HL Deb 15 October 1968 vol 296 cc1196-207

3.0 p.m.

BARONESS SEROTA

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Baroness Serota.)

On Question, Motion agreed to.

Clause 1 [Meaning of "Discriminate"]:

LORD DRUMALBYN moved Amendment No. 1: Page 1, line 12, leave out from ("persons") to end of line 14.

The noble Lord said: My Lords, it may seem a bit odd that at this late stage in the Bill I am moving an Amendment to the governing clause of the whole Bill. Quite simply, the reason is that it has emerged that the Government intend it to mean something quite different from anything I understood and anything understood by those with whom I have discussed it, including, I may say, solicitors and barristers; it does not coincide with what they thought it meant. Perhaps I should read Clause 1. It says: For the purposes of this Act a person discriminates against another if on the ground of colour, race or ethnic or national origins he treats that other, in any situation to which section 2, 3, 4 or 5 below applies, less favourably than he treats or would treat other persons … and it goes on with the words I propose Ito leave out?— … and in this Act references to discrimination are references to discrimination on any of those grounds. On Second Reading the noble Lord, Lord Stonham (whom we are sorry not to have with us to-day and to whom we wish a speedy recovery), said this: For purposes of greater clarity, we have accepted proposals that the Bill should define discrimination more closely than the 1965 Act, and Clause 1 makes clear that to discriminate means to treat someone less favourably than other people because of his colour, race, ethnic or national origin. The Government have also decided that this Bill must extend to a much wider range of public places than is covered by the present Act, and also to the provision of insurance and credit facilities, to employment and to housing."—[0FFICIAL REPORT, 15/7/68; col. 33.] For my part when the noble Lord, Lord Stonham, spoke of extending the Bill to a much wider range of public places and to insurance, credit facilities, employment and housing, I thought he was indicating the limits to which the Bill extended the definition in the 1965 Act. From a letter he was good enough to write me it is plain this is not so. In case I get his meaning wrong I venture to quote what he said in his letter: Clause 1(1) of the Bill contains two definitions. The expression ' discrimination ' in Clause 6 is governed not by the first part of Clause 1(1), which refers to discriminating against another (person)', but by the second part which says that references in the Act to discrimination are references to discrimination on any of the defined grounds, that is to say, on grounds of colour, race, ethnic or national origins. This is done quite deliberately and it is by reference to this definition that Clause 6 prohibits discriminatory advertisements whether or not the act to which they refer would itself be unlawful under the Bill and whether or not they relate to discrimination against a particular person. It seems, therefore, that we have thus the astonishing position that there are two different definitions of discrimination given in this clause, one a definition of the word as a verb and the other a definition of the word as a noun. Any person who discriminates obviously does an act of discrimination. The only difference lies in the omission of the words against another "in the second definition. I can quite see that it is undesirable to permit an act of discrimination against a whole group of people as it is to permit one against an individual. But I car not see how at the end of the day any act of discrimination or intention to do such an act can be other than an act of discrimination against a person, especially as I understand that as a matter interpretation the singular includes the plural. If discriminating is not to mean discriminating against a person or persons, I hope that the Government can explain what it does mean in the words I propose should be left out. So far as I can see, the phrase "act of discrimination" by itself, without the words "against any person," occurs once in the Bill and that is in Clause 6, which deals with advertisements and notices. Clause 6(1) says: It shall be unlawful for any person to publish or display, or to cause to le published or displayed, any advertisement o' notice which indicates, or which could reasonably be understood as indicating, an intention to do an act of discrimination whether or not it would be unlawful by virtue of any other provision of this Act. So far as I can see, this phrase "act of discrimination" by itself, without the addition of the words "against any person," occurs only in this one case. I should like to know from the Government what kind of act is there contemplated which would not be an et of discrimination against a person. If there are no such acts contemplated, w rat is the purpose of the second definition in Clause 1, if it can be called a definition? Is it the intention of the Government that the Race Relations Board should have power to proceed on a voluntary basis on any complaint that an act of discrimination has been done which is not an act of discrimination against another person and which is not an act which unlawful under any provision of the Bill, other perhaps than Clause 6? If it is, why should advertisements not be dealt with in the same way without legal sanctions except where the act referred to in the advertisement is itself unlawful? Either, it seems to me, you leave a whole sector of discrimination to conciliation and to the voluntary side and then define in Clauses 2, 3, 4 and 5 which is the side to be covered by the civil proceedings if necessary (and in that case advertisements should be included in the voluntary side), or else you have to define very carefully what you mean by discrimination in the second part of the definition.

The noble Lord, Lord Stonham, in his letter to me gave examples of what he regarded as discriminatory advertisements relating to a matter outside the scope of the Bill, and he gave as examples an advertisement seeking members for a private club or inviting people to join a holiday party. Surely both of those would involve an act of discrimination against a person, for by indicating an intention to restrict participation to persons with particular qualification the advertisement would be discriminating against a person who did not have those qualifications. Perhaps 1 may give a simple example. Supposing, for example, the London Irish Rugby Football Club intended to recruit more members, it would be an act of discrimination if it published an advertisement excluding those who were not Irish and perhaps also those who did not play Rugby football; but at any rate the first would appear to be an offence against the Bill.

I think this is an important point. I cannot conceive of any act of discrimination within the meaning of the Bill which is not an act of discrimination against a person, and that being so, it seems to me that those words are totally unnecessary and indeed confusing. To the extent that the words widen the definition of discriminating against another, I suggest they are wholly undesirable as they would cast doubt on the scope of the Bill without giving any indication of what discrimination in the wider sense is intended to mean. I hope I have said enough to make it clear that I am not in any way trying to restrict the scope of the Bill in this Amendment, but that I am trying to make it more effective. I think these particular words will cause an awful lot of trouble if they are left in the Bill. I beg to move.

BARONESS SEROTA

My Lords, I would remind the House that this clause states in general terms what in the Bill is meant by "discrimination ", and limits it to discrimination on grounds "of colour, race, or ethnic or national origins ". These were the words which were used in the 1965 Act, which in this respect was in accordance with the then draft United Nations Convention on the elimination of all forms of discrimination. While one fully recognises the precision of this formula, particularly the words "ethnic or national origins "—this was certainly recognised during the preparation of the 1965 Bill—in fact we have found that nothing better has been devised in the meantime, and it has proved workable since that Act was passed. The words which the noble Lord, Lord Drumalbyn, wishes to leave out are essential in this Bill, and perhaps in the light of my reply the noble Lord will not insist on or attempt to press his Amendment. I would urge the House to ensure that these words "discriminate "and "discrimination "remain throughout the Bill, because they mean discrimination on the grounds specified in the first part of Clause 1(1).

The noble Lord referred to the relationship of these words to Clause 6—the advertising clause, if I may use that form of shorthand. There are further Amendments which the House will be discussing at a slightly later stage. It is difficult not to overlap with that discussion, but these words "discriminate "and "discrimination "are required to exclude a possible construction of the words as including discrimination on the grounds of religion, politics or perhaps even sex. This is particularly necessary in relation to Clause 6, which seeks only to prohibit advertisements which discriminate on one of the specified grounds. They are also needed, as I believe the noble Lord is fully aware, for other provisions, including those in Clause 16.

It really is essential to keep in the Bill as at present drafted the words which the noble Lord's Amendment proposes to delete, in order to protect the provisions of Clause 6, if I may put it in this way and without trespassing on the Amendments which we are shortly to discuss, when perhaps we can go into this point a little more fully. I would assure Lord Drumalbyn that there are not two different definitions of "discriminate ". The first part of Clause 1 defines discrimination against another, a phrase which occurs again in Clauses 2 to 5. The second part, as I have already explained, defines "discrimination "which occurs not only in Clause 6 but also in Clauses 15 and 16 and certain of the Schedules.

It is only in Clause 6 that the illegality of a transaction is affected by the definition. It may be that this was the particular point which the noble Lord wished to get clear, and this was the purpose of his Amendment. The other provisions are purely procedural.

I hope that this explanation on an extraordinarily difficult and, to some of us, delicate matter has satisfied the noble Lord. We are most anxious, particularly at this late stage, after all the consideration of the Bill both in another place and in your Lordships' House over many long hours through its various stages, that the clause should stand as it is for the reasons that I have given. We will discuss its relevance to Clause 6 when we come to the Amendments that have been tabled on that particular clause.

LORD DRUMALBYN

My Lords, I am most grateful to the noble Baroness for her courteous reply, but I am bound to say that I do not feel wholly satisfied with it. We shall indeed come on to discuss it further on Clause 6, and it may be that then she will be able to reply to the point that I made about the difference between these two definitions. One is discrimination against another; the other is discrimination quite shortly. There must be a purpose in this and I should like to know what that purpose is. As I pointed out, in the reply that I received from the noble Lord, Lord Stonham, he laid emphasis on this difference. I cannot see how you can discriminate except by discriminating against a person. I hope that the noble Baroness will be able to reply to that.

I realise that the stage is late, but it would be a great mistake if we were to allow the governing clause to pass—presumably we shall have another opportunity to deal with this point—unless we were quite sure that there was a good or adequate reason for the differences in the form of definition. It is most important. But if we are going to be able to come back to this question when we come to Clause 6, perhaps we can leave it at that for the moment. In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 [Employment]:

3.17 p.m.

EARL JELLICOE moved Amendment No. 2: Page 2, line 20, leave out ("qualified") and insert ("fit ")

The noble Earl said: My Lords there are two notable absentees from our discussion this afternoon. The first, is my noble friend Lord Drumalbyn, mentioned is the noble Lord, Lord Stonham. Like my noble friend I should like to say how sorry I am that he is unwell, and also to echo his expression of hope that the noble Lord will soon be restored to us in full health. The second absentee is my noble friend Lord Brooke of Cumnor. I am therefore moving this Amendment on his behalf. He is taking part in a Commonwealth Parliamentary Delegation in Australia.

We had quite a long discussion of this part of the Bill on Committee stage when my noble friend Lord Ilford moved an Amendment suggesting that the words "and suitable "should be added after "qualify "in line 20 on page 2; and it was pointed out at that stage of out discussion that the adjective "qualified" may be ambiguous. As my noble friend pointed out, a teacher, for example, may be quite unsuitable for a particular post although he or she may have all the professional qualifications which that post may demand. He went on to say that the wording of the Bill, as it stood then on Committee stage and as it stands now was causing considerable disquiet to two major educational authorities, the Inner London Education Authority and the Greater London Council.

I think it was clear from our discussion last time that a number of other roble Lords were worried about the possible double entendre in the word "qualified ". Some supported the addition of the two words suggested by my noble friend. Some thought that the whole of the latter part of this clause, and for which he is qualified. were better omitted; and the noble Lord, Lord Mitchison, from behind the noble Lord, Lord Stonham, felt that the word "qualified" should be spelt out in some definition clause to make it clear that it included the meaning of "suitable' as well as having the right professional qualifications. The noble Lord, Lord Stonham, while not happy about my noble friend's Amendment said, I think, that he was most willing to have a look at this matter and added that he would try to come up with a solution that would satisfy everyone. So far as I know, neither the noble and learned Lord the Lord Chancellor nor the noble Baroness have come up with a solution, and, that being so, I hope that I am not being overoptimistic in assuming that they agree that we should substitute the word "fit ", which it seems to me includes the meaning "suitable ", for the word "qualified ", which does have this possible ambiguous interpretation. I therefore beg to move.

BARONESS SEROTA

My Lords, the noble Earl has reminded us of the discussion on this clause at Committee stage on the Amendment moved by the noble Lord, Lord Ilford, and the concern that was expressed at that time about this particular wording. Since that time my noble friend Lord Stonham (perhaps no one to-day regrets his absence more than I do, and the House will be glad to hear that he is making very good progress) has given an undertaking that he would give very serious thought to various points that have been raised with a view to meeting them, if possible. Nevertheless, I am afraid that I am going to disappoint the noble Earl in replying to the Amendment which stands in the name of the noble Lord, Lord Brooke of Cumnor, and which the noble Earl has just moved in an attempt to solve this particular problem.

The House will remember the reasons that my noble friend Lord Stonham gave during the Committee stage why the words "and suitable "were unacceptable. He expressed the view that the decision as to which of several qualified people to engage for a job will involve for an employing authority a number of subjective opinions as to their "suitability ". He further expressed the view that under this clause the employers will still be able to make their judgment, provided that they do not base it on race or colour, but he also took the view, with which I think the House broadly agreed, that the word "suitable "would open up a loophole in the Act and could permit unscrupulous employers to reject qualified applicants on value and subjective criteria as to "suitability ". Therefore, after further consideration my noble friend felt that the word "suitable "was not acceptable.

During the Committee stage a further suggestion was made, namely, to leave out the reference entirely to "qualified ": and this indeed had a certain attraction for some who participated in the Committee stage because it is true that a refusal to employ a person because he is not "qualified "has nothing to do. as such, with racial discrimination. But, again, after full consideration of this particular proposal my noble friend, and indeed Her Majesty's Government, felt that it would be far preferable to retain the reference to being qualified to make it quite clear on the face of the Bill that Clause 3 does not apply to unqualified applicants for employment, and that there can be no question that an aggrieved applicant in such a case feels that the real reason for rejecting him was his colour.

The purpose of this new Amendment which the House is considering to-day is, as the noble Earl has told us, to replace the word "qualified "with "fit ". In the view of my noble friend and the Government the word "qualified "as at present in the Bill means both qualified and suitable, in the non-technical sense, and therefore imports a requirement that an applicant must be competent and fit. which is saying all that is necessary and desirable in this context.

Certain fears were expressed during the Committee stage about the difficulties of this particular definition, but I would remind the House that under the present wording of the Bill it would not be unlawful, for example, for a local authority to reject an immigrant teacher who is a qualified teacher (I think this was the burden of the representations made by the Inner London Education Authority); that it will be able to reject a teacher who is a qualified teacher but is unemployable as such because, for example, of language difficulties. In our view, the use of the word "fit "in the place of the word "qualified" would not have this particular advantage.

I would conclude by assuring the House that in my own personal experience in London relating to the employment of teachers in London schools I myself see no difficulty whatsoever in the wording of the Bill as it already stands, covering both technical qualifications and also qualifications as to suitability, language ability, and general ability, if I could put it in this way, to control a class. I hope that, in those circumstances, the noble Earl will withdraw his Amendment, leaving the Bill as at present printed.

LORD HAWKE

My Lords, as the noble Baroness intends the Bill to be read, she is probably perfectly right. But how can she be sure that the courts are going to interpret the word "qualified" as meaning "qualified by technical degree" or something as well as "suitable"? And unless the courts are going to interpret it in that way we get back to the narrow meaning of "qualified", as qualified by some form of letters after the name, or examination, which is precisely what she wishes to avoid.

BARONESS SEROTA

My Lords, by leave of the House, may I suggest, with the greatest respect to the noble Lord, that it was this very point that was discussed at some length at the Committee stage. I remember my noble friend Lord Stonham referring to the single man who applied for a post which was advertised for a married teacher. Such a man would not be qualified. That was a particular illustration that my noble friend gave. An employing authority, in my experience, always interprets the word "qualified" to mean both "technically qualified" and also "suitable" or "fit" for the particular post for which the advertisement is phrased. I really cannot see the difficulty here. With all the skills of the Parliamentary draftsmen at our disposal we have been unable to find a better solution to this problem, and I would only remind the House that the basis of this Bill, the objective of this Bill, is voluntary conciliation backed by statutory limitation. It is in that context that I would ask the House to accept the drafting as it stands at present.

THE MARQUESS OF ABERDEEN AND TEMAIR

My Lords, would it not be complete to say "fit and qualified"?

BARONESS SEROTA

My Lords, if I may again trespass on the time of the House, this particular point, or something very similar to it, was discussed at Committee stage. The addition of the word "fit" to "qualified" could be open to some quite serious objections within the objectives of this particular Bill.

EARL JELLICOE

My Lords, with the leave of the House I should like to say just a word in reply to the noble Baroness, and I can perhaps relieve her of any momentary anxiety by saying straight away that I do not intend to pursue this matter to the bitter end. I should, however, like to put this point to her. She has explained the preference of both the Government and the Parliamentary draftsmen for the term "qualified"; she has not—at least I cannot recollect it—said what objection there was to the word "fit". I should have thought that, with all the resources of the Parliamentary draftsmen at her disposal, she might have been able to tell us that, because it still seems to me that "fit" would be a better word. The noble Baroness says that "qualified" means both qualified professionally and suitable. Surely, as my noble friend Lord Hawke has said, there is still some ambiguity here and there might well be a difficulty of interpretation, whereas I should have thought that, without any shadow of doubt, a person could not be fit unless he was qualified, and "fit" ipso facto includes general suitability or particular suitability. I wonder whether the noble Baroness could explain. I understand her preference for "qualified". Apart from anything else, it happens to to in the Bill, and Parliamentary draftsmen always like to keep what is in the Bill. But can she explain why she dislikes the word "fit"?

BARONESS SEROTA

My Lords, this is in a sense a matter of opinion. The Government are acting on the best advice they can command. "Fit" could well be a subjective criterion, influenced by personal predilections—and possibly even by personal discrimination. It would not, in our view, be the appropriate word in this particular case. As I have tried to explain to the noble Earl, albeit inadequately—and I certainly appear not to have satisfied him so far—"qualified" covers both technically qualified in the sense of academic or practical qualifications, together with those qualities of personality and experience which have to go together with technical qualifications to make a person suitable for a particular job.

EARL JELLICOE

And which are therefore a matter of subjective judgment.

LORD BARNBY

My Lords, I have listened carefully to the discussion and have tried to apply common sense to this matter. I agree that it is a difficult thing to decide what is the difference between "qualified" and "fit". I will give an example, which I hope the noble Baroness will not think frivolous. Suppose an advertisement referred to a person being required who was qualified to ride an animal, say a camel. If the person, through having ridden for some considerable time, had a temporary disability, with blisters on a part of his anatomy, he would not be "fit" to ride. Therefore this is a distinction between someone having full qualifications to do something and yet not being "fit" to carry it out.

EARL JELLICOE

My Lords, I am sure it is the wish of your Lordships that we should not detain the House any longer on this matter. The noble Lady has disarmed me with the charm of her reply, if she has not convinced me with its intellectual validity. In expressing my deep dissatisfaction with the Government's obstinacy on this point, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.