RACE RELATIONS BILL

HL Deb 27 September 1976 vol 374 cc114-61

8.13 p.m.

House again in Committee.

Clause 2 [Discrimination by way of victimisation]:

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 7: Page 2, line 16, after ("brought") insert ("in good faith").

The noble and learned Lord said: We now come to Clause 2 of the Bill and I rise to move the first of a number of rather different Amendments relating to this clause. This Amendment which I am now moving is to insert at line 16 the words, "in good faith". At first sight, I think the Committee would be rather slow to appreciate the real purpose behind such an Amendment, the purpose of which is really to get rid of subsection (2) and the aim of which is to change the burden of proof in proceedings from the defendant to the complainant or the prosecutor. In fact, in some ways—

Lord HARRIS of GREENWICH

May I just ask the noble and learned Lord a question? As he has just indicated, he is moving the first of these Amendments. Would it be his wish to confine the debate entirely to the first of the Amendments, or would he like to assume that we shall discuss the broader issues which relate to this entire group of Amendments?

Lord HAILSHAM of SAINT MARYLEBONE

My thought was that the Amendments do not all raise exactly the same point, but we might have a fairly broad debate on this Amendment and, if we did have one, we could probably take separately those which do not involve the same point, but possibly at rather shorter length. But strictly speaking, and technically speaking, not all the Amendments to Clause 2 which stand in my name involve the point which I am now currently engaged in making.

The purpose of inserting the words "in good faith" after the word "brought" in paragraph (a) at line 16 is ultimately to get rid of subsection (2), and the purpose of doing that is exactly the same as the purpose of my previous Amendment in relation to Clause 1. The purpose in relation to Clause 2 is to put the burden of proof firmly on the prosecution or the complainant. I hope that I have now made that much plain. That being so, a great deal of what I have to say on Amendment No. 7 has already been said and will not be repeated. But I must point out that it must be seen, as indeed must the succeeding Amendments be seen, against the background of Clause 2 which is different from Clause 1, because Clause 2 is a particularly onerous and oppressive clause, whatever the desirability or undesirability of it may be thought.

The purpose of Clause 2 is to make a person guilty of discrimination, even when otherwise he would not have been found guilty of discrimination at all. That is its purpose and that is what, if it is unamended or passed in any form, it will achieve. Clause 1 and the succeeding parts of the Bill tell people, in substance, that if they discriminate against a fellow on grounds of race, colour or whatever we have been describing, they are guilty of an unlawful act under the Bill. But Clause 2 deals with people who have not, in fact. discriminated against others on grounds of race, colour or whatever else. That is the purpose of Clause 2 and one can see the arguments in favour of it, and I hope that the noble Lord will be as frank in conceding the arguments against it.

The purpose of Clause 2 is to say, notwithstanding the fact that you have not discriminated at all under the main provisions of this Bill, that if somebody brings proceedings against you under paragraph (a), or gives evidence or even information against you under paragraph (b) or paragraph (c), which will require separate consideration under a different Amendment, in relation to anything else under the Bill, or if it is known or even suspected, then you are to be treated as having discriminated against him. In my opinion, that is pretty rough stuff. A man who is innocent of anything is to be treated as guilty of something, though he has not admittedly done it, if somebody else says something untruthful against him.

Let me give your Lordships an example. I have already said how oppressive this can be in relation to Clause 12. It can stop a man from entering a profession. Under Clause 65 it can submit him to various penal procedures. Under Clause 66 it can submit him to an unlimited action for damages. But look at it in relation to Clause 25, to which we shall come in due course, about clubs.

Clause 25 says that people who will not allow on racial grounds people into clubs of 25 or over shall be guilty of an unlawful act. Let us suppose that I am a member of the Carlton Club, that somebody wants to join the Carlton Club and that he suspects or thinks that I have said, "You can't have this fellow because he is an Irishman"—or a black man or, perhaps worst of all, an Englishman. Let us further suppose that he thinks I have done that, with the result that he gives evidence against me to the Board and that they make me the subject of an inquisition or a charge.

This clause says that if I do not treat that man who has brought this false information against me in the same way as everybody else, I am to be treated as guilty of having done the thing which he has wrongly accused me of doing. That is the intention and that is what they want to do. It means that under Clause 12 I cannot become a barrister, that I may be liable to damages under Clause 66 and that I can be made the subject of an inquisition under Clause 65. This seems to me to be even rougher stuff because it is more than human nature will stand if you are made the victim of a charge of this kind, and the more odious the charge the more likely you are to resent being made the victim of it. I would not have such a man in my club. If originally I had been in favour of it, I should say I would resign rather than have that man in my club. But not a bit of it; I would not dare to say so if this Bill goes through.

All that is, as I say, pretty rough stuff; but, in the light of that, let us look at subsection (2) because it is that subsection with which I am concerned. Subsection (2) says that I am guilty unless I can prove myself innocent. It says so in plain and unmistakable terms. I have to prove both that the information was false and that it was not made in good faith before I can get out of all these adverse consequences. That is what the noble Lord is doing.

On the previous Amendment that I moved to subsection (1) the noble Lord, Lord Harris of Greenwich, assumed the white sheet of total innocence. He said, "Oh dear, no, we are not trying to make you prove a negative; quite the reverse. You have to prove a positive." But what about this point? You have to prove that the allegation was not made in good faith unless you are to be held guilty of something that admittedly you have not done. That is what this subsection is doing and it is pretty rough stuff. It is removing from the Statute Book any sense of propriety from the ordinary rules of law and the ordinary procedures which English law has hitherto proceeded upon. I think that the Government have gone mad simply because "race" is mentioned here. We are subverting the proven values of English law and it is for the purpose of re-establishing the values of English law that I move this Amendment.

How does my Amendment do this? It does it in a perfectly simple way. It is a very modest Amendment because hope I have made it clear that I do not like Clause 2; it is very oppressive. What my Amendment does is simply to say, "The Government have admitted to me by Clause 2 that if information was false and not made in good faith, Clause 2 should not apply". Therefore all I have said is that the proceedings must have been brought in good faith. That puts the burden of proof on the complainant before you can bring in this oppressive series of consequences. Whether it is good to bring in the consequences at all I beg leave to express considerable doubt about.

My whole object in moving Amendments at this late stage of the Bill is to remove some of the most glaring injustices. I said at the beginning that I am trying to remove the unintelligible, the unenforceable, the oppressive and the contrary to English procedures. This goes against the oppressive and it goes against the contrary to English procedures. In those words I beg to move the Amendment.

8.25 p.m.

Lord HARRIS of GREENWICH

I will, if the noble and learned Lord will forgive me, deal with a group of Amendments which have the same central purpose—that is, Amendments Nos. 7, 9, 11 and 14—and cover the same point. I will speak to them together although if the noble and learned Lord wishes on a subsequent occasion to speak to them, well and good. As the noble and learned Lord has said, this is an important clause of the Bill and it is right that it should receive the most careful scrutiny. It might be most appropriate if I were to say a few words about the general effect of Clause 2 of the Bill before I come to the precise question raised in this group of Amendments.

The proposition embodied in Clause 2(1) is 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. The question to which Clause 2(2) and the Amendments we are now considering are directed is, in what circumstances should a person forfeit the right to that protection. The Government's view, reflected in Clause 2(2), is 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 malicious—in other words, if the action amounted to an allegation which was false and which was not made in good faith. It is also our firm view that this is the only situation in which the clause should not apply.

Before I come to the Amendments themselves, I would ask your Lordships to bear in mind how important the victimisation proposals in this Bill are. Your Lordships will be aware that the enforcement provisions of the Bill invite the victims of racial discrimination to assume more responsibility for the enforcement of legislation than they had hitherto had. To put it in more colloquial terms, they have got to stick their necks out in a way which they have not had to do in the past. If that purpose is to succeed it is surely important that we should ensure that adequate protection is afforded, and should be seen to be afforded, to those who seek to assert their new rights of redress. This is why, apart from the arguments of principle and more practical considerations, it is important to keep to the minimum the exceptions to Clause 2 and to ensure as much certainty as possible so far as the operation of this clause is concerned.

If I may take what I have described as this group of Amendments together—that is, Amendments Nos. 7, 9, 11 and 14—these Amendments would jointly have the effect of reversing the evidential burden in the clause in relation to the vital question of whether the complainant did in fact act in good faith. As the clause stands, it will not protect a person who makes an allegation which the respondent can show to be both false and made otherwise than in good faith. If Amendments Nos. 7, 9, 11 and 14 were made, the onus would be on the complainant to show that in doing what he did he acted in good faith. We have given this important question of the burden of proof in relation to good faith very careful consideration, but I have to tell the Committee that we do not believe that it would be right to reverse it in the circumstances which I have outlined. It has to be borne in mind in considering this matter that a complaint that a person has victimised another will not succeed unless the complainant can satisfy the tribunal or court on the balance of probability not only that he was treated in a situation to which the Bill applies less favourably than other people were, or would have been, treated but also that the reason for the treatment was the fact that he had done one of the things specified in subsection (1), paragraphs (a) to (d).

This is not a light burden for the complainant to have to discharge, and it puts the point raised in Amendments 7, 9, 11 and 14 in proper perspective: the question we have to consider is what exceptions the Bill should afford a respondent who has been shown to have treated the complainant less favourably on account of an act by the complainant within subsection (1)(a) to (d).

We remain of the view that an exception is only appropriate in cases where the complainant has made an allegation within subsection (1)(a) to (d) and where the respondent can show that the allegation was false and not made in good faith. If the respondent cannot show this, I do not believe he was justified in treating the complainant less favourably on account of the allegation, and do not believe that it would be right for him to escape liability. That is why the Government oppose and resist the Amendments which I have outlined.

In moving Amendment No. 7, the noble and learned Lord referred to subverting the values of English law and an oppressive series of consequences. Now he will realise, of course, the point that is about to come. We both agreed earlier today that we would do our best to avoid repeating ourselves, but I must point out that this was agreed in the Sex Discrimination Act of last year. That being so, I do not quite understand why rhetoric of this sort is employed, because I do not believe that this is oppressive, as the noble and learned Lord has suggested today. I think this is a reasonable series of steps which the Government have outlined in order to deal with the situation where complainants in the future are in fact going to have to take greater risks than they have taken in the past. They may conceivably be the victims of victimisation, and that being so it seems to me perfectly right that at a time like this we should take all appropriate steps to safeguard the people who are in that position. That is why we adopt the position we do.

Lord HAILSHAM of SAINT MARYLEBONE

That is one of the most extraordinary defences that I have heard for some time. First, about victimisation. There will be victimisation under the Bill, both ways. Let us not make any mistake about that. The coloured people will bring complaints—and they have been doing so—in cases where they suspect that employers have not employed them because of their colour. People who want to join clubs under Clause 25 will bring complaints, and equally tenants who want to obtain accommodation will bring complaints. Some of these complaints will be in good faith, some will be in bad faith. One does not wish to predict how many will be in good faith or how many in bad faith, but there will be some in bad faith. Indeed, my experience over 12 or 15 years has been that a great number of people feel that they have failed to get appointments or degrees, accommodation or employment on grounds of colour when in fact they have been rejected on grounds of competence.

There will be victimisation both ways, and when one enters into the field of clubs, which is the particular example I chose, there will be a number of complaints of one sort or another related to the admission of somebody to a voluntary organisation such as a club. To say to a man: "I may have accused you falsely. I may have done so in bad faith but you will first have to prove that or else you will have to admit me to the club or employ me to work next door to you or to enter into accommodation which you provide, or else you will not be allowed to join a profession or you will be submitted to an inquisition or else you will be made to pay damages", not for the original offence which was false, but for the subsequent offence, seems to me to be straining human nature to the utmost.

I said at the beginning that unenforceable and oppressive law is counter-productive. It really is not true that I am in favour of any form of discrimination on grounds of race, but if we start going mad when we use the word "race" and destroy the entire fabric on which English law is based we shall get into very deep water indeed. The noble Lord thought that he had made a very good point when he spoke about the Sex Discrimination Act. I did not take any part in the debates on that Bill, but I said during the Second Reading of this Bill that in my opinion the Sex Discrimination Act had been too short a time in existence for it to be found to be oppressive. We spent hours and hours discussing the placing of commas and other details of the Sex Discrimination Bill when it was going through this House, and if by any chance we did not discuss this aspect we did not do our duty; but I simply fail to understand why, if we did, we must introduce it again in this Bill. I am really not going to take the res judicata argument from the noble Lord in this respect, and I will venture to say that years ago, long before the noble Lord was a member of the Government, when the noble Lord's predecessors were passing through the House of Commons the Race Relations Act of 1968, I deliberately made them face the situation of race, religion and sex as a single complex and they defeated me by the rules of order. So I am innocent in this respect. The truth is that the noble Lord has made no effective defence whatever of a repressive clause and he seeks to retain the burden of proof on the defence in a way which I believe is not only repressive but will worsen race relations in this country. Therefore I propose to take this matter to a Division.

Lord AVEBURY

I have listened to both speeches on this Amendment, and I must disagree with the noble and learned Lord. I thought the Minister made an extremely effective defence of Clause 2 of the Bill and in particular the rebuttal of the arguments advanced by the noble and learned Lord, Lord Hailsham, in favour of this particular series of Amendments. While I do not accept that there is such a doctrine of res judicata in relation to the Sex Discrimination Act, I think it is becoming more and more obvious as we proceed with this Bill that points of principle arise on the Tory Front Bench in relation to race where they were conspicuously absent in relation to sex. This is not coincidental. Although the noble and learned Lord may not himself have been involved in the proceedings on the Sex Discrimination Bill, the reason is that the Tory Party takes a much more lenient attitude in relation to discrimination in regard to race than it did in regard to sex, and I am sorry that this should be coming across so clearly in your Lordships' House at the moment.

In regard to the instances advanced by the noble and learned Lord, let me take the Carlton Club first, because on one occasion I attempted to persuade the Government that the matter of clubs should be dealt with in advance of the general legislation now before your Lordships, and I am convinced that if that had been done it would have been conducive to better race relations in this country. However, that is now water under the bridge.

Let us suppose that somebody wishes to join the Carlton Club and he suspects that the noble and learned Lord has blackballed him. He makes a complaint to whatever organisation under the Bill deals with complaints against clubs, and in the meantime in some totally different relationship he treats him less favourably than another because he is aware that this person has made a complaint against him. Let us say, for example, that the noble and learned Lord is the employer of this individual who has applied to join the Carlton Club and at work he gives him all the nasty jobs to do because of the complaint that the complainant has made against him in respect of the Carlton Club. Does the noble and learned Lord think that that is a proper attitude? Does he think that if someone has made such a complaint against him it is right for him to exact retribution in some totally disconnected field?

Or let us take the question of complaints against employers, mentioned in the second speech of the noble and learned Lord. Does he think that, in this closer connection where someone made a complaint of discrimination at work, the employer is justified in victimising that person, for example, again by giving him the nastiest jobs in the factory to do while that complaint is pending? As the Minister said in his reply, we are asking complainants to do something which may have quite serious consequences for them. The noble Lord the Minister said we are asking them to stick their necks out in conducting the complaints on their own behalf, where previously they have had a powerful organisation to do it for them.

The Committee will be aware that this is one of the criticisms that some people have made of this Bill; that is, that we are placing too great an onus on the complainant, and, unless we provide for him the back-up resources of the Commission for Racial Equality which have been strengthened as the Bill passes through Parliament, it is likely that the number of complaints will be diminished, and that many injustices will not be rectified even though, as Jeoffrey Viner put it, this Bill represents an extremely powerful legal armoury. It is only an extremely powerful legal armoury for the complainant if he actually uses the machinery offered to him, and he will not do it if he thinks there can be retribution exacted by the person complained against in the manner described by the noble and learned Lord, Lord Hailsham.

So I hope that the Tory Party, if they are of the same mind as the noble and learned Lord, will reconsider their attitude on this matter. It is one of the cornerstones of the Bill that complainants should have free and unrestricted access to the machinery which is provided for them. If you deny this access or undermine it by making them subject to victimisation, you will destroy the Bill.

Lord HAILSHAM of SAINT MARYLEBONE

I am reluctant to detain the Committee, but it would be a disappointment to some of my noble friends if I did not reply to that quite extraordinary speech to which we have just listened. I very much regret that the noble Lord, Lord Avebury, in sharp and startling contrast to the reasonable attitude of the noble Lord, Lord Harris of Greenwich, should introduce Party politics into this matter, and talk about the Tory Front Bench, and things of that kind. I have established quite plainly that, in so far as I am concerned—and for this purpose I am speaking solely for myself, although on both of the occasions I referred to I was speaking from the Front Bench of the respective House I was in—I have always treated sex, religion and race on the same footing. I established that I had sought to move in the other place, when the 1968 legislation was going through, a clause or clauses which would have put them on the same footing and contained them within the ambit of the same rules in the same legislation. So, far from taking a different view about sex and religion from race, I have failed but tried my best; so as usual, when it comes from the noble Lord, Lord Avebury, that is wholly without foundation.

I now deal with the substance of the speech of the noble Lord, Lord Avebury. We are here discussing the burden of proof; we are not discussing what conduct is reprehensible or not reprehensible. That was the question the noble Lord put to me, but it is irrelevant. We are discussing whether conduct designated by

Resolved in the affirmative, and Amendment agreed to accordingly.

8.52 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 8: Page 2, line 18, after ("given") insert ("accurate").

The noble and learned Lord said: If I am not going to be tied too closely, I think really this is consequential; the the Bill as reprehensible should be assumed against a person so that he is guilty unless he is proved innocent, or whether he should be innocent unless proved guilty. That is the only point at issue in my present Amendment. I really think that the noble Lord is less than his intelligent self if he requires to be told it twice, but now he has been told it twice, and I hope at least the Committee, even if not he, has taken it in. I beg to move.

8.45 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 53; Not-Contents, 26.

CONTENTS
Armstrong, L.	Gridley, L.	O'Hagan, L.
Balerno, L.	Hacking, L.	Redesdale, L.
Belstead, L.	Hailsham of Saint Marylebone, L.	St. Aldwyn, E. [Teller.]
Bridgeman, V.	Harvington, L.	Salisbury, M.
Byers, L.	Hatherton, L.	Sandford, L.
Carr of Hadley, L.	Hives, L.	Sandys, L.
Carrington, L.	Hornsby-Smith, B.	Savile, L.
Chelwood, L.	Hunt of Fawley, L.	Seear, B.
Clifford of Chudleigh, L.	Inglewood, L.	Strathclyde, L.
Clitheroe, L.	Kemsley, V.	Tenby, V.
de Clifford, L.	Killearn, L.	Tranmire, L.
Denham, L. [Teller.]	Lyell, L.	Tweedsmuir, L.
Dundee, E.	Macleod of Borve, B.	Vernon, L.
Elles, B.	Monck, V.	Vickers, B.
Elliot of Harwood, B.	Monson, L.	Vivian, L.
Elton, L.	Mottistone, L.	Wigoder, L.
Falmouth, V.	Mowbray and Stourton, L.	Yarborough, E.
Foot, L.	Newall, L.

NOT-CONTENTS
Avebury, L.	Hughes, L.	Rusholme, L.
Birk, B.	Jacques, L. [Teller.]	Slater, L.
Brockway, L.	Kirkhill, L.	Stedman, B.
Champion, L.	Lee of Newton, L.	Strabolgi, L.
Collison, L.	Llewelyn-Davies of Hastoe, B.	Taylor of Mansfield, L
Davies of Leek, L.	Lyons of Brighton, L.	Wells-Pestell, L.
Delacourt-Smith of Alteryn, B.	Oram, L. [Teller.]	White, B.
Goronwy-Roberts, L.	Pitt of Hampstead, L.	Winterbottom, L.
Harris of Greenwich, L.	Popplewell, L.

main object of this Amendment is identical with the last Amendment. The difference is that I did not insist that the proceedings should be successful proceedings. I had originally put down an Amendment in this sense instead of No. 7, but I took it out again. But I think that the information should be shown to be accurate. The only effect of this is to reverse the burden of proof again. Now that we have had two Divisions, I would only say by way of addition to the noble Lord, Lord Avebury, that it was he and not I who introduced Party politics into this discussion. I would like him to study both Division Lists to see how many of the Liberal Party supported his fantastic view.

Lord HARRIS of GREENWICH

On the particular point that the noble and learned Lord has just raised, I would not contest that Amendment No. 8 is related so directly to No. 7 that the views of the Committee have been made known. I would say the same for Nos. 9, 11 and 14.

Lord HAILSHAM of SAINT MARYLEBONE

I beg to move Amendment No. 8.

On Question, Amendment agreed to.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 9: Page 2, line 18, after ("given") insert ("in good faith").

On Question, Amendment agreed to.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 10: Page 2, line 21, leave out paragraph (c).

The noble and learned Lord said: It would not be fair to say that this Amendment is consequential on the other two, so I had better propose it shortly. This is still the victimisation clause which we have discussed in the previous two Amendments. It is provided by this clause that a person, although he has not discriminated on the grounds of race or colour, is to be treated as having done so if the person against whom he acts in a discriminatory fashion has "brought proceedings"—which we have passed"—given evidence or information "—which we have passed—or otherwise done anything under or by reference to this Act in relation to the discriminator or any other person". I said at the outset that I was concerned to eliminate the unintelligible, I was concerned to eliminate the unenforceable. I was concerned to eliminate the oppressive, and I was concerned to deal with things that were contrary to the principles of English law. I cannot indict paragraph (c) as being the last, because I do not understand it; it is unintelligible; it is certainly unenforceable and it is certainly oppressive. I beg to move.

Lord FOOT

May I add to the noble Lord's indictment that it is meaningless.

Lord HARRIS of GREENWICH

I have once or twice pointed out the apparent inconsistency between the position of the noble and learned Lord and the position taken, in his absence, on the Sex Discrimination Act. The noble Lord, Lord Foot, having just intervened, I would join him with the charge. He has been cheerfully voting against the position of his Party on the Sex Discrimination Act. I am sure it will be taken into consideration by the Liberal Members of another place, who, of course, took a totally contrary view. Having made that point, not between the noble and learned Lord and myself, who are behaving impeccably, but in relation to the Liberal Party or certain representatives of it, I would turn now to the particular Amendment.

Certainly I would agree that this appears to go rather wide. The noble and learned Lord will not be astonished to learn that I would not go so far as to say that it is unintelligible, as he describes it. I think the most sensible thing for me to do would be to give a couple of examples in which the protection of the victimisation provision ought to be available but which are not covered by paragraphs (a),(b) or (d). First, only paragraph (c) will afford protection to a person who gives evidence to the Commission for Racial Equality during the course of a formal investigation. If this provision were not there, there would be no protection whatever for a person who was giving evidence in an investigation of that character.

Secondly, only paragraph (c) will afford protection, for example, to a person who assists another to assert his rights under this legislation. Short of spelling out every example we can think of where the protection of the clause is desirable, we see no alternative to the form of words set out in paragraph (c). That is why it is drafted as it is. I agree that it appears to go rather wide. On the basis of the explanation I have given, of two quite important examples where there is a quite significant protection afforded, and taking into account the argument that it is important to look very seriously at this question of victimisation—given the fact, as Lord Avebury pointed out, that there has been substantial criticism outside the House and to some extent in another place that the rights of some people who have a justified complaint will be to some extent deleteriously affected by this Bill—I think it is right to consider very carefully before we strip away protections offered in the Bill to the possible victims of victimisation.

Lord HAILSHAM of SAINT MARYLEBONE

I think the noble Lord has done his best but it is a very feeble best, is it not? He is trying to conceal what is really, if he will forgive my saying so, the nakedness of the land. Of course, if he put forward in a properly drafted form, a case which needs protection one would consider whether the victimisation clause ought to apply to it. But to say that because we have drafted the thing so badly that it does not cover information given to the Commission which we are setting up, and one other instance which I have now forgotten, is not a good reason for saying that anything which the man does under or by reference to the Act is to be penalised, is to count towards the penalisation of a person who has not himself been guilty of racial discrimination. This is really draftsmanship run wild.

I am not in the least interested in whether the thing is already in the Sex Discrimination Act or not. I simply am considering the merits or demerits of this Bill. It is the first time I have turned my mind to it, and I am encouraged to know that the noble Lord, Lord Foot, has turned his mind to it in the same way. He thinks it is meaningless; I thought it was unintelligible. Well, there is a difference between us, but perhaps it is unintelligible because it is meaningless.

Lord FOOT

If I may intervene once again, I should like the noble Lord the Minister to answer this question. Supposing it comes before a bench of magistrates to decide whether a person victimised has done something he should not have done or not done something he should have done, how are they going to answer the question as to whether the person victimised has otherwise done anything under or by reference to this Act in relation to the discriminator? Does it mean that the person supposedly discriminated against, the person victimised, if he has done anything in relation to the discriminator, has then a source of complaint? The words appear to me to be completely unqualified and undefined. I should like to ask the noble Lord whether he comprehends the circumstances in which the person victimised can make a complaint.

Lord HARRIS of GREENWICH

As to a bench of magistrates, if I may begin with that point, a case will go to a county court. If I may say so, though the noble Lord became rather cross with me when I pointed out that he appeared to have been confusing the civil law with the criminal law, he appears to be continuing to misunderstand this provision of the Bill. There is no question of a bench of magistrates being involved in this. It is a question for the county court, as the noble and learned Lord, Lord Hailsham, has just pointed out.

It is a difficult question, and, though I would not accept the implied criticism that I had accepted something of what the noble and learned Lord said, certainly I would consider very carefully any question of any amendment at the Report stage on this important question. If the noble Lord, Lord Foot, feels that the language which has been used is too obscure, too imprecise, I would certainly be prepared to look carefully and as sympathetically as possible at any form of words he might put before the House.

I believe, however, that the two examples which I gave are important examples. First of all, on the question of the person who gives evidence to the Commission for Racial Equality during the course of the formal investigation, there is a protection there. I do not know whether the noble Lord thinks it right to give such a protection. I should have thought that he probably would take the view that it was reasonable to give such a protection. Secondly, there is the question of whether a person who assisted another to assert his rights under this legislation should be protected as well. These are the two issues which are affected so far as paragraph (c) is concerned.

I think that we have done as well as we possibly can to define what is, in fact, a rather difficult thing to achieve. If I may say so, it is easy to poke fun at this, but we are moving into a difficult situation where complainants are going to have to become much more actively involved in the pursuit of their own complaints than is the position at the moment. If this Bill is to be workable, and I am quite sure that every Member of your Lordships' House would wish it to be so once it is on the Statute Book, it is essential that we have reasonable guarantees against victimisation of people concerned.

If the noble Lord, Lord Foot, on reflection would like to discuss this with me, or put down an Amendment, I shall gladly look at the matter most carefully. I am only anxious to ensure that we have as reasonable a piece of legislation as is possible in a very difficult field. Without that, I am bound to say that I think that the Bill, as drafted, is as reasonable as it possibly can be.

Lord HAILSHAM of SAINT MARYLEBONE

To be honest, I really do not think that this will do, because in this case the burden of proof is on the Government to justify their proposals. I do not think that the Government have justified their proposals. It is all very well to say to two unfortunate Members of the Opposition, the noble Lord, Lord Foot, and myself, of different Parties, that we must think up an Amendment to make sense of the thing.

Lord HARRIS of GREENWICH

With great respect, the noble and learned Lord is always fair, and I did not say anything of the sort. I said that if the noble Lord, and indeed I extend the invitation to the noble and learned Lord himself, would choose to put down an alternative form of words, I would ensure that the matter is considered and I am sure that my right honourable friend the Home Secretary would want to consider it. What I have said quite explicitly is that I think the present form of words is as reasonable as it can be in the difficult situation that arises on this particular question.

Lord HAILSHAM of SAINT MARYLEBONE

There is the point of difference between us. I think that the words as proposed are unreasonable and much too wide, and the Government have not established a case for doing it. Obviously, between now and Report, I shall try and scratch my head, as I have scratched my head throughout the Recess, as to how to improve this wretched subsection, but I do not think I can. I shall do my best, but the burden is on the Government and I am bound to tell the Government that at this stage I think that we ought to take the provisions out because if they want to put something back in the burden rests on them.

Lord AVEBURY

I wonder whether I could put my question to the Minister. It might assist the noble and learned Lord to decide whether or not he spends his time in drafting a further Amendment. The noble Lord the Minister said that there were two examples of circumstances that might be covered by paragraph (c). He mentioned the person who gives evidence before the Commission when it is conducting its general investigation under Clause 48, and the person who assists the complainant in making out a case, for example, before the industrial tribunal. If those were the only two cases that we could identify, then we could cite them explicitly instead of having the general wording of paragraph (c). On the other hand, perhaps what the noble Lord really means is that the two examples he gave are ones that he has been able to identify at short notice, and that it would be an enormous task to go through the whole Bill and make sure of every possible action done under, or by reference to, this Act in relation to the discriminator, or any other person; to identify all the possible references in the Act which might have some implication here would be an enormous task for the Parliamentary draftsman. At the end of the day, one could not be absolutely certain that one had covered them all, and therefore one needs the blanket wording that we find in this provision.

With respect to my noble friend Lord Foot, I should not have thought that the county courts would find that much difficulty in interpreting these words in relation to the discriminator or any other person. The Minister outlined one example relating to the discriminator and one that could relate to any other person. As I say, I should not have thought that the county courts would have much difficulty in seeing which of the cases referred to which of those phrases in the provision.

The noble Lord, Lord Harris of Greenwich, said that this provision was in the Sex Discrimination Act. Maybe we have not had long enough experience of that Act to know whether the county courts have had any difficulty in interpreting these words. If they had, I imagine that some indication of that fact would have been given by the lawyers. If there had been any insuperable difficulties they would have reported that fact to the Home Office and the Minister would have been able to tell us about it at this stage, and obviously he would have suggested that the wording be modified and I have no doubt that later on we would have made a corresponding Amendment to the Sex Discrimination Act so as to make the phrase more easily interpreted in both contexts. As the noble Lord has not done that and as I have not heard of any lawyers coming forward with such a suggestion, I do not think that the difficulties of interpretation mentioned by the noble and learned Lord and my noble friend are likely to arise.

Lord HAILSHAM of SAINT MARYLEBONE

So far as I am aware, there has been only one case under the Sex Discrimination Act and that concerned a woman who wanted to become a lorry driver, which did not raise any point in this connection. In other words, the Act has not been long enough on the Statute Book for anybody to see what it means.

Lord HARRIS of GREENWICH

The noble Lord, Lord Avebury, is right when he said that I gave two examples, but there could be others. If there were only two cases where one thought that there would be a problem of the kind which I defined, one could write them

into the Bill, but there could be others and that is why paragraph (c) is drafted in this way. If I may say so in the amiable spirit that has characterised all the exchanges between the noble and learned Lord, Lord Hailsham of Saint Marylebone, and myself, I am bound to say that he has made on some occasions the point that he has been in favour consistently, as indeed he has been, of one general omnibus discrimination Bill affecting sex and race and other questions. Increasingly I should welcome the position of being a fly on the wall when the noble and learned Lord is discussing these matters with his noble friends who discussed the Sex Discrimination Act with us because, as Lord Avebury said in somewhat partisan terms, which I dare not reproduce in the noble and learned Lord's presence, it seems to me remarkable that there are such substantial issues of law about which the noble and learned Lord feels strongly—I have no doubt about that at all—but which nevertheless were not taken on a previous occasion. Having made that short and slightly, though mildly, ill-tempered remark, I would only add that for the reasons I have set out I think that the wording of paragraph (c) is reasonable, but if the noble and learned Lord wishes to press the matter, he must of course do so.

9.14 p.m.

On Question, Whether the said Amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 23.

CONTENTS
Armstrong, L.	Foot, L.	Newall, L.
Balerno, L.	Hailsham of Saint Marylebone, L.	O'Hagan, L.
Belstead, L.	Harvington, L.	Redesdale, L.
Bridgeman, V.	Hatherton, L.	St. Aldwyn, E.
Byers, L.	Henley, L.	Sandford, L.
Chelwood, L.	Hives, L.	Sandys, L. [Teller.]
Clifford of Chudleigh, L.	Hornsby-Smith, B.	Savile, L.
Clitheroe, L.	Hunt of Fawley, L.	Seear, B.
de Clifford, L.	Inglewood, L.	Strathclyde, L.
Drumalbyn, L.	Kemsley, V.	Tranmire, L.
Dundee, E.	Killearn, L.	Tweedsmuir, L.
Elles, B.	Lyell, L.	Vernon, L.
Elliot of Harwood, B.	Monson, L.	Vickers, B.
Elton, L.	Mottistone, L.	Wigoder, L.
Falmouth, V.	Mowbray and Stourton, L. [Teller.]	Yarborough, E.
NOT-CONTENTS
Avebury, L.	Hacking, L.	Pitt of Hampstead, L
Birk, B.	Hale, L.	Rushholme, L.
Brockway, L.	Harris of Greenwich, L.	Stedman, B.
Champion, L.	Hughes, L.	Strabolgi, L. [Teller.]
Collison, L.	Jacques, L.	Wells-Pestell, L.
Davies of Leek, L.	Kirkhill, L.	White, B.
Delacourt-Smith of Alteryn, B.	Llewelyn-Davies of Hastoe, B.	Winterbottom, L.
Goronwy-Robert, L.	Oram, L. [Teller.]

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

9.20 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No.11: Page 2, line 24, after ("alleged") insert ("in good faith").

The noble and learned Lord said: This is a consequential Amendment. It raises the same point as one which we have already fully discussed. I beg to move.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 12: Page 2, line 27, leave out lines 27 to 29.

The noble and learned Lord said: This Amendment goes on the unenforceable and unintelligible line. I simply do not think that one could possibly enforce, or even understand or prove, anything which is so vague as to say, by reason that the discriminator … suspects that the person victimised has done, or intends to do, any of those things which are mentioned. I think it is quite unintelligible and quite unenforceable, and so I beg to move.

Lord HARRIS of GREENWICH

Once again, unhappily, the noble and learned Lord and myself are in disagreement. We start in this matter from the premise that the victimisation clause should protect people who have done any of the things specified in Clause 2(1) paragraphs (a) to (d), provided, that is, that they can prove to the satisfaction of the court or tribunal that the less favourable treatment they have suffered was on account of the action they had taken. We do not accept that the protection should be denied to a person who is contemplating legal proceedings under the Bill or who is about to give evidence to the Commission. Indeed in such cases the removal of the protection seems particularly dangerous.

It seems to me that that is a significant argument which the noble and learned Lord, if he will forgive me saying so, does not meet by saying that this is unintelligible. I think that it is perfectly intelligible. The intention here is to protect the person who is about to give evidence and who the potential victimiser may well know is contemplating doing so. In a situation of this kind it seems to me, with respect, to be going a very substantial distance indeed to say that the person concerned, who is contemplating giving evidence to the Commission, can be victimised and have no redress as a result of it. Therefore, it seems to me that this particular form of words is reasonable, and I do not think that the case against it has been made out. For that reason I hope that the noble and learned Lord will not press it.

Lord HAILSHAM of SAINT MARYLEBONE

We are, I hope, still in an amicable frame of mind. I still do not know how the Government think that the alleged victim is going to prove what was a suspicion in the mind of the person against whom he makes a complaint. I can understand how he can prove knowledge; that is familiar territory to those of us who practise in the courts. If the Government had said, "believes on reasonable ground" or even, "believes he could prove it by evidence" that would be something to consider, but a suspicion is a purely subjective state of mind in the mind of the defendant. How one can tell what the defendant suspects I do not know, nor has the noble Lord said. However, being in an amicable frame of mind, and without the slightest intention of not putting down something else on Report, I will on this occasion, just as a gesture of good nature and good faith, ask leave to withdraw the Amendment, because it may be that I have not drafted it perfectly.

Amendment, by leave, withdrawn.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 13: Page 2, line 28, leave out from ("things") to end of line 29.

The noble and learned Lord said: This Amendment is really consequential on what we have already discussed. I beg to move.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 14: Page 2, line 30, leave out subsection (2).

The noble and learned Lord said: I am sorry; I think I have made a mistake here, have I not? I think I am one Amendment in advance; but No. 14, certainly, dealing with subsection (2), is consequential on what we have decided. I am not sure that I did not mislead the Committee about the earlier one.

Lord HARRIS of GREENWICH

Yes, it is consequential.

Lord HAILSHAM of SAINT MARYLEBONE

It is consequential. At any rate, this one, I feel sure, is consequential. I am sure that the noble Lord, Lord Harris, if I did unintentionally mislead the Committee on the last Amendment, will put me right, but I am sure this one is consequential. I beg to move.

Clause 2, as amended, agreed to.

Clause 3 [Interpretation]:

9.26 p.m.

Lord O'HAGAN moved Amendment No. 17: Page 3, line 1, leave out subsection (2).

The noble Lord said: This is the interpretation clause, and subsection (2) deals with racial groups. Racial groups are defined under subsection (1) as meaning: … a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls". That seems to me fairly self-evident. However, in subsection (2), which I suggest should be left out, we have these qualifying words: The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act". I am sure that those who are more intelligent or more well versed in the ways of the law than I am can understand what this means, but to the laymen reading this Bill this tends towards meaning that a door is a window if you like to call it a window, but if you want to call it a door you can call it a door. Could the noble Lord the Minister explain exactly what a racial group that can sub-divide itself like a bulb or a corm into more racial groups means, and how this provision could be useful in carrying out the purposes for which the Bill is brought before us? I beg to move.

Lord HARRIS of GREENWICH

The Committee will observe that, for the purpose of the Bill, 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, … The term "racial group" will be found in a number of provisions in the Bill: in the definition of indirect discrimination, and in a number of exceptions such as the Clause 5 exceptions for genuine occupational qualifications.

Generally speaking, where the term "racial group" is used in an exception, it appears qualified by the word "particular". Thus, by virtue of Clause 35, for example, Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare … When the Home Office were drafting the Clause 35 exception it was felt that there was a risk that the courts and tribunals might interpret "particular racial group" restrictively, so that, although Indians and Pakistanis, for example, might have the same special needs, such as language training, which required discriminatory provision—that is, to take an example which we have already used, language training courses restricted to Indians and Pakistanis—the Clause 35 exception might be held not to apply because the special needs were not the special needs of a particular racial group, but special needs of two particular racial groups. That is why the Bill is drafted as it is. Clause 3(2) was included in the Bill to overcome this difficulty and to ensure that the term "particular racial group" is not interpreted in this narrow fashion. I hope that that meets the noble Lord's point.

Lord O'HAGAN

What the Minister is talking about is not a racial group but a cultural or linguistic group. The references he made to Clause 35 in regard to education deal with those who have a particular cultural or linguistic tradition or heritage that needs special provision. It is nothing to do with race but with heritage and other matters. However, given the time of night, I will study what the noble Lord has said to see whether there are any improvements that I could make at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord O'HAGAN moved Amendment No. 18: Page 3, line 13, leave out ("the same, or").

The noble Lord said: This is meant to be a helpful Amendment. It seems to me that the words that my Amendment seeks to leave out serve no useful purpose. If something is "materially different", it cannot be the same as something else. What is the use of having the words "the same, or". In the interests of economy, I beg to move this Amendment to leave out three words.

Lord HARRIS of GREENWICH

This Amendment raises the question of the extent to which the circumstances of, on the one hand, the person who claims to have been treated less favourably on racial grounds must be comparable with those of the person, not of the same racial group, with whom he is comparing his treatment. This is the comparison that must be made for the purpose of establishing whether or not an act of direct discrimination has occurred, and subsection (4) of Clause 3 spells out the basis of that comparison. It says that: the relevant circumstances in the one case [must be] the same, or not materially different, in the other. The same provision, is to be found in Section 5(3) of the Sex Discrimination Act.

I accept that the words "the same" are encompassed in the words "not materially different": that if the relevant circumstances are the same in both cases there will be no material difference between them. To this extent, if the words "the same, or" were removed, nothing would be lost as regards the degree of comparability required by Clause 3(4). However, it could conceivably, be confusing for the courts and industrial tribunals if what I might term the "comparability provisions" in the Race Relations Bill and the Sex Discrimination Act were different in that the latter included the words "the same" while the former did not. However, having subjected the Committee to that argument, I will look at this point before the next stage.

Lord O'HAGAN

I am grateful to the noble Lord for having made yet again the case for having one comprehensive Act for dealing with discrimination. In view of that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.35 p.m.

On Question, Whether Clause 3 shall stand part of the Bill?

Lord SIMON of GLAISDALE

May I ask the Minister about the relationship of this clause to Clause 78?—because it is generally very inconvenient to the users of the Statute Book to have two interpretation clauses. It is still odder when one looks at line 33, page 52, to see "racial grounds" and "racial groups" having the meaning given by Clause 3(1), but that "nationality" in line 18 includes citizenship—which is exactly the same wording as is used in Clause 3.

Lord HAILSHAM of SAINT MARYLEBONE

May I reinforce this? I will do so in a few other words because something has gone wildly wrong with the drafting of these clauses. Let us look at Clause 3 first, which is the one we are discussing. It says: In this Act,"— it does not say, "In this part of this Act" or refer to any particular clauses of the Bill. It continues— 'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins". Now move to Clause 70. One finds: In this section … 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and in this definition 'nationality' includes citizenship". That is Clause 70. But Clause 3 has already defined "racial grounds" and "racial group" for the purpose of the whole Bill in exactly the same terms as is done in Clause 70. As to "nationality", in Clause 3 it says: 'nationality' includes citizenship. Although it is enacted for the whole Bill in Clause 3, it is repeated in Clause 70 for the purpose of the clause. If you go further and look at Clause 78, which is the clause to which my noble and learned friend referred, you find the words repeated for yet a third time. There must be something absolutely wildly wrong with the draftsmanship of this Bill. Please, will not the noble Lord take seriously the extraordinary muddle that these definition clauses arc in? I hope I have demonstrated this. If the noble Lord is in any doubt I beg him and his advisers to look it up in Hansard.

Lord FOOT

The noble and learned Lord is in error when he says that the definition of "nationality" is repeated in Clause 70. I think he was intending to refer to Clause 78.

Lord HAILSHAM of SAINT MARYLEBONE

I did, yes. And it is in Clause 72. There again, I hope that the noble Lord will look at it. If I was misled, I was misled in very good faith, because if the noble Lord looks at Clause 70, he will see that it says: In this section". It may refer back to the 1936 Act; that is just a possibility. But this is in the Bill. In Clause 78, it reappears again. Whether or not the point which the noble Lord, Lord Foot, made—which may be a very good one—is valid, something has gone very wrong with the drafting. I recommend the noble Lord to look at it again.

Baroness ELLES

May I support my noble and learned friend when he said there was a repeat of part of Clause 3(1) in Clause 70? Subsection (6) of Clause 70 refers to "racial group" and gives the definition again. It is already given in Clause 3. My noble and learned friend is perfectly correct.

Lord AVEBURY

Does not the noble and learned Lord agree that the words in Section 70 are words to be inserted in the Public Order Act 1936, and it is necessary to have a separate definition in that Act?

Lord HAILSFEAM of SAINT MARYLEBONE

This is one of the matters I want looked at. It is the same point as the noble Lord, Lord Foot, made. If you look at Clause 78 there is a repetition of part of Clause 3. I omitted to point out that if you look further down in Clause 78, you find, bizarrely enough, that: 'racial grounds' and 'racial group' have the meaning given by section 3(1)". This cannot be sensible drafting. Either you put your definition section for the whole Bill in Section 3 or you put your definition section for the whole Bill in Section 78. It cannot be right to put it in the way it is in the Bill at present.

Lord FOOT

Nothing can disguise the fact that the three definitions in Clause 3(1) are repeated in Clause 78, the interpretation section. They are absolutely redundant and unnecessary.

Lord HARRIS of GREENWICH

A number of points have been made, and I will certainly cause them to be examined before the next stage of the Bill, which seems to me to be the most appropriate way of proceeding.

Lord SANDFORD

If I may make one other point before we leave Clause 3, reverting again to paragraph 57 of the White Paper, the general tenor of the Bill is that it is unlawful to discriminate either against or in favour of a racial minority. Earlier in the Session we were looking at an EEC Directive under which obligations would be laid on this country, as on all Member countries of the Community, not only to provide education for the children of migrant workers in the language of this country—which is obviously required—but also to provide facilities, if not more than that, for training and education in their mother tongue and their mother culture.

Obviously this will be desirable for many groups, but a requirement to provide that specially for certain groups defined by reference to their national or racial origins seems to me to constitute a breach of the legislation we are now dealing with, and not to be covered by paragraph 35, which renders exceptions for people's special needs. I would make the point that education and teaching for the children of migrant workers in their mother culture and mother tongue is not a special need but a perfectly normal one. Could the noble Lord explain how the EEC Directive and this legislation are harmonised in this respect?

Lord HARRIS of GREENWICH

No, I am afraid I cannot, without notice; but I will look into the point.

Clause 3 agreed to.

Clause 4 [Discrimination against applicants and employees]:

9.43 p.m.

Baroness VICKERS moved Amendment No. 19: Page 3, line 31, leave out from ("training") to second ("or") in line 32.

The noble Baroness said: I beg to move Amendment No. 19. This, in a way, is a probing Amendment because I should like to understand what certain words mean. The wording seems extremely wide and very vague. T refer, of course, to the question of any other benefits, facilities or services". As I understand it, a person will get full details of a job when he takes it up. He has the opportunity for promotion and the chance of training—and "training" is described in Clause 78. It says there: 'training' includes any form of education or instruction;". It also says in the same clause: 'education' includes any form of training or instruction;

So we have it both ways in Clause 78.

I should like to know what is meant by "benefits and facilities" that are not included in the normal contract of work when an individual takes up a job. Surely all the benefits and facilities are explained to people. It is difficult to know what is actually included in "services" and "benefits", particularly benefits. If we are not careful, I think we shall have endless discussion on what are the rights of the individual and what are the facilities and services. Surely it is up to the person employing them to explain all the details about the employment so that people know exactly where they are. Also, I presume that the trade unions would keep an eye on their various members to see that they had all the facilities which are necessary. To write it into the Bill in this very vague way I consider could lead to difficulties, and I therefore put down this Amendment to find out exactly what is left out concerning this question of affording, access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services".

Perhaps we could be told what is meant by, "other benefits, facilities and services" which are not covered in the contract of employment. I beg to move.

Lord JACQUES

The inclusion of "other benefits, facilities and services", which the Amendment would remove, is intended to cover such things as housing, sports facilities and other fringe benefits which are not necessarily part of the contract of employment. For example, banks and some building societies often give preferential terms for mortgages, and many organisations give advantages in housing, while travel firms give advantages in holidays to their employees. It seems to the Government that these benefits ought to be covered by the Bill, and we have accordingly put in this paragraph.

Baroness VICKERS

I should like to thank the noble Lord for that explanation. I still believe that this provision is very vague, but at the present time I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.46 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 20: Page 3, line 38, at end insert ("or to an establishment at which, apart from the employer and members of his household, fewer than six persons are employed.").

The noble and learned Lord said: I am afraid that this Amendment is rather more important than I should like it to be at this hour of the night. The point is that I have always maintained, and I believe it to be true, that this kind of legislation becomes decreasingly valuable, increasingly counterproductive and decreasingly enforceable as one gets down to smaller and smaller units in the field of employment, which is what we are discussing here, or in the field of housing if it is discussed in another context. I have chosen six as a figure, because it happens to coincide exactly with the figure which was chosen by the Government in Clause 10 for the minimum number of partners to whom the Bill should apply, and when one is dealing with very small establishments it does not make much difference whether one is dealing with employees or partners. Six is, of course, an arbitrary figure, but it was arbitrary when the Government chose it in Clause 10, and it is arbitrary now I have chosen it in Amendment No. 20. The point in both cases is that it can work both ways, and in both ways it can be oppressive and unenforceable.

When one is dealing with a group of, say, five workers, which is one below the figure of six that I have chosen, what happens if they choose to be Turkish Cypriots and a vacancy occurs which a Greek Cypriot proposes to fill? That can be repeated over a variety of cases. Let us suppose that five happen to be Pakistanis and Moslems who do not eat pig or bacon, and the new man turns out to be a Hindu who will not eat beef, but all have to be provided with dinners. Let us suppose that five happen to be Moslems and the new man is a Jew, or five are Jews and the new man happens to be a Moslem. Problems of human relations at that level and size of importance become insoluble. If one is dealing with a factory of 200 or 300 people, or even of only 25 or 30 people, it should be very easy to accommodate people with different prejudices and outlooks within the same workforce. But when one comes down and the number dwindles to six, the problem becomes very difficult.

There is a great deal of importance in this subject. I am sorry that it has come on at this late hour of the night, because if I were to elaborate it at inordinate length I should weary the Committee and I do not know that very much good would be obtained by it. I ask the Government seriously to look at this problem in the light of what they have put in the principal part of the Bill. If one looks at the later clauses of the Bill, I think it is in the late 60s, the miscellaneous field, that the Secretary of State is given the chance by Order in Council, or by some form of Statutory Instrument, to amend the sections relating to employment.

Therefore if I happen to be wrong about what I have said—and there is always that theoretical possibility, however unlikely it may be in practice—the Secretary of State and Parliament can put it right without amending legislation. I am told that it is Clause 73, so I was not all that wrong. If the noble Lord who is to answer will look at Clause 73, what I am ultimately suggesting is that one should exclude from the clause which we are discussing, Clause 4, very small establishments, in the same way as the noble Lord has already excluded establishments limited to a single household, and that if by any chance he is opening a door to abuse which can be remedied by legislation the remedy still remains in his own hand by looking at Clause 73 and introducing an Order in Council to that effect.

The only other point I should like to make is that I am not by any means suggesting that small establishments contain no discrimination. In fact, discrimination occurs in small establishments. Probably it occurs as frequently. It may be that it occurs more frequently than in large establishments, but when one comes to small establishments one faces employers with impossible dilemmas as between different races and groups. Also one reduces the powers of enforceability to vanishing point the smaller the establishment becomes. I am putting forward this Amendment in good faith, therefore, so that the Government may consider the problems and try to grapple intellectually with the real difficulties which I foresee. I beg to move.

Lord MONSON

I rise briefly to support. this Amendment, partly for the reasons which the noble and learned Lord has already advanced, with which I agree entirely, partly because it ties in to a certain extent with my Amendment No. 36, which it appears that we shall reach on Wednesday, and partly because, given that the word "nationality" is apparently to remain in the Bill, acceptance of the noble and learned Lord's Amendment will help to minimise the frequency of the potentially tense situations which I predicted when we were discussing the question of nationality in Amendment No. 2. I should also say that the number—six—is justifiable, in my opinion, because not only does it follow the precedent set in Clause 10 but also the precedent set in Clause 22 where exceptions are made for small dwellings.

Baroness SEEAR

I should like to question the noble and learned Lord's argument in connection with the enforceability side of his case. Enforceability in relation to small organisations is surely a valid argument where one relies on inspection—as, for example, in the Factory Inspectorate where it is virtually impossible for factory inspectors ever to get near the vast majority of very small organisations. But in this legislation, as under the Sex Discrimination legislation, we are not dependent upon inspection. We are not using inspection. These cases depend upon individuals bringing a case to a tribunal. It is no more difficult for an individual in a concern employing six people to bring a case to a tribunal than it is for an individual in a concern employing 6,000 people to bring a case to a tribunal. Therefore, I submit that whatever merits there may be in the other part of the noble and learned Lord's argument, there is no merit in his argument that it makes enforceability almost impossible.

Lord INGLEWOOD

I should like to support the Amendment put forward by my noble and learned friend because I feel that the addition of the words that he suggests would make the administration and the enforcement of this clause much easier than it is at present. The words, "private household" sound simple enough to most of us, but when we think about them we realise that they are very difficult to define and there is no help to be found. If any noble Lord looks at Clause 78 in which various terms used in this Bill are explained he will find that the words "private household" are not mentioned. Nowadays most of us probably think in terms of a small house with perhaps at most one or two people who may, for professional or other reasons, find employment there. But there are other forms of private household which could give rise to great difficulty if the Bill as at present drafted should ever become law.

There are still in this country a large number of private households where the main rooms are open to the public from time to time or where parts of the house are let as flats. Are they private households or are they not? If they are open to the public part-time, as something like 1,000 houses in this country today are open, they are manned by people who are not employed permanently but who in the main are neighbours, well-wishers and people of various interests who work part-time on those days.

I do not think I need say more. The words, "private households" standing alone in the Bill are not enough. These complications are very real and I think the definition should be clearer. I happen to live fairly near the Scottish Border. Whether or not the word "racial" can be taken to apply to differences that may arise in a short time when legislation which we hear about reaches the Statute Book I do not know, but I think it would be wise to follow the boy scout tradition and to be prepared. Therefore I submit that the words "private households" as they stand in the Bill at the present moment are likely to lead to endless difficulties, whereas if the words proposed by my noble and learned friend are added I think we shall avoid a great deal of trouble and a great many hard feelings.

Lord JACQUES

I think there is general agreement that the Bill should not apply to personal and intimate relationships. The difficulty is that we disagree as to where the line should be drawn. So far as the Government are concerned they say that there should be an exception for private households; there should be an exception for partnerships of five or fewer partners because in those cases there are personal and intimate relations. But we cannot agree that the same considerations apply to the small firm. We do not think that the relationships that exist there are of the same order as, say, in the case of a partnership. The partners are much more equal and the relationships are much more intimate and much more personal.

There was indeed an exception in the 1968 Act. It was temporary and it was phased out completely by 1972. Since then all firms of whatever size have been within the scope of the 1968 Act. In the view of the Government there is no reason for taking small firms which have been subject to the provisions of the 1968 Act for the past four years outside the scope of the Bill. We are not aware that small firms have found particular difficulties in complying with the provisions of the Act which in general are continued in the present Bill. There is also some evidence to suggest that it would be wrong to except the small firms. Research studies suggest that discrimination is likely to occur in smaller establishments, such as shops and that anti-discrimination policies are less often found in small plants. We feel this would be a retrograde step. We had it as a temporary measure under the 1968 Act; it was phased out in 1972; we have had four years without this exception for small firms, and we have no evidence to show they have suffered. I would hope the with that explanation, the noble Lord would withdraw his Amendment.

10 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

I wish the noble Lord, Lord Jacques, would be a little more accommodating about this. Of course I realise that small firms are at the moment caught by the 1968 Act, but the reason why they are caught—and there has been very little complaint—is that the terms of that Act are not being observed inside small firms. They are not being observed, as I shall venture to show again in reply to what the noble Baroness, Lady Seear, said, because they are unenforceable. The Government must face the realities of the situation.

Some of us received a document which has received fairly wide circulation in the Press as well, called, No Bloody Suntans. This document expressly says that the small firms are those which probably discriminate in the bad sense worst of all. And the reason that they do it is that it is quite unenforceable. I myself do not believe that it is any good passing unenforceable legislation. I believe it is valuable to pass legislation which people will respect, because if they break the law, they will find that the law catches up with them.

If I may turn from that to what was said by the noble Baroness, Lady Seear, I think that for once she is making a mistake. Normally, I agree very much with the force of what she says, but on this occasion she has missed the point both from the point of view of the employer and also the point of view of the employee. I have never been a very large employer, and differ in that respect from some Members of the House. I once ran a small farm with a team of five, just about the size of the team I am discussing here. The whole reason one was able to make it work was that those five people got on very well with one another. If there was ever a row—and there was occasionally—either it had to be composed by diligence and patience, or else someone had to go. That is what happened. In these very small teams of people working for small concerns, everything depends upon a spirit of co-operation and team spirit. Enforceability in this field has nothing whatever to do with inspection. That is where I part company with the noble Baroness, Lady Seear.

Supposing you get these pictures which I painted in my introductory remarks. What is an employer to do, for instance, if he is faced with four people who will not eat pork or bacon, with one who will not cat beef, and he has to provide them all with dinners for seven days a week if it is on a farm, and five days a week if it is in a factory? In the end, they can have lamb and fish every day, but it may be that they will get tired of it, and it may be they will quarrel.

Supposing you get a firm in which there are four or five people, and the four or three make a dead set at one or two of the others. They may do it because the one or two are Jews, or Sikhs, or Moslems, or simply because they do not like their faces. Anyone who has worked in the conditions of five or six people working together in a single unit knows that one employee can have his life made a burden to him by ways which have no relation to what the real reason may be. He may find his clothes are missing from a locker; he may find someone spills something over his food. These things happen in real life. What are you to do if you are an employer? What are you to do when faced with this kind of situation? If you have a situation in which one Greek Cypriot is introduced into a firm consisting of five Turks, or vice versa, or one Hindu introduced into a firm consisting of five Moslems, or one white introduced into a firm consisting of five blacks—because, as I say, black racialism is just as violent and unpleasant as the other kind—what are you to do if that man's life is made a burden to him? I am trying to beg the Government—and I am trying to beg those who have at least as much idealism as I do; and I hope that I have some left after a long life in politics—to come to terms with the facts of life. However good their intentions, this is not going to happen in small firms and it is not happening now.

I wish the Government would try with some degree of intellectual honesty to grapple with these problems and not simply repeat the arguments we heard in 1968, as if they were pronouncements from Sinai, and as if those who did not happen to agree with them then and think they have been proved right since were morally defective, because the truth is that laws which are unenforceable and unenforced, as these are, are not good laws. I do beg the Government to be a little more accommodating.

Lord INGLEWOOD

May I ask the noble Lord to reply to my points, which I put forward in all seriousness because I felt that the words "private household" as in the Bill were very misleading. When the noble Lord replied, he did not refer to my points at all.

Lord BROCKWAY

I am only intervening because of the reference which the noble and learned Lord, Lord Hailsham, made to the document which has been sent to a number of us from the Wandsworth Community Council. It was a document in which a woman employed by an agency indicated that in that employment all kinds of subversive methods were used to prevent public evidence that the Race Relations Act was being outraged. She indicates in that document that the method of the agency was never to refer to anyone being refused on the ground of colour; "sun tan" and other terms were used. The noble and learned Lord has quite correctly said that the evidence of that document suggests that larger firms generally have obeyed the law in these matters. It is the smaller firms who are not obeying the law, and who, when they get in touch with this agency, indicate by the use of other terms that they do not want any person of colour.

I take exactly the opposite view from that expressed by the noble and learned Lord. I have read that document very carefully, and the impression it has left on me is that it is imperative that this law should apply to the smaller firms. He gave instances where it is going to be difficult. This document indicates that the reason why smaller firms refuse to obey the law is not because of difficulties of personnel who are employed by them: it is due to an instinctive prejudice; it is due to the fear in the case of shopkeepers that if they employ a person who is non-white they may lose customers. There is evidence in this report that that is even said when most of the customers are non-white.

I say very strongly to this Committee that if this measure is necessary, if we are going to take the view that race discrimination is wrong, that view has to be impressed on small firms more than on the large firms, because the small firms are even now disobeying the present Race Relations Act. I hope, therefore, that your Lordships will defeat the Amendment which has been proposed by the noble and learned Lord.

Lord JACQUES

I did not reply to the point on households because we are not dealing with households, we are dealing with small businesses. I shall read the record, and if I feel there is a point to which the noble Lord should have an answer I shall be pleased to reply to him in writing. I ought to say bluntly that there is a major difference between the noble and learned Lord and the Government. The noble and learned Lord takes the view that in all spheres if the law is unenforceable then it should keep out of it because it would be bad law. We do not accept that. We believe that there are some spheres, such as sex discrimination and race discrimination, in regard to which any law is exceedingly difficult of enforcement but nevertheless it is worth while because of the results it produces.

For example, one of the most successful of the sections in the 1968 Act is the section against discriminatory advertisements. That has been most successful. It has been most successful not because it was enforceable. It has been most successful because most of our people are decent people who want to abide by the law, and because it would be unlawful for them to discriminate in an advertisement they have not discriminated. Consequently, advertisements have been less offensive and there has been a contribution to good race relations as a result of that part of the 1968 Act.

Of course we have had to pay the price. We have had to put up with people like Relf, but we contend that it is worth while putting up with the Relfs in order to get the psychological effect of legislation in this particular field. There is a major difference between us. We believe that in many respects points in the 1968 Act which are difficult to enforce have been of great benefit. We believe that while much in this Bill is difficult to enforce it will be of great benefit. Most important of all, we strongly believe that there is much in the Sex Discrimination Act which is difficult to enforce but is nevertheless of great benefit, and we stand by that even though the noble and learned Lord disagrees with us.

Lord HAILSHAM of SAINT MARYLEBONE

The noble Lord is still being very intransigent, but I do not want to intimidate him. I would only suggest that he copies the tactics of his noble friend Lord Harris who has always managed to conduct these debates in a much calmer spirit, and much more acceptably. I was very surprised to hear the noble Lord say that the advertisement clause had been successful. I take exactly the opposite view. As it happens we are going to discuss it later on, and so I shall not say much about it at this stage, although the noble Lord might have provoked me into doing so.

The fact of the matter is that, like so much else in this Bill—and I am only repeating something I said in 1968—it is a curate's egg; some parts of it are good and some are bad, but unfortunately, like the egg which was given to the curate, instead of the good being easily separable from the bad, the bad has been allowed to infect the good. The advertisement clause is perfectly all right except that it prohibits advertisements from advertising that which would be lawful if done; it is a perfectly good clause apart from that, and to that extent I would accept that it is good and I think it probable that it has good results. But it has led to a very great deal of criticism from time to time. It is one of the things which made the Race Relations Board—for which, and for its chairman, I had a great deal of respect—ridiculous because they had to enforce a ridiculous law. By having to do so, they made themselves ridiculous.

The noble Lord has altogether underestimated and misunderstood the relevance of Mr. Relf. Mr. Relf has defied the law with impunity. Whatever may have been the pre-Relf situation, he has now advertised to every member of the National Front that they can do so if they are willing to pay a price. The noble Lord and the Government really must not expect the post-Relf situation to be like the pre-Relf situation; they must make up their minds that sooner or later when they are dealing with something that is unenforceable they may for a time get a psychological result. They have done so in their traffic legislation. But if one has a law which does not command popular opinion at the level at which it is sought to be enforced, and if one tries to enforce it, one gets into a situation when people will defy the law and will defy it with impunity. The noble Lord is flying in the face of all human experience when he believes that when people can be shown to defy a law with impunity and make fun of it and make it ridiculous as well as create hate, they will do any good either by passing it and not enforcing it, which is what they have done so far, or by passing it and trying to enforce it, which is what I suppose one must assume they will do hereafter.

That brings me to the noble Lord, Lord Brockway. If anything was capable of provoking me into causing a Division at this stage I suppose it would have been his speech. However, I would have expected exactly that speech from the noble Lord, whose idealism is well known but who sometimes takes off into the stratosphere of idealism to the point at which he loses touch with reality altogether, and as I have known him for the best part of 50 years, both inside and outside Parliament, I am sure that he will not resent what I am saying about him now.

He takes off occasionally into the stratosphere of unrealism, and what I had hoped the noble Lord, Lord Jacques, would do was, in the spirit of his noble friend Lord Harris of Greenwich, who had general charge of the measure, really to show some sense that he was seriously taking on board practical criticisms from somebody who has spent his life trying to enforce the law and inculcate respect for it and who has actually been engaged in legal proceedings for over 50 years, and not simply sweep them aside and say out of the plenitude of his own knowledge and power that he knows better and that there is a fundamental difference between him and me.

That is a wholly unacceptable attitude, but I am not to be provoked on this occasion. It is late in the evening and I do not believe that the Committee, in its present rather sparse state, would be doing itself any good by yielding to the noble Lord's provocation and having a narrow Division on an important subject. I will therefore ask leave, in spite of the provocation that has been offered and in spite of the rather self-satisfied way in which the noble Lord replied, no doubt on instructions, to withdraw the Amendment, but without any undertaking that it will not be reintroduced at a later stage.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Exceptions for genuine occupational qualifications]:

10.20 p.m.

Lord O'HAGAN moved Amendment No. 21: Page 4, line 30, leave out ("special ambience") and insert ("particular style or setting").

The noble Lord said: This clause deals with exceptions for genuine occupational qualifications and lists some of the varieties of occupation which grant dispensation from the provisions of the Bill as a whole. In view of the temperature which the discussions have reached, I shall try to be as uncontroversial as possible when I say that this Amendment is intended to be serious. One general ground that has been canvassed by those who have questions about the effectiveness, though not about the purpose, of the Bill is intelligibility. If any member of the public or person engaged in any of the activities for which exceptions are made should be looking at the Bill, if and when it becomes an Act, he will have to try to decide whether what he is doing falls within one of the categories listed in subsection (2) and so entitles him to do something which is apparently against the spirit and the letter of the Bill.

Subsection (2)(a) includes dramatic performances; sub-paragraph (b) includes artists' or photographic modelling work, and sub-paragraph (c) deals with restaurants. I ask the noble Lord, Lord Jacques, to put aside his views about the major clashes in policy between the two sides of the House and to think about the implementation of the Bill when it becomes an Act. I ask him to imagine himself in the position of somebody who is trying his best to interpret the provisions of the Act. That is the spirit in which I am moving the Amendment. Will the person who is likely to be wondering whether what he is offering in his restaurant or cafe comes within the terms of the Act know what a "special ambience" is? I understand that "ambience" has not been included in any law on the Statute Book until now. This is the first occasion on which it has been included. In that case, can the noble Lord tell me why the word "ambience" is not included either in the definition or the interpretation clause?

Accepting that most people may have some vague idea what a "special ambience" is and that the rest of the phrasing in sub-paragraph (c) may give a general idea of the objective, would it not be simpler to substitute for this rather vague phrase, for which there is no precedent in British law, something which is more easily understandable such as the words which I suggest in my Amendment—that is, "particular style or setting"?

It is not only on the grounds of general intelligibility that I bring the Amendment before the Committee. It is on the grounds that it is the small, isolated case where this law will be seen to be unworkable that will bring the whole apparatus of the new Commission and the legislation itself into disrepute. We have only to remember what happened in the case of the gentleman who wanted Scottish porridge. The "Scots porridge case" caused endless trouble and made the Race Relations Board look ridiculous.

It is on the minute matters of drafting that the Committee have to take particular care to ensure that the admirable intentions of the Bill are not made utterly unworkable. I suggest to the noble Lord, Lord Jacques, if he is feeling more conciliatory, that this is one phrase which needs looking at again, because the words "special ambience" have not occurred before, I understand, in British law. Even if they have, I am not sure whether this is something which most people who might be seeking to obey the law will readily understand. I beg to move.

Lord JACQUES

We found this Amendment rather attractive and we have given it very careful scrutiny. What we are trying to convey in this exception, for example, in a Chinese restaurant, is the general idea of the atmosphere which is created by the decor and surroundings together with the Chinese speech and appearance. We would agree with the noble Lord that style and setting go some way towards doing that. However after close scrutiny of his suggestion we believe that the phrase "special ambience" has the advantage of capturing rather more of the elements which go to create the distinctive atmosphere of such restaurants and that it does so more succinctly.

Another difficulty which the noble Lord may already have noticed, is that if his suggestion were adopted the wording of the subsection would mean that the tribunals would have to consider the style in which the food was consumed, rather than the style of the place concerned. This might mean, for example, that a Chinese restaurant would be covered if people used chopsticks, but a restaurant where knives and forks were used in a conventional way, such as an Indian restaurant perhaps, would not be covered.

I hope that the noble Lord will withdraw the Amendment, but would add that if any noble Lord can bring forward suggestions for improving these words we shall be very pleased to look at them; but we do not feel that the Amendment which has been moved makes the improvement which is desired.

Lord BYERS

I should like to suggest to the noble Lord that that is one of the worst briefs I have ever heard in this Chamber. It really is a travesty. I do not know where the noble Lord got it from, but it really ought to go back with instructions to have it reconsidered and re-written. We have got "particular style or setting" as against "special ambience". I honestly think that this is a nonsense, not to allow the noble Lord at least to be given the assurance that this will be looked at by the Government and not by other noble Lords in this House. Can your Lordships imagine going into a restaurant and ordering two ambiences and a lager?

Lord HAILSHAM of SAINT MARYLEBONE

I should like to reinforce the words spoken by the noble Lord, Lord Byers. This law has to be observed by ordinary people, not by people who know what "ambience" means and can translate it from French. When I go home tonight as I hope I eventually will, I might choose to go by Fulham Road. In Fulham Road there is an Arab restaurant. It is called I think—although my reading of Arabic characters is not quite what it was—"Beit el Baghdadi", which means the Baghdad House. I am trying to put myself in the position of the owner of the "Beit el Baghdadi", who, when he reads this Bill, will have to decide what it means and what he is going to do with it. There is a reasonable chance that an English-speaking Arab in this country, one who has been carrying on business here for some time, would know fairly well what my noble friend Lord O'Hagan meant when he was talking about "style or setting", but if he did not he could look it up in the dictionary or ask his friends.

But when he is asked to construe the words "special ambience" he will be referred to the speech to which we have just listened by the noble Lord, Lord Jacques. He will then be told that it depends entirely on whether the clientele eat their whatever it is—el helwah, or sheeps' eyes—with their fingers, by flicking the food into their mouths, or whether they do not. This does not do. The noble Lord made a very civilised speech, reading out what had been put into his mouth by those characters whom we are not allowed to name, but of whose existence those of us who have been on the Government Bench are perfectly well aware. Will the noble Lord not say, just to please my noble friend Lord O'Hagan, that he will take his suggestion seriously and that he will take it back and ask the Parliamentary draftsman to talk English, and not French, for a change—although there will come a stage, I suppose, eventually, when "la reine" will "la veult", or "voudra" or "veudra". But, at any rate, do let him talk English in the text of the Bill and think of something better or accept what my noble friend has put forward.

Lord JACQUES

This is not a matter of any great importance. We do not believe that the Amendment is an improvement.

Lord O'HAGAN

Is it any worse? That is the question.

Lord JACQUES

It is worse in what the clause will mean if the words in the Amendment are used, for the reasons I gave. It is better as it is in that it is a better understood language. That, I think, we would all accept. We will have another look at the wording. We might be able to fit in the words which are suggested

Resolved in the affirmative, and Amendment agreed to accordingly.

10.39 p.m.

Lord HARRIS of GREENWICH

I think at a moment like this the most appropriate motion to move is That the House do now resume.

Moved, That the House do now resume.—(Lord Harris of Greenwich.)

Lord HAILSHAM of SAINT MARYLEBONE

I think we can all agree with that.

House resumed.