§ 3.57 p.m.
§ Report stage resumed.
§ BARONESS SEROTA
My Lords, in this general spate of movement it is difficult for me to tell whether any noble Lord is rising on the Amendment which the noble Lord, Lord Drumalbyn, moved before the very important Statement which we have just had from the Leader of the House. In view of that interruption, perhaps I might remind your Lordships that the purpose of this Amendment to Clause 6 is to ensure that no proceedings can be taken in relation to discriminatory advertisements concerning acts which are not unlawful under the Bill—and that, I think, is the whole burden of the argument which the noble Lord put to us. I should first of all like to assure him that the wording of the Bill as at present drafted is in no sense discrimination against advertisers.
In the request which the noble Lord made to the House he was really, in my view, undermining the whole principle on which this Bill is based. The purpose surely is to declare discrimination wrong in principle and to throw the weight of legislation behind voluntary efforts to eliminate it. The noble Lord was pleading that in this particular field of public advertisements we should rely solely on voluntary conciliation methods, without the statutory backing which goes through the rest of the Bill. That is why I say that this Amendment raises a major question of principle and is therefore unacceptable to the Government. Investigation and conciliation in respect of discriminatory advertisements cannot proceed without the support of sanctions; and an advertisement in respect of an intended action which is not unlawful under the Bill can be just as objectionable in our view as one that is.
The House will remember that this point was discussed at great length in Committee. I will not go over the details again; but my noble friend Lord Stonham has given serious consideration to the points then raised and has been in correspondence on them with many noble Lords, including the noble Lord. Lord Drumalbyn, during the Recess. I hope that the House will not think that proper consideration has not been given 1218 to the case which is now put before us again. For the reasons I have given, and certainly not for the purpose of discriminating against advertisers, the Government feel that this Amendment should not be accepted by the House. Moreover, we are confident that in practice the question of proceedings in respect of advertisements which are clearly not objectionable will not arise.
§ LORD DRUMALBYN
My Lords, I am afraid that the noble Baroness has not really convinced me that full consideration along the lines of the Amendment has been given to this matter. In her reply she almost suggested that this Amendment would remove the sanction of proceedings in cases where the act of discrimination which was intended is not lawful—and mark this, my Lords! it is one that is intended and not one that has actually been committed. The case I was making is that where the act is not unlawful then it is not unreasonable to take it out of the sphere of the courts. The noble Baroness could have said, but did not since it was almost unnecessary, that this particular clause makes it unlawful; but that is really what we are complaining about. We are complaining about making unlawful an advertisement indicating an intention to carry out an act of discrimination which is not unlawful except in the case of advertisements. This is the case that we are trying to argue. The noble Baroness has not given any answer to that at all.
It is all very well to say that you must have sanctions to back up the conciliation procedure in cases of an unlawful act; but this is an act which is not unlawful except under this clause. I should have thought that there was ample scope for conciliation procedure here. If we were to have a clear definition of what discrimination is to mean, what circumstances it is to cover, what the evil is that it is expected to eliminate, this would be quite a different matter; but it seems to me quite wrong in principle to say that it is unlawful to advertise something which is not unlawful and that civil proceedings can be brought in those cases.
If it is only an intention, surely no question of damages can arise. Admittedly a court could give an injunction against doing it again or against advertising it again; but my submission was that it was 1219 not necessary. I agree that there is a difficulty in the matter of notices; but most of these notices are related to matters of employment or something like that. Most of them would not be advertisements in the proper sense. They would not be "at large". An advertisement must be "at large". A notice would be confined to members or to a factory. That is the difference between a notice and an advertisement. But surely it would be possible to cover that point. The point I am concerned with is only this matter of advertisement.
I am with the noble Baroness all the way in barring advertisements, in making them unlawful, where there is a question of an intention to carry out an act of discrimination which is unlawful under the rest of the Bill. All I am saying is that it should not be a matter subject to civil proceedings where the act is not in itself unlawful. I am bound to say that I do not think the noble Baroness has addressed her mind to that point at all.
§ LORD GIFFORD
My Lords, may I support my noble friend Lady Serota in this matter? We are concerned not with the Personal Column advertisements in The Times or in the Evening Standard. I am sure that media of that kind would not carry discriminatory advertisements and would never go near the courts; they would not be worried by the clause as it stands. We are concerned with notices in tobacconists' shops—even in the windows of private houses; but particularly in tobacconists' shops—where we have seen these most objectionable notices saying, "Room to let. No coloureds." It could be that the landlady with a room to let will see, after reading this Bill, that she is exempt from it and will put in an advertisement of this kind. If there is no sanction behind the conciliation efforts of the Board she is in a position to snap her fingers at anything the Board may intend to do. This is the intention, if I have it aright, in resisting this Amendment. I should have thought that it was of great importance, because it is at this level that you get the obstinacy which requires, in my opinion, after all else fails, the sanction of a court order.
§ LORD STRABOLGI
My Lords, I should like to support my noble friend Lord Gifford. I usually agree with what 1220 the noble Lord, Lord Drumalbyn, says about advertising, but in this case I am afraid I do not. With my noble friend Lord Gifford, I believe that the noble Lord. Lord Drumalbyn, is thinking about the kind of advertisements he deals with as the chairman (and a very distinguished chairman) of the Advertising Standards Authority. Here, as was said in the Second Reading debate, we are in deep and murky waters. The kind of advertising we have to deal with throughout in this Bill is the kind that will incite racial hatred and racial discrimination quite outside the ambit of Clauses 2 to 5. I think the Amendment of the noble Lord, Lord Drumalbyn, will considerably weaken the Bill for the reasons that my noble friend Lord Gifford has given.
The noble Lord, Lord Drumalbyn, conceded that this might be justified in the case of a notice but not in that of an advertisement. On the other hand, his Amendment would also include notices and would weaken the effect of the Bill on them just as much as on advertisements. I hope that my noble friend Lady Serota will stand firm on this, because I think the Amendment is unhelpful to start with and, secondly, would weaken the Bill.
§ LORD BESWICK
My Lords, I wonder whether we could come to some agreement about this, as we did on the Transport Bill. The noble Lord has the right to reply, but not to reply more than once unless it be to explain himself.
§ LORD AIREDALE
My Lords, may I attempt to come to the rescue of my noble friend Lord Drumalbyn by suggesting to the noble Lords who have just spoken, the noble Lords, Lord Gifford and Lord Strabolgi, that they have perhaps taken a rather unfortunate example. The example quoted by the noble Lord, Lord Gifford, was the example of an advertisement which said, "No coloureds". If the landlady answered the door and said to a coloured man, "Sorry, no coloureds", she would come within the mischief of the Bill; but I think that the noble Lord. Lord Drumalbyn, is concerned with the position that under the advertisement clause, which is Clause 6, something can be unlawful whether or 1221 not it would be unlawful by virtue of any other provision in this Bill. Therefore it is not helpful to select an example of something which would be unlawful quite apart from the advertisement.
§ LORD BESWICK
My Lords, we have just come to agreement that on the Report stage only the mover of a motion has the right to reply.
§ LORD CONESFORD
My Lords, on the Committee stage I put down an advertisement which did seek to deal with this—
§ LORD CONESFORD
I am much obliged—an Amendment which attempted to deal with this difficulty. I admitted that probably my Amendment went too wide, and that view was taken by the Government. Since then I have consistently taken the view that if this clause were to be amended in any form to make it both agreeable to its critics and satisfactory to the Government, it could be done only by Parliamentary draftsmen, because it is an extremely difficult matter. For that reason I feel fairly certain that my noble friend will not press this Amendment because, frankly, it is not possible for the amateur to get this matter in order.
I should like briefly to reply to the two noble Lords who assumed that the only things hit by the clause as it stands are things that are offensive. That is not so. If you take the two subsections together, as I pointed out earlier, if an English family were living abroad and advertised in The Times for a French cook or for a Scots nanny they would be doing something unlawful under this clause. That is perfectly absurd, but I think it irremediable unless the Government ask their Parliamentary draftsmen to produce something more sensible. I think the clause is very bad indeed as it stands, but I do not believe that any attempt by an amateur draftsman could put it right.
§ LORD DRUMALBYN
My Lords, in view of what has been said, I can only hope that the Race Relations Board will 1222 be more sensible than is the clause itself. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.14 p.m.
EARL JELLICOE moved Amendment No. 4:
Page 3, line 40, at end insert ("or that, in relation to the particular employment concerned, the ethnic or national origin of a person is a bona fide occupational qualification.").
§ The noble Earl said: My Lords, your Lordships have just been reminded by my noble friend Lord Conesford that he moved an "advertisement" at the Committee stage designed to cope with the anomaly to which he has just referred. It then became plain, as he has again reminded us, that subsection (2) of the clause, as drafted, could lead to the most absurd results. Pace the noble Lord, Lord Gifford, it means, as my noble friend has said, that it would be unlawful to advertise in The Times of Evening Standard if you are living abroad and want to employ a person concerned abroad. It would be unlawful, as I read the clause, to advertise for a French cook or a French governess or a Scots nanny. It means that while it is lawful to advertise for a French chef or a German au pair girl for employment here, it s not lawful to advertise, for employment here, for an Indian chef or a Pakistani au pair girl. This seems to me an absurd anomaly.
§ I wonder whether I might take one more example of the sort of anomalous position which would arise. These of your Lordships who knew the London night life scene of some ten years ago may be aware that there was a very good Jamaican or Trinidadian steel band which rejoiced in the name of "Lord Kitchener's Band". I am told by those who know the Caribbean night life scene better than I do (I do not know the Caribbean at all) that there is a "Lord Jellicoe's Band", either in Trinid or Jamaica, at the present time. As I read the Bill, the absurd position would arise that if the calypso singer in "Lord Jellicoe's Band" fell sick, it would he possible to advertise in this country for a replacement without breaking the law, but it would not be legal to advertise for a replacement for the calypso singer in "Lord Kitchener's Band". This seems to me to be anomalous. We all 1223 recognise the purpose behind this part of the Bill, which is to rule out of court offensive advertisements of the sort referred to by the noble Lord. Lord Gifford, and the noble Lord. Lord Strabolgi. I am in sympathy with them on that point. They said that the advertisements to which they referred were offensive, and I agree with that point of view.
§ During the Committee stage discussions the noble Lord, Lord Stonham, seemed to think that it was beyond the wit of Parliamentary draftsmen to devise a formula which would exclude the offensive type of advertisement but not catch the perfectly inoffensive type to which I have just been alluding. I am very sad to see that my noble friend Lord Conesford has now joined the ranks of the pessimists. He also seems to believe that it is almost beyond the wit of man to devise such an Amendment. I find it a little hard to accept that contention. I think it would be wrong to leave the clause as it stands when we know it to be riddled with possible anomalies. Your Lordships may feel that that is just too bad, but I cannot agree with that view, and I should be very unhappy if we allowed this part of the Bill to go forward when it would seem to have such fatuous consequences.
§ It seems to me that my noble friend's Amendment rules out the more absurd sort of anomalies without in any way weakening the defences of the Bill against the offensive type of advertisement. The Amendment may not be perfect. We all know the difficulties of drafting without the help of the Parliamentary draftsmen though at the moment I cannot, for the life of me, see wherein lie the imperfections of this Amendment. I very much hope, therefore, that the noble Baroness, who has been not only charming but unyielding over Amendments of substance which my noble friend has been moving—and she was not only charming, but also unyielding, on the Amendment of a narrower scope which I moved just now—will, on my second try, which is also in connection with an Amendment of fairly narrow intention, be not only charming but yielding. My Lords, I beg to move.1224
§ LORD CONESFORD
My Lords, I am sorry that my noble friend misunderstood me so much as to think that I was aligned with the pessimists who thought that this could not be done. On the contrary, I did my utmost by letter to persuade the noble Lord, Lord Stonham, to get it done, so confident am I that it could be done, but only by really skilled draftsmanship. The reason I am pessimistic about the noble Lord's Amendment is that it was specifically dealt with in Lord Stonham's letter to me. While I wish the noble Earl luck, I am a little pessimistic about the late of this Amendment. I said I was pessimistic about getting into the clause by amateur draftsmanship both sense and something that would satisfy Her Majesty's Government. Throughout his letter the noble Lord, Lord Stonham, assumes that we could not do anything to remedy these absurd anomalies unless we permitted something that was offensive. Parliamentary draftsmen are constantly providing efficient legislation against things that are offensive; it is child's play to them. Where I am pessimistic is in devising from my own ingenuity something that would be completely satisfactory.
§ BARONESS SEROTA
My Lords, I hope that I shall not be misunderstood by the House when I say that I only wish I could yield to the noble Earl. I am sorry that the noble Lord, Lord Conesford, has not been convinced by all the efforts of my noble friend Lord Stonham in correspondence during the Recess. From what the noble Lord said earlier, I hoped that he would not be speaking again on this subject, having seen the wisdom of my noble friend's comments. It would be less than fair not to admit that this is an extraordinary difficult area. That is why your Lordships, both in Committee and now, have given such close attention to it. It would be equally unfair to say that the Amendment put down by the noble Lord, Lord Brooke of Cumnor, and moved to-day by the noble Earl, Lord Jellicoe, is so defective that it would make the Bill unworkable, although one could criticise the drafting.
We come back to the general point, that certain strange and odd situations can arise on the fringes of our area of consideration. I will not add to the numerous examples given during the 1225 earlier stages and again to-day. Surely the real point is that made by my noble friend Lord Stonham, during Committee stage, and supported to-day by my noble friends Lord Gifford and Lord Strabolgi—namely, that discriminatory advertisements of any kind are a particularly offensive form of discrimination. I would very much support the point my noble friend Lord Gifford made about notices, as opposed to bona fide advertisements. I can see the problem of the noble Lord, Lord Drumalbyn, in accepting that what is a legal act in private is not legal in public. That really is the crux of our difficulty. I would remind him that this applies also in certain other fields. What he is really complaining about is that under the clause, as it is at present drafted, it is unlawful to advertise for something that is lawful under the Act.
I am sure, knowing the great regard in which your Lordships' hold my noble friend Lord Stonham, that the House will believe that he has given the most careful thought to this Amendment. But it is still the view of the Government that, although there may be some difficult situations on the fringes, it is essential that the Bill should stand in this form in the interests of educating public opinion and of giving a lead, which is part of the purpose of this Bill. In spite of some of the cases mentioned, I do not believe that real difficulties will arise.
For these reasons we cannot meet the very reasonable proposals of the noble Earl. I know that the noble Lord, Lord Brooke of Cumnor, gave great thought to this point and was in corespondence with my noble friend during the Recess. I can assure the House that every effort has been made to try to secure a drafting of this particular area of the Bill which would meet the points made in Committee yet stand firm on the principles of the Bill. I am sure that the House as a whole will not wish the Government to depart in any way from the principles of the Bill. We are discussing to-day a detailed matter which all of us regard as of the greatest importance for the happiness and well-being of the people of this country. We believe it is important that the public should know that anything which gives rise to any form of discrimination, even those which have been excepted because of the proximity argument, the personal 1226 argument and the domestic argument, should not be the subject of public advertisements and that only the personal exercise of discrimination in those categories that are allowed in the Bill should be permitted.
My Lords, again I must confess to considerable disappointment at the noble Baroness's reply. I would like to make absolutely clear that in this Amendment it is far from my intention, as I know it is far from the intention of my noble friend Lord Brooke of Cumnor, to ask the Government to depart from the principles of this Bill. The Amendment suggests a way in which, without departing from these principles, we could avoid what the noble Baroness has called "some strange and odd" anomalies but which I would call perfectly absurd anomalies which arise from the clause as drafted.
The noble Baroness has said that all discriminatory advertisement is objectionable. I believe that that is perhaps overstating the matter. There are certainly forms of discriminatory advertisements, like those singled out by the noble Lord, Lord Gifford, which are objectionable. But the sort of discriminatory advertisement to which I was alluding is, in my contention, perfectly harmless and I am disappointed that in the two months which was available to them, and with all the resources of Parliamentary daftsmen, it has not been possible for the Government to find some formula by which the first type of objectionable discriminatory advertisements could be Ailed out while permitting those obviously and patently perfectly harmless. I am exceedingly reluctant to withdraw this Amendment, and I do so almost in spite of my better judgment.
§ Amendment, by leave, withdrawn.
§ Clause 7 [Exception in the case of residential accommodation]:
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, on behalf of my noble friend Lord Stonham I beg to move Amendment No. 6. This is a technical Amendment. Your Lordships may remember that during discussion in Cammittee the noble Lord, Lord Airedale, suggested that the word "other", on page 4, line 3, was quite unnecessary and should not be there. My noble friend 1227 said that he would consider it. The matter has been considered; the noble Lord is absolutely right, and accordingly it is the terms of this Amendment to take out the word. I beg to move.
Page 4, line 3, leave out ("other").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 4.30 p.m.
§ EARL JELLICOE rose to move Amendments Nos. 6 and 7:
§ Page 4, line 28, leave out ("six") and insert ("twelve")
Page 4, line 30, leave out subsection (3) and insert—
("(3) The Secretary of State may, if at any time it appears to him expedient to do so, and without prejudice to his power to make a further order, by order reduce below twelve, although not below six, the number of persons specified in subsection (2) above, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by each House of Parliament.")
§ The noble Earl said: My Lords, I think it might be for the convenience of the House to take this Amendment and No. 7 together. First of all, I should like to make clear that many of us on this side of the House think that the Government have been unwise in drawing the definition of "small premises" in Clause 7 so narrowly. My noble friend Lord Brooke of Cumnor made this perfectly clear on Committee stage, but he succeeded in getting no more change out of noble Lords opposite on that occasion than I have so far succeeded in doing this afternoon. However, this is not the point in connection with these two Amendments. My noble friend is not seeking in any way by these Amendments to strike at Clause 7, as such, or to extend in any significant manner the definition of "small premises". All we are asking the Government to do in these two Amendments—and we are asking them to do it in their own better interests—is to introduce more flexibility into this Part of the Bill than it at present possesses.
§ As the Bill is drafted, there will be a period of two years from the time when it becomes law when the immune premises—that is, the small premises—will he considered as those where there is not normally residential accommodation for more than 12 persons in addition to the 1228 landlord and the members of his household. However, the ceiling on small premises will automatically drop after that two years from 12 persons to 6. This is the area where we feel that greater flexibility is needed. We do not know how long it will take the Board to "get their eye in" on this part of their activities. We do not know how many cases of discrimination over housing will come before the Board. We do not know how quickly the Board will be able to adapt and extend their machinery to deal with such cases, nor how much time those cases will take to investigate. However, one way or another I am inclined to suspect that more than two years will be required before the Board are able to digest the really small premises—that is, those with only six persons.
§ If the Board are likely to need more than those two years, then the Government would, I suspect, welcome in two years' time the sort of Amendments that I am now moving. But if it turns out that the Board need less than two years to "get their eye in", then the Government will presumably like the definition of "small premises" to be narrowed in a shorter period of time than the two years' period. Without this Amendment such action would be impossible; with it, it would be possible. I think the Government would be wise to opt for the more flexible procedure which these two Amendments envisage, rather than the more automatic and more rigid two-year procedure which at the moment is written into the Bill.
§ Apart from this consideration of flexibility—and it is one to which we attach considerable practical importance—there is another reason why we think that these Amendments are right. We feel that it would be right, before the ceiling is lowered, before we get down to dealing with discrimination in the really small premises, in the situations where the personal relationships are likely to be the most acute and the difficulties at their most ticklish, for Parliament to give itself a chance of seeing how the Act is working in this particular sphere, which at the present time is totally unexplored, and to be consulted before the definition of "small premises" is further contracted. We believe that this would be a sensible precaution to make. It is for those reasons that I hope the noble and learned Lord 1229 the Lord Chancellor may feel disposed to give a favourable reception to these two Amendments, which I beg to move on behalf of my noble friend.
§ THE LORD CHANCELLOR
My Lords, as the noble Earl has so clearly explained, the purpose of these Amendments is to provide that any reduction below 12 must be made by order to any number below 12 though not less than 6. These Amendments follow discussion in Committee between the noble Lord, Lord Brooke, and my noble friend Lord Stonham. As your Lordships know, this is a Bill which the Government are anxious should accord with the views of all Parties, and therefore they have been most anxious to accept any Amendment which they felt that they could. Your Lordships know how conscientious my noble friend Lord Stonham is in these matters, and he considered this very carefully. My noble friend wrote to the noble Lord, Lord Brooke and said:… the phasing arrangements fixed in the Bill must to some extent be arbitrary; but it is important that these two areas, in which it is generally accepted that the initial scope of the Bill should be extended, employers and landlords should have a clear indication in advance of the date at which they will have to come in line with the provisions of the Bill. The position under Clause 8(5), to which you referred, and under Clause 17(2), is different, because both of these are looking to the very much longer term. I think that the existing phasing arrangements are reasonable; they were introduced in the light of criticisms in Committee in the Commons that those originally proposed were too restrictive and rigid, and are, I understand, acceptable to the Race Relations Board.The noble Earl will remember that the Government's view (and I think the general view) was made quite plain: that there ought to be an exception from the Bill for small premises. Then the question arose: What do you mean by "small premises"? I do not think the Government's view has ever changed about that. They thought that small premises ought to be the landlord, the man and his family, the residential accommodation for not more than four other people. That being so, my Lords, why have we now 12 for two years and then 6? The answer is because the Government were very anxious to meet different views. Their view being that the figure ought to be 4—in small premises, after all: a man and his family, and residential accommodation for 4 more people— 1230 somebody said 20. This was discussed at great length in another place both in Committee and on the Report stage. I believe I say what is true when I say that 12 to start with, and after two years 6, really represented the middle view.
As to staging, so far as I have been able to make out, there being no staging in the Bill which the Government introduced, the suggestion of staging came from the Opposition side of the House. Again, the Government thought at out it, and they came to the conclusion that there were some advantages in this, for two reasons. The two reasons why they still feel that the Bill as it left the other place is right are, first, that it really is necessary for landlords and employers to know ahead so as to make their arrangements. A man may be told that the Bill does not apply to him at the moment because he has less than 12, but that in two years' time it will. He then has time to make his arrangements. It perhaps applies with even more force to employers. The second reason was that the Government were apprehensive that the Board might be rather overwhelmed to start with if the number was set too low. They have consulted the Board, and the Board are satisfied with these provisions as they are.
My Lords, as I have said, the Government have throughout been most anxious to make this as far as possible an all-Party Bill, and noble Lords gill be aware of the length at which this question was discussed in Committee and on Report in another place. While some might think that the number ought to be more than 4, and others might think it ought to be 20, some might think no staging and others some staging, it appeared to us that the most sensible thing was to say 12 and after two years 6. I hope that, having taken all those considerations into account, the noble Earl may be inclined to think so, too.
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his reply and for what he has told us about the Government's responsiveness to suggestions from the Opposition and their desire that this point should be agreed as possible. All I can say is that my colleagues in another place were either luckier or more persuasive in their arguments than my colleagues and I have been. There was 1231 one point I should like just to mention. I may have read or heard the implication wrongly. I think the noble and learned Lord implied that this Amendment in some way represented a departure from the principle of staging. I do not know whether that was his intention, but it seems to me that, although there is not a rigid staging written into the Amendment, it does permit staging, but of a more flexible nature than hitherto envisaged. I still believe there is a great deal to be said for that.
Nevertheless, I have listened very carefully to what the noble and learned Lord said and there seemed to me to be force in parts, at least, of the arguments he was deploying: in the argument that there is something to be said for everyone's knowing a good deal clearly in advance and precisely where he stands; that the Bill as drafted already in a certain measure—this Part of it—represents a compromise. I also consider what he said about the reactions of the Board, for whose membership I have very considerable regard, and their attitude to this Part of the Bill. In view of the views which the noble and learned Lord has expressed, I beg leave to withdraw these Amendments.
§ Amendments, by leave, withdrawn.
§ 4.42 p.m.
§ LORD DRUMALBYN moved Amendments Nos. 8 and 9:
Page 4, line 42, at end insert—
("() a grandson or granddaughter of the other or of the other's wife or husband;")
Page 4, line 44, at end insert—
("() an uncle or aunt of the other, or of the other's wife or husband;")
§ The noble Lord said: My Lords, I beg to move the Amendment No. 8 standing in my name. If it is convenient to your Lordships, perhaps we could take Amendment No. 9 at the same time. Amendment No. 8 is a very simple Amendment. It is designed only to draw the attention of your Lordships to the very precise way in which it has been thought fit to draw the definition of what is a member of the family. As I understand it, the exempt small premises under the provision in subsection (2), taken together with subsection (4), lose their exemption in a case where the landlord has a son and daughter-in-law or a 1232 daughter and son-in-law living with him and they have a baby. Immediately the exemption is lost. In the same way, supposing auntie comes to stay, becomes ill and takes up residence and is looked after in her nephew's house, the exemption is lost. I cannot believe that that is right. After all, suppose the landlord were an Indian. By the age of 35 or 36 he would be having grandchildren, probably, because his children would probably marry very young. I really cannot think that this is right and that we should make the rules as narrow as this. I beg to move.
§ THE LORD CHANCELLOR
My Lords, here is a point which must inevitably be a matter of opinion. One speaks of a man's family. What does one mean? One has always to draw the line somewhere. Where have we got to on the Bill? Well, it includes the man, of course, and it includes his wife; it includes the man's sons and daughters; it includes the man's father and mother; it includes any illegitimate children; it includes the man's son-in-law or daughter-in-law; it includes the man's adopted son or daughter-in-law. It includes his wife's sons and daughters; it includes his wife's father and mother; it includes his wife's children; it includes her sons-in-law or daughters-in-law, and it includes adopted sons and daughters. As I say, the line must be drawn somewhere.
On the Committee stage of the Bill I remember the noble Earl, Lord Iddesleigh, moved an Amendment to include foster children. In resisting that, my noble friend Lord Stonham explained that it is intended that the exception should be confined to the landlord and his immediate family, and if the definition were extended to foster children it would be difficult to resist extending it to other relatives. And the noble Earl withdrew the Amendment. Now the noble Lord, Lord Drumalbyn, says, what about the children and the others and what about uncles and aunts? And, of course, if we have uncles and aunts, why do we not have cousins? One has to draw the line somewhere. Parliament has recently considered this very point and this definition is exactly the same as the definition in Section 7(7) of the Leasehold Reform Act 1967. It was felt that as last year Parliament had already considered this 1233 question, "What do we mean by a man's family?", it was reasonable to take the same view here.
This is not, I would suggest to the noble Lord, a point on which we can say, "Here is the House of Lords, as usual, improving the drafting", because it is not a question of drafting; it is purely a question of opinion. Anybody is entitled to his opinion. Opinions may well differ. The line has to be drawn somewhere, and I hope that, on reconsideration, the noble Lord may feel that there is no overmastering reason why we should change the Bill on this point.
§ LORD DRUMALBYN
My Lords, I am grateful to the noble and learned Lord for his reply. He seemed to suggest, by a kind of statistical fallacy, that all the people whom he enumerated would be included in one household. I am sure he did not mean that. I do not think it very much matters who is included. The need is to get some provision that will work. I do not want to be unduly patriarchal about this, but I should have thought that going to the second generation was not going too far in considering what is one's family. I would not carry it to cousins. That is going too far; it is taking it down the collaterals and I do not think that would be right. Obviously this is not something one can stand on, but I consider it is something that the Government, if they think it worth while between now and the next stage, might themselves change.
The mere fact that there is another Act dealing with something quite different—admittedly, house property—is no more convincing than it would be to quote the example of something we dealt with fairly recently, succession on intestacy, which is rather different. So, my Lords, I do not think that this is conclusive. The trouble is that it is not really a matter of opinion; it is going to be a matter of hard, practical reality to some people, and whatever our opinions may be about it, there are going to be some very hard opinions expressed about it by the people who are excluded. My Lords, I beg leave to withdraw the Amendments.
§ Amendments, by leave, withdrawn.1234
§ 4.48 p.m.
THE LORD CHANCELLOR moved Amendments Nos. 10 and 11:
Page 5, line 21, leave out ("in connection with") and insert ("for the purposes of")
Page 5, line 23, leave out ("therewith") and insert ("with the disposal")
§ The noble and learned Lord said: My Lords, it may be convenient to dell with Amendments Nos. 10 and 11 together, and they also affect, of course, Amendment No. 12. The Government introduced an Amendment on Report in the other place excepting from the housing provisions of the Bill the disposal of property by a person owning and wholly occupying it, provided that he does not use an estate agent or advertise. Et was not intended that anyone disposing of his property in this way should be prevented from obtaining advice from a third party as to the value or state of the property even if that third party was in business as an estate agent. An owner might well use the services of a person who is also an estate agent for doing various jobs in connection with the sale of a house, such as providing reps its as to its value or condition. Many persons are in business as estate agents surveyors and valuers.
Your Lordships may remember that it was argued in Committee in this House that the clause as drafted could be interpreted to prevent the use of the services of such a person for valuation and surveys, and it is accepted that it would be desirable to make some Amendments in order to make the position clear.
Amendment No. 12 (if I am not out of order in just referring to it) would make it clear that a person could use the services of an estate agent solely for the purposes of obtaining a valuation. But that Amendment does not go far enough. It does not, for example, meet the point made by the noble Lord, Lord Conesford, in Committee, who said (col. 1352):
Valuation is not the only … matter on which an owner may wish to consult a house agent. He may want a report on dilapidations, which is something he might wish to have for the fairest of reasons".—[OFFICIAL REPORT, 25/7/68.]
Therefore I hope that these two Amendments put forward by the Government will meet the point raised by the noble Lord, Lord Conesford, as well as the point made by the noble Lord, Lord Brooke of Cumnor.
1235 The effect of the Government Amendments is that a person who sells a property owned and wholly occupied by him will be excepted from the housing provisions of the Bill, provided that he does not use the services of an estate agent (as defined in Clause 7(8)) to find a buyer, and does not publish an advertisement or notice in connection with the sale. I hope the noble Earl will realise that this is another case where the Government are being most anxious to adopt the suggestions made to them. I beg to move.
My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for these two Amendments. I have no intention whatsoever of looking these two gift horses in the mouth. So far as I can see they completely meet the points which were made in Committee, and I do not think my noble friend Lord Brooke of Cumnor would mind my saying that I believe, as the noble and learned Lord said, that they cover the particular point more comprehensively than Amendment No. 12 was designed to do. Therefore, I should like to say how much I welcome these two Amendments.
§ On Question, Amendments agreed to.
§ 4.52 p.m.
LORD ABERDARE moved Amendment No. 13:
After Clause 7, insert the following new clause:
§ Exceptions in the case of education, instruction, or training
§ ".Clause 2 shall not apply in the field of education, training and instruction—
- (a) where services and facilities are provided on favourable terms to certain racial, national and ethnic groups as part of a programme of technical assistance.
- (b) where services and facilities are provided for particular racial, ethnic or national groups of children to facilitate their integration into schools.
- (c) where numbers of students and pupils of certain national, ethnic or racial groups in certain classes and schools are adjusted in the interests of better teaching.
- (d) where the service or facility is of the nature of private tuition, classes are of 12 or less persons and the tuition is given in private houses."
§ The noble Lord said: My Lords, my noble friend Lord Sandford and I put 1236 down this Amendment arising out of a discussion on the Committee stage on an Amendment proposed by my noble friend, Lord Jellicoe. The general object behind our Amendment is to protect the position where there is at present a form of discrimination in the field of education but where it seems to us, and I think it will seem to most of your Lordships, to be in the general interest of the community and in the particular interest of the immigrant population. Perhaps I can best explain myself by giving two examples.
The first is the example of the policy of dispersing immigrant children among different schools in cases where they would otherwise form a large proportion of one individual school. Circular No. 7 of 1965 from the Department of Education recommended this policy to local education authorities in the general interest of the children where otherwise immigrant children would constitute more than one-third of a particular school. Not all education authorities have accepted that advice, but some have done so. For example, Bradford, with an immigrant school population of 9 per cent. has practised dispersal on the basis that the immigrant children should not make up more than 25 per cent. in primary schools and 10 per cent. in secondary schools. Ealing also has particular difficulties which have been met in this way. Eighty per cent. of the Indians and Pakistanis in the Borough of Ealing live in Southall, and in the interests of a multiracial society Ealing arranges to transport by bus roughly 1,000 of these Asians daily to other schools in the borough, including those in places as far afield as Acton, some five or six miles away. I am sure your Lordships will agree that this is a valuable practice and one that is in the interests of a multiracial society. Certainly it is Government policy, according to the Department of Education circular which I have mentioned.
On the other hand, from the point of view of the individual immigrant parent, it may be seen as a form of racial discrimination. A person might consider that her children were being pushed around like parcels simply because they were immigrants, and in Southall the Indian Workers' Association and the West Indian Association have both come out against the policy of dispersal, so they may well lodge a complaint under 1237 this Bill. As I see the position, if the Bill passes in its present form they will have every legal ground for complaint to the Race Relations Board. There is no doubt that this discrimination is on racial grounds although it is undertaken to improve race relations.
Perhaps I may give another example, that of reception classes and special language centres in local education authority areas. It frequently happens that children from immigrant families speak little or no English, and in many schools concerned with these children they often spend up to the first year in a reception class which, incidentally, often has a specially favourable pupil-teacher ratio, which is sometimes as low as twenty to one. In other areas they attend a special language centre until their English is good enough for them to attend an ordinary school. Surely this kind of effort to integrate the immigrant children into a school is worthy of support. But again it could be held to be discrimination on racial grounds and might form the basis of a complaint to the Board from either side—from the immigrants who objected to the segregation of their children in a special class or language centre, or from the indigenous parents who objected to preferential treatment being given to the immigrant children.
All these cases were covered in the original Bill as drafted, in Clause 2(3) which allowed them to operate. If I may quote that subsection briefly, it read:
Nothing in this section shall render unlawful anything which is done in good faith for the benefit of a particular section of the public and which has the effect of promoting the integration of members of that section of the public into the community.
Unfortunately for the case I am arguing, this provision was deleted in another place, mainly by the votes of Government supporters on the grounds that it opened the door too wide and might lead to the justification of separate but equal facilities. The Government themselves defended the subsection vigorously. They stated that it was necessary to bring special assistance to certain groups, especially where language was a consideration. They stated that this subsection was specifically to legalise the policy of dispersal and reception classes. Indeed, they went further: they said that it was necessary for the protection of language
classes run by the Indian Workers' Association and similar bodies, and the activities of community relations councils. I am not clear why they have now changed their minds.
At the Committee stage the noble Lord, Lord Stonham, tried to argue that subsection (3), which was thrown out, was not necessary. He argued that the Race Relations Board would not persist in such cases. But my point is that we should put into the Bill what is and what is not illegal and not leave it to the Race Relations Board to decide. After all, the complaint will come—and, as I have indicated, I think it likely that complaint may be made in these cases. When it arrives at the Race Relations Board, if they
form the opinion that an act has been done which is unlawful by virtue of any provision in Part I
of the Bill they have to take action. As I see it, there would be no question certainly in the first case, the dispersal policy, that an act had been done which was included as illegal in Part I of the Bill.
I should like to mention one other point that arises on this Amendment under paragraph (d). This is a somewhat separate case but one that was also raised by my noble friend Lord Jellicoe in Committee and put very forcibly by him at that time. We had been discussing the question of small accommodation where there are not more than 12, or later not more than 6, people other than the landlord. There is also an exclusion clause in the case of employment which excludes employers of not more than 25 persons, reducing after two years to 10, Surely, if we are going to make these exclusions in the case of housing and employment, it is only fair that we should make some exclusion in the case of education, particularly to cover casts of private tutors teaching such subjects as music or dancing or languages and similar activities taking place in private houses in classes. I should have thought that if we are allowing an employer to employ up to 25 people without coming within the ambit of the Bill, and equally a landlord to have up to 12 people without initially coming within the ambit of the Bill, certainly it would be right to put in some figures for those who are running small classes.
1239 After what has been said to-day, I would agree that the Amendment is far from perfect in form, and the last thing I would expect would be for it to be accepted in its present form. But I hope it puts quite clearly to the Government the two points on which we should like a clear explanation: first, are the Government satisfied that existing educational policies with regard to immigrant children will remain legal when this Bill becomes an Act and, secondly, would they not consider making some exception for small private classes. I beg to move.
§ THE LORD CHANCELLOR
My Lords, the Government have given anxious consideration to this Amendment, as they have to all the others. If I may deal first with the factual side of the matter, the Government of course are aware of the circulars which they have sent out in regard to dispersal, and that some authorities—such as Bradford, as the noble Lord mentioned—are following dispersal. The Government's view is that there is nothing in that which in any way contravenes the provisions of the Act; it is not being done on racial grounds, but on educational grounds.
As to small classes, of course exceptions can always be made. The real object, of course, in relation to small premises is where you have people living in a house in close proximity, maybe sharing accommodation and so forth. But a small class is in a somewhat different position. Either you hold yourself out to give services to the public or a section of the public or you do not. Of course, a purely private matter can be arranged privately and there would be no infringement, but if you hold yourself out to be giving services, education or whatever it is, to the public or a section of the public, is it not desirable that there should be a restriction on discrimination? We always felt that there might in a sense be discrimination for a good purpose, for instance, the man who says: "I am sympathetic to these Pakistanis. They do not speak English very well, so I will get a class together to teach them English". There is no reason why you should not have a class to teach English, and there is no reason why Indians should not attend. There is no reason why one should discriminate and say: "I am not taking anybody except Pakistanis".
1240 The Government originally put in the Bill Clause 2(3), which said:Nothing in this section shall render unlawful anything which is done in good faith for the benefit of a particular section of the public and which has the effect of promoting the integration of members of that section of the public into the community.That was obviously meant to cover that sort of case I have suggested of language classes for immigrants. Everybody said, "No". This was the Government's view. They had been very anxious throughout to have as much accord on this Bill as possible. When it was moved in Committee that this subsection should be deleted, the Government fought it and there was a Division and they were defeated. They then had to think: "We are always saying how anxious we are to accept the view of the House as a whole. Are we going to put the Whips on "—as I suppose they could have done —"and force it through on Report?". On the whole they thought that they had better accent the view of the Committee.
I can quote the Government view as subsequently put on Report by the Under Secretary. On Report stage there was another Amendment put down, the first subsection having been taken out. This time the Amendment was from an Opposition Back-Bencher and was in these terms:It shall not constitute any offence under this Act to advertise offer or provide special facilities for education instruction or training primarily or solely for the members of a minority community resident in the United Kingdom provided that the provision of such facilities is restricted to the members of such a minority community.What the Under-Secretary said was this:The matter was fully debated in Committee but the views which I then argued were not shared by honourable Members. The arguments adduced against putting in such a protection were threefold. The first was the feeling that such a protection was not necessary. There was a recognition of activities specifically designed to assist minority groups, such as Pakistanis, Italians and Japanese. We thought that it was extremely unlikely that such an activity would be open to criticism or brought before the Race Relations Board. It was argued in Committee that there was nothing wrong in discriminating in favour of a minority group since we are concerned with discriminating against. It was argued secondly that such a provision might open the door to various forms of abuse. Some honourable Members feared that it might lead to the sort of separate but equal 1241 argument which we debated earlier. The third argument—and this is the essence of the matter, particularly in relation to new Clauses 5 and 6—was that it was best to rely on the good sense of the Race Relations Board and the conciliation committees. This I believe is the soundest argument of all.The Member who moved this new Amendment was generally speaking shot down on all sides.
That being the position, the Government originally being sympathetic to the views put forward by the noble Lord, Lord Aberdare, but having been defeated in the Committee, having accepted that that seemed to be the view of the House as a whole, appreciated that there was this much to be said for it, that this is really a Bill in which you are almost bound to do one of two undesirable things; either leaving pieces of real racial discrimination unprovided against by not covering enough or covering too much; you cannot deal specifically with every single particular case. That being so, the general view in the other place was, as I understand it, that it is better really to cover too much rather than too little, because, after all, first, you are not constituting any criminal offence: you are at most leaving people open to civil proceedings; the proceedings can only be brought by the Race Relations Board, and they will have the good sense not to pay any attention to the sort of case to which the noble Lord has referred.
I would venture to hope that that being the state of things as they left another place, the other place having argued for hours about this matter, both in Committee and on the Report stage, there is no good reason on the Report stage of this Bill here for starting again at the beginning and saying, "No, the whole House in another place was quite wrong; it ought to have left in the Government's original clause." I say that, although I am speaking on behalf of the Government. In those circumstances I hope that the noble Lord may feel able to withdraw his Amendment.
§ 5.10 p.m.
§ LORD SANDFORD
My Lords, I would certainly start by reiterating what my noble friend Lord Aberdare said when he began: that neither of us has any intention of pressing this Amendment. This is only a probing Amendment 1242 designed to elicit further explanation from Her Majesty's Government about the working of this Bill when it becomes an Act, in the field of education, training and instruction. I must say that I am a little disappointed that most of what we have got the noble and learned Lord is an explanation of how the Government have got into the situation where they now stand on this Bill, and we are not really much clearer about the way in which it is going to work out in this field.
We felt that the House was owed a further explanation, for two reasons. The first reason is that there was no recommendation in this matter in the Street Report, to which so much is owed in this field. The Street Report described legislation in various countries and recommended further legislation in various fields in this country. It did so notably in the fields of employment and accommodation. So far as I can see, the Report recommended little or no action in the field of education, training and instruction. The Government have decided to legislate in this field, and when we moved an Amendment on Committee to leave it out in order to get an explanation from the Government of their action in including this field in the Bill in spite of its absence from the Street Report, the reply that we got was, to say the least of it, unconvincing.
The second reason for our Amendment is to discover how and why the law covering discrimination in education, training and instruction—a wide field—can possibly operate justly and effectively and in the way in which we all desire, in the way my noble friend describes it as now operating, without certain exceptions and exclusions that we have all found it necessary to introduce in the fields of accommodation and of housing. It cannot possibly be reasonable and sensible and just to include these exceptions and exclusions in one field and to have this sweeping, comprehensive clause covering education.
It is true that at the start there was included in this Bill subsection (3) to Clause 2, which both my noble friend and the Lord Chancellor have read out. This would have protected some, probably all, of the activities that are cited in our Amendment, the need for which has been outlined by my noble friend. 1243 But, as the Lord Chancellor has described, this subsection was lost in Committee in another place. It was lost at the instigation of the noble and learned Lord's supporters, who rose against the Under-Secretary of State at the Home Office and defeated him.
In resisting the deletion of this subsection, the Under-Secretary of State used a number of phrases which I should like to quote. The first is from column 243, where he said:I think, therefore, that there needs to be some protection unless we are simply to say that the Bill is so unenforceable that we need not worry about writing in this sort of protection for bona fide activities.Is that the position? Are we now saying that this law is so unenforceable that we have to do that? Nothing else that bears on this point has been changed. He went on later to say in relation to this subsection:If we were to delete it as a whole we would be in great difficulty with many very worthwhile activities"—and my noble friend Lord Aberdare has shown that to be the case—which might be carried out by all sorts of organisations—local authorities and others.That is still the position. That was on May 21. The Government were defeated on this clause and, incidentally, just to put the record straight, although I think the noble and learned Lord has really done that, the Government were defeated not by the Conservative Opposition, as the noble Lord, Lord Stonham, said, but by their own supporters.
We now come to the situation described by the Lord Chancellor on the Report stage. By then the Under-Secretary of State had changed his mind and, as the noble and learned Lord reminded us, he admitted that there were perhaps objections to this clause as it was originally drafted. It was not thought necessary to protect discrimination in favour. He agreed that it would encourage the separate but equal approach, and he said that we could rely on the good sense of the Race Relations Board and the conciliation committees.
But let us examine those three propositions which the Under-Secretary of State at the Home Office thought six weeks later to make the deletion of this subsection acceptable. Discrimination in 1244 favour—yes, certainly and obviously that is all right; but in the case of facilities and services which are in short supply, and certainly teachers in reception classes in primary schools are one of those, discrimination in favour of one group is quite certainly discrimination against another, and discrimination against another on grounds of colour, race, or ethnic or national origins, is illegal. So the argument about there being no need to protect discrimination in favour simply does not stand.
The second justification for leaving out this clause put forward by the Under-Secretary of State at the Home Office was that we could rely on the good sense of the Race Relations Board. Of course we should all like to do that. We may do so when they are operating within the proper sphere of their responsibilities. But I submit that it is Parliament and not the Race Relations Board and the conciliation committees which should make the law of this land. Her Majesty's Government are in this field now proposing legislation which is so vague and comprehensive and woolly that what we shall end up with is a case law made up by the Race Relations Board as they go along. This seems to me to lay us wide open to creating more illegal discrimination than we are curing. However, that having been said, it is the Government's responsibility, and while reserving our right to put down a fresh Amendment, perhaps incorporating some part of the Amendment which we have tabled to-day, I beg leave to withdraw this Amendment as it now stands.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Exceptions in the case of employment]:
§ 5.19 p.m.
§ EARL JELLICOE rose to move Amendments Nos. 14 and 15:
§ Page 5, line 36, leave out from beginning to ("to") in line 37.
Page 5, line 41, leave out paragraph (b) and insert?
("Provided that the Secretary of State may, if at any time it appears to him expedient to do so, and without prejudice to his power to make a further order, by order reduce this number, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by each House of Parliament.")
§ The noble Earl said: My Lords, again I think it would be for the convenience of the House if we were to consider this Amendment and Amendment No. 15 together. A little time ago I tried, and failed, to get the Government to introduce more flexibility into the housing provisions of the Bill. My purpose here is a similar one. It is to try to get more flexibility built into the employment provisions of the Bill. As it stands at present, the Bill gives exemption from these provisions for a period of two years for an employer employing more than 25 people. After a further two years the exemption ceiling is lowered to 10 employees; and thereafter—that is to say four years after the Bill becomes law—there is no exemption whatsoever. What we are suggesting is a more flexible machinery. The exemption level would start at 25; it might indeed remain there if the Government of the day thought that this was wise. However, if they and the Race Relations Board thought it could be safely and wisely lowered, then under Amendment No. 15 this could be done quite easily by order.
§ I should like to remind your Lordships briefly that in their Report the Street Committee suggested that, initially, the employment provisions of the Bill might bite only on firms with more than 50 employees. They also made it clear that in some of the American States exemption was always given for employers of not more than 4 employees. Now the Government are starting with a lower exemption level than Street tentatively suggested-25, rather than 50—and they are not providing for any exemption whatsoever after four years. I am not myself suggesting any particular level, apart from the starting figure of 25. It may well be that experience will show that the Board are perfectly capable of coping with the tiny firm in the pretty short period of four years envisaged in the Bill, but the hard fact is that we just do not know. I suggest that it would be far wiser for the Government to see how all this works out in practice and, therefore, to embrace the more flexible procedure provided for in these two Amendments.
§ The Government cannot possibly be certain now whether the Board will be ready to reduce from 25 to 10 in two years' time. Likewise they cannot possibly know now whether in four years' 1246 time they and the Board will be able to digest the great mass of tiny firms employing 2, 3, or 4 employees. Given the Government's inflexibility on the housing Amendments where I was attempting to introduce this same principle of flexibility, I am not particularly optimistic that they will be disposed to accept these Amendments, but I am pretty sure that they would be wise to do so. My Lords, I beg to move.
§ 5.24 p.m.
§ THE LORD CHANCELLOR
My Lords, I am afraid that almost inevitably all the arguments on these Amendments are really exactly the same as they were on Amendments 6 and 7. As your Lordships will remember, I then pointed out that what was proposed had not come from the Government at all: they had set out with different views and less flexible arrangements. They had heard what happened in Committee. They made certain agreements there, and I think the matter was discussed again on Report. I also think I am right in saying that the first suggestion of phasing came from the Opposition side of the House, and the reasons why the Government are not unhappy about it is for the reasons I ventured to give before: namely, first of all, that it seems sensible to try to have a larger number first for exemptions and then to reduce it, partly because the Government were apprehensive that the Board might be snowed under to start with and also because, in a short-term matter like this, it really is necessary for the people concerned to know.
It is not only necessary for lardlords to know, it is perhaps even more important for employers to know and to be told: "As you have fewer than 25 the provision does not apply to you now, but it will apply to you in two years' time"—or whatever the period may be. If that is done, they know where they are. To find that the matter is to be dealt with by a mere Affirmative Resolution, for which very little notice is necessary, and which may be sprung on employers at any time, without any real notice having been given, is quite different, because they may urgently need to rearrange their businesses accordingly. If they know from the very start that it does not apply to those with under 25 now, but that on a date which is specified it is going to apply to those who have 10 1247 or more, then they know exactly where they are and in sufficient time in advance.
It is for those two reasons, first because the Government would be reluctant, unless there was some completely new reason for it, to go back to another place to disturb an arrangement made amicably at the end after much discussion, and secondly because, on reflection, they themselves feel that with short-term matters of this kind a phasing arrangement of this sort has, as I say, these two advantages—first, that it is acceptable to the Board and secondly that the employers, like the landlords, will also be able to see in advance exactly where they are and have plenty of time to make their own arrangements—that I hope I may have been able to persuade the noble Earl, who was so extremely gracious in withdrawing his Amendments Nos. 6 and 7, to take the same course with regard to Nos. 14 and 15.
My Lords, the noble and learned Lord on the Woolsack prefaced his remarks by saying that his response to these Amendments dealing with employment would almost inevitably follow the same pattern as his interesting but negative response to the Amendments which I moved on behalf of my noble friend on the housing provisions. Indeed, save in one respect, to which I will come, I think the noble and learned Lord was right that the pattern of his reply was similar. He mentioned that in the first place, as with the housing provisions, the Bill as at present drafted to some extent represents a measure of compromise reached in another place; and I accept that that is the case although I myself am inclined to think that the compromise has been pitched a little low.
Secondly, he referred to the fact that if the more flexible procedure were to be introduced then one would inevitably lose a measure of certainty, and that it was important that employees, and even more so employers, should know in advance where they stand. I accept that there is force behind that particular argument, although it would of course be open to the Government of the day—and I think any wise Government would take this course—to give plenty of notice if and when they were proposing to introduce an order lowering the ceiling. Certainly I envisaged that this would happen if 1248 these Amendments proved acceptable to the Government.
The third argument (I am not trying to read any particular significance into this) which the noble and learned Lord did not use was this. When he was referring to the housing Amendments he assured us that the Government had consulted the Board regarding the housing provisions and that they were happy with them as they stood. He did not use this argument with regard to the employment provisions, and it is not for me to speculate about the attitude of the Board on these matters. I only draw attention to the, fact that this argument was not deployed by the noble and learned Lord. I personally am inclined to think that there is not sufficient flexibility here, and that the numbers are pitched too high initially; and I think we may find that the Government and the Board are biting off rather more than they can easily digest in this employment Part of the Bill. That said, I will respond as graciously as I can—I am getting rather bored withdrawing my Amendments at the noble and learned Lord's suggestion—I beg leave to withdraw these two Amendments.
§ Amendments, by leave, withdrawn.
§ Clause 9 [Charities and acts done for charitable purposes]:
THE LORD CHANCELLOR moved Amendments Nos. 16 and 17.
Page 7, line 15, leave out from ("affecting") to ("benefits") in line 16 and insert ("a provision which is contained in a future charitable instrument and confers")
Page 7, line 20, leave out from ("with") to second ("of") and insert ("any such provision or with the provisions of")
The noble and learned Lord said: My Lords, I think that it will be convenient to take Amendments Nos. 16 and 17 together. The Government introduced an Amendment on Report in the Commons to protect the position of any future charitable instrument having as its main object the conferring of benefits on persons of a particular race, descent, ethnic or national origin. The Amendment was welcomed by the Opposition in this House but criticised on the grounds that it was too restrictive, in that it did not cover a charitable instrument which had such a provision as one of its main objects. The noble Lord, Lord Brooke, sought to insert the words "or as one of
its main objects "and said in particular that
it would be undesirable if a charitable trust, acting in all good faith, were found to be in conflict with the Race Relations Act, because it was argued that the 'conferring of benefits on persons of a particular race' et cetera was not its main and exclusive object ".—[OFFICIAL REPORT, 25/7/68; col. 1384.]
In resisting Lord Brooke's Amendment, I explained in column 1383 that it would
appear to make it possible for a charitable trust to be set up to do two different things. In one clause it might be a beneficial object of the kind proposed; in the next it might be to set up something for the benefit of everybody except Jews. … A court can be asked what is the main object of the charity, but I am not sure that, strictly, there can be more than one object. The word 'main' means 'chief' or 'principal'. I doubt whether it is possible to have more than one main object.
Further consideration has been given to this delicate point and it is thought that Lord Brooke's criticism of the clause is valid. The Government Amendments now proposed meet his point but avoid the difficulties which I have mentioned. Here, again, we see the Government very anxious to adopt suggestions which have come from the Opposition. My Lords, I beg to move.
My Lords, I rather expect that a gracious noise is now expected from me by the noble and learned Lord, the Lord Chancellor. I am not absolutely certain that I fully understood everything connected with this particular Amendment, but, at the risk of receiving a sharp rebuff from my noble friend Lord Brooke in the Antipodes, I should like to welcome these Amendments.
§ On Question, Amendments agreed to.
§ Clause 13 [Liability of employers and principals]:
§ 5.33 p.m.
LORD DRUMALBYN moved Amendment No. 18:
Page 8, line 21, leave out from ("him") to end of line 22 and insert ("unless the employer proves that it was done without his knowledge and approval.")
The noble Lord said: Subsection (1) of Clause 13, which this Amendment seeks to amend, says:
Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him …
and then it goes on
… whether or not it was done with the employer's knowledge or approval.
My Amendment would insert instead the words:
unless the employer proves that it was done without his knowledge and approval".
This firmly places the onus on the employer to prove that something was done without this knowledge and approval.
I should have thought that it is only fair that this should be a valid defence. It is not always so. One can think of safety provisions in factories, for sample. I have in my hand at the moment the Trade Descriptions Act in which defences are provided. It might be better to say that he should prove that lie has taken all reasonable precautions and exercised all due diligence, but even that is not appropriate in this Bill where one is dealing with personal relationships. I hope that nobody will feel offended if I remind your Lordships that case; have occurred when there has been strike action by employees against an employer which might come within the terms of this provision. It would be ridiculous in such a case if the employer were to be held responsible for something which gave rise to strike action against himself. That is the sort of thing which needs watching carefully. There is no question that this is absolutely mandatory upon the Board since it says:
Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer …
I look forward to hearing what the Government have to say on this matter. It seems to me that this is a case where we must have regard to justice in individual cases. My Lords, I beg to move.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, I should 1ike to support this Amendment. The poor old employer has a rather thin time of it today. We have to do all our employees' tax; we have to see that their cares are stamped for national insurance, aid so on, and we have to do all sorts of other things. Of course if we have an unfortunate employee we are only too pleased to help him. But as the Bill is now drawn, are we employers also to be responsible for the prejudices of our employees? I think that this is carrying 1251 things too far. We are a very long-suffering breed, but if we have to be responsible for the prejudices and passions of our employees heavens knows where we shall end up.
I should like to reiterate what my noble friend said about strike action, since the whole matter could become most involved. Does one also understand that if this Bill becomes law the nationalised industries will have to abide by it? I presume that they do.
§ VISCOUNT MASSEREENE AND FERRARD
Well, that may lead to an extraordinary state of affairs. If the Crown is "had up" by the Race Relations Board, then what happens? It would be most helpful if I could have some guidance on this matter. At any rate I fully support the Amendment.
§ BARONESS SEROTA
My Lords, the noble Lord has reminded us of the contents of subsection (1) of Clause 13, but he perhaps did not put as great emphasis as he might have done upon the fact that it was subject to the saving in subsection (3), which provides that it will be a defence to a charge of unlawful discrimination for an employer to prove that he took such steps as were reasonably practicable to prevent the employee from discriminating. This also covers the noble Viscount's point. An employer cannot, however, avoid responsibility under the Bill by claiming that the act complained of was not his but that of art employee.
Your Lordships will remember that we had a full discussion of this matter in Committee when noble Lords drew on their own personal experience. The difficulty which the Government see in this Amendment is that it seeks to provide that the employer shall be liable only if the act was done with his knowledge and approval. This would mean that the employer could, without contravening the Bill, deliberately neglect to instruct his employee or to make himself aware of his employee's conduct. One of the purposes of subsection (1) surely is to encourage an employer to issue clear instructions to his employees and to ensure that they do not discriminate in their employment. For these reasons the Government 1252 are unable to accept the Amendment, and I hope that the noble Lord, even though he has yielded so much this afternoon already, will once again withdraw his Amendment.
My Lords, I hope that the noble Baroness does not think that it is going to be easy for employers to instruct foremen and the like in the intricacies of this Bill, because it is really not "on".
§ LORD DRUMALBYN
My Lords, I am bound to say that I did not think that the defence provided here was nearly good enough. Subsection (3) says:he took such steps as were reasonably practicable to prevent the employee from doing …One knows how very stringently the courts have interpreted such defences in cases of this kind, and it seems to me that they might well expect a very high degree of care and activity, going far beyond what should be necessary in cases of this sort. I should have thought, especially in a case where a warning has been given and that warning had been conveyed by the employer to the employees, that it was really sufficient as a defence for him to say that what was being done was being done without his knowledge and approval in that case. I think I heard my noble and learned friend say that he wanted to ask a question before I withdrew this Amendment. I therefore sit down at this stage.
§ VISCOUNT DILHORNE
My Lords, I did not know whether or not the noble Lord was going to withdraw the Amendment. But there is one question which I want to put to the noble Baroness, and it is this. She has drawn attention to subsection (3), which provides that it is a defence if an employer proves that he took such steps as were reasonably practicable, and it is only a defence if he proves that. What is the position if there are no steps that are reasonably practicable? He will not have satisfied the requirement of that subsection, and it would therefore seem, on the wording as it stands, that he is not protected by subsection (3) and has no defence.
§ BARONESS SEROTA
My Lords, I should have thought that in issues of this kind there were always steps that one could take which are reasonably practicable.
§ Amendment, by leave, withdrawn.
§ Clause 15 [General provision as to investigation of complaints of discrimination]:
§ 5.43 p.m.
THE LORD CHANCELLORmoved Amendments Nos, 19 and 20:
Clause 15, page 9, line 37, leave out from ("complaint") to ("is") in line 38 and insert ("which is made to them within two months of the act complained of and also, if the Board think that special circumstances warrant its reception, any complaint made to them or a conciliation committee after the expiration of that period, if in either case the complaint")
Clause 17, page 11, line 33, after ("notice") insert ("or such longer period as the Board may in special circumstances allow")
§ The noble and learned Lord said: My Lords, may I take Amendments Nos. 19 and 20 together, and refer also to Amendment No. 29, to Schedule 2, all of which really relate to the same point?
§ The purpose of these Amendments is to allow the Board discretion in "special circumstances" to authorise the investigation of cases which would otherwise fall outside the time limit of two months. It has always been the Government's intention that there should be a time limit for the making of complaints. As my noble friend Lord Stonham explained in Committee, the period chosen must to some extent be arbitrary. It must be short enough to enable events to be accurately recalled—and a person wishing to make a frivolous complaint is likely to delay doing so, so that it will be difficult to refute his allegation—and long enough to enable probably busy people—perhaps leaving the country for a short period—to submit their complaints. Two months (which is acceptable to the Board) was chosen as a reasonable period to meet both these interests. Arguments were put forward in Committee in the other place for both a longer and a shorter period than two months, but no compelling case for any change was made.
In Committee in this House the noble Lord, Lord Brockway, supported by the noble Lord, Lord Gifford, moved an Amendment to give the Board discretion "in special circumstances" to receive complaints after the time limit had
expired. In resisting the Amendment, my noble friend Lord Stonham argued 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". —[OFFICIAL REPORT, 30/7/68, col. 187.]
He also said, as was certainly the case at the time, that the Race Relations Board had not expressed any wish for a discretionary power to extend the time-limit.
§ The Amendment was withdrawn on the understanding that my noble friend Lord Stonham would consider further a specific problem raised by my noble friend Lord Gifford: that the person may have no chance of learning about the discrimination until more than two months have elapsed. Lord Gifford subsequently wrote to my noble friend Lord Stonham about this, and asked the Government to reconsider the possibility of amending the Bill so that the time limit of two months within which complaints must be made would run from the time the complainant became aware of the alleged act of discrimination, rather than from the date of the act itself.
§ The question of the time limit has now been re-examined by the Government, in consultation with the Race Relations Board. We have come to the conclusion that the specific proposal of my noble friend Lord Gifford must be resisted, since the effect would be that there would in practice be no time limit at all; the victim of the alleged discrimination could always claim that he did not become aware of it until months or even years afterwards.
§ Further consultations with the Board indicate, however, that although they firmly support a time limit they are satisfied that this should be two months, and do not wish to be exposed to unreasonable requests to consider cases out of time, yet they would welcome power to consider delayed cases in the sort of special circumstances to which my noble friend Lord Gifford has drawn attention—for example, a man seeking to buy a house, who is told that a higher offer has been received and that his offer is unacceptable, discovers some time later that no such offer has been received and that the house was sold at a lower price. 1255 They consider that if the Bill were amended to allow the Board to exercise discretion "in special circumstances "they would be able to withstand such pressure as might be applied in cases where the delay in coming forward was not justified.
§ The Government have therefore decided that Amendments should be moved to enable the Board in "special circumstances" to authorise the investigation of cases which would otherwise be out of time. In all cases it will be for the Board—not the conciliation committees or the voluntary machinery (or the Department for Employment and Productivity in employment cases)—to decide whether there are "special circumstances". In this way the discretion will be exercised uniformly. The Government are confident that the Board can be relied upon to exercise their discretion judiciously. My Lords, I beg to move.
§ LORD GIFFORD
My Lords, my noble and learned friend very generously drew attention to the part I played in the formulation of these Amendments. I am very happy to reaffirm, in case it was ever doubted in quarters opposite, that the Government are able and willing to yield to reasonable argument, particularly, if I may say so, when reason goes hand in hand with justice, because I spoke to the Amendments moved in Committee which sought to do very much the same as the Government seek to do to-day.
The way I put my argument, and have always put it, was that this kind of circumstance (there may be others) was peculiarly suitable for the exercise of the Board's discretion. A discriminator will rarely give the reasons for his rejection of a particular applicant for a job or a house, and after the Bill is published it will no doubt be rarer still for him to do so. It may be only some time later—perhaps quite fortuituously, perhaps after making inquiries, perhaps even never—that the victim of discrimination will discover that he has been discriminated against. It would obviously be very wrong to debar someone from his lawful remedy when he had had no opportunity of discovering that he had ever been wronged. For those reasons I very much welcome these Amendments. I think they are a very substantial im- 1256 provement to the Bill and will remove what might have been a number of injustices.
My Lords, I should just like to ask the noble and learned Lord on the Woolsack one question. I see the point of these Amendments. While I would hold that in normal circumstances two months was a reasonable maximum, I fully accept the point of view that there may be special circumstances which warrant a special procedure. The only point which worries me is this. While I accept the case for special machinery in a small number of special cases, is there not also a case for a cut-off point? What I am worrying about is that there may be cases resurrected after one, two, three, four or even five years. Would this really be desirable?
§ THE LORD CHANCELLOR
My Lords, the Government have considered that point. They were not thinking of anything quite so long as that: they were thinking of a final limit of six months beyond which no complaint should be entertained. But they felt that if one did that it would in practice amount simply to extending the time limit to a fixed period of six months, and the problem of the person with a genuine complaint who did not discover for more than six months that he had been discriminated against would not be met. An open-ended discretionary power is therefore the only one which is of real use; but the longer the period which has elapsed since the incident occurred the less likely the Board will be, I apprehend, to consider that the complaint is justified out of time. That being so, it is not thought there is any real risk of the Amendments leading to the investigation of any substantial number of very late complaints unless these are fully justified by exceptional circumstances.
§ On Question, Amendments agreed to.
§ Clause 19 [Nature of proceedings in England and Wales]:
§ 5.52 p.m.
LORD CONESFORD moved Amendments Nos. 21 and 22.
Page 13, line 12, leave out subsection (7).
Page 13, line 18, leave out subsection (8).
§ The noble Lord said: My Lords, we now come to Clause 19, which deals with 1257 legal proceedings. Through their spokesmen in both Houses the Government have made it quite clear that they hope that most questions which arise under this Bill will be solved by conciliation, and of course I appreciate that desire and fully accept their good faith in that matter. It is their wish, as it is the wish of the whole House, that only exceptional cases shall come before the courts. When cases have to come before the courts noble Lords in every section of the House, I am convinced, will want the proceedings to be such that all concerned will have a sense of justice and fair play. However much the views of Members of this House may differ about what should constitute unlawful acts of discrimination, I see no reason a priori why we should not all be of the same opinion on the subject of enforcement, because I feel that in every case our desire will be the same.
§ It is because I am convinced that the compulsory provision of two assessors to assist the judge is likely to do much more harm than good that I am again venturing to bring the matter before this House. On July 30 I brought the matter before the Committee, and on that occasion the Committee was very evenly divided: 65 approved of my Amendment to leave out subsection (7), and 70 opposed it. Since then I have given further study to the subject, including, of course, a study of the very careful and useful speech of the noble and learned Lord on the Woolsack; and I dare say the Government have also given further consideration to it, and particularly to the urgent plea made by my noble friend Lord Brooke of Cumnor in his last speech on the occasion to which I have referred.
§ May I remind the House of some of the characteristics of the proceedings for which this clause provides? As the noble and learned Lord on the Woolsack recently reminded us, they will not be criminal proceedings at all; they will be civil proceedings, but civil proceedings of a novel kind. They will be proceedings for a quasi tort or civil wrong—a tort or civil wrong that owes its existence to the Bill now before us. But the plaintiff in the action will not be the person injured, or alleged to be injured, by the unlawful act of discrimination. The plaintiff (if that is the right expression) 1258 will in every case be the Race Relations Board—a body appointed by the Government, I think the Home Secretary, and no doubt appointed by them having in mind the suitability of the members for their character and knowledge and experience of race relations. I think that is probably a fair way of putting it.
The judge will be one of such county court judges as the noble and learned Lord selects for that purpose. But there will be two assessors who are compulsorily to sit to assist him, and, if I may quote from the Bill about how they will be chosen, it says that they will be
… appointed from a list of persons prepared and maintained by the Lord Chancellor, being persons appearing to the Lord Chancellor to have special knowledge and experience of problems connected with race and community relations".
I therefore think it is fair to say that the Race Relations Board, who are the plaintiffs, and the assessors, whose description I have just read out, are the same type of person; that is to say, anybody who would be suitable to be chosen for the one body would be suitable to be chosen for the other.
§ My Lords, what is likely to be the effect of that on the defendant, brought before the court, who is probably a nativeborn inhabitant of these Islands? I am very anxious that he should not have any sense of grievance. But what w ill be the position in which he finds himself? He finds himself accused of a wrong of a totally novel kind; something that is a wrong only because of this Statute. It has not hitherto been a wrong. He finds himself brought before the court by this body, the Race Relations Board, and he finds, not giving evidence in court but sitting next to the judge, two gentlemen who can give advice to the judge that he does not hear at all. Let me say at once that I can well imagine that in some of these cases expert evidence may be required to deal with the matter before the court. An expert on race relations might well give evidence; but if he gives evidence, of course, he can be examined and cross-examined, and his evidence can be tested. My Lords, the defendant will ask: "Why is it that this matter is too difficult to be heard and decided by a judge? Why is a judge not good enough?".1259
§ May I remind the House that this use of assessors is wholly exceptional in English practice. If I might give two well-known examples where it may be found, the best example, perhaps, is in Admiralty jurisdiction—for instance, the trying of cases concerning collisions at sea—where the judge is assisted by two nautical assessors who are Elder Brethren of Trinity House. That example is well known. Then occasionally a wholly novel subject comes up as the creation of Statute. One example of that is monopolies and the Restrictive Practices Court. Under the 1956 Act a number of judges are appointed, and so are persons of experience in industry, commerce and public affairs.
§ What seems to me to have happened here is that this provision is a sort of compromise—and, I think, an unnecessary and unwise compromise—between two rival views. One view that was put forward—I think the noble and learned Lord reminded us last time that it was recommended by the Street Committee—was that there should be a special tribunal to try these race relations cases. That has been, rightly I think, rejected by Her Majesty's Government, and reading the speeches both of the noble and learned Lord who sits on the Woolsack and of the Attorney General in another place I think their views are certainly not in favour of the unnecessary creation of special courts. I do not believe that this compromise will help the Government at all. I do not think that subjects will arise under this Bill that are not of the type that a county court judge can decide unaided. I believe that the introduction of these assessors, for whatever reason, will not achieve the purpose that the Government have in mind. I believe it will do more harm than good and I move to delete the subsection. I beg to move.
§ LORD CONESFORD
My Lords, that might be the most convenient. I would otherwise have dealt with it as consequential. I should not be moving it if I did not carry Amendment No. 21. But I adopt the suggestion of moving them both together.
§ LORD DRUMALBYN
My Lords, may I take it that Amendments Nos. 23 and 24, which relate to Scotland, may be considered at the same time?
§ THE LORD CHANCELLOR
My Lords, I agree that all four should be considered together. The noble Lord, Lord Conesford, has of course, inevitably, very largely said what he said on the Committee stage of the Bill, and I am inevitably going to say very much what I said then. This is a matter on which there are three perfectly rational views which anyone might take. The first view, strongly put forward by the Street Report, was that there ought to be special race relations tribunals; and many people agreed with that view. The second view, mainly taken by the lawyers was that they did not like the idea of special tribunals; that being lawyers they liked the ordinary courts. And that, again, is a natural and proper view to take. The third view is what you might call a compromise; but I do not think there is anything necessarily wrong with a compromise. It may be the most sensible thing to do. That was that there should be selected county courts but that, while the judge should be the only person to decide the case, he should have assessors consisting of people with special experience in race relations to advise him.
As I say, anybody can quite well take one or other of those three views. But the first thing I should like to make plain is this. It may be that at one time the noble Lord, Lord Conesford, had a very extensive county court practice, but I imagine that it is some little time since he was in a county court; so he will not, I am sure, mind my reminding him that Order 31, Rule 1, provides:The registrar of every court shall, on the direction of the judge, prepare and submit to the judge a list of persons who are in the opinion of the registrar fit and proper persons to act as assessors.2. The registrar shall apply to such persons as the judge may approve to ascertain if they are willing to act as assessors.3. The registrar shall cause a list of the persons approved by the judge and willing to act as assessors to be posted in the court office.Every assessor named in the list shall continue to be an assessor until a new list has been completed…and so on.
1261 Then, what he is to be paid. It goes on:6. A party who desires an assessor to be summoned to assist the judge shall, not less than 10 clear days before the day fixed for the hearing, file an application in Form 247, and deposit the amount of the assessor's fee in the court office, and thereupon the registrar shall send a copy of the application to the judge.7.—(1) If the judge grants the application, the registrar shall give notice to the parties in Form 248.So, my Lords, there is a special order under which anybody in the county court has a legal right to ask for an assessor. This does not, in fact, happen often. I have no personal experience of it. For that very reason, I should think that a judge asked by one of the parties to sit with an assessor would be much more likely to say "Yes" than to say "No", because it would be a nice change for him. He would think that it does not do any harm. As the Race Relations Board are going to be the plaintiffs, they have an absolute legal right to ask the judge for an assessor. Ought we not to decide what is to happen? Do we want half the courts saying "Yes" and the other half saying "No"? The only difference really is that under the order the party applying for the assessor has to pay the assessor's fees in the first instance; and then it is for the judge at the end to say who shall pay them according to the result of the case. But, of course, under the Bill the Government pay for the assessors.
I should have thought, with great respect, that as the order is there and as there is a strong view that there should be assessors, it is much better to apply a proper procedure and make it clear in the Bill whether there are to be assessors or not. Although the noble Lord is right in saying that at the Committee stage I said that this was not my favourite clause, the reason why, on balance, I suggest that this is right is simply, as I said all the way through, that the Government are most anxious that this Bill in the form in which it is ultimately to be enacted should receive the largest measure of support possible. On the whole, most people seem to think that a profesional judge who alone will decide but who will have people sitting with him with special experience in race relations is most sensible. I appreciate that some lawyers still say that they would 1262 like the judge alone; and that a number of people who support the Street Report say that on the whole they would sooner have special tribunals.
But this course seems to meet general approval and we are at the stage when this matter has been specifically considered in the other place and has been specifically the subject of revision when an exactly similar Amendment was put forward in the other place. The other place decided, "No, we shall leave the Bill as it is." Then it came here. Then the same Amendment was moved on the Committee stage. Then, again, we had a Division; and this House also thought it was better to leave the Bill as it is. In those circumstances, would it be sensible to send the Bill back to the other place saying: "It is true that you thought that this was on the whole the best plan; and it is true that we thought this in Committee, too; but now we have changed our minds about it"? For those reasons, I hope very much that the noble Lord may think it right not to press this Amendment.
§ 6.9 p.m.
§ VISCOUNT DILHORNE
My Lords, I have listened with the most careful attention possible to what the noble and learned Lord has said. Like my noble friend Lord Conesford, I have also studied the speech he made during the Committee stage. I for one do not feel in the least affected in my view regarding this Amendment by the fact that it has already been considered in another place. This House has functions as well as another place. We have heard that argument advanced before, implying that we should not reconsider a matter which has been the subject of a Division in another place. That is an argument, but I think it is one that this House should reject. We have also considered this subject in Committee. It is true the Amendment was not carried; there was a very small majority against it.
This is the first time I have spoken on this Bill, and I would rather approach this question entirely by considering the merits of the proposal. With regard to those, the noble and learned Lord, the Lord Chancellor, has been very frank. He said there was the view that there should be a special tribunal or court to deal with these matters, and that that view was 1263 tenable. I dare say it has a number of supporters. Then there was the view that he attributed primarily to lawyers, that this matter should be dealt with in the courts. Then there was the view that he says is embodied in this Bill as a compromise. Well, my Lords, compromises are not always bad; sometimes they are very good; but, in the light of me information I now have I must say that this compromise does not seem to me at all satisfactory.
My approach to this question is, in some respects, a little different from that of my noble friend Lord Conesford. It is of course the case that there is power to secure the appointment of assessors in the county court. I cannot recollect a single case in which that power has been exercised—I do not think that the noble and learned Lord the Lord Chancellor can—but he is quite right in saying that there are rules which enable that to be done. It is a long time since I looked at those rules, but I apprehend that it is within the power of the county court judge to refuse the application to sit with assessors. I hope that the noble and learned Lord, the Lord Chancellor, will correct me if I am wrong. Of course, if it were a technical matter of a highly complex character, I feel sure that the county court judge would grant an application, if it were made, in the same way as the Admiralty cases are tried with assessors. But what I want to come to in relation to this particular proposal is to ask your Lordships to consider what it is that the assessors are to be required to do.
In this case it is not a question of a party applying for it and the judge deciding whether or not there should be assessors. They are compulsory—assessors with special knowledge of race relations problems. What is it that the assessors are to be required to do? It does not suffice just to say that they are to be there to assist the judge. To assist him in deciding what? That is the question I want to put to the noble and learned Lord the Lord Chancellor, because I think it is worth bearing in mind the task that will confront the county court judge when a case is brought before him under the provisions in this Bill.
As my noble friend has said, the case will be brought by the Race Relations Board and it is clear from the Bill that 1264 it can be brought only if the Race Relations Board have come to the conclusion that there has been a breach by the defendant of the requirements of the Act, as it will then be. So the defendant will start knowing, as the county court judge will know, that the Race Relations Board have found against him on the facts. Then the proceedings are started. They come before the county court judge and he will have to do what he does in every other case where there is a trial—listen to the evidence called before him, weigh it up and, where there is a conflict of evidence, determine where the truth lies. He will have to perform that task in these cases just as he has to perform it in every other case where there is a trial and he is sitting without a jury.
Having decided what facts are proved, he will then have to decide (and, as the noble and learned Lord the Lord Chancellor said, it is a matter entirely for him) whether or not those facts proved establish a breach of the requirements as defined in this Bill; whether they amount to unlawful discrimination as defined in the Bill. In that part of the judicial task what part are the assessors having special knowledge of race relations problems to play? Are they to express a view on whether a particular witness should be believed or disbelieved? Are they to express the view that certain facts have been established and that those facts amount to unlawful discrimination?
My Lords, during the Committee stage discussions the noble Lord, Lord Leatherland, suggested that their function would be similar to that of a jury. Of course it would not be; they are no jury. They have not to decide any question of fact. The judge has to decide questions of fact—that has been made clear—and it would, I think, be very wrong if the judge turned to the assessors and asked them to act in private as if they were a jury when in fact they are not. I could understand it—I do not say that I would support it—if there were to be a special body of people who were to find the facts like a jury, but this Bill does not provide for that. It merely provides that there will be these two people, with special knowledge of race relations problems, to assist. Are they intended to assist in the discharge of that part of the judicial function by the judge? If so, we ought to be told what it is that they are intended to do, 1265 and we ought to be told it with the greatest clarity and precision.
Suppose the judge has found that there has been unlawful discrimination. Then one can see from the Bill that he has power to grant an injunction. That depends on whether the conditions in Clause 21 are, or are not, satisfied. They are laid down precisely and the learned judge would have to satisfy himself that those conditions were satisfied before he granted an injunction. Are the assessors with special knowledge of race relations problems to assist him in determining whether the conditions laid down in Clause 21 are, or are not, satisfied? I should have thought not. That, again, is a question of evaluating the evidence and considering the provisions in the Bill. Of course, an injunction is always a discretionary remedy, but here the discretion is limited by Clause 21; and I cannot believe that the mere presence of assessors would assist a judge in determining whether or not, in a particular case where those conditions are satisfied, an injunction should be granted. Because whether or not an injunction should be granted depends on whether or not there appears to be a real risk of a repetition of the conduct. That is one relief which may be claimed.
The next is damages on behalf of the person who is alleged to have suffered loss. Well, my Lords, what room is there in that respect for assistance by assessors? If the loss is proved to the satisfaction of the judge, he will award damages in compensation. It does not seem that there is any room for assessors. If a judge does neither of those things but is satisfied that there has been unlawful discrimination, he can grant a declaration to that effect. So when one deals with those three things that the judge can do, which are set out in terms in Clause 19, it does not appear to me that there is any real assistance that may be given to the court by the presence of two persons with special knowledge of race relations problems.
Also in Clause 19 there is power given to the county court judge to revise the terms of any contract which run counter to the provisions of this Bill. That is a pure question of law and I should not think that on that assessors could give any assistance of any value at all. So, approaching this matter pragmatically, it 1266 seems to me that in reality there is no need for assessors of this or of any other kind to assist the judge in the performance of duties which are similar to his duties when trying any other case.
This is a compromise, the noble and learned Lord the Lord Chancellor said. It seems to me, with the greatest respect, that this is really a compromise with a good percentage of window-dressing attached to it. I do not think it is a good thing. It is really an innovation to have assessors sitting compulsorily in matters of this kind. I entirely agree with my noble friend Lord Conesford in what he said with regard to the position of the defendant, who is not charged with a crime but is charged with conduct which a great many people will condemn; and a condemnation under this Act will be a reflection on his character. I do not think that, in the hearing to determine whether or not he has been guilty of the conduct alleged, he will think he has had a fair trial if, sitting with the county court judge, there are two persons with special knowledge of race relations problems appointed by the Lord Chancellor, whose advice will presumably be tendered to the county court judge without the defendant having the least idea of what that advice is.
When we come to consider the great care we have taken, in relation to criminal proceedings in magistrates' courts, to see that the clerks to the justices do not go beyond their sphere and express views on the facts and evidence behind the scenes to the magistrates without the accused knowing anything about it, I must say that I think that to provide here by Statute that there will be two people who will be able to express views in private which will never be known to the defence is a retrograde step and one to which this House should not agree.
§ 6.24 p.m.
§ LORD AIREDALE
My Lords, I think that people are going to be very surprised when they discover that county court judges, who are entrusted with sitting alone in judgment upon a wide variety of cases are not to be allowed, in this one class of case of race relations, to sit alone, but only with assessors sitting beside them. In the experience of two Lord Chancellors, county court judges have 1267 never been known to need assessors with them to hear a case. I can well understand that a High Court Judge trying Admiralty cases may need expert advice from assessors when he has before him a question of the intricacies of the navigation of ships upon the high seas. But what is so special about a race relations case tried in the county court that it cannot be tried by the judge alone?
The noble and learned Lord the Lord Chancellor has made it clear from extracts from the County Court Rules that it would be open to the Race Relations Board, as plaintiff, to ask for an assessor, and it would be open to any county court judge to suggest to the parties that an assessor should sit with him and no doubt that could be achieved. Can we not see how this works out in practice, and see whether it is not possible for county court judges to try race relationship cases alone, unassisted by assessors, as they deal with the other cases that come before them? If they cannot, then they have powers whereby they can suggest that assessors sit with them. As experience is gained, the matter can be resolved. But I think it is a mistake at the outset to insist on assessors in this one class of county court case. I should think that this was blowing up race relation cases to give them a special importance and magnitude which they do not deserve, as well as drawing more public attention to them than they deserve.
§ LORD DRUMALBYN
My Lords, may I ask a question and make an observation purely from the Scottish point of view? I should like to know whether it is customary for assessors to sit with sheriffs, and who will appoint the panel of assessors in Scotland? The difficulty we are always up against in Scotland is that we do not have a Lord Chancellor. Your Lordships will see that, so far as Scotland is concerned, it is the Secretary of State who is to be given power to designate sheriff courts where actions are to be taken and to prepare the panel of assessors. One must have regard to the separation of powers. I am not entirely happy about this. Here we have a double possibility of political influence. Cases may be referred to a court which may be expected to take a certain line in general. In addition, there are to be assessors who are considered to have certain views 1268 which are acceptable from this point of view. I do not want to overstress this, but it is a danger. To my mind it is one reason why we should not give the Secretary of State both the power to say in what sheriff court cases may be heard—after all, it may cause considerable inconvenience to parties if the court is outside their area—and power to nominate panels. I express this misgiving only because it is one which has some influence with me personally.
§ LORD SILKIN
My Lords, those of us who have listened to this debate obviously feel in a difficulty. I gather from my noble and learned friend the Lord Chancellor that two different views have been expressed by two groups of people and I also gather than they have not been along the lines of political Parties. The Government have come along with a compromise, and, as the noble and learned Lord the Lord Chancellor has said, a compromise is not necessarily a bad thing; it just depends on the compromise. My own view is that the compromise already exists in existing legislation. Under the county courts procedure, if in the opinion of the judge an assessor is required, he can ask for the appointment of an assessor. It seems to me unreasonable that there should be assessors appointed in all cases, whether they are necessary or not. I hope that the Government will think again about this, and be content to rest on the existing county court procedure. To have this matter settled on Party lines, as it would be if there were a Division, would in my view be most unsatisfactory. It is not something that ought to be decided according to one's political complexion.
THE EARL OF ENNISKILLEN
My Lords, I should like to support the last remarks, because I feel that from the ordinary person's viewpoint this is a compromise with a bias, and will be so construed. There is nothing wrong with British justice, and nothing wrong with British courts; but we are by this means setting up precisely what the noble and learned Lord the Lord Chancellor described as one of the means they wish to get rid of—a special court. This is what I should have thought Englishmen required: it is British. It is bad enough that we have to have legislation on this subject. The people whom we are trying to assimilate are to be assimilated as 1269 subjects of the Realm and as such they should be treated in the ordinary fashion of the British people in law.
§ THE LORD CHANCELLOR
My Lords, perhaps I may have leave to speak again, quite shortly. I have already referred to the county court rules. I should have started with the Act itself, because the noble and learned Viscount, Lord Dilhorne, asked: What exactly are the assessors going to do? The answer is that they will help the judge in whatever way the judge wants to be helped, which is indeed the position in law now. Section 91 of the County Courts Act reads as follows:In any proceedings the judge may, if he thinks fit, on the application of any party"—so my noble friend Lord Silkin will see that the judge has no power to do it himself, other than on the application of the party—summon to his assistance, in such manner as may be prescribed, one or more persons of skill and experience in the matter to which the proceedings relate who may be willing to sit with the judge and act as assessor. The remuneration of assessors for sitting as afore-said shall be of such rate as may be prescribed…and so on. There is nothing in the Act as to exactly what he does when he gets there beyond what I have read.
What I was suggesting, my Lords, was that we cannot really leave the matter there, because if these Amendments are passed the Race Relations Board will have a legal right to apply to a county court judge in every case for assessors, but the registrar will not have a list of assessors. It is necessary to provide some machinery obviously appropriate to this kind of case.
§ VISCOUNT DILHORNE
My Lords, if the noble and learned Lord will give way, I should entirely agree that it might be necessary to produce a list of assessors; but all that would be needed would be to add names to the existing list of assessors. What he has said already makes it quite clear I think (and I should like him to confirm this), that the learned county court judge has a discretion to refuse an application for assessors where he does not think they will help him.
§ THE LORD CHANCELLOR
He has under the County Courts Act. But I should have thought that this would have been undesirable in the case of this Bill 1270 —undesirable, that is to say, that entirely different practices should grow up in different parts of the country, and that in some places the judge should always sit alone, and in other places should always sit with assessors. No doubt it is for Parliament to make up its mind as to what is the right thing to do.
I said to start with that these are three perfectly tenable views: the very strong view taken by the Street Committee, that there ought to be a special Race Relations Tribunal; the view taken, mainly by lawyers, that one wants just the ordinary courts, and what has been called the compromise view, that there should be a judge with two persons with special experience of race relations.
Finally, I would say that I never intended to suggest that this House is not entitled to differ from the other p1ace. Of course it is. It is not only its right, but very often its duty. All I was suggesting was that this is the unusual case of Leaders of Parties feeling that, in the national interest, the more we can agree on the terms of this Bill, the better that it is a case in which the Government who of course, with their majority, can always push things through in another place, have time after time on this Bill deliberately not done so but have accepted the view of the opposition. All I was suggesting was that when there is a Division in this House, and this House takes exactly the same view as the other House has taken, then it would seem odd on a later occasion in this House to use the power which one political Party always has in this House, whoever is the Government, to change the decision which this House in Committee has already made.
§ LORD CONESFORD
My Lords, in view of the late hour and the very complete speech of my noble and learned friend Lord Dilhorne I shall be very brief. The noble and learned Lord the Lord Chancellor was quite right to remind me that my county court days were very long ago, and I think I might have forgotten about the provision for assessors had he not been good enough to remind us on the last occasion, when I found out that, as usual, he was quite right. I take some comfort from the fact that all the time that I had my meagre practice in the courts I never knew a case where assessors were appointed in the county 1271 court; the noble and learned Lord the Lord Chancellor has never known such a case, and my noble and learned friend his predecessor on the Woolsack has never known such a case. So I do not think we need treat this as something that is constantly arising or particularly likely to arise.
My view of the matter, my Lords, is quite clear. If I thought that the Race Relations Board were themselves as plaintiffs likely to ask for assessors—assessors of exactly the same type and chosen from the same milieu as themselves—I should have thought that we probably ought to provide in this Bill that they should not be provided with assessors. I am prepared to leave the law as it is, as suggested by the noble Lord, Lord Silkin, but I object to compulsory assessors.
The only other matter is this. I respect greatly a decision of the other House, but I think that some Members may have been under the impression from what the Lord Chancellor said (what he said was quite accurate, and I do not complain about it) that it was a decision of that House sitting as a House. In fact it was a decision of a Committee, and by a majority of 12 to 8. I think
§ that that does put a slightly different complexion on it. I think I am right in saying that the other House as a House has never had anything like the full discussion that we have had.
§ On the question of reversing on Report something done in Committee, that is done very frequently in this House. I have very often been the victim of it myself, when I have succeeded in carrying something in Committee and it has been reversed on Report. That is not an uncommon occurrence in this House. In this case there was a very small majority against me in Committee. My last words are these. My real object in this Amendment—I hope this will be accepted because I am speaking the absolute truth—is to improve this Bill. I believe that this Bill with this Amendment will carry more confidence in the country, will give more sense of justice among litigants, than this Bill as it will be without this Amendment. For that reason, I wish to take the view of the House.
§ 6.41 p.m.
§ On Question, Whether the said Amendments (Nos. 21 and 22) shall be agreed to?
§ Their Lordships divided: Contents, 57; Not-Contents, 36.1273
|Aberdare, L.||Drumalbyn, L.||Milverton, L.|
|Ailwyn, L.||Emmet of Amberley, Bs.||Monson, L.|
|Airedale, L.||Enniskillen, E.||Mountevans, L.|
|Albemarle, E.||Falkland, V.||Mowbray and Stourton, L.|
|Audley, Bs.||Falmouth, V.||Moyne, L.|
|Barnby, L.||Ferrier, L.||Oakshott, L.|
|Barrington, V.||Fortescue, E.||Rankeillour, L.|
|Boston, L.||Gridley, L.||St. Aldwyn, E.|
|Brecon, L.||Guest, L.||St. Just, L.|
|Carrington, L.||Hanworth, V.||Sandford, L.|
|Clifford of Chudleigh, L.||Hawke, L.||Sandys, L.|
|Colville of Culross, V. [Teller.]||Headfort, M.||Somers, L.|
|Conesford, L. [Teller.]||Holford, L.||Strange of Knokin, Bs.|
|Cork and Orrery, E.||Ironside, L.||Strathclyde, L.|
|Craigavon, V.||Jellicoe, E.||Stratheden and Campbell, L.|
|Cromartie, E.||Kirkwood, L.||Swansea, L.|
|Daventry, V.||Long, V.||Teviot, L.|
|Denham, L.||Massereene and Ferrard, V.||Vivian, L.|
|Dilhorne, V.||Merrivale, L.||Younger of Leckie, V.|
|Addison, V.||Carron, L.||Hilton of Upton, L. [Teller.]|
|Archibald, L.||Champion, L.||Kennet, L.|
|Arwyn, L.||Collison, L.||Latham, L.|
|Asquith of Yarnbury, Bs.||Fiske, L.||Leatherland, L.|
|Beswick, L.||Gardiner, L. [L. Chancellor.]||Lloyd of Hampstead, L.|
|Bowles, L. [Teller.]||Gifford, L.||Morris of Grasmere, L.|
|Brockway, L.||Granville of Eye, L.||Morris of Kenwood, L.|
|Buckinghamshire, E.||Henderson, L.||Peddie, L.|
|Burden, L.||Henley, L.||Phillips, Bs.|
|Rusholme, L.||Shepherd, L.||Taylor of Mansfield, L.|
|Serota, Bs.||Sorensen, L.||Williamson, L.|
|Shackleton, L.||Strabolgi, L.||Wynne-Jones, L.|
On Question, Amendments agreed to.
§ Resolved in the affirmative, and Amendments agreed to accordingly.
§ Clause 20 [Nature of proceedings in Scotland]:
§ LORD DRUMALBYN
My Lords, I beg to move Amendment No. 23. I think noble Lords will agree that it would be quite inappropriate that we should have assessors in Scotland if there are not to be assessors in England.
§ THE LORD CHANCELLOR
My Lords, does the noble Lord wish to move Amendment No. 24 with No. 23, or separately?
Page 14, line 32, leave out subsection (7).
Page 14, line 38, leave out subsection (8).—(Lord Drumalbyn.)
§ THE LORD CHANCELLOR
My Lords, I agree with what the noble Lord has said. I cannot, of course, accept the Amendments, for the reasons given in relation to the previous Amendments. On the other hand, I shall not ask the House to divide against them, because plainly that would be a waste of time.
§ Clause 27 [Application to Crown, the police and public bodies]:
§ BARONESS SEROTA
My Lords, to facilitate progress perhaps we may take Amendments Nos. 25, 26 and 27 together. These Amendments are purely technical. The provision in the Bill which is now being amended was added at Committee stage in your Lordships' House. Unfortunately, the Amendment then moved did not apply, as it should have done, to proceedings in regard to police cadets. These Amendments now proposed correct this omission. I beg to move.
§ Schedule 1 [Provisions as to the Race Relations Board and conciliation committees]:
§ BARONESS SEROTA
My Lords, this Amendment also is technical and merely corrects an error in the way it was printed. I beg to move.
Page 24, line 13, after first ("of") insert ("Schedule 1 to").—(Baroness Serota.)
§ Schedule 2 [Complaints relating to employment, trade unions and organisations of employers]:
§ THE LORD CHANCELLOR
My Lords, in moving this Amendment on behalf of my noble friend Lord Stonham, your Lordships may remember that this was the third of three Amendments, Nos. 19, 20 and 29, with which I deal: fully when moving Amendment No. 19. I beg to move.
Page 24, line 25, leave out from ("applies") to ("is") in line 27 and insert ("and which is made to them within two months of the act complained of and also, if the Race Relations Board think that special circumstances warrant its reception, any complaint made to the authority after the expiration of that period, if in either case the complaint").—(The Lord Chancellor.)
§ LORD DRUMALBYN
My Lords, may I ask whether exactly the same circumstances apply here? The example given in the previous case related to accommodation; here we are dealing with employment. Is it really believed that cases of this sort may arise after two months?
§ THE LORD CHANCELLOR
Yes, my Lords. The Government are satisfied, together with the Board, that the same considerations should apply.