LORDS AMENDMENTS (Hansard, 15 November 1976)

§ Lord HARRIS of GREENWICH

My Lords, with the leave of the House, I beg to move that this House doth not insist on their Amendments Nos. 3 to 9 en bloc to which the Commons have disagreed for the Reason numbered 10. I should like to deal first with Amendments Nos 3, 4, 5, 7 and 9. I think it fair to say that there is general agreement with the proposition embodied in Clause 2(1) that where a person has asserted rights under the legislation, or otherwise been involved in its enforcement, he should be protected from less favourable treatment on account of his actions. I think it also fair to say that there is general agreement that it would not be right for the protection to extend to a situation in which the action taken, on account of which the less favourable treatment was given, was false and not made in good faith. The 1067 issue is whether the burden of proof in relation to the question of accuracy and good faith should fall on the complainant or on the respondent. The questions of fact which are involved in victimisation proceedings are these. First, has the complainant been treated less favourably in a situation within Parts II to IV? Secondly, is the reason for the less favourable treatment the fact that he did one of the things specified in Clause 2(1)(a) to (d)?

In relation to both of these questions, the burden of proof is, quite rightly, on the complainant. But he has a formidable task, for it will often be very difficult for him to prove the connection between the action he took and the less favourable treatment he received. The third question arises only after the complainant has made our a prima facie case on the first two questions, and it arises only where the complainant's action involved an allegation. The question is: Was the allegation false and not made in good faith? The noble and learned Lord, Lord Hailsham, contended that it should be for the complainant to show that the answer to this question was in the negative. We believe that it should be for the respondent to show that the answer is in the affirmative. The reason for this is that unless the respondent is satisfied that an allegation against him is false and not made in good faith, he should clearly not treat the complainant less favourably for having made it, and he should be liable if in this situation he does treat him less favourably. In the circumstances, we think it right and proper that the question of the truth and bona fides of an allegation is more appropriately incorporated in the victimisation clause as a defence rather than as a substantive part of the definition.

I come now, if I may, to Amendments Nos. 6 and 8. Both are similar in purpose to the Amendments I have just considered, inasmuch as they are intended to limit the scope of Clause 2. The effect of deleting Clause 2(1)(c), as proposed in Amendment No. 6, would be to deny the protection of the clause to persons who are victimised; for example, because they have given information to the Commission in the course of a formal investigation. We regard this Amendment as an unacceptable limitation on the clause. Amendment No. 8 would have the effect that, whereas 1068 it would count as victimisation if an employer were to treat an employee less favourably because he knows the employee has, for example, made an allegation against him, it would not count as victimisation if he were to treat the employee less favourably because he merely suspects that he has made an allegation. Again, we regard this as unjustifiable, and for those reasons I submit these Amendments to the House. I beg to move.

§ Lord HAILSHAM of SAINT MARYLEBONE

My Lords, the dialogue with the Commons is once again a dialogue with the deaf. All they have said in their Reason numbered 10 is that they are right and we are wrong, without giving any additional reasons for it. The noble Lord, Lord Harris, showed, I thought, the weakness of his position (although I do not complain of the course he took, because it was directly in response to the course I took) by citing the position as regards employment, which can have, I think, very little relation to the burden of proof. He said that the position has been improved by race relations legislation in the field of employment. I prefaced my remarks by saying that I have never denied that there was a limited function which legislation can perform in this field, and on a previous occasion, though not on this one, I cited employment and tenancy as two examples where this might very well be the case: and if anyone is interested to research into the very boring discussions which we had in the Commons in 1968, he will see that I said so then at much greater length than I am saying so now.

Here we have another situation where the well-tried principle of the burden of proof is turned round, and turned round, as I submit, for no good reason at all. The noble Lord said—and I am quoting him—that it is clearly for the respondent to establish the falsity of the information or the bad faith of the informer. I do not think it is clear at all. Whenever I hear the word "clearly" or the word "obviously" in a political argument, I know that somebody is skating round a difficulty, and I immediately draw out my 1069 intellectual six-shooter. However, I do not want to do the noble Lord any harm, and so I will not underline it more than by saying this.

An employer—suppose he is a farmer, or suppose he is a landlord—is not bound to take any other kind of tenant who has informed against him or who he believes to have informed against him to the police or to the law enforcement agency. Your Lordships may think that it is right or your Lordships may think it is wrong. Personally, I think it is right, because I think that this country remains basically a free country, and all kinds of morally wrong and unreasonable behaviour are lawful in a free country. Indeed, it is arguable that the only freedom which it is worth having is the freedom to do that to which other people object. If they do not object to it, there is no reason to demand the freedom. In every other case discrimination is to be allowed, but not in the case of race relations. Now it can be seen why it is that the white majority in this country find that, by legislation of this kind, their fears for their future, their fears for their set of values, are not being allayed by proposals of this kind but are actually being exasperated and corroborated by legislation of this kind; because they see that, whereas in every other case they are free to discriminate against persons who they think have done them a wrong, in this case they are not, and in this case they have to prove their innocence or else they are assumed to be guilty. However, the same reasons which I gave on my first intervention seem to me to apply in this case, too, so I have nothing more again to say except that this will make race relations worse.