§ Clause 18, page 12, line 42, leave out subsection (7).
§ Clause 18,page 13, line 4, leave out sub-section (8).1561
§ Clause 19, page 14, line 12, leave out subsection (7).
§ Clause 19, page 14,line 18, leave out subsection (8).
§ The Commons disagreed to these Amendments for the following Reason:
§ Because they would leave it open to courts hearing the new causes of action created by the Bill to arrive at decisions without assessors, and it is desirable for decisions in the field of racial discrimination to be taken with the assistance of persons having special knowledge and experience of race relations.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this House doth not insist on its Amendments to which the Commons have disagreed. I do not suppose that any of your Lordships will want the noble Lord, Lord Conesford, and me to rehearse, for the third time, the views which we have expressed on the question of assessors. That question has now been considered in another place for about an hour and a half, in a debate which, naturally, covered substantially the same ground. As your Lordships know, there are four views which anybody is entitled to hold. One is that these questions ought to be left to the courts; the second is that we ought to have special race relations tribunals; the third is that they should be left to the county court for a county court judge alone to decide but that he should be assisted by two experts on race relations as assessors, and the fourth is that they should be heard by a county court judge and two assessors voting by a majority.
As I have said, these views were considered below. It would be ungracious on my part not to acknowledge the observations made by the chief spokesman for the Opposition, whom I must not quote, but they were to the effect that Parliament ought to be grateful to my right honourable and learned friend the Attorney General and to me for having saved us from special race relations tribunals. Of course, I express no opinion myself on that.
My Lords, if I may say so, it will, I think, be a matter for consideration by the county court judges whether they should not follow the practice—which is, I believe, observed by assessors, the Elder Brethren of Trinity House, who sit on Admiralty cases—in which the judge, if he is acting in part in his decision on the advice given by one of the assessors, says 1562 so in the course of his judgment in open court. I must not, of course, conceal from your Lordships that this is not my favourite clause in the Bill. Neither must I conceal my view that as apparently the Chairman of the Race Relations Board would have proposed—in the event of the assessors being taken out of the Bill—that the Board should exercise its undoubted legal right to apply to county court judges for assessors, as between those alternatives it is better to have it in the Bill rather than have differing practices among different county court judges; and it is better for the Lord Chancellor—though he does not want any more to do—to find experts in race relations rather than that it should be left under the County Court Rules for them to be found by the local registrar the local county court.
Finally, noble Lords may feel that this is perhaps not a matter in which they should seek to press their views any further, bearing in mind the fact that when they considered this question in a Committee of the Whole House, with about 131 voting, they decided that they agreed with the other place in having assessors; and that when they reconsidered that opinion, with about 40 fewer Members voting, they changed their minds. In view of all those facts I hope that your Lordships will not insist on the Amendments to which the Commons have disagreed.
§ Moved, That this House doth not insist on its Amendments to which the commons have disagreed.—(The Lord chancellor.)
§ 4.9 p.m.
§ LORD CONESFORD
My Lords, I assure the noble and learned Lord on the Woolsack that my recommendation to this House would certainly be that we should not insist on our Amendments. That fact does not prevent me from greatly deploring the attitude taken by Her Majesty's Government yesterday in another place. The Amendments to the English clause, the first two of these Amendments, were mine. They wt re a definite attempt to improve the Bill and I think that improvement was successfully accomplished. While there had been great differences in this House and in another place about what should constitute unlawful acts of discrimination, I think there was a great measure of 1563 agreement in both Houses that we desired the court proceedings to be such as would command the greatest sense of justice among all concerned. I agree with the noble and learned Lord that it would be inappropriate to rehearse all the reasons that were then given, but may I remind your Lordships of this single fact? In this very novel state of the law, in which new quasi-torts or civil wrongs are being created. we shall have this position. The plaintiff in every case will be the Race Relations Board. The judge will be a county court judge who will be compulsorily assisted by two assessors appointed from a list prepared by the noble and learned Lord the Lord Chancellor, and it will not be disputed that their skills and qualifications will he precisely the same as the qualifications of those who are chosen to constitute the Race Relations Board.
I ask your Lordships to imagine the effect on the mind of a defendant who comes before a court on a wholly novel charge, that he has been responsible for a tort that has never hitherto been a tort. He is being sued by the Race Relations Board and the judge is considered a person not qualified to decide by himself the difficult questions put before him, but is to be assisted by people of precisely the same qualifications as the plaintiffs and whose advice to the judge he will not hear. I understood from the noble and learned Lord that that may not be so, and that the judge may himself indicate the advice which had been given. I very much hope the noble and learned Lord is right in that assumption.
In the debate in another place last night my Amendment and the support given to it by this House were supported, and very weightily supported, by Members, legal and non-legal, of the Conservative Party and of the Liberal Party. In the ensuing Division, all the Members of the Liberal Party present voted in favour of our Amendment. For those reasons, I greatly regret the Government's decision, but I concur entirely with the advice of the noble and learned Lord on the Woolsack that we should not insist on our Amendments. The Commons have decided and, there being this clash between the Houses, I have no hesitation in advising this House to accept their view. I am certain in my own mind—and I hope I shall be forgiven for saying this 1564 because I have given a good deal of thought to the subject—that the decision is a wrong one. I am certain that it is a decision which will be much regretted by Her Majesty's Government themselves.
As I listened to the debate in another place, I was impressed by Members, who spoke from both the Liberal and the Conservative Benches, all making the point that the more cases under this Bill were considered as ordinary cases and not treated as special, the better for the cause of harmony in race relations. Anything that gives the court a distinctive and novel character was to be deplored.
In an earlier debate the noble and learned Lord on the Woolsack said, quite rightly, that this was a compromise and that compromises are not always wrong. I respectfully agree with him but, as was pointed out by Mr. Quintin Hogg, who was praised by the noble and learned Lord for his conduct of the Bill, in another place (I am not consciously using his exact words), I cannot approve of a compromise when it is a compromise between sense and nonsense. That is what this compromise is. There is an argument for a special court and overwhelming arguments against it, and I congratulate the Government lawyers in providing that at least we are saved from the nonsense of a special court. But, having saved us from that nonsense, they ought not to have insisted on assessors to assist the ordinary court.
For one thing I am deeply grateful, and that is that the other place have assigned the Reason for which they have turned down my Amendment. They say:Because they would leave it open to courts hearing the new causes of action created by the Bill to arrive at decisions without assessors,—and I ask the House to mark these words—and it is desirable for decisions in the field of racial discrimination to be taken with the assistance of persons having special knowledge and experience of race relations.If I may. I will quote some words I heard from Winston Churchill in commenting on another statement of this kind:The opposite of the truth could scarcely be expressed with greater precision.
§ 4.18 p.m.
§ VISCOUNT DILHORNE
My Lords, I join with my noble friend Lord Conesford in regretting the Government's decision to 1565 retain this provision in the Bill. In the course of the debates on this Bill I have not expressed any opinions with regard to the other parts of it, whether they be good or bad. In my view, this provision is bad. I know no real precedent for it, and I am sorry to say that I think that it will be a very unfortunate precedent for the future.
The noble and learned Lord the Lord Chancellor has indicated that it would be a good thing that a county court judge, when he receives advice from the assessors, should disclose what that advice is. I think that that would be an excellent thing, and I hope that county court judges will be advised to say, when giving their judgments, whether or not they have received any assistance from the compulsory assessors, and, if they have received it, what that advice is.
When this subject was debated on the second occasion—and the noble and learned Lord seemed to think that something was wrong about our reversing our previous decision: I was not here on Committee stage—I asked specifically on what issues, what questions, the assessors would be expected to give assistance. Was it in the judge's task in determining questions of fact?—and it will be a question of fact for him to determine as to whether or not there has been discrimination. Or was it as to what should be done if the judge decided that there had in fact been discrimination? Those questions of mine have not so far been answered, either by the noble and learned Lord the Lord Chancellor or by spokesmen for the Government in another place. I still do not know what are the matters, what are the issues, on which it is thought that assistance in these particular types of case will be required from assessors.
The noble and learned Lord the Lord Chancellor has made it clear more than once that it will be for the judge to decide all these matters: to decide whether or not the evidence establishes discrimination; and to decide what should be done if it does establish it. I pose this question. In approaching that task, a county court judge has to proceed impartially and independently. Is he bound to ask for assistance in determining who is telling the truth, or what remedy to impose? I should like to know that. These specially qualified persons are being imposed on the county court judge. Is he bound to 1566 put questions to them? Is he bound to seek their views? Or will it be left to him only to ask for them when he thinks that they might be helpful on some particular point? I hope that it is the latter; but I should like to know.
We are told, my Lords, that the assessors will be people with particular qualifications. The only answer to the argument advanced last time by the noble and learned Lord the Lord Chancellor (and I will not repeat the argument), and in his answer to-day, was that it would be better to have assessors in all cases under this Bill than to leave it to the Race Relations Board to apply in particular cases for assessors and have assessors sitting in some county courts and dot in others. I am astonished to think (it may be implied—I do not know; but l hope not) that the Race Relations Board have so little confidence in Her Majesty's judges as to think that they cannot determine questions of fact without assistance. I am astonished, also, to think that they regard these questions of fact and the interpretation of this Bill as so difficult as to require the advice of experts on racial relations. The kind of case that will come before these judges is whether in a particular instance a man has been guilty of a particular kind of conduct. I do not think that any expertise which a county court judge does not possess is required to answer that kind of question.
My Lords, I do not take the view that it is better to have assessors automatically than to leave it to the Race Relations Board to apply for them in particular cases. I do not exclude the possibility—although I cannot see it—that a case might arise in which assessors could serve a useful purpose. As I say, I cannot see such a case; but if there were one, then they could apply, in the same way is an application can be made to the county court now. In the ordinary case, where there was no such special requirement or need. I would much rather see application made to the county court judge, who I am sure would welcome sitting with assessors if he felt that they had a t useful role to play. But I do not think the fact that some disparity existed as between different county courts would matter in this instance, any more than it matters now if assessors sit with one county court judge on one case and not with 1567 another county court judge on another case. And, of course, there is the right of appeal from that decision.
My Lords, the Reason why the Commons have disagreed seems to me not easily reconcilable with the views expressed by the noble and learned Lord the Lord Chancellor. I should like to be clear upon this, if the noble and learned Lord is going to reply—and I say this in conclusion. Is it, as he regards it under this Bill, in every case the duty of the county court judge to ask for the assessors' views? And, if it is, is he bound to ask them for their views on the evidence?—in which case, they will be acting perhaps as a kind of pseudo jury. Or is he bound to ask them their views as to whether damages should be awarded for loss sustained.
I think, my Lords, that this is a wretched compromise. I cannot congratulate the Government or the noble and learned Lord the Lord Chancellor on having achieved it. But at the same time I join with my noble friend in thinking that it would be better, rather than standing firm on this Amendment, to see how it operates; and I hope that we shall in due course rescind it.
§ 4.27 p.m.
§ LORD BROCKWAY
My Lords, perhaps I may be allowed to add a few sentences. I was unable to be present during the debate on the Report stage because I was in long, and I hope useful, discussions with my noble friend Lord Shepherd on another matter. But I do not think I can be silent to-day when this Bill is reaching its conclusion. I am not going to enter into discussion with noble Lords on the points which they have raised. I would only say this: that I think the Opposition are wise in taking the view that we must learn from experience in this and other matters. I have my reservations on certain points in the Bill, but my overwhelming feeling is one of congratulation and gratitude to the Government that they should have introduced it. I feel that in this debate, instead of our discussing what are incidental, though important, matters, a tribute ought to be paid in this House that we are now to have this type of legislation on our Statute Book, which will indicate to the world that this country stands against racial discrimination.
1568 I venture to say this because it is now 18 years since I first introduced a Bill on this matter in the other place. I was not the pioneer. I am sorry that my noble friend Lord Sorensen, who introduced the first Bill on this issue, is not present on this occasion, which I regard as historic. I think that tribute should be paid to my noble friend as a pioneer in this respect: all I tried to do was to follow in his steps. The overwhelming feeling that is with me at this moment is that after 18 years, having had to meet considerable opposition, we now have this Bill before the House supplementing the earlier measure that was introduced. I hope that from this House, in the concluding stages of this Bill, there will go out, not criticism of incidental matters, however important they are (and of course they can be adjusted as we have experience of the Bill), but the tremendous fact that our Government and Parliament have now indicated to the whole world that we are against racial discrimination, and we believe that men and women, whatever may be their race or colour, belong to one family and, as citizens in this country, should have equal rights.
§ 4.30 p.m.
My Lords, I wish only to add this brief footnote to our discussions. May I say in reply to the noble Lord, Lord Brockway, that I personally feel it perfectly appropriate at this stage, above all, in the Bill that we should be concerned with certain details. It seems to me more appropriate that we should be concerned with those points than with certain more general aspects that I should have thought had been very fully covered in earlier stages of our discussions. In any event, at Third Reading, at our last stage of the Bill, the noble and learned Lord on the Woolsack spoke—and I was very struck by the sincerity of his words about the Government's wish in their handling of the Bill to find as much common ground as possible. With those words fresh in my mind, I personally find the attitude which the Government have taken towards these Lords Amendments really rather sad.
Like other noble Lords, I have read the proceedings in another place with close attention, and I must say that in my view the Government clearly got the worst of the argument—and I do not 1569 think that they have had the best of the argument this afternoon. I find it rather disheartening that they should nevertheless have decided to bludgeon the Lords Amendments out of the Bill by the application of the Party Whip, against the run of opinion in another place and against the weight of argument in another place. I can only say, in conclusion, that I very much regret that the Government on this occasion have not accepted the advice of your Lordships' House and thereby taken steps to improve in this particular, not unimportant, aspect the Bill now before your Lordships. Nevertheless, my Lords, much though I regret their decision on this point, I share the views expressed by my noble friends that we must now see how the Bill operates, and that it would be wrong for us to seek to prolong this argument with another place.
§ LORD TREFGARNE
My Lords. I hope it is in order for me to make a few remarks at this moment upon the Commons' objection to our Amendment, and to seek, perhaps, some clarification from the noble and learned Lord on the Woolsack when he winds up. I am particularly concerned—and I think my concern is shared by my noble friends on my left—that we are, by agreeing to this Amendment, agreeing to what is basically a new departure in the application of justice in the county courts. It seems to me that we have a situation where the plaintiffs, who will always be the Race Relations Board, in setting out their case will he aided by the assessors—who apparently will have similar qualifications to those of, and may indeed have other connections with, the Race Relations Board—in the advice that these assessors will give to the county court judges. The fact that the county court judges may subsequently tell the court what that advice was hardly helps, because presumably by that time the judge will be summing up, when it is of course far too late for the defence to rebut any of the suggestions made by the assessors, who appear to have similar qualifications at least to the plaintiff; namely, the Race Relations Board. I hope therefore that the noble and learned Lord on the Woolsack will be able to clarify and perhaps set my mind at rest on this point.
§ 4.34 p.m.
§ LORD LEATHERLAND
My Lords, I rise for a moment or two merely to indicate to my noble and learned friend on the Woolsack that a voice is being raised in this House in support of the line that he has taken. The noble Lord, Lord Conesford, saw fit to call in aid of his case some words by the late Sir Winston Churchill. The words of Sir Winston Churchill were multitudinous and multifarious, and if I cared to search my memory sufficiently I could find many of them which expressed the view which he then held of the Conservative Party. But that would be quite irrelevant to our discussion here this afternoon. I felt that the noble Lord, Lord Conesford, rather weakened his case by having to depend, by having to fall back, on words which Sir Winston Churchill had used. It seemed to indicate that he was not quite confident of the force of the argument that he himself had been able to marshall against this Bill.
I also seemed to sense in the utterance of the noble Lord, Lord Conesford, some indication of the idea that if the county court judge had to sit with assessors then the respect in which that county court judge would be held by those who appeared before him was likely to be undermined. People, he indicated, would seem to feel that the judge himself was not competent to adjudicate in these cases, and that he really required the assistance of these other two people so that he could arrive at a proper judgment.
§ LORD CONESFORD
My Lords, the noble Lord in all his arguments is always so fair that I am sure he would not wish to misrepresent me. Of course, what I am saying is that that is the effect of the Statute without this Amendment: that the defendant is being told that Parliament considers this matter too difficult for the judge alone. That was the point I was making.
LORD LEATHER LAND
My Lords, the point is exactly the one I was making, except that, whereas I said the people who will appear in the court would gain that impression, now we are being told that that impression is being forced upon them by Parliament in all its wisdom. The argument is still the same.
The noble Lord, Lord Conesford, is a lawyer of great experience. I am not. 1571 But in my young reporting days it was my duty to attend county courts very regularly and to travel round my particular county at that time in Cheshire in the footsteps of the county court judge. The noble Lord, Lord Conesford, will remember him: His honour Judge Ruegg, the great authority on the Rent Act. I came to the conclusion that I have never seen tangled webs of evidence, of truth and of lying, unravelled with more complete efficiency than I used to see that task performed by the county court judge. I am quite sure that county court judges are quite competent to deal with any problem that comes before them, and to weigh up all the evidence that may be placed before them.
However, I am in favour of the appointment of these assessors. If the assessors are to be appointed—and I refer now to another of the noble Lord's arguments and to one which I think was used by the noble and learned Viscount, Lord Dilhorne—then I think they should be compulsorily present in every single case, and not merely be present in particular cases where somebody has asked for them. If we are to have an air of impartiality, then let them be there automatically on every occasion. If there is an element of picking and choosing as to when an assessor shall be sitting and when he shall not be sitting, I think it might undermine the measure of authority which the judge and the assessors would normally have.
I am very firmly of the opinion that if the county court judge finds it necessary in any case to retire to his private room to look up a point of law or for some other purpose, the assessors most decidedly should not retire with him. I further feel that if the assessors are to give any advice on native customs, social conditions, or matters of that kind, to the county court judge, then they should do so orally, loudly, and in such a manner that everybody in the court will be able to hear them. There should be no whispering into the judge's ear as there sometimes is whispering by the clerk of the court to the chairman of a bench of magistrates. Also, I feel that in giving their advice, or the benefit of their experience with coloured people, to the county court judge, the assessors should not say anything to the county court 1572 judge which really ought to be placed before the court in evidence and subjected to the possibility of cross-examination.
Having said all that, my Lords, I feel that many of the coloured people who come before our courts, in a strange land with customs far different from those prevailing in their own territories, may look upon the county court judge as the great symbol of law and order, and possibly of repression, and that the presence of two what I will call respectable civilians sitting on either side of the judge might enable these people, these deprived people, in many cases, to feel a greater sense of confidence in the impartiality of the court. With those few little provisos which I mention regarding the way in which the assessors should conduct themselves, I am heartily in favour of retaining the provision for assessors in the Bill.
§ THE LORD CHANCELLOR
My Lords, I am sure your Lordships will not want me to prolong the argument, but in case I be thought discourteous I should perhaps say two things. First, in reply to the observations made by the noble Earl. Lord Jellicoe, as to the extent to which the Government should meet the opposition to this Bill (with which basically, as he knows, I agree), I would respectfully point out that there is no doubt at all that there are a great many supporters of the Government who feel strongly that race relations is such a sensitive subject that it ought to be dealt with by special race relations courts and not left to a judge who may have had nothing at all to do with race relations or with coloured people.
Therefore, the Government moved to a second suggestion—and there were many who thought it the right solution —that the court should consist of a county court judge and two assessors hearing everything together and deciding by a majority. It may be that as a lawyer I am prejudiced, but to have a judge of questions—particularly if the questions involve to some extent questions of law—outvoted by two laymen would not have commended itself to me. Hence the Government have moved to the third suggestion; namely, that the judge only shall decide but that he shall have assessors sitting with him.
1573 Then there was a point stressed by the noble and learned Viscount, Lord Dilhorne, who asked whether the judge is obliged to ask questions of his assessors, and, if he does, what questions he is to ask them and on what points. The position will be exactly as it is under Section 91 of the County Courts Act, which provides that application may be made for assessors who are to assist the judge. The existing Act does not say how far the judge is bound to ask them questions, or exactly what questions he is to ask. It is left to him, and the position under this Bill when it becomes law will be just the same. For that reason, it does not seem to me that it would make much difference whether we leave in the assessors or take them out of the Bill, because without altering the County Courts Act I understand that the Board are entitled to say that they would apply in every case for assessors. I should imagine that, having been invited, learned county court judges would he unlikely to refuse, in which case we arrive at the same position, except for two points. First, some judges might differ; and, secondly, I feel with all respect that while I do not want any more work to do, I have local contacts all over the country. I have my county courts and their staffs, and I have 190 advisory committees on the appointment of justices of the peace. But it would have been difficult, I think, to have left it, under the Rules of the county court, for the registrar of the local county court in some way to find people skilled in race relations. I do not intend to continue the argument any further at this point.
§ On Question, Motion agreed to.