. My personal view is that the period allowed is very short, and when one complies it with the period that a plaintiff has to bring a civil action in the courts it is extraordinarily short. I believe that some flexibility of this kind is necessary. The noble Lord, Lord Brooke of Cumnor, in another context, talked about rigidity in periods of time. I hope he will be with us in saying that this very short period is an example of serious rigidity which could cause great injustice.
§ 4.0 p.m.
§ LORD STONHAM
My noble friend Lord Brockway said that his Amendment was so reasonable as to ensure support from all sides of the Committee. When I sat over there I never moved an Amendment without being of that conviction. I was quite sure that my Amendment was so reasonable that it would appeal to everyone. My sad experience then was that that was not always the case. Of course, we all have sympathy with what my two noble friends have said. They want to ensure that if there is a legitimate complaint it can be considered, and not, as it were, time-barred after the normal limit of two months has expired. We have introduced a time limit for the making of complaints, and the period chosen must be to some extent arbitrary, but it has to be short enough to enable events to be accurately recalled. My noble friend Lord Brockway said that sometimes complaints are delayed for very good reasons. The reasons may be domestic. The complaint is pushed into the background, and it is only after a time that the person concerned has recovered sufficiently to make the complaint. That almost means that the provision should be open-ended so that a complaint could be made at any time. But the time limit must not merely be long enough to enable complaints to be registered; it has to be short enough to enable events to he accurately recalled.
My noble friend Lord Gifford said that the Amendment was in the same words as one made to another part of the Bill, which can be used when the complainant is dissatisfied with a decision of the Board. But in that case, of course, the evidence will have been 187 established; the complaint will have been investigated. But if a complaint is not made for many months, imagine how difficult it is going to be to establish recollections of potential witnesses and the injustice that may thereby be involved. There is, moreover, the point that a person wishing to make a frivolous or vexatious complaint may well delay doing so because it will then be difficult to refute his allegation. Also, we have to make the time long enough—two months—to enable busy people who think they have experienced discrimination—perhaps people over here on a visit who have to leave the country for a short period and then return—to submit their complaint. Having, weighed up these various interests, two months has seemed a reasonable period to meet these interests.
I want to assure my noble friends that we have discussed this matter with the Race Relations Board, and the period is acceptable to them. I should have thought that they would be fully aware of the situation. The Race Relations Board have always accepted that there should be a time-bar on delayed complaints. The great danger—and I am sure the Board feel this—is that a discretionary power to extend the time limit would probably result in such pressure to entertain out-of-date complaints that there would be no opportunity for the proper exercise of discretion; and in that case it would be as if there were no time limit.
My noble friend Lord Brockway put one good point, I thought, and one which was not so good. The not-so-good point I have already dealt with. But he made a good point about a reference to a liaison officer, perhaps made within the time allowed, which may not have been made to the Race Relations Board within the time allowed and might therefore be barred. Personally, I should not have thought that that situation would arise, but that is something I will certainly look at between now and the next stage.
With regard to this two months' period, as distinct from the, as it were, special dispensation asked for in the allowance, I would remind my noble friends that in another place my right honourable friend the Home Secretary offered to consider a period longer than three months; but certainly in another place it proved that there was in fact no demand or real pressure 188 for this. I am bound to say, therefore, that in view of the discussions that have taken place, and in view of what I understand is the opinion of the Race Relations Board—except for the one point which I have have assured the noble Lord I will look at—there seems no justification for this Amendment and no real demand for it among the people whom one would expect to ask for it if it was really necessary.
§ LORD GIFFORD
Before my noble friend Lord Brockway replies, would my noble friend Lord Stonham deal with the case I raised, which is quite a possible one, where the complainant, the victim, does not become aware that he has been discriminated against at all until more than two months after the act took place?
§ LORD STONHAM
I am sorry that I did not deal with that point; it was in rather small writing on my notes. My noble friend spoke about a case where somebody, perhaps over a house or a job, might not be aware that he had been discriminated against for a period which would debar him from making a complaint. I should have thought—I say this without having been advised—that the time would have started from the time when he discovered he had been discriminated against; but I will look into that point and let my noble friend know. Certainly here, on a question of principle, I would agree with him that cases of that kind should not be barred.
§ LORD BROCKWAY
As my noble friend knows, I have a great appreciation of him personally, and of his ability in putting his case in this Committee. Will he therefore forgive me if I say that I have rarely heard a more unconvincing reply than the one which he has made to-day? It has been quite clear from that reply that there are doubts in the minds of members of the Government. In another place, the Secretary of State for the Home Department was prepared to consider a period of three months rather than of two months. My noble friend said in the course of his reply that he is prepared to consider certain circumstances which might make it desirable to go beyond this limit of two months. Therefore, I think it is perfectly clear that in the minds of the Government there is some uncertainty and some preparation to reconsider this matter.
189 I should like particularly to say that this Amendment does not seek to end the two months period which is laid down in the Bill. All this Amendment says is that the Race Relations Board themselves shall have the power in special circumstances—maybe those of the kind which have been described by my noble friend—to extend the time limit. Frankly, I very much doubt the interpretation which my noble friend gave in that connection, because the Bill refers to the date on which the act is committed; not the date when the victim has heard of it, but when the act is committed. However, I appreciate that my noble friend has said that he is prepared to consider this. My noble friend is also prepared to consider the one point which he regarded as legitimate in the arguments which I put forward. I therefore suggest to him that, if we withdraw this Amendment in Committee, between now and Report stage all these matters should be very carefully considered.
The last point I want to make is this. I should not for one moment like to contest what my noble friend has said about the attitude of the Race Relations Board to this matter. I think he is aware that I have some—I will not say "association", but some contact with members of that Board, and I would ask him whether it is not the case that, while they regard a time limit as essential, they have never ruled out that they should have the right, in special circumstances, to deal with complaints which have gone over that time limit. I am speaking with some authority when I say that, and I ask my noble friend whether he can deny that statement. If he cannot, then I suggest it makes all the stronger the case for some consideration of this Amendment between now and the Report stage.
§ LORD MITCHISON
I rise with some hesitation, because I am passionately anxious that this very difficult Bill should work when we have passed it. I am sure we all wish that, and no one has mentioned what seems to me to be the real difficulty about this extension of time. It is not the person who is being discriminated against that creates difficulty; it is the fact that someone else will have got the job or the house. It seems to me reasonable that in those circumstances the other person should have a time limit after which he will know that 190 no question of discrimination can be dealt with under these provisions.
If I may say so, I quite agree, not only with my noble friend's intention but also with the feeling that lay behind his speech, that this was a matter of judgment between two alternatives. It is well exemplified by the uncertainty about the proper length of the period itself. We have to consider both sides of the question, otherwise we shall have cases which, although they may be well founded or ill founded, will cause a type of bad feeling that is really unnecessary. Therefore, I hope that when this is, being considered it will be remembered that some time limit is, in my view, essential, whether it is two months, three months or longer.
I totally disagree with my noble friend that there is any question of a time limit after the discovery of what is wrong. As I read the Bill, the time limit begins when the act is committed and not at any other time. Secondly, if anything is to be done about the period of two months in this clause there will have to be a parallel Amendment to Clause 16—when it reappears in rather different circumstances.
§ LORD STONHAM
I am grateful for the remarks made by my noble friend Lord Mitchison. I will not enter into the legal argument on the last point. He may well be right—he ought to be. The only thought in my mind is this: when is the crime committed? Is it committed when someone makes up his mind, although he may not even write down his decision to take a certain action, or is it when the aggrieved person finds out that the action has in fact taken place? I have only risen to say that I will leave what my noble friend Lord Brockway, has said, and I do not in any way go back on the limited assurance which I gave to look into the points he raised. But he asked me a direct question, and I concede that he has far closer connections with the Race Relations Board—or with the members—than I have. He asked me whether or not the Board had asked for this discretion.
§ LORD STONHAM
I understood that that was the question. In fact the Board have never asked for this discretion, and I would add that the time limit originally 191 suggested by the Board was one month and not two months, as in the Bill. In my view I have expressed the present condition with restraint and have described it accurately to the best of my knowledge.
§ LORD BROCKWAY
I know my noble friend would want to be fair, and I do not think I used the word "asked". I asked my noble friend whether the Race Relations Board had ever declared in any way against these special provisions which have been proposed in this Amendment. As I understand it, the Minister is prepared to look at this matter again before the Report stage. In those circumstances, I and my noble friends would be prepared not to press for a Division on this Amendment now, but we feel strongly about it and we certainly would hold to the right to raise this matter again quite strongly at the later stages of the Bill. With that understanding, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.16 p.m.
LORD BYERS moved Amendment No. 35:
After Clause 14 insert the following new clause:
§ Further provision as to investigation of complaints of discrimination
§ ".—(1) The Board may with leave of the Court where it is necessary in order to enable the Board or a committee to discharge their duties under subsection (3)(a) of section 14 of this Act:—
- (a) deliver interrogatories in writing for the examination of the person against whom the complaint is made;
- (b) require any such person to make discovery on oath of the document related to the subject matter of the complaint which are or have been in his possession or power;
- (c) require the attendance before the Court of any witness for examination on oath with respect to the subject matter of the complaint.
§ (2) The Board may apply for leave under this section on notice stating the grounds of the application.
§ (3) The provisions for the time being of the County Court rules relating to interrogatories, discovery and inspection of documents, and the examination of witnesses shall apply to this section mutatis mutandis."
§ The noble Lord said: I beg to move this new clause which makes further 192 provision for the investigation of complaints of discrimination by giving the Race Relations Board the right to appeal to the court where they consider it necessary to enable them to discharge their duties under Clause 14(3)(a) of this Bill. In other words, where the Board is making inquiries in regard to facts alleged in the complaint it will, in our view, require certain powers which it does not possess at the moment to carry this out effectively. This Amendment makes provision for the court to give the Board power to deliver interrogatories in writing for the examination of the person against whom the complaint is made. It provides for an order to be made to require such person to make discovery on oath of the document or documents relating to the subject matter of the complaint, and to require the attendance before the court of any witness, for examination on oath.
In my view not only is this a reasonable provision but without these powers the Race Relations Board will be in great difficulty in obtaining information and facts which they ought to have at their disposal in coming to their decisions. When this matter was raised on Second Reading, the noble and learned Lord, the Lord Chancellor, said:
The power to subpœna is a power which no one in the country has except a court. Even the police cannot subpœna people, and once you allow somebody other than a court to do that, who is to send them to prison when they do not obey the subpœna?
The noble and learned Lord, the Lord Chancellor then said:
We should have the police and Government Departments making orders to send people to prison. If somebody says that he is not going, what do the Board do? It is not suggested that they have the power to send people to prison.
Finally, he said:
The matter would have to go to the county court. It is not easy for a court to send anyone to prison for not obeying orders that some other body has made."—[OFFICIAL REPORT, 15/7/68, col. 154.]
§ With due respect, this was not the proposal. The proposal was—and I take full responsibility if I did not explain it fully at the time—that the Race Relations Board should be able to apply to the court for orders to be made in accordance with Clause 14 of the Bill. That surely meets all the objections put forward by the Lord Chancellor, because 193 the court makes the order and the court enforces the order, and, if necessary, it punishes people who are in contempt of the court that made the order. The Board merely have the right in certain circumstances to make an application to the court. I believe this is something which the Board need and I hope the Government will give it sympathetic consideration. I believe this is one of the few ways in which this particular Bill, excellent as it is, requires strengthening. I beg to move.
§ LORD STONHAM
As the noble Lord, Lord Byers, has said, the purpose of his new clause is to give the Race Relations Board power to compel the attendance of witnesses and the production of documents on application to a county court. It is true that in their first report the Race Relations Board drew attention to the fact that some persons against whom complaints of discrimination had been made had refused to meet representatives of conciliation committees. The Board pointed out that this hampered the committee's investigations, and could in certain circumstances hamstring them, and the Board therefore suggested that there should be power, with appropriate safeguards, to compel attendance before the committee or the disclosure of information.
Of course, this is a proposition which the Government have very carefully considered; and as the noble Lord indicated, my noble and learned friend the Lord Chancellor dealt with this point on Second Reading. Perhaps the noble Lord, Lord Byers, would not mind if I recite again the arguments against this proposal, while admitting its appeal, if only because the Board themselves pointed out this difficulty. The arguments against giving the Board compulsory powers are, first, that their primary function is to secure conciliation by agreement, and to give compulsory powers to the Board would be inconsistent with this aim. In so far as a sanction is desirable to ensure co-operation, we think it exists in the possibility of proceedings in the courts for an injunction or for damages.
§ LORD BYERS
May I interrupt the noble Lord? Is he answering Amendment No. 35 or No. 50A? I think he is on the wrong one.
§ LORD STONHAM
I was under the impression I was answering Amendment No. 35, which is a new clause, "Further provision as to investigation of complaints of discrimination". Is not that What the noble Lord moved?
§ LORD STONHAM
I am very glad I am convincing the noble Lord in advance. But I hope he will not mind if I deal with the case as I see it.
I was going on to the second argument against these powers, which is that there would have to be a criminal sanction against failure to comply with the orders of the Board, and this would be contrary to the whole concept of the Bill. Compulsory attendance before the Board would need safeguards to maintain the principle that nobody should be compelled to incriminate himself. The provision in the Bill as drafted about the admissibility of evidence would not in itself sufficiently protect an individual from such self-incrimination, because his disclosures to the Board would necessarily arm the Board with information on which they could draw in subsequent proceedings.
The fourth point is that, in principle, to give the Board power to require the production of documents but not the attendance of witnesses is open to the same objections and would be tantamount to authorising it to conduct "fishing expeditions" going much wider than the individual case, and in our view this could not fail to have an adverse effect on the Board's acceptability, especially to industry.
I know that the noble Lord mentioned the suggested compromise of enabling the Board to apply to a court to subpœna witnesses and require the production of documents, instead of having the power to do so themselves. But its effect on the Board's powers would be comparatively limited, because the court could not be expected to test the merits of an application by the Board, which was good on the face of it, and thus the issue of a subpœna would be virtually automatic. And if, as would be reasonable, provision were also made for an application by the potential witness for the 195 order to be set aside, this might well involve a preliminary trial of the facts and the same kind of inconvenience and expense as the eventual reference to the court under the Bill as at present. Further, it would do nothing to remove the need for criminal sanctions—and this is a major objection—and although these would then formally relate to an order of a court, and not to an order of the Board, they would still be invoked in the context of the conciliation machinery and not, as under the present Bill, after conciliation had failed.
Similarly, this compromise would offer no assistance with the difficulties arising from compulsory attendance, because it would provide no safeguard for the rights of a witness (or the holder of documents) once the subpœna had been issued. Even if Clause 22 of the Bill survived—and it might be challenged by those who want to give the Board "teeth"—the power to compel the attendance of witnesses would still enable the Board to obtain from them, under duress, information from which they could identify other witnesses or lines of inquiry, to the respondent's detriment. We therefore feel that it would be necessary to provide as a minimum that persons summoned to attend or to produce documents before the Board should not be compelled to incriminate themselves, and they should be entitled to legal representation, the cost of which, together with the cost of their travel and subsistence, would presumably have to be met by the Board.
I think those are the major objections. The overriding ones are, first, that we should have to provide criminal sanctions, which is quite contrary to the spirit of the Board; secondly—or perhaps this is first—that it interferes with the Board's paramount work of conciliation. Concilation first, and I hope most of the time, and only as a last resort, resort to the courts. I therefore feel that it would be contrary to the spirit of the Bill, and I hope that, on reflection, the noble Lord also will feel this.
§ LORD BYERS
I must say that I do not feel my Amendment is contrary to the spirit of the Bill; and, with all respect, I do not think the noble Lord has made out a very strong case. As he said, there have been occasions when people have refused to meet members of conciliation 196 committees. All we are seeking to do here is to give the Board the right to apply to a court in order to help them to get a meeting with people, to get witnesses to give evidence on oath, and to get documents discovered. I should have thought that a perfectly reasonable thing. The noble Lord made a lot of play with the idea that this Board have as their main and paramount function the whole question of conciliation. Of course. But that is no reason why they should not have behind them a sanction to enable them to do their job properly. This is the argument employed by the Government every time we have a Prices and Incomes Bill before us. They have said, "We want to do our best to get agreement; we want to negotiate. But in the last resort we want to have power to go to the court to enforce this". I do not think this is a good enough case.
On the question of self-incrimination, I do not believe that this point stands up to any scrutiny at all. I am advised that the Government tell us that it would be contrary to legal principle to compel a potential defendant to give evidence in any of the ways I have suggested, because of the risk of self-incrimination, but the fact is that he, or any witness, could properly refuse to disclose particular documents or answer particular questions on this ground only where the result of doing so might be to render him liable to prosecution for a crime. The risk of civil liability under the Race Relations Act would not, I am advised, justify refusal.
I cannot help feeling that there is here a "ganging-up" between the two sides of industry. There is this question, as the noble Lord said, that it would have a very adverse effect on the Board's acceptability, especially to industry. In other words, they want to keep the Board especially in relation to matters of employment, weaker than we believe it should be. I believe that any Board without these powers will not be able to do their job properly, and I prophesy that within two years it will be necessary to come back for powers such as these unless we give them now. I am not convinced.
§ 4.30 p.m.
§ On Question, Whether the said Amendment (No. 35) shall be agreed to?197
§ Their Lordships divided: Contents, 19; Not-Contents, 116.
|Airedale, L.||Byers, L.||Meston, L.|
|Amulree, L.[Teller.]||Gifford, L.||Noel-Buxton, L.|
|Asquith of Yarnbury, Bs.||Henley, L.[Teller.]||Nunburnholme, L.|
|Beaumont of Whitley, L.||Hunt, L.||Ogmore, L.|
|Birk, Bs.||Listowel, E.||Rea, L.|
|Brockway, L.||Llewelyn-Davies of Hastoe, Bs.||Sainsbury, L.|
|Aberdare, L.||Fortescue, E.||Moyle, L.|
|Aberdeen and Temair, M.||Francis-Williams, L.||Nugent of Guildford, L.|
|Addison, V.||Gage, V.||Pargiter, L.|
|Ailwyn, L.||Gardiner, L. (L. Chancellor.)||Phillips, Bs.|
|Alport, L.||Geddes of Epsom, L.||Rankeillour, L.|
|Auckland, L.||Granville of Eye, L.||Rathcavan, L.|
|Audley, Bs.||Greenway, L.||Rhodes, L.|
|Balerno, L.||Grenfell, L.||Robertson of Oakridge L.|
|Belstead, L.||Gridley, L.||Rockley, L.|
|Berkeley, Bs.||Grimston of Westbury, L.||Rusholme, L.|
|Beswick, L.||Hawke, L.||Sackville, L.|
|Blyton, L.||Helsby, L.||St. Aldwyn, E.|
|Bowles, L.||Hill of Wivenhoe, L.||St. Helens, L.|
|Braye, L.||Hilton of Upton, L. [Teller.]||St. Just, L.|
|Brooke of Cumnor, L.||Horsbrugh, Bs.||Salisbury, M.|
|Brooke of Ystradfellte, Bs.||Iddesleigh, E.||Sandford, L.|
|Buckinghamshire, E.||Ilford, L.||Sandys, L.|
|Burden, L.||Jacques, L.||Selkirk, E.|
|Carrington, L.||Jessel, L.||Sempill, Ly.|
|Cawley, L.||Kennet, L.||Serota, Bs. [Teller.]|
|Chalfont, L.||Killearn, L.||Shackleton, L.|
|Champion, L.||Kirkwood, L.||Shepherd, L.|
|Chorley, L.||Lambert, V.||Silkin, L.|
|Citrine, L.||Latham, L.||Snow, L.|
|Clwyd, L.||Leatherland, L.||Somers, L.|
|Conesford, L.||Lindgren, L.||Sorensen, L.|
|Cork and Orrery, E.||Lucas of Chilworth, L.||Stocks, Bs.|
|Craigmyle, L.||McCorquodale of Newton, L.||Stonham, L.|
|Crook, L.||McLeavy, L.||Strang, L.|
|De La Warr, E.||Macpherson of Drumochter, L.||Strange of Knokin, Bs.|
|Denham, L.||Maelor, L.||Summerskill, Bs.|
|Douglas of Barloch, L.||Massereene and Ferrard, V.||Taylor of Mansfield, L.|
|Douglass of Cleveland, L.||Merrivale, L.||Teviot, L.|
|Drumalbyn, L.||Mills, V.||Thurlow, L.|
|Dulverton, L.||Milverton, L.||Vivian, L.|
|Effingham, E.||Mitchison, L.||Wakefield of Kendal, L.|
|Emmet of Amberley, Bs.||Morris of Kenwood, L.||Wells-Pestell, L.|
|Falkland, V.||Morrison, L.||Williamson, L.|
|Mowbray and Stourton, L.||Wolverton, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 15 [Investigation of complaints relating to employment, trade unions and organisations of employers]:
§ 4.40 p.m.
LORD SANDFORD moved Amendment No. 36:
Page 11, line 8, after second ("of") insert ("deliberately").
§ The noble Lord said: I beg to move Amendment No. 36. This is little more than a drafting Amendment, but, I think, important. When the Bill was first presented 198 in the Commons, the words "inciting, aiding, abetting, counselling, and procuring" appeared in the Bill at two points, in Clauses 11 and 15. There was a discussion on this in the Standing Committee and at the end the Home Secretary described himself as "retreating in front of a great onslaught of lawyers", who persuaded him to amend these phrases arid to introduce the phrases now contained in Clause 11, which is a single paragraph taking the place of the two subsections that formed Clause 11 in the Bill as originally presented. These changes incorporated into the phrase, and before each of the verbs, the key word 199 "deliberately". This met one of the important points made in the Committee in the other place, and if it is acceptable at this point I think it even more necessary to have it included where my Amendment suggests, in Clause 15. I beg to move.
§ LORD STONHAM
If the noble Lord were right in his contentions then of course his Amendment would be more than a drafting Amendment, it would be absolutely essential. He was partially right in describing what happened in another place, and in the fact that my right honourable friend the Home Secretary agreed to alter the wording in Clause 11, "Incitement and accessories", by inserting the word "deliberately" before "aids, induces or incites". That Amendment was made at Report stage in the Commons, but a consequential Amendment was then made to Clause 15, which we are now considering. I can assure the noble Lord, however, that his Amendment is unnecessary, because the last two lines of clause 15:… an organisation of employers or workers or an act of aiding, inducing or inciting the doing of such an act of discrimination.can only refer back, does only refer back, to Clause 11, which reads:Any person who deliberately"—that is the word used—aids, induces, or incites another person to do an act which is unlawful by virtue of any provision of this Part of this Act shall be treated for the purposes of this Act as doing that act.I am advised it can only refer back to Clause 11, which makes it clear that it is "deliberately" aiding something which was unlawful. Therefore, I hope that the noble Lord will be satisfied that his intention is already achieved by the Bill.
§ LORD SANDFORD
I thank the noble Lord for that explanation. It does indeed satisfy me, because, provided that inadvertent acts of discrimination are not going to fall inside the provisions of this law, I think the position is safeguarded. I beg to leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
§ Clause 16 agreed to.200
§ Clause 17 [Assessors]:
LORD SANDFORD moved Amendment No. 37:
Page 11, line 38, after ("matter") insert ("impartial").
§ The noble Lord said: I beg to move Amendment No. 37. I think that if this clause had stopped at the words, "The Race Relations Board may appoint assessors" there would be nothing more to be said. But if we are to spell out the qualifications that these assessors should have, we should, I submit, make a balanced and a thorough job of it. I would submit that "impartiality" in these assessors is at least as important as "special knowledge and experience of the circumstances" in which the act complained of has accurred. In fact, if "special knowledge" alone is all that is to be sought for and thought desirable in an assessor, we may in fact lose impartiality; impartiality may go by the board. What I say on this clause applies also to some extent to the Amendment standing in my name on Clause 18, but I will not link the two clauses together because these are different assessors serving different bodies. I beg to move.
§ LORD STONHAM
By his Amendment the noble Lord, Lord Sandford, seeks to ensure that the assessors appointed by the Race Relations Board under Clause 17 should be "impartial". The purpose of Clause 17 is to enable the Board to seek outside help in specific cases. It would really be expert help related to the kind of case, particularly, of course, where technical or specialist matters were concerned of which no member of the Board could be expected to have direct or expert experience. It seems to us in the highest degree unnecessary to provide by Statute that the assessors should be persons not involved in, or connected with, the complaint being investigated. If they are experts unconnected with a particular case in any way then, virtually by definition, they are "impartial", just like experts called to give evidence in a court.
Since the Board, or under other clauses of the Bill the Committee, will select and appoint the assessors, it is inconceivable that the Board would chose as an adviser someone who was involved in a particular case, and for that reason could not be regarded as impartial. Of 201 course this is so unlikely as to be impossible. I hope that the noble Lord, Lord Sandford, will feel that to put it in the Bill would be to put a reflection on the Board, because it would be an assumption that we could not trust them to appoint impartial experts to advise them on particular cases where expert advice was needed. I am entirely with the noble Lord in wanting "impartial expert"; that is absolutely essential. We are appointing this Board to carry out their job, giving them power to appoint assessors, and we must trust them to ensure that they are impartial, and not insist on it in the Statute.
§ LORD SANDFORD
I am not convinced, by what the noble Lord, Lord Stonham, has said, that the insertion of "impartial" would do any harm or would be any reflection on the Race Board. It is something of a reflection on the Race Relations Board to have to spell out what an assessor should be, because I should have thought they would already have known that. It is not a question of the assessors not being involved. Obviously the Board would not choose people who were involved, but there might be in any one place a whole community who felt that it was involved in a particular event or act of discrimination which had taken place. In the circumstances, it would be desirable that somebody from some different community should be chosen, and somebody having this expert and special knowledge. The only way of securing that is to include the word "impartial", as I have done in my Amendment.
§ LORD STONHAM
I am quite sure the noble Lord does not wish us to conduct a long argument on this point. I am bound to say, with the greatest respect, that I think his arguments are misconceived. Perhaps he will just read the first subsection of Clause 17:The Race Relations Board may appoint as assessors to assist the Board or any conciliation committee in their investigation of any complaint or other matter persons—The noble Lord wants to make it "impartial persons"—appearing to the Board to have special knowledge and experience of the circumstances in which the act to which the investigation relates is alleged to have occurred and of any other circumstances appearing to the Board to be relevant.202 The noble Lord spoke about possible instances in which the whole community was involved, so that, he said, no one in the whole community could be impartial.
§ LORD STONHAM
Yes. But assessors here would be largely experts in particular fields. It might be in the field of employment; it might be insurance experts, or banking experts: people who would be in a position to advise the Board, for example, whether in dealing with a charge of discrimination the person or firm accused had in fact used normal commercial judgment and had not been activated by race relations. To do that, the assessors would have to be business or financial experts. Of course they would be, by definition, impartial.
To suggest anything else would really be, with respect, to say that the Board were not up to the job and were not to be trusted. That is the last thing the noble Lord wants to suggest. I ask him to reflect on that, and I assure him that in our view the insertion of the word "impartial" is quite unnecessary.
§ LORD SANDFORD
I certainly do not want to press the point or prolong this discussion. I am not convinced, I must confess, by what the noble Lord has said. I do not think he has really answered the points I have made. However, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.55 p.m.
LORD GIFFORD moved Amendment No. 38:
After Clause 17, insert the following new clause:
§ Board to notify persons concerned of reasons for not bringing proceedings
§ ".Where the Race Relations Board, in pursuance of a determination of theirs under section 14 of, or Schedule 2 or 3 to, this Act, do not bring proceedings under section 18 or 19 of this Act, they shall give a written notification to the parties, or in the case of a determination under Schedule 3 of this Act, to the persons appearing to them to be concerned, stating the reasons why they have determined not to bring proceedings."
§ The noble Lord said: May I say at once that this is intended to be a probing 203 Amendment, to elicit some information from my noble friend as to the consequences of a determination by the Board not to bring proceedings in accordance with the Act, and to draw attention to what is obviously a very novel procedure? I believe the majority of coloured people, certainly of my acquaintance, and I hope in the country, accept that conciliation is the best and, indeed, only method to try to affect patterns of behaviour and deal with complaints of discrimination. What puzzles them, however, is that when the conciliation procedures have been carried through, when the original complaint has been found to have validity by the Board, the Board still have the discretion not to take any further steps whatsoever and, if they so determine, the complainant is debarred from the courts and has no right of access. Although I do not seek to change that provision in the Bill, I do have serious reservations about it. Particularly I feel that if this happened often there would be in the minds of some coloured people a feeling of slight, a feeling that this special protection had been given against complaints made by them and that they were on an inferior footing to other litigants in the courts. I am anxious about the effects of this exclusivity given to the Board to bring these proceedings.
§ In my Amendment I seek to ask the Government to accept the point that the Board will at least—if they do not bring proceedings in the county courts, having formed an opinion that discrimination did take place—give the complainant in particular the reasons why it is decided not to bring those proceedings. Possibly, my noble friend will be able to give me some indication of the sort of cases where proceedings will not be brought. I hope he will recognise that if a man has made a complaint, has gone through all these very elaborate conciliation procedures, particularly in the case of employment, at the end of it all is told that his complaint was a justifiable one but the company involved would not give the relevant assurance that he would not continue to be discriminated against, but that the case would not be taken to court and that the man himself could not take it on his own behalf, then, at least, he should be given the reasons why that action had been taken. Those 204 reasons could then in appropriate circumstances, be publicly ventilated, and the criteria which the Board were adopting in deciding not to bring proceedings could be publicly considered, if necessary.
§ I think it would defeat the purpose of the Bill if a complainant were left with no remedy, the Board not taking his case up but leaving him quite bewildered and not knowing why that strange course of action had been taken. I am hoping that my noble friend will be able to say that, no doubt as a matter of course, the Board will give reasons. To elicit information on those points I beg leave to move my Amendment.
§ LORD STONHAM
As my noble friend Lord Gifford has made clear, the purpose of his Amendment is to put in the Statute a requirement for the Race Relations Board to notify the parties concerned of their reasons for not bringing proceedings in court in cases where they have formed the opinion (under, for example, subsection (4) or subsection (5) of Clause 14) that an act of unlawful discrimination has occurred, and where they are unable to secure a settlement. I can gratify my noble friend by telling him that there is already provision in subsection (6) of Clause 14, and elsewhere, for the Board to notify the parties concerned of the opinion they had formed on a complaint, and the action, if any, they propose to take. In the great majority of cases where the Board formed the opinion that unlawful discrimination had occurred and they were unable to secure a settlement they would decide to take proceedings in the courts; but if an instance should arise where they decided not to take proceedings they would, in the majority of cases, again explain their reasons to the parties concerned.
My one difficulty about my noble friend's Amendment, apart from what I have said about Clause 14(6), is that his Amendment would impose a statutory requirement on the Board in all cases to explain their reasons why they have not gone to the court. Cases might arise where the Board would have a good case not to disclose their reasons, and it would therefore be wrong to lay upon them this specific statutory duty. My noble friend asked me to give an example. One reason for the Board not 205 to take proceedings would be when discrimination was admitted and the offender was willing to make reparation, but when the complainant was not prepared to accept this, in the Board's view unreasonably. In other words, the Board has dealt with the case, the fault is admitted, reparation is offered, the complainant refuses to accept it, the Board think that he ought to have accepted the offer, and, because he has not accepted it, decide not to take the offender to court.
Just as the basis of this whole Bill is conciliation, equally its other foundation is the power, authority and influence of the Board. We must get the best possible Board with the finest possible members. We must give them all the facilities and, I hope, enough finance. I hope that we shall give them—and I am sure that we shall give them—a sufficiently strong staff, and then let them get on with the job. Then let them tell us, in their communications with the Home Secretary and in their annual reports to Parliament and in other ways, where the weaknesses lie and where perhaps they are failing to do as good a job as they would like to do. If further regulations or further powers are necessary, let us leave it to the Government to decide whether or not the Board should come to Parliament to seek those further powers. Meanwhile do not tie their hands too tightly, but leave them as much discretion as we can. Surely if there is any body of men and women who will be more interested than anyone else in making this a success, it will be the members of the new Race Relations Board.
§ LORD GIFFORD
I am very grateful to my noble friend for that most full reply. I appreciate that the Board will naturally and as a matter of course give reasons in exceptional circumstances. Having heard what he has said I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 [Nature of proceedings in England and Wales]:
§ 5.4 p.m.
LORD ILFORD moved Amendment No. 39:
Page 12, line 10, leave out paragraph (b).
§ The noble Lord said: It might be convenient for this Amendment to be discussed with Amendment No. 44, and with the leave of the Committee I propose to take that course.
§ Clause 18 deals with legal proceedings which may arise from an act of discrimination. The Bill as drafted vests in the Race Relations Board the right to bring an action on behalf of a person discriminated against in which the Board may claim an injunction which would, of course, restrain the act complained of or any future similar acts; or they may invite the court to make a declaration that a particular act is unlawful under this Bill. The Amendment does not affect either of these matters. But the clause goes on to provide that the Board may claim, on behalf of the person discriminated against, damages in respect of the act complained of. It is that part of the clause which the Amendment seeks to leave out.
§ The question which the Commitee has to determine can be stated shortly. Should the Board be made responsible for claiming damages on behalf of persons discriminated against, or should such persons be allowed to bring their own actions for damages in their own way and at their own time? That is the issue which this Amendment raises. The course for which the Bill provides is a most unusual proceeding. I do not know whether the noble Lord who is to respond on behalf of the Government will be able to tell us of any precedent for this. Is there any other known case where a person is deprived of his right to bring an action for damages and some other person is made responsible for claiming damages for him? I can think of no parallel case to this; I can think of no case where this particular course of proceedings has been adopted. I am sure that your Lordships will be well advised to follow the usual course here and allow the individual to bring his own action for damages.
§ There are many reasons why this course is preferable. First of all, it will be most embarrassing for the Race Relations Board to have to undertake to bring actions on behalf of persons who had suffered, or considered that they had suffered, damage by reason of an act of discrimination. One can see that there will be cases in which the Board decide 207 that the complainant has not suffered damage and refuse to take proceedings. The claimant is then shut out altogether; he cannot take proceedings for himself, and he will complain bitterly that the Board will not take proceedings for him. As the Bill will work out, claims for an injunction or a declaration are not likely to be very strenuously resisted. An individual who has commited an act of discrimination and who knows that the Race Relations Board consider that his action has been unlawful will not desire to persist in it. The same applies to a declaration. If the court is asked to make a declaration, there will be very little opposition to it; but damages are in a quite different class. Every person who is the subject of an act of discrimination will consider that in some form or another he has sustained damages. He will go to the Board and press the Board to undertake an action on his behalf claiming the damages which he believes he has suffered.
§ I can see that the Race Relations Board will very soon be overwhelmed with the number of claims which persons who have been discriminated against think the Board should pursue for them. Eventually, the Board will come to be regarded as a prosecuting body, and that is precisely what this Bill desires to avoid. The Board is to be primarily a conciliation body, and the more it becomes identified with the taking of proceedings in the courts, the less will be its influence in the conciliation work for which it is designed. There is this further risk which one cannot brush aside. A person who has been discriminated against ought not to be deprived of his right to claim damages flowing from the act of discrimination. He should be free to bring his own action if he so desires, and he should bring it in his own way and claim damages to which he considers he is entitled.
§ For all those reasons, I hope your Lordships will decide to follow the normal practice and leave the person discriminated against with his rights, and restrict the action which the Board can take in the courts to a claim for an injunction or a claim for a declaration. I beg to move.
§ LORD CONESFORD
I would add only this. In supporting my noble 208 friend's argument, I am not overlooking what is already in subsection (10) of this clause. I think the argument of my noble friend will be strengthened when we come to Clause 21—though I am not suggesting that we should now discuss that clause in advance—because it defines the damages which are involved in the words which my noble friend is proposing to strike out.
In my speech on Second Reading, I gave reasons for thinking that what is in paragraph (b) of subsection (1) of Clause 21 is so difficult to assess, that the person who thinks he has been discriminated against will be very dissatisfied with the Race Relations Board and with the result of the proceedings, whatever the result may be. I think that these actions for damages are calculated to create a good deal of ill-feeling, both on the part of the man on whose behalf the Race Relations Board are endeavouring to act, and the person against whom proceedings are brought. For those reasons I support my noble friend.
§ THE LORD CHANCELLOR
In this Bill there are, of course, a great many points which are obviously matters of opinion. I agree that it is convenient to discuss Amendment No. 40 with this Amendment and possibly, to some extent, the later Amendment, to leave out Clause 21, because they all raise this question of damages. I should have been less surprised if the Amendment had been to allow individuals to take proceedings for themselves, and not to have proceedings taken on their behalf by the Board. What seems to me a little illogical, if I may respectfully say so, is to say: "We approve of the Board taking proceedings for an injunction on somebody else's behalf. We are not going to let him take proceedings for an injunction at all. We are not going to let him take proceedings for a declaration. We are going to have the Board taking proceedings for a declaration on his behalf. But when it comes to damages, and only damages, then he is to be allowed to take proceedings himself." This is very peculiar.
One can envisage a state of things in which the Board think there really ought to be an injunction. I suppose they take one form of proceedings on his behalf for an injunction, and he takes separate proceedings for damages. With 209 respect, I should have had more sympathy with the view that people ought to be allowed to take their own proceedings. It is quite rightly said that it is a very exceptional thing, having a Board bringing an action on behalf of somebody else. As noble Lords know, parents can bring actions on behalf of their children and so on, but this other action is unusual. But then racial discrimination is itself unusual.
The intention of confining proceedings to the Board is in order to stop a mass of claims which are without foundation and so to provide a sieve. Noble Lords may remember that the Board have received many complaints which are outside the present Act, because they are not claims confined to places of public resort. They include complaints about housing and unemployment, in particular, which are outside the present Act. But I think noble Lords will find, in Appendix 4 to the second Report of the Board that of the cases within their jurisdiction which they went into the majority were false, were unfounded.
There is, I think, a grave danger of a great many actions—particularly if there are damages involved—being brought by coloured people themselves, many of which will be unfounded. There really ought to be some sieve, somebody who is familiar with colour problems and with conciliation work, somebody who has already been into the case. The local conciliation committee will have been into it, the Board will have been into it, and it should then be for the Board to say whether there is a case which properly ought to be brought. For that reason an action, whether for an injunction, for a declaration or for damages, should really be commenced by the Board.
§ LORD ILFORD
The noble and learned Lord has not convinced me. I feel confident that the Board will be overwhelmed with claims by persons who may have no right to make claims, and who may not be entitled to anything. I think it would be wiser to send those people to the county courts where that sort of litigation can be discouraged in the usual way. But I see that I am not going to get any further with this Amendment, and I accordingly beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 5.18 p.m.
THE LORD CHANCELLOR moved Amendment No. 41:
Page 12, line 17, at end insert ("and in those proceedings, whether or not such a claim is made, an application may be made in accordance with section (Validity and revision of contracts) of this Act for revision of any contract or term in a contract alleged to contravene any such provision.")
§ The noble and learned Lord said: This clause deals with the effect of the Bill on contracts to which, I must frankly say, I think, insufficient attention had previously been given. As the Bill stands, discriminatory clauses in contracts would be unlawful. 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 contract would be unenforceable by either party. This could have patently undesirable consequences. In insurance, for example, a coloured person might find that after paying premiums for some years he could not, because the contract contained a discriminatory element, recover anything if his house was burnt down; or for the same reason a coloured tenant might find that he had no clear right to stay in his flat; or a landlord might be unable to recover rent in circumstances in which it would be reasonable that he should. A landlord, for example, who perhaps unwittingly had included a discriminatory element in a contract, might find he could make no claim against a coloured tenant who over a period had refused to pay any rent at all.
§ It would not be sufficient to deal with these difficulties by a simple provision that contracts should remain enforceable even if they contained a discriminatory element. First, this would permit the enforcement of the discriminatory term in the contract. Secondly, there would be the possibility of overlapping jurisdiction since the same contract might give rise to proceedings for damages under the Bill and for breach of contract in the ordinary courts.
§ This new clause provides a solution to this difficulty by empowering the court to revise the discriminatory terms in a contract. The effect of this would be that in proceedings brought by the Board, 211 and at the request of either party to the proceedings, the court could order revision of any discriminatory term, including the omission of the term altogether, so as to make it fair and just in all the circumstances. The time limit of two months for the receipt of complaints will apply in such cases. The Amendment to Clause 18 provides that such an application for the revision of a contract may be made in proceedings brought before the court whether or not any of the other claims listed in Clause 18(1) is made; and the Amendment to Clause 19 makes similar provision for Scotland.
§ Your Lordships may think that this is giving a very wide power to the courts to revise contracts, but I do not see any other way—and we have thought a lot about this—in which justice can be done, because whether you say, as the Bill is now drawn, that discriminatory provisions in contracts are illegal and unenforceable or whether you say that they are to be legal and enforceable, to do justice you have to know what has already happened under the contract—whether somebody has paid a deposit or not. What the courts will be striving to do will be to make such revision as will ensure that the one who has discriminated does not gain by it, and that justice is done. I beg to move.
§ LORD BROOKE OF CUMNOR
Not being a lawyer myself, and correspondingly having little experience of the courts, I hesitate to express any definitive view about the detail of the solution which the Government offer to this problem, but of the existence of the problem I have no doubt at all; and I am sure the noble and learned Lord was entirely justified in expressing surprise that so little attention had been paid up to a comparatively late stage of the Bill to this question of discriminatory terms in contracts. For that matter, the Opposition must bear its share of responsibility, although the initial responsibility is on the Government to foresee all situations which may be affected by legislation. I do not know whether any of my noble and learned friends will wish to express views about the practicability of revising contracts through the medium of the courts, as suggested in this group of Amendments. For my part, it seems to me to be the right kind of approach, but 212 I should welcome their views as to whether it will be workable.
§ THE LORD CHANCELLOR
May I just say that, while it is Amendment No. 41 that I am moving, I was also addressing myself to Amendments Nos. 48 and 53.
§ LORD CONESFORD
The noble and learned Lord will of course have something further to say when we come to No. 53? He was not anticipating that in any way, was he?
§ THE LORD CHANCELLOR
I was, in effect, anticipating that, too. I was speaking to Nos. 41, 48 and 53–53 in the main, because that is the new clause.
§ LORD CONESFORD
I rise only to ask a question. What the court will have to do under Amendment No. 53 is an extremely difficult matter. I am not quite clear as to the circumstances in which these matters could come before the High Court. I suppose they could by way of appeal; but I should like to know the method by which a determination under the powers conferred by Amendment No. 53 could come before the higher courts.
§ THE LORD CHANCELLOR
They would go to the specially designated courts and, of course, an appeal lies from them in any case on questions of law under the existing legislation, and, under this Bill, also on fact, to the Court of Appeal.
§ On Question, Amendment agreed to.
THE LORD CHANCELLOR moved Amendment No. 42:
Page 12, line 25, leave out subsection (3).
§ The noble and learned Lord said: In moving this Amendment, may I also discuss Nos. 43, 49 and 50? These are technical Amendments relating to the jurisdiction of a county court in respect of acts done on ships or aircraft outside the district assigned to the court. The references in the present Clause 18(3) to the court's jurisdiction in tort and in Clause 19(3) to the court's jurisdiction in respect of delicts are superseded by subsection (2) of the Government's proposed 213 new clause which your Lordships have inserted after Clause 10, and are therefore no longer required. I beg to move.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR: I beg to move Amendment No. 43:
Page 12, line 41, at end insert—
("()A county court appointed to have jurisdiction under this section shall have jurisdiction to entertain proceedings under this section with respect to things done on ships or aircraft outside the district assigned to the court for the purposes of this section, including things done on British ships or aircraft outside Great Britain,")
§ On Question, Amendment agreed to.
§ 5.27 p.m.
LORD CONESFORD moved Amendment No. 44:
Page 12, line 42, leave out subsection (7).
§ The noble Lord said: The object of this Amendment, to which I attach a great deal of importance, is to leave out the provisions saying that the judge shall be assisted by two assessors. Not only do I hope to show the Committee what I am sure will be admitted—namely, that this is a very exceptional and unusual provision—but I should also like to persuade all parts of the Committee that it is an unwise provision and, in my submission, is likely to cause the Government far more difficulty than it avoids.
§ The Government have said—and, of course, I accept the sincerity of this intention—that they want conciliation to go as far as possible, that they want most of these matters to be solved by conciliation, and that it is only the exceptional case that will come before the courts. Where the matter does come before the courts, what I may call the plaintiffs will in every case be the Race Relations Board, and the defendant will, I think, usually be a native inhabitant of these islands who has been brought before the court because it is alleged that under the provisions of this Bill he has been guilty of an act of discrimination. That act of discrimination is unlawful under this Bill, but it is a wholly novel wrong; it is a novel provision of the law which has not hitherto existed. In those circumstances, I am sure it would be the wish of noble Lords, in whatever part of the Committee they sit, that the 214 defendant should have a sense of justice and fair play.
I ask the Committee to consider these two facts. They will see that under the subsection which I am proposing to strike out the assessors are to be chosen from a list prepared by the Lord Chancellor of persons appearing to him
to have special knowledge and experience of problems connected with race and community relations.
Those, of course, are very much the qualifications that will be sought among members of the Race Relations Board. In other words, the assessors and the plantiffs will have a great deal in common; they will be the same sort of people. The difficulty I foresee is that the defendant will feel a sense of injustice, if it is asserted that the determination of the law and the facts is too difficult to be dealt with by an English judge; that it must be dealt with by a judge with the assistance of two people who can advise that judge, but whose advice will be unknown to the defendant in court—people chosen from the same sort of people from whom the Plaintiffs themselves have been chosen. I do not believe that that will add to the acceptability of the decisions of the court among defendants or indeed generally among the native population. It will be said with some justice, "Surely, the questions of fact and law laid down in this Bill as constituting acts of discrimination are those with which a county court judge is perfectly capable of dealing".
§ I do not know whether it is realised how very exceptional it is in our law to have assessors at all or anything like the provision which I am proposing to strike out. Let me take a case of assessors which may be familiar to many noble Lords in all sections of the Committee, if they have visited the courts where the Admiralty jurisdiction is being carried out and find a court deciding on what has happened in a collision at sea. There they will find the learned judge assisted by two nautical assessors who are Elder Brethren of Trinity House and who advise the judge on the laws of navigation, a matter in which the judge neither is, nor can easily make himself, an expert. They are of the greatest assistance to the court.215
§ Occasionally, in wholly new matters we create a special court. Let me take the example of the Restrictive Practices Court under the Act of 1956. A number of judges are appointed to that Court but persons of experience in industry, commerce and public affairs are also appointed. A judge presides, but some of these non-legal people sit as part of the Court; because a wholly new sort of court was considered right for deciding that novel subject. But in this Bill we are not creating anything too difficult for a judge to understand. He can easily deal with the facts and law involved.
§ I am afraid that unless my suggestion is adopted and we allow our judges to sit alone (as do our judges in all ordinary cases) the defendant will have, or at least he will think he has, a real cause of complaint that justice is not being done. Of course, it may be said that the expert evidence of such people may be required; but, if that is so, let them be called as experts before the court and, if that is the wish of counsel for the defendant, be cross-examined. What I think we do not want, in this simple matter of whether there has been an unlawful act of discrimination, is an expert who gives evidence not by stating his views in open court and being liable to cross-examination but by whispering something in the ear of the judge.
§ I attach the utmost importance to these considerations, and I hope that the noble and learned Lord may think that there is something in them. Although, as he well knows, there is a great deal in this Bill with which I do not agree I am sure he will accept my assurance that in this particular matter I am simply seeking to improve the Bill.
May I remind the Committee of one other matter brought out, I thought, in an attractive way in another place by my right honourable friend Mr. Quintin Hogg. He reminded the Committee of another place of what will be familiar to those noble Lords who have studied philosophy as "Occam's Razor", a principle of philosophy which we owe to a wise Oxonian and Franciscan of the 14th century, William Ockham. The philosophic principle called "Occam's Razor" is as follows:
"Entia non sunt multiplicanda praeter necessitatem."
which I shall translate as:
Entities must not be unnecessarily multiplied.
§ What applies to entities also applies to courts of law. I do not want, whenever we change the law, to invent a new sort of court. There is a great deal to be said for the wisdom that has given us the sort of courts we have. As I read the proceedings in another place I was given the overwhelming suspicion that this suggestion of a county court judge assisted by two assessors was a foolish compromise between two rival views, neither of which carried the day. One of these views was that there should be an entirely new sort of court, and the other, which I consider the better, that we should use our judges. In the event it was decided to do neither but to modify existing procedure; and that modified court is not better than the sort of court that wisdom has evolved over the ages. The court would be much better without these assessors. I beg to move.
THE DEPUTY CHAIRMAN OF COMMITTEES
I remind the Committee that if Amendment No. 44 is agreed to I cannot call Amendment No. 45.
§ 5.39 p.m.
§ LORD BROOKE OF CUMNOR
I hope that the Government will take my noble and learned friend's views very seriously. He may be an opponent of much that is in the Bill, but I am quite certain, so far as this clause is concerned, that he is anxious by his Amendment to ensure that the proceedings will be more acceptable to all concerned. On a previous Amendment it was suggested by the Government that the introduction of the word "impartial", as proposed by my noble friend Lord Sandford, would be an insult to the Race Relations Board. I cannot help feeling that the proposal that the judge in these cases must be assisted by assessors could equally be described as an insult to the judge.
The words which most trouble me here are the words "assisted by". I entirely understand the desirability of making all kinds of information available to the judge. In criminal proceedings the judge can have the views of the probation officer, who is called, I think, as a witness rather than as an assessor. There may be all kinds of obscurities here, and although I cannot think that 217 they will be as obscure as navigation might be to a judge sitting in the Admiralty Division, nevertheless, there may be novelty inherent in some of these cases. If the judge does need some special information about the nature and circumstances of the case which cannot be obtained, as in the normal course, by the calling of witnesses, ought any additional people to be entirely separated from the judicial function? The judicial function, surely, is one of complete independence, and the Judiciary commands the respect which it does in all quarters because of that independence. Here the judge cannot be seen to be wholly independent. He is being assisted by other persons not of judicial rank.
I do not know whether I should be right in conjecturing that normally the idea would be to have one assessor who was white and one who was non-white—that may or may not be so. If my conjecture is right I do not feel that it would be a very happy way of creating confidence among all concerned with the proceedings that a decision would be given wholly impartially. I should have thought those concerned should, and probably would, accept the complete impartiality of a judge, as generally happens throughout our legal proceedings—except among those people who would never believe in the impartiality of anybody; and those people would not be helped by the fact that the judge was assisted by two assessors. I am quite sure that my noble friend has done right to raise this point and demand the Government's defence of this virtually unprecedented proposal. In any case, I greatly hope that the Government will carefully study whether I am not right in saying that those words "assisted by" are particularly unhappy.
§ 5.43 p.m.
§ LORD LEATHERLAND
The noble Lord, Lord Conesford, gave us to understand that it was a very rare custom and that he could cite only the case of the very experienced assessors who sit in the Court of Admiralty. But are there 218 not our criminal courts, our assizes and our quarter sessions courts where the learned judge is similarly assisted by laymen, those laymen being the "twelve good men and women true" of the jury who, as a result of arguments put before them, arrive at the most vital decision which confronts us in the courts; namely, whether the person in the dock is guilty or not guilty. I am quite sure that this sharing of responsibility between the learned judge and his lay assistants is more common in our courts than we have been given to understand.
§ LORD CONESFORD
The noble Lord, Lord Leatherland, as always, is being quite fair; but we are dealing here not with a criminal matter but with a quasi-tort. I did not say anything at all about criminal proceedings; nor did I say that the Admiralty jurisdiction was the only example where assessors appear. I think there are cases in which people experienced in children's courts can assist the recorder—I am speaking from memory. But I think there is no precedent whatever for what is being done here.
§ LORD LEATHERLAND
I was not suggesting that the example which the noble Lord cited had anything to do with criminal affairs. Nor was I suggesting that these courts would have anything to do with criminal affairs. But a decision will have to be reached by a judge, on the basis of the evidence, whether or not a case against a certain person is proved. That function is carried on today in the assize courts and in courts of quarter session by lay people sitting as a jury. Therefore, the principle which the Bill seeks to introduce is not so novel as perhaps we have been given to understand.
§ LORD ILFORD
This Bill is full of novelties, and this proposal for assessors appears to be a further novelty. I think that my noble friend is quite right in saying that the only instance in our courts where a judge is assisted by assessors is in the courts which sit in the Admiralty jurisdiction. But in those courts, the judges are not free to ascertain the view of the assessors in any way they like. They are required, as I think the noble and learned Lord, the Lord Chancellor will confirm, to formulate questions, which are then submitted to the assessors; and that they always do.
219 I believe that the reason why we have not made use of assessors in our courts is the great difficulty of finding assessors who will command the confidence of everyone who comes before them. That is not easy in English courts, and it would be particularly difficult in the courts that are being set up under this Bill. The Bill provides that the persons to be appointed as assessors shall be,persons appearing to the Lord Chancellor to have special knowledge and experience of problems connected with race and community relations.There are in this country a great many immigrants who come from different countries and from different parts of the same country. Some are affected by tribal influences, and some by national influences. There is an almost infinite variety of experience which they have had. It will, I think, be singularly difficult to find persons who will command the respect of everyone who appears before them. I hope very much that your Lordships will adopt my noble friend's Amendment and omit this novel proposal from the Bill altogether.
§ 5.47 p.m.
§ THE LORD CHANCELLOR
Clause 18(7) is not my favourite subsection. It would be wrong to describe it as a compromise—not that there is necessarily anything wrong with a compromise. It is, of course, right to say that some people say there should be tribunals. The Street Report, for example, contended very strongly for special tribunals. They said that there were many people in this country who had never seen anybody who was not white; that race relations in itself was a specialised subject, and that the great advantage of having special tribunals was that you would have on them people with special experience in race relations.
On the other hand, it was said (and this was discussed in many papers after the publication of the Street Report) that we are getting into the most awful habit of appointing more and more special tribunals of different kinds to do work which our courts could perfectly well do. It is particularly necessary that any persons who are in a race relations court should have confidence in the court, and they are more likely to have confidence in an ordinary court than in some special tribunal.
220 The only argument against an ordinary court was the argument that particular county court judges may have had nothing to do with race relations at all, whereas if there were a tribunal, it would have the advantage of having on it people with special experience in race relations. It was not an unnatural thought to ask: "Why not have a county court, or selected county courts, where, after all, the rules already provide for assessors?" They are very rarely used, but we should not have to make special rules as they are part of the county court rules, and it would be possible to have assessors. I am bound to say that I have not known a case where there have been assessors, but it is something that is provided for. If the words "assisted by" do not make it plain that the judge, and only the judge, decides, then I will accept any Amendment to make that so. It is the intention that the judge shall decide.
Can the presence of assessors really do any harm? May it not perhaps give additional confidence to those coming before the court that they not only have an English judge, but also with him people with special experience in race relations? It is for me to find them. In places where there is a large coloured community some justices of the peace usually do a good deal of conciliation work. I have now a dozen coloured justices of the peace. In answer to the noble Lord, Lord Brooke, I do not think it would be at all a good thing to have one white assessor and one black assessor. They are simply people experienced in race relations. But if there are, for example, justices of that kind, the local people will know the justices and will have confidence in them, and it may be that in some cases it will be useful to have justices.
I appreciate that it is unusual. Why it is really unusual, I think, is this. One could say: "Well, under the county court rules either party can apply for an assessor. Why not leave it and see in what proportion of cases they do, and how far they do not." But that, I think, might be unsatisfactory. All that this subsection really does, in effect, is to make it compulsory. But the parties do not have to pay for it, whereas if they applied themselves, I think they would have to pay the charge involved. So while I should have been quite happy for 221 it to be left to the county court judge, although I agree it is unusual, I cannot see that it will do any harm, and it may give additional confidence to those who come before these courts to know that, in addition to the judge, whose integrity, impartiality and knowledge of the law is undoubted, but who may not have had anything to do with race relations, there will be two persons to advise him who have had that experience.
While, as I have said, I have some sympathy with the noble Lord's arguments, I do not think this can really do any harm, and it may help. I hope that, with this explanation, the noble Lord may be prepared to withdraw his Amendment.
§ LORD BROOKE OF CUMNOR
I am grateful for the assurance from the noble and learned Lord that it would not normally be contemplated that one of the assessors should be coloured and the other should be white. I do not think that the noble and learned Lord's speech will have allayed all the anxieties among noble Lords here. It seems to me a pity that this cannot be left to the ordinary processes of the county court if assessors can be available there, if the judge so desires. I can imagine cases where the judge would feel no need of assessors at all, yet he would be bound by the provisions of subsection (7), which make it mandatory that he shall be assisted by two assessors.
I do not know what the intentions of my noble and learned friend about this Amendment may be, but I greatly hope that, whatever happens to this Amendment, the Government will consider this point further, between now and the next stage of the Bill, in the light of what has been said. I do not think there is any substantial difference in the purpose we are all seeking to serve; there simply is considerable anxiety about the particular method chosen by the Government.
§ LORD CONESFORD
I am grateful to the noble and learned Lord the Lord Chancellor for explaining what he thought lay behind this. I do not agree with his view that this will not do harm. The noble and learned Lord did not deal with the examples I gave of the harm I thought it would do. I make no complaint of that, because he dealt with a great many matters. I would, however, ask him to look at this from the point of view and through the eyes of a defendant who comes up before the court for a wholly novel quasi-tort, of which nobody had heard until this Bill created it, and the plaintiffs against him are the Race Relations Board, appointed, I think, by the noble and learned Lord's right honourable friend the Home Secretary (I may be wrong about that) or, at any rate, by the Government.
The assessors are appointed by the noble and learned Lord himself, and both sets of people are people of the same kind. Any man who is suitable to serve in the one capacity will also be, or might be, suitable to serve in the other. What would be the effect on a defendant who saw the judge being assisted by these men (and I am bound to say that I do not wholly agree with my noble friend's criticism of the word "assisted"; I think the aim is clearly what the noble and learned Lord described) and being spoken to by them during the case? If there is any expert evidence to be given, as there may be, I suggest that the defendant would think that it should be done in open court, where he—or, if he employed counsel, his counsel—could cross-examine the alleged expert. I am absolutely convinced that this will do definite harm, and for that reason I should like to obtain the opinion of this Committee.
§ 5.57 p.m.
§ On Question, Whether the said Amendment (No. 44) shall be agreed to?
§ Their Lordships divided: Contents, 65; Not-Contents, 70.223
|Aberdare, L.||Braye, L.||Cottesloe, L.|
|Ailwyn, L.||Brooke of Cumnor, L.||Craigmyle, L.|
|Albemarle, L.||Buckton, L.||Denham, L.|
|Aldington, L.||Carrington, L.||Drumalbyn, L.|
|Audley, Bs.||Clwyd, L.||Emmet of Amberley, Bs.|
|Balerno, L.||Coleraine, L.||Falkland, V.|
|Belstead, L.||Colville of Culross, L.||Falmouth, V.|
|Berkeley, Bs.||Conesford, L. [Teller.]||Ferrers, E.|
|Bledisloe, V.||Cork and Orrery, E.||Foley, L.|
|Fortescue, E.||Lovat, L.||St. Oswald, L.|
|Grenfell, L.||Macpherson of Drumochter, L.||Sandford, L.|
|Gridley, L.||Massereene and Ferrard, V.||Sandys, L.|
|Grimston of Westbury, L.||Merrivale, L.||Selkirk, E.|
|Hawke, L.||Mills, V.||Sempill, Ly.|
|Helsby, L.||Milverton, L.||Sherfield, L.|
|Horsbrugh, Bs.||Mowbray and Stourton, L.||Somers, L.|
|Howe, E.||Rankeillour, L.||Strang, L.|
|Hylton-Foster, Bs.||Rockley, L.||Strange of Knokin, Bs.|
|Ilford, L. [Teller.]||Sackville, L.||Strathcarron, L.|
|Inglewood, L.||St. Aldwyn, E.||Strathclyde, L.|
|Killearn, L.||St. Helens, L.||Teviot, L.|
|St. Just, L.||Vivian, L.|
|Addison, V.||Henley, L.||Plummer, Bs.|
|Asquith of Yarnbury, Bs.||Hill of Wivenhoe, L.||Raglan, L.|
|Beaumont of Whitley, L.||Hilton of Upton, L. [Teller.]||Rhodes, L.|
|Beswick, L.||Hunt, L.||Royle, L.|
|Blyton, L.||Iddlesleigh, E.||Rusholme, L.|
|Bowles, L. [Teller.]||Jacques, L.||Sainsbury, L.|
|Brockway, L.||Jessel, L.||St. Davids, V.|
|Brown, L.||Kennet, L.||Serota, Bs.|
|Buckinghamshire, E.||Kilbracken, L.||Shackleton, L.|
|Burden, L.||Kirkwood, L.||Shepherd, L.|
|Byers, L.||Latham, L.||Sorensen, L.|
|Campbell of Eskan, L.||Leatherland, L.||Stocks, Bs.|
|Champion, L.||Lindgren, L.||Stonham, L.|
|Chorley, L.||Lloyd of Hampstead, L.||Strabolgi, L.|
|Collison, L.||McLeavy, L.||Summerskill, Bs.|
|Crook, L.||Maelor, L.||Taylor of Gryfe, L.|
|Delacourt-Smith, L.||Mitchison, L.||Taylor of Mansfield, L.|
|Douglass of Cleveland, L.||Morris of Kenwood, L.||Teynham, L.|
|Evans of Hungershall, L.||Moyle, L.||Wade, L.|
|Gaitskell, Bs.||Noel-Buxton, L.||Walston, L.|
|Gardiner, L. (L. Chancellor.)||Nunburnholme, L.||Wells-Pestell, L.|
|Garnsworthy, L.||Ogmore, L.||Williamson, L.|
|Gifford, L.||Phillips, Bs.||Willis, L.|
On Question, Amendment agreed to.
§ Clause 18, as amended, agreed to.
§ Clause 19 [Nature of proceedings in Scotland]:
§ THE LORD CHANCELLOR
I beg to move Amendment No. 48. I discussed this Amendment when dealing with Amendment No. 41.
Page 13, line 33, at end insert ("and in those proceedings, whether or not such an application or claim is made, an application may be made in accordance with section (Validity and revision of contracts) of this Act for revision of any contract or term in a contract alleged to contravene any such provision.").—(The Lord Chancellor.)
§ THE LORD CHANCELLOR
I dealt with this Amendment when speaking to 224 Amendment No. 42. I beg to move Amendment No. 49.
Page 13, line 41, leave out subsection (3).—(The Lord Chancellor.)
§ THE LORD CHANCELLOR
I spoke to Amendment No. 50 when speaking to Amendment No. 42. I beg to move Amendment No. 50.
§ Amendment moved—
Page 14, line 11, at end insert:
("() A sheriff court appointed to have jurisdiction under this section shall have jurisdiction to entertain proceedings under this section with respect to things done on ships or aircraft outside the district assigned to the court for the purposes of this section, including things done on British ships or aircraft outside Great Britain.").—(The Lord Chancellor.)
§ Clause 19, as amended, agreed to.225
§ Clause 20 [Injunctions and orders]:
§ 6.9 p.m.
§ LORD BYERS moved Amendment No. 50A:
Page 14, line 35, leave out subsection (1) and insert:
("() In proceedings brought under section 18 above in which an injunction is claimed in respect of an act alleged to be unlawful by virtue of any provision of Part I of this Act the court, if satisfied that the defendant has done any act which is unlawful by virtue of any provision of Part I of this Act, may make an order—
§ The noble Lord said: We on the Liberal Benches have limited our Amendments at this stage of the Bill to those which we believe to be necessary, and I would hope, perhaps, for more sympathy on this Amendment than I received on the other because we appear to have saved the Government from defeat in the last Division. I beg to move Amendment No. 50A, which puts in words what I and others suggested on Second Reading to cover what we believe to be a serious loophole in the provisions of this Bill, and a part of the Bill which really ought to be strengthened. This is in connection with the protection and redress which the measure affords to the complainant. As the Bill stands, neither the Board nor their committees would be able to ensure that the complainant, for instance, gets back a job which he has lost because of discrimination or gets back accommodation of which he has been deprived because of some discriminatory act. All that is provided under the Bill is a purely negative injunction, which prevents the discriminator from repeating the offence.
§ The noble and learned Lord the Lord Chancellor, in replying to me on Second Reading, found difficulty with what I put forward. Perhaps I did not make myself clear. I was not intending to 226 suggest that the Board should have power to make positive orders, but I was requesting that a recommendation of the Race Relations Board in their Annual Report for 1967–68 should be implemented so that the court—the court, I emphasise—could order a firm found to have practised discrimination to report on measures which it had taken to comply with the court's orders; or it could require a representative, for instance, in the field of housing to allot the next available accommodation to the complainant. In other words, the court should be able to order something positive to be done.
§ I think the noble and learned Lord the Lord Chancellor was under the impression that we were asking for the Board to make these orders, and not the court; and for this reason he said he found it difficult to have a body, which in effect sought to conciliate people, with the power to go further than that and to punish them. This was the argument which the noble Lord, Lord Stonham, adduced in reply to my speech on my last Amendment, No. 35. Of course it is the paramount duty of the Board to conciliate, but I feel that a negative injunction is totally inadequate to do justice in one of these matters. If the Board are in fact dissatisfied with a negative injunction and feel that something more positive should be done, they ought to have the power to go to the court to get a positive order made. I do not believe this is any different from the procedure put forward by the Government in the Prices and Incomes Bill, where they say that in the last resort the Minister of Employment and Productivity must be able to have the last word. I believe there will be much more confidence in the work of the Race Relations Board if, after they have effected all the conciliation they can, they have the right to go to a court and say, "This man has been badly treated. It is no use giving a negative injunction to tell the discriminator not to do it again. We want something much more positive." I hope that on this Amendment we shall get a sympathetic hearing from the Government. I beg to move.
§ LORD GIFFORD
I would support this Amendment. I believe that one of the arguments raised in another place in answer to a proposal of this kind was that if the Board secured a negative injunction the complainant could then re-apply for his house or flat or job, if 227 it was still available, and if he was refused he could then make a new complaint that an act of discrimination had been done in breach of a court order.
I think this ignores the realities of the situation as it is viewed, and is likely to be viewed, by people who are subjected to this humiliating and embittering form of subordination as second-class citizens. We hope that not many cases will get to court, but if they do, the ultimate that the complainant can hope for is a negative order, which does not begin to restore him to the position which he feels, quite rightly, is his due. In a number of cases there will be difficulties about complete reinstatement. The house may have been sold to an innocent third party and of course it would be wrong to turn that third party out, or the job may not be available. The court would obviously have a discretion and would not use its powers in cases of that kind. But I submit that there will be cases, for instance, where a discriminatory policy is applied in a large block of flats or a large firm and where no hardship would be caused to the defendant and no injustice done, and indeed there would be no bitterness caused, but where the complainant could be put back in the position he ought rightfully to have been in from the beginning.
For those reasons I hope the Government will give sympathetic consideration to this Amendment. I believe the acceptance of this procedure in regard to many people who are likely to be victims of discrimination would do a lot of good.
§ LORD WALSTON
I, too, would support this Amendment. We have agreed that the object of this Bill is to banish racial discrimination. In general, it sets out to do that in a most effective way. But we must face the fact that there are at the moment, and undoubtedly will be in the future, though I hope in diminishing numbers, a certain group of people who do not want coloured people in their works, their factory or their block of flats. As I understand the position, if such a person refused somebody a job or a flat on the grounds of colour, and the case went through the due processes (which takes some considerable time), by the time a decision favourable to the complainant was arrived at the flat or job would be filled.
228 Clearly, as my noble friend has said, one cannot turn out the person who has the flat or sack the man who has the job. But if the person concerned is the owner of a block of flats, every now and again—say two or three times a year—one flat will become vacant. As the Bill stands at present, there is nothing to prevent the owner from discriminating a second time. It will be a new act of his (I hope I am wrong—and my noble and learned friend can tell me if I am) and, as I understand it, the injunction granted against him in respect of his original act has no effect on any subsequent act he may be contemplating. Therefore, it is open to him persistently to refuse each new flat which becomes vacant, and when the case eventually comes before the Race Relations Board and the court, that flat will be filled and he will be able to "cock a snook" at the Board, at the courts, and at the spirit of the Bill, when it becomes an Act, unless something of the type of this Amendment is incorporated. For this reason I strongly support the Amendment.
§ THE LORD CHANCELLOR
The Government are not at all unsympathetic in this matter, primarily because it is so largely a matter of opinion. As a whole we know little about race relations and that is why the Government have introduced this Bill with humility. We started off in the existing Act by only taking places of public resort and only providing for an injunction and no damages, and only granting an injunction where there was a course of discrimination. How far we should go in this Bill is a matter of opinion. The view which has been taken is that on the whole mandatory orders of the kind suggested would be likely to alienate public opinion. The court itself never makes an order for specific performance in a contract of personal service. This is because it cannot really supervise it, and it would be likely, I should have thought, to lead to worse relations rather than better if one made a particular employer employ a particular employee.
The reasons for this—this being one of the points on which the Government and the Opposition are agreed—the noble Lord, Lord Byers, will find in the speeches of Mr. Quintin Hogg and Sir Elwyn Jones in the OFFICIAL REPORT of another place, beginning at column 419. 229 Therefore, I am afraid I cannot hold out anything much in the way of hope, though I would like to consider the point which was raised by my noble friend Lord Walston. I hope that in the light of what I have said the noble Lord, Lord Byers, will not press this Amendment. I agree that it is very much a matter of how far, by increasing deterrence, one decreases racial feelings or increases them.
§ LORD BYERS
I am grateful to the noble and learned Lord, the Lord Chancellor, for not deploying the argument we have heard before, that because the Race Relations Board have to conciliate they must not have the ultimate power to do the best job they can. I would not accept the view that this Amendment is mandatory; it is permissive; it gives the court the right to do certain things if it is thought correct. In the light of the experience we have had to-day, I propose to seek additional support on all Benches between now and the next stage, to see whether we cannot get more people to understand exactly what we are trying to do and the loophole we believe exists in this measure. It is not a Party matter. As the noble and learned Lord, the Lord Chancellor, has said, we approach this in a spirit of humility, but we do see great difficulty in not having this power. I believe that if it is not put in now it will be found to be required in two or three years' time. I shall seek more support for this on the next stage, and in the meantime I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.22 p.m.
THE LORD CHANCELLOR moved Amendment No. 51:
Page 15, line 28, leave out from ("of") to ("under") in line 29 and insert ("an investigation")
§ The noble and learned Lord said: This Amendment is technical. In the Bill as originally drafted, the Race Relations Board, conciliation committees and voluntary bodies dealing with employment cases were required to "determine" whether an unlawful act had been committed before proceeding with conciliation and enforcement. The Board subgested to my right honourable friend the Home Secretary that this implied that a conclusion had been reached on the evidence available, and that it would follow 230 from Clause 14 as drafted that the Board could not take cases to court unless there was evidence on which a "finding" could be made. The Law Society also questioned the use of the word in their observations on the Bill, though for a different reason. They suggested that it might give the impression that the Board were exercising a judicial function and that their decision might be held to prejudge any subsequent proceedings in the courts.
§ In the light of these arguments my right honourable friend agreed that the words "form an opinion" and "opinion" should be substituted for "determine" and "determination" in relation to a finding of the Board, a conciliation committee and the voluntary machinery. A series of Amendments to this effect were agreed in Committee and two further ones on Report in another place. The Amendments had the additional advantage of helping to counter the argument that the Board should have subpœna powers in that it can no longer be maintained that the Board must necessarily have irrefutable evidence of an unlawful act before it can bring proceedings in the courts. The word "determination" has inadvertently remained in Clause 20(3) and the present Amendment substitues appropriate wording. I beg to move.
§ Clause 20, as amended, agreed to.
§ Clause 21 [Damages]:
§ 6.25 p.m.
LORD ILFORD moved Amendment No. 52:
Page 15, line 40, leave out paragraph (b).
The noble Lord said: I have put down this Amendment in order to understand what Clause 21(I)(b) really means. This clause deals with damages, and it provides that under subsection (1)(a) the court may award special damages. We all know what special damages means; special damages are, generally speaking, damages which can be readily quantified —loss of earnings, medical expenses and matters of that sort which are capable of being quantified in that way. Subsection (1)(b) goes on to provide:
such damages as the court thinks just in all the circumstances for loss of opportunity, that is to say, loss of any benefit which that person might reasonably be expected to have had but for that act".
§ It seems to me that the definition of damages in subsection (1)(b) really means that they are special damages. I cannot see what the difference is between the damages that can be awarded under paragraph (b) and the special damages that can be awarded under paragraph (a). Paragraph (b) seems to me to relate to special damages, and I should have thought that paragraph (b) was unnecessary. I may be mistaken in my interpretation, but that, I think, is the normal interpretation placed on these words, and I hope the noble and learned Lord the Lord Chancellor will be able to clear up all my doubts. I beg to move.
§ BARONESS GAITSKELL
I have some sympathy with the Amendment of the noble Lord, Lord Ilford, not because I think it is not just that some kind of damages be given, but because I think the word "damages" conjures up a large sum, and I think it will not help us in this business of stopping discrimination; it will arouse fears, quite unjustifiable fears, in the public mind. I have got some sympathy with this Amendment, and I hope the Government will think again.
§ LORD MITCHISON
May I take this opportunity of asking a question? We have been told once or twice in the course of previous discussion that there was no positive power in the Board, or, as I understand, in the court acting under Section 18 to put back matters; that is to say, to reinstate the person who has been discriminated against, or to put him in if he had been discriminated against by being kept out. I am thinking of the case of a house. Suppose proceedings are brought and damages are a proper remedy, as they would be in a great many cases, and damages are described and specified under this clause. I am not going into the question of the difference between special damages and punitive damages, or whatever one calls them, but I notice that the duty to minimise damages is expressly preserved.
What happens, supposing a landlord, discriminating, has handed over a house to a white man and has not handed it over to a black man, and damages become payable? Will the court not be entitled to say, assuming there is no statutory right to stay there, "It is your duty to minimise damages, and if you 232 insist on keeping the white tenant still there after your act of discrimination you have failed in that duty and damages will be increased accordingly"? Would not that be the right conclusion, and does not this express preservation of what perhaps would be preserved anyhow, the duty to minimise damages, put into the hands of the court, in the case of houses at any rate, a power in effect to reinstate or put in again, or to put in perhaps for the first time a person against whom there has been discrimination?
I put this as a question because it seems to me to bear very much on the point of whether one ought to give a positive power in the nature of a mandatory injunction or something of that sort to allow the Board to put things right in a positive sense. May not this, in some cases at any rate, go a long way towards doing that? I sometimes feel that the view of damages put forward by my noble friend Lady Gaitskell is not universally prevalent, and that some people think only too often of the farthing or the forty shillings damages in other cases.
§ THE LORD CHANCELLOR
The intended difference between paragraphs (a) and (b) is this. Paragraph (a) will cover out-of-pocket expenses which of course may be small or may be large. If a coloured man goes to buy a house and he is sent away on racial grounds his expenses may simply be his travelling expenses. On the other hand, nothing may happen on that occasion. He may like the house, and he goes to a solicitor who tells him that he had better have it surveyed. He has the house surveyed, the price being agreed, but everything is subject to the contract, which as the noble Lord, Lord Ilford, knows means that nobody is bound in law. But otherwise they come to terms, and then, when invited to sign the contract which has been drawn up by the solicitor, the owner does not, and it is later said and so found that he did not solely because of the proposed purchaser's colour. In that case, of course, there would be losses apart from travelling expenses, because the coloured man has had to employ a solicitor and has had to have the house surveyed. Things of that kind are covered by paragraph (a).
The point about paragraph (b) is that in addition to out-of-pocket expenses he may, for example, have lost a bargain. If 233 the price of the house is £4,000, prima facia you do not lose money by not getting the purchase because it is presumably worth what its price is. But if you can prove that you have lost a bargain, then you are in a different situation. Or in an employment case, there may be more than one man after a job. If an employer is discriminating against all coloured people, he may refuse three coloured people the job and not just one. When you are assessing the damages for loss of a job this is what you would have received during whatever the minimum period of employment would be, less what you have been able to earn in the same period elsewhere. But if what you have done is merely to lose the chance of a job because there were two other people after it too, then that chance of a job would have to be valued.
There is nothing really new in this in law. The noble Lord, Lord Ilford, may remember the old case of Chaplain v. Hicks, that of the man who was wrongfully deprived of his opportunity of winning a prize, and the court simply had to value the opportunity. It would be the same here. That is why there is a difference between paragraph (a), which is really out-of-pocket expenses, and paragraph (b) which is damages for loss of opportunity that is to say, loss of any benefit which that person might reasonably be expected to have had but for the discriminatory act.
With reference to what my noble friend Lord Mitchison has said and, after further thought, what my noble friend Lord Walston said, I do not see any real difficulty. In the case of a person who has a block of flats and who has been found to be guilty of a course of discriminatory conduct, he can be restrained by the court from carrying on that course of discriminatory conduct, and if he discriminates again when he lets the next flat he would be liable to be sent to prison.
§ LORD ILFORD
I am most grateful to the noble and learned Lord the Lord Chancellor for a full explanation of these paragraphs. I am hound to say that he has not entirely convinced me that the damages in the cases which he outlined were not special damages. It seems to me that they were precisely what is 234 awarded as special damages—the loss of opportunity to purchase a house, the loss of a job or something of that sort flowing from the new course of action which this Bill creates. I am grateful to the noble and learned Lord for the trouble that he has taken to explain this matter, and in those circumstances I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 agreed to.
THE LORD CHANCELLOR moved Amendment No. 53:
After Clause 21, insert the following new clause:
§ Validity and revision of contracts
§ ".—(1) A contract or term in a contract which contravenes any provision of Part I of this Act shall not be void or unenforceable by reason only of the contravention, but may be revised in accordance with the following provisions of this section.
§ (2) Any such contract or term in a contract may be revised by the court in proceedings under section 18 or 19 above on an application made by the Race Relations Board on behalf of any party to the contract or by any such party who is the defendant or, in Scotland, the defender, in the proceedings.
§ (3) On an application under this section to revise a contract or term in a contract the court may, if it appears to the court feasible to do so without affecting the rights of persons who are not parties to the contract, make such order as it thinks just in all the circumstances revising the contract or term so as to secure that, as from the date of the order, it does not contravene any provision of Part I of this Act, and any party, to the contract, whether or not a party to the application, shall be bound by the order accordingly.
§ (4) Any reference in this section to a party to a contract shall, where the rights of that party are for the time being vested in any other person, be construed as a reference to that other person."
§ The noble and learned Lord said: I discussed this point, though not at great length, on Amendment No. 41. I beg to move.
§ Clause 22 [Privileged communications]:
§ 6.37 p.m.
LORD ILFORD moved Amendment No. 54:
Page 16, line 19, leave out from ("admitted") to end of line 20.
§ The noble Lord said: This clause deals with privileged communications. It provides that evidence of any communication made to a variety of people, among whom are the Secretary of State for Employment and Productivity, the Race Relations Board and a conciliation committee or a body of persons to whom a complaint or other matter is referred under Schedule 2 or 3, shall not be admitted, except with the consent of the person by whom it was made.
§ I think we are all familiar with the rules in litigation about privileged documents and other things. This clause extends what is virtually a legal privilege to all this class of documents. That I understand. But it then concludes with the provision that the documents may be admitted if the person making them consents. This again is something quite novel. There is no provision in the ordinary law that where a document is privileged it can lose its privilege because the person who made it agrees that it shall no longer be privileged but shall be admitted into evidence.
§ I should have thought that it was much better that these documents should all be privileged. I am quite sure that the Race Relations Board will not be able to make a satisfactory decision unless the documents which come to them are treated as privileged documents. I should have thought that nothing is gained by the additional provision that a person who makes a document agrees that the document can be released from its privilege. I beg to move.
§ THE LORD CHANCELLOR
This is a short point. I should have thought it desirable that people in regard to whom conciliation negotiations are taking place should be able to feel that whatever they said would not without their consent be used against them in the court. That really is the effect of this matter. Then the noble Lord says. "Well, even if they do consent, it still ought not to be used." But if it is in their favour it is difficult to see what purpose this proposal would serve. If a complainant should wish to enable a communication that he had made in the course of the conciliation procedure to be used in subsequent court proceedings it would seem right that he should be able to do so. To provide otherwise could work to the detriment of 236 a complainant whose complaint was well founded or a person who was unjustly alleged to have discriminated. I should have thought therefore, with the greatest respect, that the clause is right as it stands, and that they should know that without their consent their statement will not be used against them. But if they subsequently give consent, then it is a matter for them.
§ LORD ILFORD
Again, I am grateful to the noble and learned Lord the Lord Chancellor. He has relieved my doubts about this matter, and I beg to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 agreed to.
§ Clause 23 [The Community Relations Commission]:
LORD BROOKE OF CUMNOR moved Amendment No. 55:
Page 16, line 26, at end insert ("of whom at least two shall be women").
§ The noble Lord said: In moving Amendment No. 55 I will confine myself to asking whether the Government can give me an assurance that if I do not press this Amendment the Community Relations Commission will undoubtedly contain a feminine element, even if not two "statutory women". I beg to move.
§ LORD STONHAM
Without wishing to press the noble Lord to define a "statutory woman", I think I can assure him that this Committee will have women members.
§ Amendment, by leave, withdrawn.
§ Clause 23 agreed to.
§ Clause 24 [Research]:
§ 6.40 p.m.
§ LORD BYERS moved Amendment No. 56:
Page 17, line 21, leave out subsection (1) and insert—
("(1) The Race Relations Board and the Community Relations Commission may conduct or assist in conducting research in any matter connected with the exercise of their functions under this Act and the Secretary of State may assist any other body in conducting research into any matter connected with relations between people of different colour, race, or ethnic or national origins.")
§ The noble Lord said: This Amendment deals with research. Under the measure as it is now drawn only the Government appear to have the power to commission research in the field of race relations. I feel that this is something which would be better done by the Race Relations Board and the Community Relations Commission, because they will be far closer to this problem than the Government are likely to be. They will be in a far better position, in my view, than the Government to assess the priorities when coming to deal with the problem which always arises in research; namely, how to get the best vàlue out of a limited budget. I feel that it would be right and proper for the Board and the Community Relations Commission to do this work, either in preference to or in addition to the Government. Certainly they should not be precluded from doing so, because I believe that we shall get a better result if they are allowed to do it. I beg to move.
§ LORD WALSTON
I would strongly support this Amendment; in fact, I am not sure that it goes far enough. I hope I made clear in the Second Reading debate the great importance that I attach and that I am sure all noble Lords attach, to the need for more research; and I hope that nothing I say will be taken as impeding further research or the making of further Government money available for research. Even so, I do not believe that the Government Department primarily responsible for race relations is the best qualified to carry out that research. I would go further and say that it is virtually debarred by its very interest in the subject from being a suitable body for sponsoring research in any way.
It is a well established practice of Government, and a very correct one, that those Government Departments which are most interested in the results of research should not themselves be sponsors of that research. I except, of course, Defence Departments which carry out their own research for their own specific purposes. But it is agreed that it would be extremely wrong for the Ministry of Health to be the governing body of the Medical Research Council, because doctors should be free, and medical scientists should be free to carry out that research which they think is in 238 the interests of their profession, of their patients and of the community as a whole. It is, however, conceivable (and this is the reason I take the point) that if it were originally enacted that the Ministry of Health should be responsible for this research, the research might be slanted towards particular aspects which were of special concern to the Ministry at a given time.
Some of your Lordships may remember that during the war there was a strong move on the part of the then Minister of Agriculture to have the activities of the Agricultural Research Council brought directly under the control of the Minister of Agriculture. That proposal was resisted on the grounds that agriculture scientists should not be in a position to be directed by a Government Department towards research in a particular sphere which the Government of the day wanted them to carry out but should be free, as all good research people should be, to undertake what they considered to he the most important forms of research.
I believe very strongly that if the Home Office itself were responsible in any way for carrying out research, however good that research may be, however valuable its results, a very large part of those benefits would be wasted, simply because the work was being done under the auspices of that Government Department. I hope that my noble friend, when he replies, will indicate that he accepts the validity of this argument, and that the Government while still being prepared to make money available for research, will follow the well-tried precedent of other Government Departments and make that money available to appropriate bodies, as suggested by the noble Lord in his Amendment, and not perform the research themselves.
§ BARONESS GAITSKELL
I should like strongly to support the Amendment of the noble Lord, Lord Byers, and the speech that my noble friend Lord Walston has just made. I go further than the noble Lord, Lord Byers. He mentioned the Commission and the Race Relations Board. But there is also the Institute of Race Relations which now does research and is collecting the facts about discrimination. There are private bodies, and some of us here I think in 239 this Chamber are associated with certainly one of these private bodies. I think—and here I endorse entirely what my noble friend Lord Walston says—that it really is for the Home Office to delegate to bodies outside it the research in this vast field. It seems to me that they could not take on this work: it is such a vast field. There is a great deal to be done in the running; there are a great many facts to be accumulated and I should hope that the Home Office would not keep research entirely in their own hands.
§ LORD BROOKE OF CUMNOR
After the speech of the noble Lord, Lord Walston, I really must come to the support of the Home Office. In my experience I have never known the Home Office select and slant its research work in order to try to ensure that particular results emerge. Having said that, I would add that I believe that Ministers constantly have to take decisions, and Parliament constantly has to legislate on matters, without anything like a sufficient basis of research to act upon. Certainly in my experience at the Home Office I frequently regretted that research inquiries had not been started five, ten, possibly twenty, years before, so that I could have had the results of them. Chemical and physical research can he carried out within a limited period of time, if one has the financial and other resources; but research in personal and sociological matters cannot. One has to allow time to pass; one has to allow juveniles to grow up, and so forth. It is not possible to speed up the daily and yearly processes of time. That is why it is so important that requisite research should be started, not only in sufficient quantity but also early enough.
There is, however, another aspect which I think should be mentioned in connection with this Amendment. I do not know what the noble Lord, Lord Stonham, is going to say about this, but too often people tend to think that the amount of research that can be put in hand is limited by the amount of money that can be made available for it. There are a number of fields in which money is not the bottleneck. The bottleneck is the availability of people qualified and willing to do the work, and I rather suspect that there is not an unlimited 240 number of people experienced and qualified and ready to do first-rate work in this intensely important and difficult field of race relations. For that reason, if for no other, it is important that the work should be co-ordinated.
It would be undesirable, to my mind, if the Race Relations Board were, on their own account, setting up a particular research inquiry, and the Community Relations Commission independently, and on its own account, was setting up another inquiry, with further, separate inquiries being conducted by the Home Office, and maybe by the universities, too, There must be co-ordination here. We must find a means of using to the best advantage our available human and intellectual resources in this field, and I hope that we shall hear from the noble Lord, Lord Stonham, how he thinks that that can most effectively be achieved, because it is extremely important.
§ LORD WALSTON
May I, following on what the noble Lord, Lord Brooke, has said, just correct a misapprehension, or a mis-statement on my part?—I do not know which it was. I certainly did not intend to accuse the Home Office of "slanting" research, which has a very pejorative connotation. I would, however, say that Government Departments are, very naturally, inclined to direct research into particular spheres of activity in which they are at that moment interested; and that, of course, is not the best way of getting the best results from research. As the noble Lord himself has pointed out, very possibly these things should have been done twenty years before, when a more abstract, remote, academic body would have been able to look at them. But the Government Department ignored them at that time.
§ LORD STONHAM
This has been quite a remarkable debate, initiated by Lord Byers and supported by my two noble friends, for whose opinions on almost every subject I have the greatest respect, and I usually find myself agreeing with them. The concept which my noble friend Lord Walston has of our relations with research is utterly foreign to me. The noble Lord, Lord Brooke of Cumnor, said that there would be virtually no research at all if it were not sponsored by the Home Office Research Department and paid for by the Home Office. There are wide fields, important 241 fields, concerning alcoholics, police matters, and a wide range of subjects concerning delinquency of all kinds—crime generally—a legion of subjects. So the whole idea put forward by the noble Lords is quite misconceived.
Lord Byers is apparently quite unaware that his new Amendment would have the effect of deleting the provision for the Secretary of State to conduct research as well as assist others to do so. I am quite sure that noble Lords, including the noble Lord, Lord Byers, do not want that. The noble Lord, Lord Byers, said that the Race Relations Board should not be precluded from engaging in research. There is absolutely nothing in the Bill to prevent organisations other than the Home Office from conducting any research for which they can find funds. In this regard, I am bound to point out that unless it comes from charitable sources I do not see where either of these bodies, the Race Relations Board or the Commission, are going to get funds for research, unless they do come from the Home Office.
In any case, let me make it clear that this clause, as it stands, does not restrict the commissioning of research to research by the Government. It enables the Government to finance research. Anyone can do that research, either by obtaining funds elsewhere, or by making a successful application to the Government with regard to a particular piece of research, whatever it may be. It could either be a single piece of research, or extend over a period. The whole clause is concerned with Government expenditure on research. To say that the Home Office on behalf of the Government, as it appeared to be said, or at least implied, by my noble friend Lord Walston, should have no say in what research should be done at Government expense, or should be debarred from lending its research unit to it, is quite unacceptable. It is something utterly different from anything I have ever heard suggested. I hope I am not misquoting my noble friend, but I believe my noble friend, Lord Walston, said it was wrong for a Government Department responsible for a particular service to sponsor research. I do not know whether I am quoting him correctly.
§ LORD WALSTON
I said I thought it was perfectly reasonable for the Defence Department to conduct their own 242 research for their own specific jobs, but not for Ministries, such as the Ministry of Agriculture and the Ministry of Health, to do it. It should be done, as at present, through the Research Councils, which are independent of the Ministries.
§ LORD STONHAM
I can assure, my noble friend that there would be little or no research in a wide range of vitally important fields if the Home Office did not sponsor research in the way he has said we should not do. Anyone can come along, if they are of sufficient standing, and put a proposition up and have it considered, if it is in our field. My own view is that it is one of the prime functions of the Home Office in their own field to ensure that any necessary research is conducted. Of course, neither the Board nor the Commission are equipped to have overall control over research. They can all do research. The Government reserve only a modest right, but they must reserve the right, to say on what priorities Government spending shall be devoted. I think this is cardinal; it is absolutely essential; and anything else, I should have thought, would be quite unthinkable and, in some ways, irresponsible. Anyway, it would not be possible.
The power is there for the Board, or the Commission, to conduct research, and, indeed, the power is there for my right honourable friend to provide the wherewithal. We do not intend to do this and impose it on the Board as a statutory right. If the noble Lord will look at his Amendment, he will see that he proposing specifically to empower the Board, or Commission, to conduct research as a statutory right or obligation. I know he has got the word "may" in it, but he wants to put it in a Statute, although the Commission are empowered to collect information with respect to community relations. To specify particular bodies in the Bill, and give them a statutory power to conduct research, would in our view be quite inappropriate.
The intention of the Bill is to vest in the Secretary of State a general power to conduct research, and we achieve this by Clause 24, as at present drafted. The Home Office, of course, has to pay for that research, but under this power, under Clause 24, the Home Secretary can—and I am quite sure will—invite the Board, 243 the Commission or any other organisation, to conduct such research as he considers necessary, and, with the consent of the Treasury, to finance it. So far as the Government are concerned in financing such research, the Home Secretary must clearly be able to co-ordinate. There would be a great deal of wasted funds if he did not do so. I am bound to point out, as the noble Lord, Lord Brooke, is aware, that research conducted or assisted by the Home Office cannot be published without the agreement of the Home Office. In practice, such agreement is virtually never withheld, because we appreciate the need to preserve academic freedom. If we did not, then the results of Home Office research would not be taken seriously, and research workers would not be interested in sponsorship by my Department.
I agree with noble Lords that research in this field is imperative. I agree that in regard to the forms that research should take, and its extent, the advice of the Board, of the Commission and of other bodies—indeed, of other individuals—will be of the highest importance. It is essential from now on that funds should be provided for this purpose, and they certainly will be provided. But we cannot have the position where a Government Department has this responsibility and is expected, or could be expected in any circumstances, to hand over financial responsibility to anyone else. It seems to me astounding that it would be all right for the Minister of Defence to sponsor research but apparently not for the Ministry of Home Defence to do so. I do not think there is very much between us in intention, but so far as the Bill is concerned what the noble Lord, Lord Byers, is proposing is not acceptable.
§ LORD BYERS
I will not conceal my disappointment at the attitude of the Minister. It is clear that we are a great way apart. Let me make it clear, as the noble Lord, Lord Walston, said, that this is in no way an attack on the Home Office, but a great deal of research is going to be needed and it must be properly and wisely directed. The object of the research is to get well-informed decisions made. My concern is that the Board is going to be far better qualified than the Government to institute a 244 properly directed and well-thought-out research programme. What horrified me about the speech of the noble Lord, Lord Stonham, was his statement that anybody provided that they were of sufficient status, could go along and talk to the Home Office about doing some research. This is a very casual way of approaching a matter as important and as necessary as this. However, we will study what the noble Lord has said. I cannot say that I am satisfied, but we will reserve our position at the next stage. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 24 agreed to.
§ Clause 25 [Application to the Crown, the police and public bodies]:
LORD STONHAM moved Amendment No. 57:
Page 17, leave out line 29.
§ The noble Lord said: I beg to move Amendment No. 57, and with it I should like to take Amendment No. 58. These Amendments are designed to ensure that the provisions of the Crown Proceedings Act 1947 are preserved in relation to the Bill. They are made necessary by the fact that the provisions excepting the Crown from the ordinary investigation and enforcement procedures of the Bill were deleted in Committee in another place. The Amendments ensure that, in accordance with the Crown Proceedings Act, the Queen cannot be sued in her personal capacity and that an injuction cannot be granted against the Crown in respect of unlawful discrimination. They will not affect what constitutes an unlawful act or the Board's powers to investigate. The way in which complaints against the Crown are now to be investigated is being considered by the Departments concerned and will be discussed with the Board. The Board will be required to refer to the Home Secretary any complaints which may be laid against any part of the Queen's Household. I beg to move.
§ Amendment moved—
Page 17, line 30, at end insert—
("() The provisions of Parts II to V of the Crown Proceedings Act 1947 shall apply
to proceedings against the Crown under section 18 above as they apply to proceedings in England and Wales which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, except that in their application to proceedings under the said section 18—
() The provisions of Parts II to V of the Crown Proceedings Act 1947 shall apply to proceedings against the Crown under section 19 above as they apply to proceedings in Scotland by or against the Crown under that Act except that in their application to proceedings under the said section 19—
LORD STONHAM moved Amend meat No. 59:
Page 17, line 32, after ("employment") insert ("and").
§ The noble Lord said: I beg to move Amendment No. 59, and with it I should like to take Amendment No. 60. Both these Amendments are technical. Their effect is to provide, first, that for the purposes of the Bill a police cadet should be treated as if he were employed by the authority by whom he is appointed; secondly that in cases where constables are appointed by two justices of the peace on the nomination of the controlling body the controlling body and not the justices should be treated as the employer. A constable —that is a police officer of any rank—is not as a matter of law an employee and in order, therefore, that the employment provisions should apply to the police, it was necessary to provide in Clause 25(2) that a constable should be treated as an employee for the purposes of the Bill. The purpose of paragraph 246 (a) is to make parallel provision for police cadets.
§ There are some departmental police forces in which constables arc appointed by two justices of the peace on the nomination of the controlling body. It is clearly right that in such cases the controlling body and not the justices should he considered the employer and this is the further effect of the Amendments. Such a provision is particularly necessary in view of the fact that the subsections excepting the Crown from the normal enforcement procedures were deleted in the Commons in Committee. It is now possible for an award of damages to be made against the police and it is right that the controlling body and not the justices should be liable for these damages. I beg to move.
§ LORD STONHAM: I beg to move Amendment No. 60.
§ Amendment moved—
Page 17, leave out lines 34 and 35 and insert ("except that a constable appointed by justices of the peace on the nomination or application of any authority shall be treated as if he were employed by the authority on whose nomination or application he is appointed, and accordingly the authority by whom or, as the case may be, on whose nomination or application a constable is appointed shall be treated for those purposes as if he or they were an employer or employers.
() A police cadet shall be treated for those purposes as if he were employed by the authority by whom he is appointed and accordingly—
§ LORD STONHAM moved Amendment No. 61:
Page 17, line 35, at end insert—
("(2A) Where by virtue of subsection (2) above a chief officer of police is treated as if he were the employer of any constable, there shall be paid out of the police fund or, in Scotland, by the police authority—
() Any proceedings under Part II of this Act which by virtue of subsection (2) above and apart from this subsection would lie against a chief officer of police shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of the chief officer of police; and references in subsection (3) above to the chief officer of police shall be construed accordingly.")
§ The noble Lord said: I beg to move Amendment No. 61 and should like to take with it Amendment No. 63. The purpose of these two Amendments is to ensure that a chief constable will not be personally responsible for meeting any damages which a court may award in respect of, for example, an aggrieved applicant for appointment to a police force. Any such damages will be met from the police fund. This follows the precedent of Section 48(2) of the Police Act 1964 which makes similar provision in the event of damages being awarded against the chief constable in respect of a tort committed by a member of his force.
§ This provision was unnecessary in the Bill as originally drafted since the police, like the Crown, were not liable to the normal enforcement procedures and there was, therefore, no question of damages being awarded against a chief constable. Instead the agreement of the local authorities' associations had been sought to the principle of the police authorities making ex-gratia payments in such cases. The provisions excepting the Crown from the normal enforcement procedures were, however, deleted in another place with the result that there is now a possibility of damages being awarded against the police. In Scotland the comparable provision to the Police Act is the Police (Scotland) Act 1967. I beg to move.
§ LORD BROOKE OF CUMNOR
I am not sure that I am the only member of this Committee who finds this matter a little puzzling. I am sure that it is well-intentioned, but I do not understand it. A chief officer of police is treated 248 as if he were the employer of a constable. Damages, costs or expenses may be awarded against, presumably, a constable who has not got a police fund standing behind him. He may have to pay out of his own pocket. If this Amendment is accepted, the Police Fund will stand behind the chief officer as the employer of the constable. When one looks back at subsection (3) of Clause 12 one sees:In proceedings brought … against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing in the course of his employment acts of the same description as that act.Presumably, in the context of this Amendment, the chief officer of police has failed to establish a defence; he has failed to establish that he took such steps as were reasonably practicable to prevent one of his constables doing discriminatory acts. Nevertheless, the Amendment would completely indemnify him in the sense that the Police Fund would pay any damages, costs or expenses awarded against him although there may have been failure on his part. The Police Fund would not be available, as I understand it, to meet the damages, costs or expenses of a constable who had been guilty of an act of discrimination.
§ LORD STONHAM
I hope that I have made it clear that in the case of damages against a chief constable they would come out of the Police Fund, but damages will be awarded against the chief constable as the notional employer, and Amendment No. 61 aims only at saving the pocket of the chief constable. The Amendments are relevant only to the employment provisions. I do not know whether that makes the position clear.
§ LORD BROOKE OF CUMNOR
What the noble Lord has said bears out what I thought. Consequently, it seems slightly curious that the constable who has offended by committing a discriminatory act has to meet any damages, costs or expenses out of his own pocket. On the other hand, a chief officer, who is treated as if he were the employer of the constable, will have any damages, costs or expenses awarded against him paid out of the police fund. There will be no damages, costs or expenses awarded 249 against the chief officer if he has been able to prove—and I quote subsection (3) of Clause 12—… that he took such steps as were reasonably practicable to prevent the employee from doing in the course of his employment acts …of discrimination. In this case, the constable who has committed an act of discrimination has to pay his damages or costs out of his own pocket. The chief officer who has failed to prove that he took the requisite steps to prevent his constables from committing acts of discrimination will, nevertheless, despite that failure, have any damages or expenses paid out of the police fund. It seems to me illogical.
§ LORD STONHAM
Until the noble Lord spoke again, I really did not know what his problem was. When he spoke about the chief officer of police or the chief constable, and later of the constable, I did not realise that he was talking about two different people. The constable—meaning the police constable—cannot have an action for damages brought against him. He is not the employer. These are the employment provisions which we are talking about. The only person or body that can stand in relationship to an employer is either the chief constable or the police authority, meaning a local authority which is a police authority.
This Amendment will not make any change at all, except to say that although in theory the chief constable is the employer, if he is successfully sued as the employer because of discrimination, then any damages awarded will come out of the Police Fund and not out of his pocket. In any other conceivable circumstances where the technical employer was not the chief constable but the police authority, then they, of course, would have to pay any costs and damages awarded. I am sorry that my original explanation was not clear, but the only two people (if I may call them such) who could be employers in this matter are either the chief constable or the police authority.
§ LORD BROOKE OF CUMNOR
If this new subsection (2A), attached to subsection (2), is confined to cases of the taking on of candidates as police officers, well and good. But I found no provision in Clause 25, which we are amending, that 250 confines its application to the field of appointment of staff. I thought it went much wider than that. I thought it related to all forms of discrimination under Part I of the Bill. But I appreciate the difficulty inherent in a discussion across the Floor of the House on a complex matter of this kind, and, very likely, I have failed to appreciate points that a closer reading of the Bill would reveal to me. I am not going to press my objection now, as there is a further stage of the Bill to come. If by that time I have not understood, it may be necessary to put down an Amendment and to pursue the matter further. But I am not going to object any longer at this stage to what the Government are proposing.
§ LORD STONHAM
I should like to make clear that these Amendments are related to employment and to the positions of chief officers of police and police authorities. I thought the position was clear, but I will certainly look at what the noble Lord has said, particularly in relation to Clause 12. I will see whether there are any points that are not, clear, and will write to the noble Lord.
§ LORD STONHAM
I beg to move Amendment No. 62. This is a technical Amendment designed to correct a reference in subsection (3) to Clause 25 to the "racial balance" provisions in Clause 8.
Page 17, line 36, after ("(2)") insert ("and (3)").—(Lord Stonham.)
§ Amendment moved—
Page 18, line 19, at end insert ("and expressions used in subsections (3) and (a) above and in the Police Act 1964 have the same meaning in those subsections as they have in that Act.
In the application of this subsection to Scotland, for the reference to the Police Act 1964 there shall be substituted a reference to the Police (Scotland) Act 1967.")—(Lord Stonham.)
§ Clause 25, as amended, agreed to.251
§ Clause 26 [Supplementary]:
§ Amendment moved—
Page 18, leave out lines 24 to 27 and insert:
(""British ship or aircraft" means a ship or aircraft registered in the United Kingdom or belonging to the Crown or to a Government Department or for the time being in possession of such a Department;").—(Lord Sionham.)
§ Amendment moved—
Page 18, line 40, at end insert:
("() For the purposes of this Act the territorial waters of Great Britain shall be treated as forming part of Great Britain.
() Any reference in this Act to the territorial waters of a country is a reference to such part of the sea adjacent to the coast of that country as is recognised by international law as forming the territorial waters of that country.").—(Lord Sionham.)
§ Clause 26, as amended, agreed to.
§ Remaining clause agreed to.
§ Schedule 1 agreed to.
§ Schedule 2 [Complaints relating to employment, trade unions and organisations of employers]:
§ 7.18 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 66:
Page 22, line 1, after ("to") insert ("dispose of the complaint or").
§ The noble Lord said: With this Amendment I should like to discuss Amendments Nos. 67, 69 and 70, which are linked. This is a small but important point, which was discussed in a slightly perfunctory way, if I may say so, in Standing Committee in another place at the very end of the long proceedings when, by common consent, an attempt was being made to complete the Committee stage on that day and not to carry it on to a further Sitting. That is one of my reasons for wishing to raise the matter again in your Lordships' House.252
Paragraph 3 of Schedule 2 reads as follows:
3. A body of persons investigating a complaint referred to them under this Schedule—
§ This body have first to make inquiries and then to form an opinion whether an unlawful act has been done. Clearly this may go either way: they will form the opinion either that an unlawful act has been committed or that it has not. If they form the opinion that an unlawful act has been committed, the Bill as it stands seems to be perfectly satisfactory but it does not read so satisfactorily if this body have come to the conclusion that an unlawful act has not been committed.
We are here speaking in the context of:
Complaints relating to employment, trade unions and organisations of employers",
which is the heading of the Schedule. It will be within the cognisance of your Lordships who are familiar with industrial relations that the word "settlement" carries with it certain overtones. In the context of industrial relations, the securing of a settlement invariably involves concessions by both parties in order to obtain a compromise. That may very well be the right sort of outcome here if the body in question have formed an opinion that something unlawful has been done. But if they have formed an opinion that nothing unlawful has been done then there does not appear to me to be any cause for a compromise. Yet that phrase, "settlement of any difference between them", inevitably, in the industrial context, suggests arriving at a settlement by means of concessions from both sides.
§ That is why I am moving to insert, in front of the words "secure a settlement", the words "dispose of the complaint or". I think it will be unfortunate, because of the particular connotation of this word 253 "settlement", if we leave it unamended in the Bill. I suggest that it would be better to introduce some such words as I have suggested in order to make it perfectly clear that when the body have formed the opinion that no unlawful act has been done no question of a compromise by concessions on both sides arises. I beg to move.
§ LORD STONHAM
The noble Lord, Lord Brooke, wishes by his Amendments to add, in relation to the employment provisions in the Bill, the words "dispose of the complaint" as an addition and as an alternative to "secure a settlement". As I understand his argument, which is the same case argued by the Confederation of British Industry, the word "settlement" is a term of art in industry, implying a compromise, with both sides conceding something. For some complaints under this Bill—where for instance, as the noble Lord said, there is a finding of no discrimination—there is nothing the employer can properly concede. It is suggested therefore that it can only lead to misunderstanding to talk of a "settlement". If the complainant can be persuaded he was mistaken, the complaint may, however, be regarded as disposed of, and this, it is argued, is the appropriate wording in such cases.
The terms of subsection (2)(c) of Section 2 of the 1965 Act are the same as we are now considering here. The words there, "secure a settlement of any difference", are exactly the words we have in the Schedule now—settlements reached in which the complainant has accepted the respondent's explanation and has unreservedly withdrawn his complaints. And, of course, there are plenty of examples of settlements in legal proceedings, in arbitration and in industry which do not involve concessions from both sides.
Although, with respect, the Amendments are in themselves superfluous but otherwise harmless, they are not comprehensive, and would involve additions to, and the complication of, every existing subsequent reference to "secure such a settlement and assurance". We have used these words in the 1965 Act for three years, and have not involved ourselves in any difficulties. We do not think that the addition of the words proposed by the noble Lord, Lord Brooke of Cumnor, "dispose of the complaint 254 or", will do anything whatever to the Bill or to the general understanding, or remove any misapprehensions at all, and I would submit to him therefore that they should not be pressed, especially since, if they were accepted, we should have to make a number of other Amendments of the same type elsewhere in the Bill.
§ LORD BROOKE OF CUMNOR I do not think it is beyond the bounds of possibility, if an Amendment is good one, for a number of consequential Amendments to be made elsewhere in the Bill. I think there really is trouble inherent in the form of words which the Government seek to defend. Nor, with all respect to the noble Lord, am I at all convinced by his reference to the 1965 Act, because that Act is not dealing with questions of discrimination in employment. This is one of the important new features brought in by the 1968 Bill; and I hope I made it perfectly clear in my speech that I consider this phrase "secure a settlement of any difference between them" is objectionable only in the field of employment, and where the body investigating the complaint had formed the opinion that no unlawful act had been clone, and therefore there was no concession which the party which had been found to be innocent could be asked to make.
§ I hope that the Government have not a closed mind on this matter. There may be better words than I have suggested. It may be practicable to secure some other phrase instead of "secure a settlement". It is the word "settlement" (which, as I say, is a term of art) that suggests procedures which the Government do not wish to import into this Schedule where it has been found that no act of discrimination has been committed. I cannot carry the matter further now, but I hope the Government will consider what I have said. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 68:
Page 23, line 3, leave out paragraphs 9 to 11.
§ The noble Lord said: This Amendment and Amendment No. 71, in the following Schedule, relate to the same 255 point. These Amendments would withdraw the power of a complainant in the field of employment covered by Schedules 2 and 3 to appeal to the Race Relations Board if he was dissatisfied by a decision arrived at under the voluntary machinery of investigation and conciliation for which this Bill provides in the industrial field.
§ The thinking behind these two Amendments is that once voluntary machinery for investigation and conciliation has been approved by the Government as satisfactory, it ought not to have its operation called in question or its authority undermined by there then being a right of appeal to the Race Relations Board. On the contrary, if the voluntary machinery is not working satisfactorily the right course is for the voluntary machinery to have Government approval withdrawn from it and a fresh start made. It would seem to be an unsatisfactory situation to have these paragraphs which I am seeking to delete encouraging appeals from the voluntary machinery in the industrial field to the Race Relations Board.
§ The noble Lord, Lord Stonham, will be aware that this whole question is complicated by a recommendation by the Royal Commission on Trade Unions concerning statutory provisions for appeals machinery against dismissal in certain circumstances. I am aware that the Government have not reached a decision on that. What I am suggesting is that it would be wiser not to establish in this Bill an appeal to the Race Relations Board from the voluntary machinery for investigation and conciliation which has, in fact, been approved by the Secretary of State for the very purpose. I beg to move.
§ LORD STONHAM
May I say, before dealing with this Amendment, that I will look at what the noble Lord has said with regard to the last point. As to the Amendment that he has now moved, there is a difference of opinion on what I regard as an important point of principle. The noble Lord may remember that in my Second Reading speech I referred to this particular aspect and indicated that while the Government placed the greatest reliance on the machinery for voluntary conciliation and investigation for trade unions and for employers' associations, we did not feel able to say 256 that their decision would be final. What the substantive Amendments of the noble Lord would do, apart from taking slabs out of the Second Schedule, would be to prevent the parties to a complaint which had been dealt with by voluntary machinery from appealing from the machinery's findings or settlement to the Race Relations Board; and to prevent the Board from referring back to voluntary machinery for further consideration a complaint which has been referred to them on appeal.
The C.B.I. and the T.U.C. have argued strongly that there should be no appeal to the Board from findings or settlements reached by industry's voluntary machinery. In their view the voluntary machinery should be allowed to deal with complaints exhaustively, if necessary at several successive levels of conciliation machinery; if either of the parties is dissatisfied with their initial findings or settlement, they should raise their grievance with the voluntary machinery, and its ruling should be final. That I cannot accept in relation to the problem we are now considering; indeed, industry generally does not accept it.
Where employers and workers in a particular industry, through their organisations, have machinery to come to agreement, it nearly always provides in their disputes procedure for unresolved disputes to be referred to someone else—to the Industrial Court or to arbitration. That is the normal practice in industry. The Government have decided that it is consistent with the Board's general oversight of the complaints procedure for them to consider appeals from the voluntary machinery's decisions where either party is dissatisfied. In addition, this provision will he a safeguard for any case where the voluntary machinery might reach a "soft settlement" which failed to provide the complainant with an effective remedy.
When the Race Relations Board come to investigate a complaint which has been referred to them on appeal they may decide that the voluntary machinery ought to be able to settle the case if it makes further efforts. They may decide, for example, that some further evidence needs to be examined before it can be seen whether the grounds of the appeal are justified, or that a slight variation in the terms of a settlement would 257 satisfy the appellant. In these circumstances it seems sensible to allow the Board to refer the complaint back to the voluntary machinery for further action. The Amendment would prevent this. Although on this, the last Amendment that we have to discuss, I regret having a disagreement with the noble Lord, I am bound to say that the Government are strongly of opinion that their decision in this matter is right and that that of the noble Lord, as suggested in his Amendments, is not.
§ LORD BROOKE OF CUMNOR
The noble Lord need not apologise for disagreeing with me. That is what Parliament is for. We all put our points of view with sincerity, we argue them and, if necessary, we settle the matter by a majority vote at the end. I am concerned about the noble Lord's argument. He says that if the voluntary investigating machinery produces soft decisions it is desirable that those decisions should go to the Board and may be referred back for further consideration to the voluntary machinery. But if the voluntary machinery is producing soft decisions it ought not to retain the confidence of the Secretary of State. Paragraph (2) of Schedule 2 says:… the Secretary of State shall … if satisfied that there is a body of persons suitable to consider that complaint, refer it to that body for investigation by them; … if not, refer it to the Board for investigation by them or a conciliation committee.That is the true remedy if the voluntary machinery is not working properly.
I fear that if the Government stick to their determination to retain these three paragraphs in each of the Schedules it will tend to have the result of undermining the authority of the voluntary machinery which, in itself, will be an unhappy result. I cannot help thinking that it is also likely to have a further practical effect which will amount to a form of discrimination on the grounds of colour. In the case of dismissals, white employees who feel they have been victimised will have no recourse beyond the industry's normal machinery for settling disputes; whereas a coloured worker who is dismissed will be disposed to claim his statutory right of appeal to the Race Relations Board.
§ LORD STONHAM
May I interrupt the noble Lord? He said that white workers will consider they have been discriminated against; but what we are discussing is when an aggrieved person thinks he has suffered from some disability with regard to employment—perhaps dismissal—and has suffered it on the grounds of colour, or ethnic or national origin. It is hardly likely that a white person is going to the negotiating machinery with that complaint.
§ LORD BROOKE OF CUMNOR
I think the noble Lord has misunderstood me. I am speaking of dismissals. A firm may be reducing its staff and it may have to dismiss people. If it dismisses a white man, there is very little possibility of the man arguing, or indeed believing, that he is being discriminated against because of his colour. If the firm dismisses a coloured man, he may well think, rightly or wrongly, that he is being dismissed because of his colour. In the first place, the white employee will have the normal disputes machinery of the industry available to him. In the second place, the coloured person will have the voluntary disputes machinery available to him, and he will have, in addition, the statutory right to appeal to the Race Relations Board. I think it would be a pity if that sort of result were to flow, and I simply put it on the record that there is a danger that this might be one of the wholly unintended consequences of having this statutory appeal procedure in the Bill. Having said that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 agreed to.
§ Schedule 3 agreed to.
§ Schedule 4 [Provisions as to the Community Relations Commission]:
§ On Question, Whether Schedule 4 shall be agreed to?
§ LORD SANDFORD
I should like to raise a number of points connected with the Community Relations Committee of which I have given the noble Lord notice. This debate, and indeed all debates, inside and outside your Lordships' House have revealed widely differing opinions about the role that legislation can play in this whole field. Opening the Second 259 Reading debate, the noble Lord, Lord Stonham, gave it as his opinion thatWe cannot change people's hearts … but we can change their behaviour."—[OFFICIAL REPORT, 15/7/68, col. 32.]The noble and learned Lord the Lord Chancellor, winding up the same debate said about legislation (col. 154):… not because people can be made to behave properly.So we have that divergence of view even between two members of the Government, and I do not complain or criticise them for that because it is indeed a moot point as to what the law, the Race Relations Board, the courts and all the paraphernalia of Part II can achieve.
There is very much less doubt—in fact there is far greater agreement—about the purpose and the value of the Community Relations Commission, the successor to the National Committee for Commonwealth Immigrants. All sides would appear to agree with the noble and learned Lord the Lord Chancellor, when during the Second Reading debate he said (col. 153):… much the most important part of the Bill … is the provision of the Community Relations Commission.I think all the Committee would agree with that; it is a clear, emphatic statement that all would want to endorse. If your Lordships will turn to the Bill and particularly page iv, we see that the financial provision for this important agency, the Community Relations Com- mission, is s £200,000. That is what is to be provided for this most important agency which will deal, as my noble friend Lord Brooke of Cumnor has properly said, with one of the greatest social problems of our time.
I submit that £200,000 does not get you very far in the way of service or the provision of an agency on a national scale. Only last Friday we were considering the Redundancy Fund to deal with another important social and economic problem which we heard was costing the country £900,000 a week or £45 million a year. Here we have this new key agency on which so much is going to depend, costing one fifth of a million pounds a year, compared with £45 million. I do not believe that this proportion, this scale, can be right. The most reverend Primate who, as chairman of the N.C.C.I. ought to know, said he believed that it was not 260 right. I am surprised that he did not say so more vigorously during the Second Reading debate. In March he wrote to the Prime Minister as the Chairman of the National Committee on Commonwealth Immigrants, and was told that in fact a 14 per cent. increase was allocated to the work of the N.C.C.I.—and in these hard times that was something for which the Committee should be grateful.
If your Lordships look again at page iv you will see that in these difficult and economic times, when a 14 per cent. rise is all that the N.C.C.I. can expect, the Government are increasing by 130 per cent., by £100,000, the funds available to the Race Relations Board; and for work which, though no doubt of some value, perhaps of considerable value, is by general consent supplementary and auxiliary to that of the Community Relations Commission. It is work which so far in this country has been of doubtful and uncertain effect in the achievement of harmonious race relations; and, as the noble and learned Lord the Lord Chancellor said on Second Reading, it is incapable of making people behave properly in this respect.
I should be among those who thought that the person who can best express what the law can achieve is almost certainly the noble and learned Lord the Lord Chancellor, and it is his view which carries weight with me. So by what process do Her Majesty's Government arrive at the conclusion that £170,000 is enough for the Race Relations Board and £200,000 enough for the Community Relations Commission? Does this represent the right balance between those two agencies?
Finally, can the noble Lord, Lord Stonham, tell us about the flexibility that the Community Relations Commission will have in the disposal of its funds? The National Committee for Commonwealth Immigrants has had some rather quaint ground rules imposed upon it, about how it should deploy its funds. One is that only one sum of £1,500 can be allocated by the Committee to each full-time secretary of a voluntary liaison committee. This has resulted in the same grant going to Rugby as to Birmingham. A second restriction under which they have laboured is that grant aid was generally available only to areas where coloured immigrants were thick enough 261 on the ground to justify the appointment of a whole-time officer on community relations work; yet only available when he and his committee were quite independent of other local bodies. This necessity for independence strikes one as being a curious way to promote integration. I admit that there is nothing in this new Bill to enshrine these odd handicaps, but it would be good to have the assurance of the noble Lord that they are not going to be continued into the work of the Community Relations Commission by administrative action; or, if they are, an explanation of why they are thought to be necessary.
One would like to go on to urge further flexibility so that the new Community Relations Commission, with Home Office approval and Treasury consent, could devote funds to a whole variety of local projects—fair housing schemes, free school play groups et cetera—as indeed the N.C.C.I. have already been doing in a small way. But to urge this is quite pointless unless the overall budget of £200,000 is increased. I am advised that this sum is barely sufficient to maintain the existing framework of local committees, liaison officers, specialist panels and reception staff. I hope the noble Lord can give us an assurance that Her Majesty's Government now, in the light of the debates here and in another place, are contemplating a substantial expansion of financial backing for this Commission. If they do not succeed in expanding substantially, I think that their championship of racial harmony, in which we all support them, will soon begin to look rather thin.
§ LORD STONHAM
I am sure the noble Lord will not expect me to go into any detail on some of the advice given, because there is a great deal of business still to be dealt with to-night. But I should like to deal with one or two of the questions. He asked me by what process we arrived at the decision that £175,000 is right for the Race Relations Board and £200,000 is right for the Community Relations Commission. Page iv of the Bill, to which the noble Lord refers, tells him that the figure of £200,000 a year corresponds to the provision for the estimated expenditure for 1968–69 of the National Committee for Commonwealth Immigrants, which the Commission will replace. I should have thought it was 262 not unreasonable, when putting a sum in the Bill, to put down the known figure for the current year.
The noble Lord said that this figure was barely sufficient to maintain the existing framework; and I note that. But I can think of a great many other things where the money allowed is barely sufficient to maintain the existing framework. I must maintain that generally the work of the N.C.C.I. has not been inhibited by lack of funds. The requirements of the Commission in future will be dealt with and provided for as necessary. I give that assurance to the noble Lord. We do not regard it as any less important than he does.
I detected in something the noble Lord said, almost as an aside, a difference of view as to what should be the work of the Commonwealth Relations Commission when he spoke about a whole variety of other projects which could be done locally in relation to housing, free school nurseries, and so on. It is only two weeks ago that I announced in your Lordships' House, in repeating a Statement made by my right honourable friend the Home Secretary, the Government's plans to provide an additional £20 to £25 million precisely for matters of this kind in relation to immigrants, and to use that money, in addition to the very large sums which are already being spent, where there was shown to be a special need. Obviously, the Community Relations Committee could be of great help in advising us about this and about particular areas. But I certainly do not see them, as it were, as the dispensers, the administrators; that must be left to the local authorities.
The noble Lord mentioned ore other point of detail about a maximum of £1,500 in grants to the local committees. But now the N.C.C.I. have discretion to increase those grants to local committees to £3,500, and to make grants for other projects. So that is another point that has been dealt with.
The noble Lord also asked by what process we arrived at the decision that £175,000 is right for the Race Relations Board. I think that here again the answer is to be found on page iv. We have increased it, or are increasing it, by 130 per cent. Again, as this develops, the necessary expenditure will 263 be provided. If I detected in what the noble Lord said any tendency, as it were, to exalt the Commission as against the Board, I should regret any idea of that kind. Both these bodies set up by the Bill are supremely necessary. The success of both is absolutely essential to the success of this Bill when it becomes an Act, and to the success of the whole race relations policy of the Government. I have been happy to try to deal with points raised by the noble Lord and I hope that we have his utmost good will in this Bill and in putting it into effect.
§ Remaining Schedule agreed to.
§ House resumed: Bill reported with the Amendments.