RACE RELATIONS BILL

HL Deb 29 September 1976 vol 374 cc435-564

4.40 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do again resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question. Motion agreed to.

House in Committee accordingly.

[The BARONESS WOOTTON OF ABINGER in the Chair.]

Clause 5 [Exceptions for genuine occupational qualifications]:

Baroness VICKERS moved Amendment No. 22: Page 4, line 32, leave out paragraph (d).

The noble Baroness said: I beg to move Amendment No. 22. The reason for putting down this Amendment is that, as I understand this Bill, it is intended to do away with race distinctions. Again in this Bill we are allowing the racial differences to be emphasised. In a job of personal services this should start off naturally, if we have individual people for individual races, with certain personal prejudices. I imagine that in this Bill we want to do away with any form of segregation, and I think that it is a good idea to start with the welfare services.

Any personnel officer who is properly trained should be able to deal with any race. He should be able to deal with all the problems, particularly those which arise with people coming freshly to this country. I was told yesterday, in relation to the services and facilities provided, which I presume will be one of the duties which a personnel officer could look into, that nearly half the total number of coloured householders own their own houses. That is almost exactly the same proportion as white householders.

It has always been emphasised that one of the reasons for troubles between races in this country is because of the bad housing. It is also said that in Greater London there has been a concentration of black workers in dirty menial jobs. But according to the White Paper issued by the Government there is evidence that a substantial proportion of West Indians are skilled manual labour, and the proportion of young Asians out of work is lower than that of young people in general.

So this is another reason why I wish to have all-purpose social services provided by a personnel officer. A person who needs advice should be able to obtain it whatever race is involved. I am not saying that any particular race should be involved here, but it should be the race of the person or persons employed who have the ability and the qualifications to undertake the job. There might be a large firm with 20 racial groups. Will it be necessary to employ 20 different officers?

Furthermore, when I was working in Malaya, now Malaysia, I had the experience of dealing with people of different races. There were four different races in that country, and I found invariably that people did not wish to go to somebody of their own race to explain their difficulties. They asked to see somebody else, or invariably they asked to see myself. In that country one very often had to deal with interpreters because there were, for instance, six Chinese dialects. But in most cases the people concerned preferred that situation to going to one of their own race. At that time there were no proper trade unions in the country, and so the Labour department at that time—we would now call it the Department of Employment—often sent difficult cases to the worker department.

All the people in this country needing these special services, as referred to in this clause, have been in Britain for some time, or have been born here. It is essential that they follow the customs in this country and that they are given advice by persons who have the best knowledge of those customs. I should also have thought that this provision which I am trying to remove from the Bill goes against the Sex Discrimination Act, but perhaps the Minister will tell me about that. When a person goes to hospital he does not insist on being operated upon by or seeing a surgeon from a particular race. Therefore, why should a person when at work particularly want to see someone of his own race? I suggest that this is not a good policy and that it will create further segregation and probably further difficulties.

Most Conservatives voted against the Second Reading of the 1968 Act, and it was stated in the debate at that time, on St. George's Day, that the Bill then being considered would not in its practical application contribute to the achievement of racial harmony."—[Official Report, Commons, 23/4/68; col. 81.] This is my great fear on this Bill. We are going through this very long and complicated Bill, and in the end it will not contribute anything to racial harmony. Therefore I suggest that this is one proposal which might be accepted so that at least in work there need be no segregation between individuals working in the same firms. I beg to move.

Lord SANDFORD

I rise not so much to support my noble friend, although I have some sympathy with the point she is making, but rather in the hope that the noble Lord in replying can make a little clearer than it is at the moment how paragraph (d) is to operate. The concept of this exception first appears in the White Paper where we read that exceptionally there will be an allowance: to enable the special needs of a particular ethnic or national group to be met …". A further explanation appears in the Explanatory Memorandum on the clause in which we read that it is because certain welfare services can best be provided by a person of the same racial group. Neither of those phrases actually appears in the text of the Bill, where the phrase used is, provides persons of that racial group with personal services promoting their welfare …". Those are three quite different expressions of what one can discern as the same general intention. But it is not at all clear as to how the Government will draw the line between what is allowed and what is not allowed. There is nothing in the interpretation or definition clauses to say what any of those phrases precisely mean, and in particular there is no place where one can look up the phrase "personal services promoting their welfare" and see what is meant by that.

I should like to invite the Committee, and in particular the noble Lord, to consider two cases. Let us consider a county council which is recruiting social workers to work in Powis, rural Wales. A case could be made that it is marginally better to employ a Welsh person for that purpose. But personally I would feel that there is not a justification there to discriminate in favour of a Welsh person against an equally qualified Jamaican, for instance. On the other hand, there may be an agency or an organisation recruiting marriage guidance counsellors to work in the Sikh areas of Bradford. I should have thought that it was absolutely reasonable to discriminate against applicants from all other racial groups apart from that one.

Those are just two illustrations to show that in some cases there will be recruitments which fall on one side of the line, while in other cases there will be recruitments which fall on the other side of the line. But there is absolutely no guidance in the Bill as to how one should interpret the law as between examples of that kind. I have used my personal judgment, and so far as I can see that is all that will be done. I do not think that this is a satisfactory way in which to leave the law. Perhaps the noble Lord can say that the Government's overall strategy in this field—which we have yet to see—will make it clear, or that this can be done by guidelines to the Commission; and that might be helpful. But it is not really a satisfactory way in which to leave the law, which is what we are dealing with at the moment.

Lord JACQUES

The purpose of this paragraph in Clause 5 is to make an exception for the appointment of a social worker when his race would make his work more effective. We have in mind there the needs of local authorities which have a large population of a particular kind, such as a large population of West Indians. They might find it advisable to have a West Indian on their social worker staff for that reason. We also have in mind the needs of the probation service, and it is on this point that I have some personal feeling. After having served for many years in a magistrates' court, I have come very firmly to the conclusion that the effectiveness of the Probation Service depends substantially upon the allocation of the offender to the right kind of probation officer. The whole history of the service shows the value of having the right kind of probation officer for a particular offender. The wise housewife can very often help the shoplifter; the father-like figure can very often help the boy who has for some years been without a father. Similarly, I would say, in an area where there is a substantial population of a certain race, such as West Indians, then it would be to the advantage of the service, if we are to have the right allocation of probation officers, that they should have a West Indian upon their team.

Baroness ELLES

Would the noble Lord allow me to interrupt him? On the basis of the same arguments, would he agree that this would also apply to parts of this country where there are still racial groups of English, or in the North of the Islands, where there are still racial groups of Scottish? Would the same arguments apply?

Lord JACQUES

I would not have thought they would have applied in Scotland. I would not have thought that was necessary at all. I do not think we have anywhere in Scotland large populations of English in the same way as we have large populations of immigrants in England. I think it is an entirely different problem, and I do not think for one moment it would arise. I might say that, as an Englishman, I feel equally as happy in Scotland as I do in England. I do not think that arises at all.

Now if the Probation Service is going to allocate the offender to the right kind of probation officer, which I think is essential, then the Probation Service in each area must have a balanced team, and in order to have a balanced team it may, on very rare occasions, have to use this exception. We do not wish the exception to be used unless it is absolutely essential, and it will be noticed that by subsection (4) of the clause the exception cannot be drawn on where the employer already has employees of the appropriate racial group who can reasonably be expected to do those duties and are there in sufficient strength to meet the employer's need. So we have tried to narrow it down as much as we can. We think this exception meets a genuine need. It is drawn sufficiently widely to provide help to those most likely to need it, but sufficiently narrowly to avoid abuse. I hope that, with this explanation, the noble Baroness will not find it necessary to press her Amendment.

In reply to the noble Lord on the Opposition Front Bench, I should like to say that, as in the case of the Sex Discrimination Act, there will be literature available, largely for the benefit of employers—guidance in relation to the Act—and that the point that he raised will be one of the points mentioned in that literature. In other words, the literature will state the law and will go on to say what is behind the law. I might also mention the point which the noble Baroness raised in relation to the Sex Discrimination Act. This particular paragraph is in line with the Sex Discrimination Act. In the case of the Sex Discrimination Act the subsection is drawn rather more widely, but this is completely in line with it.

Lord SANDFORD

I wonder whether I could comment on that before my noble friend decides what to do in response to it. I am afraid the noble Lord has not really answered my question at all. In fact, his answer has thrown in further illustrations to show that at the moment the matter is entirely one of personal judgment as to which personal services, welfare services or special needs come within this category and which do not. It may well be true that his right honourable friend the Secretary of State will give guidance to the Commission, and I am delighted to hear that there will be further literature provided for the benefit and guidance of employers, but we are concerned with making sure that the law we are putting on the Statute Book is clear in itself, and to that point the noble Lord has not said a word.

Lord O'HAGAN

I wonder whether I could support what my noble friend has just said from the Front Bench. I think the Committee has a special duty to look at Clause 5 because the proceedings in another place at the Committee stage were perfunctory in the extreme. I think a very real point is being made when it is suggested that it is quite unclear what a personal service is in the context of this particular subsection. The noble Lord who answered for the Government implied that it was mainly, if not solely, connected with the Probation Service and other matters connected with local government. Is it necessarily so limited? And, supporting my noble friend, how can we be sure that people who may feel that this particular subsection might be a good way to make a joke of the whole Act do not choose to interpret paragraph (d) as a way to exclude people from what might or might not be called personal services; for example, in hairdressing or in tailoring, or something like that? What guarantee is there that these could not be personal services under the terms of the Bill as they are drawn at present? Could the noble Lord answer that?

Following on the question put by my noble friend Lady Elles, it may be difficult to substantiate that Gaelic speakers in Scotland might not count as a racial group under this particular clause, but surely the Welsh, in the North of Wales, anyway, where some people learn English only when they go to school, could easily qualify. Perhaps the noble Lord could tell is whether it is in the Government's mind that this particular subsection could and should be used in, for example, the primarily Welsh-speaking areas of North Wales.

Lord JACQUES

I think one has to read the paragraph carefully and pick out which of the words are important. Clearly it must be a personal service, it must be promoting the welfare of individuals, and must make the work of the person appointed more effective. These are the essential words. In this case, as in many others, it is quite impossible for Parliament to deal with every detailed case. We have to lay down the law in simple language, and I think we have done that here. Where the line has to be drawn will be a matter for the industrial tribunal. It will draw the line. It would not be for me to draw the line but for the industrial tribunal to do so. I am sure that my right honourable friend in issuing literature will have regard to that when preparing that literature.

Baroness VICKERS

May I say that I am not at all satisfied with that reply, because the magistrates can now put anybody to any probation officer they wish. It is up to the magistrates.

Lord JACQUES

I beg to differ. To the best of my knowledge and belief, the allocation of offenders to probation officers is a matter for the chief probation officer. He could take advice from his probation committee and he could take advice from the magistrates who happen to be sitting on that day, but the magistrates sitting on that day have not the power that the noble Baroness implies they have.

Baroness VICKERS

I am afraid I did not make myself clear. The chief probation officer can certainly take that action and, as we know, an individual, if he is not satisfied with his own probation officer (or the probation officer may not be satisfied in relation to the offender), has the right of a change. I think that could be done easily. Surely the local authority if they have in their area such people as those mentioned by the Minister can already employ somebody for the race they think necessary. Personally, I think it is a great mistake. We are making race distinction even more distinct. If, on top of all this, we have to go to the industrial tribunal, and if it is necessary to clarify this part of the clause by special instructions or special recommendations or definitions by the Minister, surely it would be better not to have it in this Bill at all. As my noble friend on the Front Bench has said, it is very unclear. I do not know whether the Minister would care to look at it to see whether he can clarify it or whether he will now agree with us that it would be better to delete it.

Lord SANDFORD

I hope the noble Lord will respond to that invitation because I think that the debate we have had has shown clearly that there is every sort of ambiguity in all the phrases being used to explain this concept—not least in the ones that appear in the Bill. If the noble Lord will undertake to see whether he can respond to my noble friend between now and the next stage and add more precision, I think it would be helpful. In those circumstances, I would hope that my noble friend would withdraw her Amendment.

Lord JACQUES

We must have a look at the record to see what has been said in this Committee and take it into account. I must say, however, at this stage that we believe the paragraph in question is quite clear and that it is quite impossible for Parliament to draw the line in this particular case. It is for the tribunal to draw the line. We do not think this paragraph could more clearly express our intentions than it now does.

Lord FOOT

Before the noble Baroness decides what action to take, may I say that I have listened with every care to what has been said but I am still left in doubt whether the Minister has faced up to the real problem that this sub-paragraph presents. As I understand it, the situation is this. To take the example that the noble Baroness, Lady Elles, gave to the Committee, let us suppose that you have the situation where a social welfare worker is being appointed in Glasgow by the local authority or where a probation officer is being appointed in Glasgow by the senior probation officer. Let us suppose that the authority appointing this person says, "We think a Scotsman can best help Scotsmen and so we are going to appoint a Scotsman and to prefer him to the English or Welsh candidates because we think he could give better service to the Scottish people."

In those circumstances, the question will inevitably arise whether that authority or chief probation officer who makes the appointment and prefers one individual to another on account of his racial group—because the phrase "racial group" includes "nationality"—has wrongfully discriminated against the Englishman or Welshman or not? That question may come before a tribunal. The tribunal, when they apply their minds to the question, have to decide whether a Scotsman can provide such services more effectively for his fellow Scots than can an Englishman.

If I may say so, it is no good the Minister saying that we can leave it to the tribunal, because there will be different decisions from different tribunals. Surely the purpose of an Act of Parliament is to give clear direction to the tribunal as to how they ought to interpret a particular section of an Act. I still think the noble Lord has not applied himself to that question. I would support the plea that he should undertake to look at this again because I think there is genuine substance in the point raised by the noble Baroness.

Lord JACQUES

As I have said, we shall have a look at it again in view of the discussion but we do not think that the intention behind the paragraph can be stated more clearly. There comes a point when you have to be prepared to leave it to the courts or to the tribunal. It is quite impossible for Parliament to deal with every detail of the law.

Lord HAILSHAM of SAINT MARYLEBONE

That is all very well, but I am trying to think of the man who has to make the decision before the courts have come to a conclusion. I wish that the Minister would grapple with this because the man who has to make a decision before the courts come to a conclusion is putting himself at risk if he is wrong. Under Clause 12 he may prevent himself from ever getting a job again. Under a later clause he will be liable to an unlimited sum by way of damages. There are other very harsh clauses against him if he discriminates.

A great deal of this would have been avoided if subsection (2) had been left out of the clause altogether and the general statement made as put down in subsection (1). But if you are going to try to draw a clause of this kind, I suggest to the noble Lord—I am not going to ask my noble friends to divide on this and I hope that my noble friend who opposed the Amendment will not do so— that where a public official (say, a senior probation officer, which is the sort of person we are talking about) comes in good faith to a conclusion under this clause, all you have to do is to say that good faith is enough or reasonable grounds is enough or good faith and reasonable grounds are enough, then write it in the clause. But is is not good enough to say that we shall leave it to the courts to find out. I am all for leaving things to the courts to find out, but if you are going to put somebody at risk until they have decided it I do not think it is quite good enough.

Lord JACQUES

I cannot think that many people will be put at risk by this. If they read the paragraph carefully they will soon come to a conclusion. But, as I said earlier, I shall certainly have a look at it to see whether it can be improved in the light of the debate which has taken place.

Baroness VICKERS

While thanking the Minister for his reply, I only hope that he will be good enough to look on it with an open mind. From what he has said he seems very content with this clause. I hope lie will do all he can to take in all the views expressed in the debate today and will seek to find a satisfactory solution. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.10 p.m.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord HAILSHAM of SAINT MARYLEBONE

I do not want to detain the Committee long about this, but I want to say in all good nature to the noble Lord, Lord Jacques, before we part with this clause that he ought to ask those who advise him and indeed his right honourable friend the Minister—I suppose the Minister for Employment in this section, but if it is not then the Home Secretary—whether he is content with these employment provisions. I should like to remind him of what I said before I withdrew the Amendment relating to the size of businesses. Imagine a business such as my own farm was, a team of five; what is an employer to do if he is a shopkeeper or maintainer of a small business and four people out of five say: "I will not work with Mr. Smith?" or, alternatively, "If you engage Mr. Smith we will walk out"? Alternatively, they may simply make Mr. Smith's life a burden to him when he is there. We all know how petty tyranny can take place. Sometimes they will do it for a good reason and sometimes for bad. We know what people are like in human life.

What advice do the Government give to the employer in such circumstances? I know what would have happened to me if my farm team had done it—I would have had to comply. I will tell the noble Lord why. I might have protested, argued and tried to talk them out of it. But I would have had to comply because otherwise the cows would not have been milked the next morning and then I should have been prosecuted for cruelty to animals by another of the Government Departments.

Have not the Government any advice to give to such a man? I wonder whether the noble Lord knows what the answer is. I know the noble Lord is a humane man, but I really wonder whether the Government care. I would not say to the noble Lord, Lord Brockway, that he does not care, because everybody knows what a humane man he is. He made a striking intervention on my Amendment. But his head is immersed in the cloud layer somewhere above us or perhaps even above the cloud layer where he sees nothing but blue skies and the sun shining. We poor worldlings have to live in the earthy atmosphere of the shop floor and the farm. I do not believe that the noble Lord, Lord Brockway, notices, because he is so much above us.

But what are we to do? The Government have not told us. The noble Lord, Lord Brockway, says that it is imperative that we have to legislate and the Government remain discreetly silent reading their Civil Service brief. What is the advice that they give? I will tell you what is going to happen. This clause and Clause 4 are going to be disregarded as they are being disregarded now. I wonder whether the Government are happy about that. Do they think that a law which cannot be enforced is really a good law? What will happen, too, is that whereas the law is being disregarded, in most cases it will occasionally and capriciously be enforced. A number of— I will not say blackmailing—money grubbing, gold digging actions will take place capriciously against some small employers.

Are the Government happy with this situation? Have they absolutely lost touch with the reality of the people whom they are supposed to serve in their present positions? What is the answer?

Lord JACQUES

This is a long way from the Amendment and even the clause that we are discussing. We have been discussing something which took place on Monday night; that is, the Amendment whether the small firm should be exempted. The problems which have been raised in relation to the small firm are exactly the same problems which arise in any other firm. In a big factory areas are broken down into separate shops. You can get the same kind of problem in one of the smaller workshops of British Leyland as you get on the noble Lord's farm, so it is not restricted to the small firm.

The main argument I used against exempting the small firm was that it would be a retrograde step. Under the 1968 Act, until 1972 they had a temporary exemption. The noble Lord's own Government decided not to carry that on any longer. In 1972, by order, the small firm was put in the same position as the larger firm. If it was good in 1972, I see no reason why it should not be good in 1976. The noble Lord has not mentioned anything which was true in 1972 that is not true today. I believe that so far as this particular clause is concerned it has been very carefully worded, and we have a duty to see that that is so, because of the dangers which the noble and learned Lord spelt out. Here I believe we have been careful, and in the long run there is the tribunal which will decide any disputes which arise. So far as the Amendment is concerned (the main issue which has been raised), I have given an undertaking that we will look at the wording in the light of the debate which has taken place.

Lord HAILSHAM of SAINT MARYLEBONE

I am not altogether satisfied with that. I do not want to prolong this debate. My withers are quite unwrung about 1972. A lot of things go on in Governments and very few people know everything that does go on, especially when it goes on outside their Department. I have asked the noble Lord for the second time a perfectly plain question as to what advice he gives to a small employer, be he a farmer, a shopkeeper or manufacturer. It is apparent now that he has no advice to offer, except to offer himself up like a lamb to the slaughter to sec what the tribunal says when he is faced with an action for damages. I ask the noble Lord whether he is satisfied with that, because I am not. I do not agree, for the reasons I gave the other night and which the noble Lord did not answer, that the big firm and the small firm are in the same position. The big firm has great flexibility as to how to deploy its workforce. A small firm does not. That is why I drew a distinction from it. Suppose for a moment that the noble Lord is right; that only advances the size of the problem and does not reduce it.

I ask the noble Lord, instead of putting forward these arguments—which are not based on answers to questions—to search his own conscience and ask himself what he would do in the circumstances that I have described to him. Is it fair for him to put other people into a position when he cannot answer what he would do himself? That seems to me to be a serious criticism of the Government. They have ceased to care what goes on on the shop floor.

Lord SLATER

May I make a contribution regarding labour relations? This is bound up with labour relations. I am surprised at the noble and learned Lord who, over many years, has been a Minister in successive Governments. He ought to know that in the service industries for which the Government were responsible, certain policies were laid down which became the responsibility of Ministers. The onus of responsibility was placed upon their shoulders regarding the dismissal of employees. I have always held the point of view that the one who ought to do the sacking, as we say in the North, is the one who has been the "starter"—the one who starts someone in employment. He ought to be the finisher for someone who is not carrying out his responsibilities.

It so happens—and noble Lords will know this to be correct—that for no less than six years I was responsible for looking after the labour relations side of the Post Office. In the Post Office, every employee has an index card and recommendations for dismissal would be sent from sorting offices all over the country concerning employees who at some time or other had made a mistake. The recommendations would come through the postmaster concerned and go up to the Comptroller at the regional office. The recommendations were dealt with at the regional office and sent back to the Personnel Department and to the Director of Personnel at St. Martins-le-Grand. From there it was placed on my desk and the responsibility for taking a decision in those cases became my responsibility, as the Minister concerned. Whether it was for dismissal, promotion or anything else, it was my responsibility.

I had to examine all these cases, which I did meticulously because of my long experience on the industrial front. I had to agree with many of the recommendations that came from the postmasters for dismissal. In other cases, after examination I formed the judgment that the recommendations for dismissal were not adequate, and therefore I used to take the decision that the individual concerned would not be dismissed but that he should continue in his employment. This has existed right from the time when the Post Office was set up in this country, through successive Governments and successive Ministers within the Post Office; and that was my responsibility.

Therefore I am rather surprised, as I said at the beginning, that the noble and learned Lord asked a question concerning four or five people working on a farm, where someone commits a misdemeanour or the other four do not like the colour of his skin or they feel that he is not doing his job properly or pulling his weight and they do not want anything to do with him. In such a situation he goes to his employer and the employer sees the disunity that exists among these people. He asks, "What shall he do?" The noble and learned Lord asks my noble friend what he shall do in these circumstances. The responsibility is his; he was the starter and he ought to be the finisher. That is my view in regard to these things, but in my case the responsibility was placed upon me by Government and I had to give the decision.

I remember one of my secretaries saying to me on one occasion—his father happened to be Head Postmaster in one of our big cities—as follows: "You and I are not very friendly today." I said, "For what reason?" He said, "Because my father sent up a recommendation for dismissal of one of his employees and you did not accept it, and he has to keep the man on." I saw that case in a different light altogether. I examined the evidence submitted to me. Therefore, from the experience I gained over those six years when I had to deal with thousands of cases, I am surprised at the comments made by the noble and learned Lord. I think he will understand when he examines this and thinks of what I am now saying after dealing with such cases.

There was heavy responsibility. It is not that I liked the work I was engaged in, but someone had to do it and, as I say, it was my responsibility to take a decision for dismissal, or even to go against the decision of a promotion panel in respect of people making application for executive posts. They had the right to come to the Minister with an appeal against a decision arrived at by the Department. That is the way it worked, and so I cannot see anything wrong with the attitude of mind and the point of view expressed by my noble friend in endeavouring to deal with this. I should not have got to my feet had it not been for the statement made by the noble and learned Lord, for whom I have a great affection because of his ability in legal matters and so on; but he is talking now about being an employer of labour. That is why I have risen to my feet. He wanted advice on some line of approach as to what to do in circumstances where there is disunity among the employees he is responsible for.

Lord HAILSHAM of SAINT MARYLEBONE

I am sure that every word the noble Lord has said will be read with eager interest by every farmer in the country. They will put their cows on a card index and follow the methods of the Post Office in the future.

Clause 5, as amended, agreed to.

Clause 6 [Exception for employment intended to provide training in skills to be exercised outside Great Britain.]:

5.27 p.m.

Lord JACQUES moved Amendment No. 25: Page 5, line 7, leave out from ("employer") to ("wholly") in line 10 and insert ("for the benefit of a person not ordinarily resident in Great Britain in or in connection with employing him at an establishment in Great Britain, where the purpose of that employment is to provide him with training in skills which he appears to the employer to intend to exercise ").

The noble Lord said: Clause 6 is designed to except from the Bill employment which is intended to provide a person not ordinarily resident in Great Britain with skills to be used outside this country. This clause is necessary to protect training and trade agreements which Government Departments and private companies are increasingly negotiating with overseas Governments. These agreements may, for example, concern the provision of health systems in developing countries and include the building of a hospital and supplying the necessary equipment. As part of the contract there may be an obligation to train the staff who are to run the hospital.

When this clause was considered in the other place, some anxieties were expressed as to the way in which the clause could be open to abuse. Those anxieties were repeated at the Second Reading of the Bill in this House. The Government had already acknowledged the possibilities of abuse and said they would come forward with Amendments at the appropriate time. Accordingly, we bring forward this Amendment. We have carefully considered the criticisms that have been made in regard to this clause and a corresponding clause, Clause 36. We believe that the clause will be improved by these Amendments. They will ensure that the exceptions can be claimed successfully as a defence to a complaint against discrimination only where their use is justified. They will make sure, for example, that an employer who reserves certain training places in his establishment for persons not ordinarily resident in Great Britain will be able to do so only on terms and conditions which will benefit the overseas trainees. He will not, for example, be able to pay them lower wages or give them less favourable benefits than he would provide for other employees in similar circumstances.

The Amendments also make it clear that the onus of showing that the trainee intends to use the skills acquired outside Great Britain will rest with the employer who claims the exception. In the event of complaint, it is likely that the employer would usually be able to show this by reference to either an individual employee's written contract of employment, or a wider training agreement concluded with an overseas company, authority or Government. An educational or training body could, for example, refer to the content of the course, a written agreement concluded with the individuals concerned, or a wiser education or training agreement drawn up with an overseas company, authority or Government. We believe that these Amendments introduce reasonable safeguards into the clause, and we introduce them in response to discussions on the points raised both in this House and in the other place. I commend this Amendment to the House. I beg to move.

Baroness ELLES

We appreciate the Amendment to Clause 6 moved by the Government, the main point of which seems to be a change of emphasis in the role of the employer. The employer is no longer to be responsible for the trainee or other person not ordinarily resident in this country, who is employed by him for any length of time and does not later leave the country, because the words to be inserted are: …which he appears to the employer to intend to exercise". But I would ask the Government to indicate how this clause would then operate against an employer who had unknowingly been employing somebody who was an illegal immigrant, and who would not therefore be ordinarily resident in this country. Of course, I know that the term "not ordinarily resident" is not a legal definition of anybody, and is a very loose term which is interpreted in various ways, but I believe that it would normally apply to an illegal immigrant. Therefore, I should be grateful if the noble Lord would comment on the role, duties and obligations of an employer as a result of the Government's amendment of this clause. I am thinking, in particular, of the draft Directive which I understand has been discussed by the European Commission, in relation to very severe penalties for employers in Member States who may employ illegal immigrants and, therefore, encourage traffickers to go on with this absolutely intolerable form of human traffic. Therefore, I should be grateful if the noble Lord would comment on this Amendment in the light of what I have said.

Lord JACQUES

I shall not be dragged into the question of illegal immigrants now. That is outside the scope of the clause and of the Amendment. But I would just say that, in the circumstances which the noble Baroness indicated, if the employer could point to a contract for temporary employment for the exercise of the skills overseas, then he would be able to show that, so far as he was concerned, that was the intention. He would need to do no more than that.

Baroness ELLES

The point is that the relationship between an employer and an illegal immigrant, or very often between other persons who are not ordinarily resident in this country, is not based on a contract and there is only a verbal arrangement. It seems to me that the last line of the Amendment is entirely a matter of subjective judgment on the part of the employer.

Lord JACQUES

In order to get himself protected under this clause, the employer should have something in writing. For example, he will be doing this training for some overseas company, authority or Government. He will have a contract for that purpose, and he will be able to show that the training is being done under it.

Lord HAILSHAM of SAINT MARYLEBONE

I am afraid that I do not understand this, but I am prepared to give the Government the benefit of the doubt.

Viscount SIMON

The clause as drafted refers only to persons not ordinarily resident, and the noble Baroness has raised the rather difficult point of the illegal immigrant. But what would be the position of someone who was ordinarily resident? The son of somebody who was previously an immigrant, who was born here, might want to go out and do work in his old home country. This clause would not cover him, because at that moment he would be ordinarily resident in this country. Is that what is intended?

Lord JACQUES

That is what is intended.

On Question, Amendment agreed to.

5.36 p.m.

Baroness SEEAR moved Amendment No. 26:

Page 5, line 11, at end insert— (" (2) Nothing in section 4 shall render unlawful any act done by an employer in pursuance of a plan to fill vacancies or hire new employees so as to eliminate or reduce imbalance with respect to colour, race, nationality or ethnic or national origins, if the plan has been submitted to the Commission in accordance with the rules of the Commission and the plan has been approved by the Commission subject to any conditions which the Commission may make.")

The noble Baroness said: Your Lordships will recall that in the 1968 Race Relations Act there is a section dealing with racial balance, and for reasons with which I much sympathise that section is greatly disapproved of by many people who are extremely anxious to promote good race relations in this country. I want to make it clear that this Amendment is in sharp distinction to that general section on racial balance which appears in the 1968 Act. The purpose of this Amendment, which is aimed at reducing an imbalance rather than permitting an application on grounds of racial balance, is to deal with a small number of cases and to do so in a very controlled and careful way by means of the Commission. The number, although small, covers cases of considerable importance.

I mentioned on Second Reading that, to my knowledge, there are a small number of companies which have been operating very favourable equal opportunity policies, and which have earned a reputation among immigrant communities as being employers where it is easy for immigrants to get employment. I know of two cases where the result of this policy has been that, over a period of years, these employers have found themselves staffed very largely and increasingly by immigrant workers. Your Lordships may ask at first sight: does this matter? I suggest that it matters in two ways. It leads to the position that those companies are becoming something like ghettoes, in which employment is being increasingly confined to immigrant groups.

In one case, the employer who was concerned about this development commissioned an independent inquiry in the local labour market to find out why they were getting so few applications from native English, and the inquiry discovered that local mothers and fathers were saying that company X was entirely staffed by Africans and Irish. I do not know to which groups the parents took particular exception but, whichever way it was, this is a development of racist attitudes which one wants to discourage, and the formation of ghettoes in such companies cannot be advantageous. Moreover, it is particularly hard on the companies which have adopted these policies, which then find themselves very much limited in their choice of employees. In one particular case, when full employment was as we would all wish it to be, a company was limited to a very restricted number of coloured persons on the local register because they were not getting applicants who were ordinary English school-leavers and would-be employees.

In these circumstances—and they are, of course, very few—it seems to me to be desirable that such a company should be able to ask the Commission for permission to operate a clause of this kind and that it should be operated only if the Commission decided, on investigation, that there was a case for operating it: that the developments which had taken place in this organisation were not in the interests of good race relations and that action such as I have suggested in this clause should take place.

Moreover, in making this kind of investigation and giving permission the Commission could put conditions upon it which would be favourable to the groups already employed by those concerns. For example, it could be made a condition that the organisation should show that they had a far more than ordinary number of immigrant or non-English people in the more senior positions, a situation which all too rarely occurs. By having this right the Commission could lay it down that the position of those already inside the company should be improved, at the same time allowing the company to redress a situation which unwittingly had become seriously unbalanced. I beg to move.

5.42 p.m.

Lord JACQUES

The question of whether or not the racial balance provision should be retained is not easy. The arguments which have been put forward in favour of a racial balance clause concern the difficulties which may arise from the disproportionate representation of particular racial groups in certain firms or sections of those firms. It is suggested that in these circumstances some jobs may become identified with a particular ethnic group and may then attract a disproportionate number of applicants from that group, especially when they are immigrants with their own particular language and customs.

Baroness SEEAR

I apologise to the Minister for intervening. It is not just that certain jobs are becoming the reserve of particular people but that certain companies are unable to attract employees except from particular racial groups.

Lord JACQUES

I think that both apply. I do not believe that one can say that it is entirely the one or the other. Those who support this view argue that this may impair good race relations as well as good industrial relations. They suggest that it may also impede the employment prospects of the workers concerned, since they gain no experience of working in an unsegregated industrial situation and so are handicapped in seeking promotion or moving to better jobs elsewhere.

The Amendment aims to provide an exception in the Bill to help employers to overcome these difficulties. It seeks to avoid some of the problems of the provisions of the 1968 Act. We acknowledge that immediately. It is confined to acts taken to reduce or lessen an existing imbalance, but we believe that the formulation of "plans" which is embodied in the Amendment, is beset with problems. We believe that the labour market conditions change so rapidly that the employer's plans and proposals would likewise have to change.

The Government's main objection to the Amendment, however, is that it conflicts with the principle of nondiscrimination upon which the whole of the Bill is grounded. It would, in fact, permit discrimination on racial grounds. If the Amendment were accepted, there would inevitably be a restriction in the employment prospects of workers from minority racial groups who in many cases would find it difficult to secure alternative employment. Employers would, as part of an approved plan, be able to turn away applicants or deny promotion to existing workers simply because they were not members of a particular racial group. Membership of a particular racial group rather than individual qualifications or merit would then be the deciding factor in providing opportunities for employment.

May I sum up our main objection in these words. We are not convinced that a racial balance exception can make a sufficiently positive contribution to justify the discrimination which is inherent in it. We believe that the problem can to some extent be cured by more positive action. Clauses 37 and 38 of the Bill enable training bodies and employers to take steps to increase the range of jobs for which the members of particular racial groups are qualified if, in those jobs, they have previously been under-represented. The Government are convinced that this positive approach, in the context of greater equality of opportunity which the Bill is designed to promote, is the right approach.

In the light of this explanation, I hope that the noble Baroness will feel that she can withdraw her Amendment.

Baroness SEEAR

May I ask the noble Lord the Minister a question arising out of what he has said about Clause 37? In the kind of firm about which I have been speaking, let us suppose that the head of the firm has been receiving no white applications for apprenticeships. Under Clause 37, would it then be appropriate for the firm to say that for a period of two or three years they would be restricting their apprenticeship applications to whites? That is what the noble Lord is implying. In that case you could use Clause 37, the clause to redress imbalance, by restricting it to white apprentices. Is that what the Minister is saying?

Lord JACQUES

I should say that you could use it in reverse, which is what the noble Baroness is asking for. I see no reason why you should not use Clause 37 in reverse.

Lord AVEBURY

As I read Clause 37, it could be used to benefit the members of any ethnic group. Therefore both the Minister and my noble friend are right: that it could be used to benefit members of a particular minority ethnic group or members of the host community. If, however, the noble Lord is suggesting that training provides us with the whole answer to the case put forward by my noble friend, then I must respectfully disagree with him. I must refer him back to the discussion we had on Monday evening when the noble Lord, Lord Brockway, and others made reference to the documents which were sent to some of us by the Wandsworth Council for Community Relations—No Bloody Suntans—in which it was made absolutely clear that, in the experience of the anonymous lady who gave the interview to the representative of the Wandsworth CCR, many people with the highest qualifications are refused employment, even though nobody else with remotely similar qualifications is presented to the potential employer.

The noble Lord has probably read the document and will remember the case of an accountant who, according to the lady who interviewed him and who was reporting the facts to the Wandsworth CCR, is a man of considerable experience. There is no doubt whatsoever about the excellence of his qualifications, yet he was turned down by the employer to whom he was sent by the agency in favour of somebody who was white. Therefore you can train people as accountants and in all kinds of skills, but unless you have powerful weapons against discrimination they still will not get the jobs. Black people, members of minority ethnic groups, will, as my noble friend has pointed out, finish up in employment which may not be suitable for the qualifications which they have to offer on the labour market.

We all know of cases like this. My noble friend mentioned a company with which she is familiar where, she says, the situation came about because of the liberal policies of the employer. Equally you can point to cases where black workers are in a majority because white workers are not prepared to accept the conditions that are offered. I think both are equally wrong. We do not wish to concentrate the majority of workers of ethnic minorities into different companies and particular occupations and the noble Lord agreed with my noble friend that we are talking about both situations in this Amendment.

So I think it would be only right if the noble Lord the Minister would reflect again on what my noble friend has said and at the very least may I request him to take this back to his Department. He did not mention whether there had been any consultations about this clause so I would also ask him to refer the matter to representatives of ethnic minorities and indeed to the Community Relations Commission itself. It would be valuable if he could obtain the advice of the authorities on this subject, and indeed I would suggest that he should talk to the employers' and the trade unions' organisations.

Lord JACQUES

May I intervene to say that the Amendment conflicts with the advice of the Race Relations Board.

Lord AVEBURY

I am grateful to the Minister for that information. I mentioned also that I hoped he would consult the Community Relations Commission and I shall be grateful if he will tell us whether that advice has been sought, whether the advice of the trade unions' and the employers' organisations has been sought, and whether in particular it has been put to them that the clause suggested by my noble friend is not the same as was in the 1968 Act. It is of a more limited nature and it provides that such discrimination as my noble friend's subsection permits is hedged about with all sorts of safeguards to prevent it from being used to the detriment of minority group workers. So I humbly request that the noble Lord should take this matter back and at least give us a promise that before Report stage he will have another look at it.

Lord JACQUES

I can sum up the advice we have had. The Race Relations Board recommended the repeal of the provisions in the 1968 Act—just straight forward repeal, not amendment. We have had consultations with the TUC and they also accepted complete repeal rather than modification. They said that there was little evidence that it had any positive effect and it was not consistent with the promotion of equal opportunity. The CBI made representations to the Department for the retention of the 1968 Act and they provided examples showing that some employers relied on the existing provisions and sought to regulate their recruitment accordingly. In some cases where the employers had not used the provision, concentrations of racial minority workers had arisen with unfortunate consequences for good industrial relations and for the minority group workers themselves whose employment prospects were impeded.

Lord BYERS

At that point I should like to ask the Minister a question, if he will permit me. He keeps referring to the 1968 Act. Has he put the specific Amendment moved by my noble friend to those bodies whom he has consulted or has he only taken the general principle of the 1968 Act, which is not relevant to this argument?

Lord JACQUES

I think the noble Lord could assume the answer to that question without asking it. Has there been time for consultations since this Amendment was tabled?

Lord HAILSHAM of SAINT MARYLEBONE

Then the answer is, No.

Lord JACQUES

The answer is, No. This Amendment is a modification of the 1968 Act. There has been no time for any consultations on this particular Amendment.

Lord BYERS

May I put it to the Minister that if that is so, would it not he right to have a look at this and to consult on this specific Amendment before the next stage of the Bill? Is that not a reasonable request?

Lord HAILSHAM of SAINT MARYLEBONE

I should like to reinforce this a little. We are not getting on very fast and this is worrying me and I suspect it is worrying the noble Lord, Lord Harris of Greenwich, who seems to have departed in high dudgeon. I do not know whether the noble Lord, Lord Jacques, is seeking to provoke the Liberals into a Division but if he were doing so he could not be setting about it more efficiently. I suggest to him that there should be a little "give" so far as he is concerned. In fact, he really makes no concessions to any kind of criticism at all and he is giving the impression, no doubt unwittingly, that it does not matter what we say to him he will still read the same words out of his departmental brief. This is not what Parliamentary debate is about.

I am completely agnostic on this subject because there are some subjects, I am afraid, that I do not know very much about and this is one of them, but what I am not agnostic about is the matter of the tactics of Parliamentary debate. I have been in one House or another for quite a long time and I think the noble Lord, Lord Jacques, ought to be a little more flexible. I am wondering whether we would not get on quicker if he were a little nicer to the people who propose Amendments in good faith and support them with fairly reasonable sounding arguments.

Lord JACQUES

I am sorry if I have not been nice. I did not think that I had been the opposite to anybody. May I say that so far as the CBI are concerned they were received by the Home Secretary, there was a deputation received on the 1968 Act on the imbalance clause and there was a long discussion. The Home Secretary promised to consider it and some good while afterwards, having had the opportunity of discussing it, he wrote to the CBI—I have a copy of the correspondence here—saying why he could not accept any clause for imbalance.

Baroness SEEAR

I really must return to the fact that this clause is different from the 1968 clause, and I would also add that this Amendment was tabled in August. There has been time in the Department for consultation on this clause to take place. Usually I know that on Amendments tabled by me the noble Lord would be safe in saying that they had come in within the last 24 hours, but on this occasion in fact they have been in for six weeks.

Lord JACQUES

I will certainly request that we might give consideration to the modifications which the Amendment would make to the 1968 Act and to consider whether these modifications or something like them could not be used. However, I would also add this. It is all very well for the noble and learned Lord to expect me to give way on every Amendment, because on almost every one he thinks I should give some concession, but my experience is that when he is on this side of the House he does not do it himself.

Baroness SEEAR

I can assure the noble Lord that when we are on that side we shall be most accommodating, but in the light of what he has said I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Clause 7 [Discrimination against contract workers]:

5.59 p.m.

Lord JACQUES moved Amendment No. 27:

Page 5, line 30, at end insert— ("(4) Nothing in this section shall render unlawful any act done by the principal for the benefit of a contract worker not ordinarily resident in Great Britain in or in connection with allowing him to do work to which this section applies, where the purpose of his being allowed to do that work is to provide him with training in skills which he appears to the principal to intend to exercise wholly outside Great Britain.")

The noble Lord said: This is a technical Amendment to ensure that principals of contract workers are in the event of a complaint of unlawful discrimination afforded the same defences as are available to employers under Clause 6 of the Bill. I beg to move.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Exception for seamen recruited abroad]:

On Question, Whether Clause 9 shall stand part of the Bill?

6.0 p.m.

Lord BROCKWAY

I am strongly in favour of this measure, and therefore do not want to delay its passing. I have refrained from speaking during the debate, although I have sometimes been provoked. This clause provides that: Nothing in section 4 shall render unlawful any act done by an employer in or in connection with employment by him on any ship in the case of a person who applied or was engaged for that employment outside Great Britain. This provision allows for the continuation of discrimination in the terms of their contract of employment on approximately 19,000 Asians and Africans working on British ships. That is a very high proportion—19,000 compared with 89,000 British seamen.

If this clause were deleted, seamen belonging to ethnic minorities would have the same protection as British seamen. I recognise that there will be practical difficulties because these seamen are recruited in India, Pakistan, Bangladesh, China, Nigeria, Sierra Leone and the Seychelles. They are recruited under regulations and by negotiation in these territories. I recognise that the wages paid to them are higher than are normally paid in those territories.

I suggest that, instead of this clause, the new Commission should establish a procedure whereby pay should be adjusted by progressive phases after consultation with the Governments concerned, and with the employers and the unions. I am encouraged in urging this by a statement made by Mr. Clinton Davis, the Parliamentary Under-Secretary of State for Trade, at the recently held annual conference of the National Union of Seamen. He said that a working party from both sides of industry would be set up to study the problems involved. He added these words: It is not a question of whether these disgraceful practices are to be eradicated, but of how they are to be eradicated. In the Guardian report of his speech, he went much further than that. He stated that the Government are taking powers in the Bill now before us to repeal the exemption order. So far as I am able, I have studied the long Bill and the very complex Amendments to it. In those documents I do not find any observance of what Mr. Clinton Davis said, that these powers should be modified.

Lord HAILSHAM of SAINT MARY-LEBONE

I think the noble Lord, Lord Brockway, will find that Clause 73 has got something about it.

Lord BROCKWAY

I am very glad to have advice and I shall listen with great attention to what the Minister says. Nevertheless, I submit that this Amendment is not only for the sake of the non-white workers, but for the British seamen who are prejudiced by this low-paid competition. Mr. John Slater, the General Secretary of the National Union of Seamen, in welcoming the Amendment, said: We are on the verge of getting rid of 150 years of this deplorable practice. If this is true, then there is no place for this clause in the Bill, and I beg to move that it be left out.

Lord SANDFORD

I hasten straight away to say that I do not rise to support the deletion of this clause, but to ask the Minister four questions related to it which he might be able to cover in his reply, and thus save time. However, if the Minister prefers to deal first with the points raised by the noble Lord, Lord Brockway, and then with mine, that is entirely up to him.

My first question is this. Does Clause 9 represent the complete outcome of the consultations referred to in paragraph 64 of the White Paper? That paragraph says that there were to be consultations with both sides of industry to resolve any problems. Are those consultations now complete, or are there still some problems unresolved? Secondly, what is the reason that the exception afforded by Clause 9 to the recruitment of staff for ships does not also cover aircraft? What is the distinction between the two? Thirdly, does the exception afforded by Clause 9 refer to the recruitment of staff for Her Majesty's ships? And my fourth question is this. Does this freedom to discriminate in the recruitment of ships' crews overseas accord with our obligations not to do so under our accession to the European Economic Community?

Lord PAGET of NORTHAMPTON

I raise only one small point, as I do not wish to delay the Bill. It is possible that I may be the only noble Lord present who has served in a lascar ship. That was during the war, when she was trooping. As a lieutenant RNVR I was in charge of the military landing craft and had to work very closely with the lascar crew running the ship. I can assure your Lordships that if there had been any question of introducing into that ship anybody of a different nationality, race or, indeed, caste, the whole situation would have come to a standstill. This was a community; this was a Goanese crew, and there was a tradition of generations in it.

The chief petty officer—I am afraid my ageing memory has forgotten his title—was a tremendous chap. The life of the crew was a very special and traditional life which had grown up in the ship. I do not think we would be serving Goa or any of the other ports from where Asiatic crews come, with their traditions and arrangements, strictly carrying out their own jurisdiction in running our ships. By saying they have got to be mixed up with different castes and people, perhaps African seamen, I do not think we should be doing any great service to our Asiatic friends who have served us very well for a number of generations.

Lord JACQUES

So far as aircraft are concerned, I can say that there have been consultations with both sides of the aircraft industry and the exception for them has been excluded by agreement with them. As regards the other questions which the noble Lord, Lord Sandford, raised. I think I will deal with some of them in reply to my noble friend Lord Brockway and in so far as I have not covered them all I will write to the noble Lord.

There were in the 1968 Act three exceptions relating to seamen. We have had consultations—and these are the consultations to which the noble Lord referred—and as a result of those consultations with both sides of the industry two of the exceptions in the 1968 Act have not been repeated in the Bill before us. The third one is the exception which is retained, and it is in fact Clause 9 with which we are dealing. The problem presented in this case is very much greater, and mainly concerns seamen from the Indian subcontinent. Some 13,000 seamen from this area are employed by long tradition in some 500 United Kingdom ships at rates of pay which are substantially below United Kingdom rates but are agreed with the local unions.

Seafarers employed on local flagships are paid at the same rates and the Indian, Bangladesh and Pakistan Governments have made strong representations to the United Kingdom Government on the damage that could be done to their economies and their own shipping interests if we were to insist upon United Kingdom rates being paid to their seafarers. The General Council of British Shipping also strongly represented that British shipping and the United Kingdom balance of payments would suffer considerably if full United Kingdom rates had to be paid to overseas recruited seamen. Partly, of course, because they could not compete with local flag vessels paying the lower rate, they believe that many of the ships manned by such seafarers would have to be prematurely scrapped and the seafarers made unemployed.

The unions, on the other hand, feel that the discrimination is no longer justified. In the light of the consultations which the Government have had with both sides of the industry, they have decided that the exception should continue for a strictly limited period, and, as the noble and learned Lord said, there is provision in Clause 73 for an amendment to the Bill by order subject to Affirmative Resolution.

The Government's policy is not to be viewed as a prescription for delay. The Government have, therefore, set up a working group on the employment of non-domiciled seafarers on United Kingdom ships. Both sides of industry are represented on the working group, whose terms of reference are as follows: To study the problems involved in phasing out the employment of Asians and other non-domiciled seafarers in United Kingdom ships at less than the United Kingdom rates of pay and to seek agreed solutions to these problems, having regard to Her Majesty's Government's declared intention of phasing out this practice and to the economic health of the United Kingdom shipping industry. The Government's view is not whether or not the practice should be eradicated, but how soon it can be eradicated. I hope with those words that my noble friend will feel that he can now withdraw his Amendment and allow us to proceed to the next clause.

Lord BROCKWAY

I am very grateful to the noble and learned Lord, Lord Hailsham, who drew my attention to Clause 73. Under this clause it would be possible by order to remove the implications of Clause 9. Quite honestly, I do not see the necessity of retaining Clause 9 at this moment, when a Minister from a Government Department has said that there is the intention to eradicate this discrimination in wages. Why, therefore, it should be necessary to retain a clause which maintains it I do not know. But I am encouraged by the fact that the Government themselves have said that they intend to eradicate this disgraceful practice, and therefore I shall look forward to Clause 73 and to an order which will remove it entirely. I think it has been worth while drawing the attention of the Committee to this matter.

Clause 9 agreed to.

Clause 10 [Partnerships]:

6.18 p.m.

Lord PITT of HAMPSTEAD moved Amendment No. 27A: Page 7, line 14, leave out ("six or more").

The noble Lord said: I put down this Amendment because I am a little worried about the consequences of Clause 10. My attention was first drawn to it by thinking of the situation within my own profession, where partnerships, with very few exceptions, will be fewer than six, and therefore all GPs will have a right to discriminate. Having thought about that, I decided to do a little inquiry, and I find that it is so with most of the learned professions. In fact, in most of the learned professions partnerships will be less than six; therefore, Clause 10 will enable the vast majority of learned professions to discriminate. I do not believe that that is what the Government intend. Hence, I am introducing this Amendment in order to bring this particular point home. I shall wait to hear the Government's reply.

I take it that the whole purpose of having a Race Relations Act is to help to remove discrimination, to remove obstacles to people of different races playing their full part in society, at all levels of society. If, however, as a consequence of the Act, a certain section of society, and a very important section at that, is free to discriminate, I think the Act will of its own volition introduce a coach and horses through its provisions. That is how I see this particular clause, Clause 10. In effect, since it will permit most of the learned professions under the terms of their partnerships to discriminate, a very dangerous road will in fact be built right through the effects of the Act.

It may well be that problems are involved in making all partnerships subject to the effect of the Race Relations Bill, but, frankly, I do not know that I can see them. There are sound arguments for exempting small dwellings. There are sound arguments for exempting dwellings which are furnished, and in which the owners are living, from the effects of this Bill. I do not believe that there are any sound arguments for exempting any form of employment from the consequences of the Bill, because once you exempt certain forms of employment from the consequences of this Bill you are opening a door to some dangerous discrimination. But it is even worse if the exemption is in fact for a section of society which is of extreme importance to the society—and I think that the learned professions are of extreme importance to this society. It is even worse when it is going to affect a profession in which a large percentage of members of that profession are members of minority ethnic groups.

I must confess to be very worried about the consequences of Clause 10, and I would in fact invite the Government to say that no discrimination will be permissible for any partnerships. That would be the effect of my Amendment, which will remove from the Bill the words "six or more". As a consequence, all partnerships will have to conform to the whole tenor, the whole ethos, of the Bill, and there will be no discrimination permissible when partnerships are being formed. I hope your Lordships will agree with me. I hope that the Government on reflection, will, see the point. I beg to move.

Lord AVEBURY

I should just like to add one or two words in support of the Amendment.

Lord JACQUES

May I say a few words first? Might I say to the Committee that if we have one debate on partnerships, including the question of whether the clause be left out, it would be to the benefit of the Committee. I would then give one reply.

Lord AVEBURY

I will give way to the noble Baroness, Lady Vickers, if she would like to move her Amendment at this stage.

Lord HAILSHAM of SAINT MARYLEBONE

The noble Baroness cannot move it, with great respect. There is a Question before the Committee, and that Question must be adhered to. Whether the debate ranges over both questions is a question of the convenience of the Committee, about which I do not wish to say anything, but under the rules of order we cannot have a second Question before the Committee.

6.23 p.m.

Baroness VICKERS

I am quite willing to talk to my Amendment, but as has just been pointed out I cannot move it. If I could move it afterwards, at the end, I should be very pleased to do so. I should like to say first to the noble Lord, Lord Pitt, that I would be perfectly willing to support his Amendment. He has put it very reasonably and I agree with him in regard to the professions. But I do not like this clause at all, because it is entirely unworkable and likely to be ignored. It is a great pity to have something in a Bill which is unworkable, and therefore allows people to ignore it.

If you are a partner in a firm you are not going to discriminate against anybody who is going to be beneficial to your firm. You are obviously going to take the best person. Firms are there to do business, and therefore they employ the people who are most beneficial to them. Paragraph (a) says: the arrangements they make for the purpose of determining who should be offered that position". They are going to offer the position to the most qualified person, whatever his race. I think this is where we want to get in this country at the present time.

The terms they offer is surely a contract between partners, and the person will see, whatever his race, the terms as set down in the contract. Therefore, I cannot see why this is necessary. If one is refused or omitted from the offer of the position deliberately, how is anybody really going to know whether one has been deliberately omitted from it? Who is going to know this? It would be impossible to find out, I should have thought. Subsection (3) states that these provisions do not apply to a position as partner where, if it were employment, being of a particular racial group would be a genuine occupational qualification for the job. But that is going again to make segregation, which I have been trying to fight against during this Bill. I should have thought that we want everybody to be employed on their merits, and this is the great thing on which I think I can support the noble Lord, Lord Pitt, because he wishes to see that the people employed in these small firms are employed on their merits and for the good of the partnership and not just because of their particular racial group.

I should like very briefly to say that I hope we shall not include this clause. If we do include it, obviously it cannot be followed, and if we get to the question of expelling a person from that position, or subjecting him to some other deterrent, then he has the right to go to the tribunal or to the Commission, or to take action, if he wishes, through his own legal advisers. Therefore, I should like to say, if I cannot move my Amendment for the moment, that I am concerned that this is totally unnecessary in the context of this Bill, and will only be another section to be ignored and another one which will just irritate employers and not make partnerships happier in the future.

Lord AVEBURY

The noble Baroness, Lady Vickers, says that she agrees with the noble Lord, Lord Pitt, in his Amendment, that she does not want to see discrimination in partnerships of less than six persons; and yet she wants to delete the whole clause, which is quite inconsistent with supporting the noble Lord, Lord Pitt. I am advised that if this clause were deleted then partnerships would be excluded from the Bill altogether, since belonging to a partnership does not constitute employment. Therefore, if the noble Baroness's Amendment were carried anyone who belongs to a partnership, of whatever size, would be permitted to discriminate. I am sure that that is not what the noble Baroness wants to achieve.

She mentioned subsection (3) in particular. I think it is fairly clear why that exception is necessary. We spoke on Monday about the genuine occupational qualifications. One of the possibilities that were mentioned was that one might want to employ somebody in an Arab restaurant. The noble and learned Lord, Lord Hailsham, mentioned that. I do not want to go back over that discussion again, but if the Arab restaurant happened to be run by a partnership, then it would be reasonable to suppose that a new partner would also have to be of Arab origin so that he would fit in with the general ambience of the restaurant.

Lord HAILSHAM of SAINT MARYLEBONE

The style and setting.

Lord AVEBURY

A position which the Committee very wisely altered, if I may say so, on Monday evening to "the style or setting". I think that is the reason why subsection (3) has been included there.

If the noble Baroness has any doubts as to whether discrimination in partnerships does take place, I would recommend her to look at the columns of the British Medical Journal which contain numerous advertisements, as the noble Lord, Lord Pitt, has pointed out, calling for a graduate of a British university required as fourth partner, or whatever the number may be, to join an existing medical partnership. As the noble Lord, Lord Pitt, has said, I think almost all medical partnerships consist of fewer than six persons, and therefore every single general practitioner in the country who belongs to one of these partnerships would be entitled to discriminate if the Bill remains as it stands.

Baroness VICKERS

Quite a number of overseas people go to British universities and are fully qualified.

Lord AVEBURY

What the noble Baroness says is quite correct. As she knows, a large number of doctors employed in our Health Service are overseas trained, and most of those who are overseas trained are of minority ethnic groups: they are West Indians, or Indians, or Pakistanis, and quite a number are from the United Arab Republic. However, if one looks at our own universities in the United Kingdom, the majority of the graduates from those universities are of the majority ethnic group. Thus, what a person is saying when he puts an advertisement in the British Medical Journal to that effect, is that he wants white applicants joining the partnership.

If I were a West Indian or Pakistani-trained doctor and I read an advertisement of that kind I should know perfectly well what was meant. Even if I were a person of, say, Indian ethnic origin who had graduated at Edinburgh University, notwithstanding the fact that I would comply with the terms of the advertisement, I should be very reluctant to come forward and make an application in response to that advertisement and say, "Although you may think that I might have been trained at an overseas university, here are my credentials from Edinburgh ", and expect to be treated on the same footing as any other applicant for the job. Being realistic, one would know that the person placing the advertisement in the publication wanted only white persons to apply.

Lord PAGET of NORTHAMPTON

What strikes me about this is the great difficulty of enforcement. Almost all of these partnerships will include a unanimity clause, which has the effect of saying that nobody can he admitted to the partnership as a new partner unless all the other partners consent. May I ask the noble Lord what would happen if one of the partners did not consent? How would this proposal be enforced?

Lord AVEBURY

Thank goodness that is not a question with which I have to deal. If there are problems, as Lord Pitt conceded there might be, with partnerships of six people, then equally there are problems with partnerships of five. If it is possible under the Bill as drafted to say that discrimination is not to be permitted where a partnership consists of six persons or more, then obviously it must be equally feasible to prohibit discrimination in partnerships of five. I hope that the noble Lord, Lord Paget, will not press me to explain precisely how this is accomplished, but I think he would agree that as this must have been achieved for partnerships of six, then equally it must be for partnerships of five.

The existence of this provision in the Bill is grossly offensive to persons belonging to minority ethnic groups, and if any noble Lord is in doubt about that I would refer him—I particularly refer the Minister to this—to an editorial in Garavi Gujarat on 14th August which said: One of the biggest defects in the Race Relations Bill is the exception conferred by Clause 10". If that is how people feel about it—and I think the Minister will concede that Garavi Gujarat is fairly representative of a particular minority ethnic group—then it is likely that others will feel the same. I hope that the Minister will take note of such views and will agree that Lord Pitt's Amendment should be accepted.

Baroness PHILLIPS

Are we not on slightly dangerous ground if we take the line of the noble Lord, Lord Avebury, not only in relation to an ethnic group? The advertisement he cited said that a person would have to be trained at a particular university. If we move into the area where I, if I were in the teaching profession, was unable even to suggest that I should prefer somebody from this as opposed to that college, the whole thing will become totally ridiculous. We are talking about discrimination within the terms of the Bill; but the noble Lord has gone rather wider by talking about partners who state that they prefer somebody from a British university. That may be because they feel that certain qualifications that the candidate brings to the partnership are the qualifications they need, and nothing to do with his ethnic origin.

Lord AVEBURY

I hope that the noble Baroness will forgive me if I do not become involved in discussing teachers and teaching; teachers are not members of partnerships and would therefore not be covered by the Amendment.

Lord HARMAR-NICHOLLS

I suggest that the noble Lord, Lord Avebury, is trying to extricate himself from what is a fundamental argument. The noble Baroness, Lady Phillips, is right in saving that one must follow the logic of what one wants to put on the Statute Book, and the noble Baroness presented that logic by pointing out that if the noble Lord would object to preferring somebody from a British university, lie is well on the road to excluding anybody from naming any item for which he has a preference and which would best suit his profession or business. I intervene only because I thought that the noble Lord was trying to fob off with a shrug of the shoulders something that is fundamental to the argument.

Lord JACQUES

On this question of partnerships we are primarily concerned with the general principle which was laid down in the White Paper, that the Bill should not apply to circumstances in which there were personal and intimate relations. As far as partnerships are concerned, it is inevitable that there will be differences of opinion. I had assumed, for example, that when the noble Baroness, Lady Vickers, tabled her Amendment to delete the clause she wanted no partnership to come within the scope of the Bill. On the other hand, by his Amendment my noble friend Lord Pitt wants all partnerships to come within its scope. In the other House there were similar differences of opinion; one Amendment wanted to increase the number from six to a higher figure while another wanted to reduce it from six to a lower figure. Both, I am pleased to say, were withdrawn after debate and I hope that we may have the same good fortune in this Committee.

There is nothing very striking about the use of the figure six here. The only thing we can say about using six is that a figure of about this order is designed to exclude partnerships involving close personal relations. That is our defence of this figure. I might point out that even though discrimination would be allowed in smaller partnerships as the Bill stands, a discriminatory advertisement would not be permissible; even though it was lawful to discriminate, the partnership would not be able to advertise in a discriminatory way because it would be offensive and because it would promote bad race relations.

Why do we want the larger partnerships particularly to come within the ambit? First, there is the issue of principle. We do not think that the relations are sufficiently close and personal in the case of the larger partnerships to justify them being an exception. However, in addition it is now common practice, particularly in the professions of accounting, surveying and solicitors, for an offer of a partnership to be made as part of the normal career expectation. It is done in much the same way as in industry; recruits are promised training in management, and ultimately responsibility in management. We feel that it would be wrong not to protect the interests of the minority in these professions. We feel that there should be no discrimination against a particular race in a case where there is a large partnership and it is the normal practice to offer a partnership as a career prospect. We believe, therefore, that although there is obviously scope for a great deal of opinion on this, by limiting the exception to something less than six at this stage we have struck the right balance.

Lord WINSTANLEY

May I ask the Minister to enlighten me on one point? Am I right in my reading of the Bill that, irrespective of the clause under discussion, the Bill applies to partnerships in so far as they are sometimes employers of employees? If that is so, then the majority of the sort of advertisements to which my noble friend Lord Avebury and the noble Lord, Lord Pitt, referred, would in fact be advertisements not so much for partners but for assistants with a view to partnership. That is the position in nine out of ten cases. If that is so, would not an assistant be an employee and, going on from there, would he not already be covered by the Bill?

Lord JACQUES

It goes some way towards it. I would agree, in the case of a partnership, that, in so far as the partners employ labour, they are liable as employers. I would also agree that many advertisements are for employees with a view to partnership, but the clause is concerned not merely with recruitment but with the benefits which the partners get after recruitment. We feel that there should be protection at that point.

Baroness SEEAR

I should like to support the noble Lord, Lord Pitt, in the elimination of the exclusion of partnerships numbering five or less, for several reasons. I feel that the arguments put forward by the Minister about the intimate and personal relationships that apply in partnerships are really a little bogus. After all, you cannot be much closer to somebody than you are on the other side of a conveyor belt where you have to look at the person all day long, and if you do not like him you do not like him all day long. Partners are not in fact working in that kind of very close personal proximity all the time. I recognise that they have to have close dealings with each other on business and professional matters, but the argument about it all being so personal and intimate really seems to me to be a false one.

I should like to follow up the point made by my noble friend Lord Winstanley when he said that it would go some way towards meeting the problem because so many people in partnerships are taken on as an assistant with a view to partnership. Of course, as we all know, the crucial point is whether the promotion in fact takes place. We know that of people who are taken on as assistants some get promotion very much faster than others. One could in these circumstances easily get the position that one would be taken on as an assistant and would go on as an assistant for a very long time because this limitation to five would make it possible for the partners never to employ one. One could be an extremely useful, extremely experienced and extremely cheap assistant on those terms.

My third reason for wishing to support the Amendment is that all of us who have had anything to do with problems of race know that the real, central problem is that of getting people from minority groups into high status occupations. If we could get more people from minority groups into the high status occupations, a great many of our other problems in relation to race would fall to the ground. That is the central reason why we ought to be particularly keen to see that, in professions such as medicine and the law which have a high standing in our society, it should be made as easy as possible for properly qualified—and of course it is essential that they should be so—people from minority groups to he able to make their way.

Lord JACQUES

I entirely disagree with the noble Baroness when she suggests that the relationships between partners in a small partnership are about the same as they are between people sitting on opposite sides of a conveyor belt. I regard that as nonsense. In the case of the partners, they have to consult on the policy of their partnership and on their procedures and they very often have to come to friendly terms on when one will be on duty and another off duty. The relationship is, in my opinion, entirely different and I feel that the noble Baroness is using a bogus argument.

Lord PITT of HAMPSTEAD

I continue to be unhappy about this whole affair. It is clear that the Minister and I see race relations quite differently. One of the basic points about prejudice is that it is based upon ignorance. The more people get to know each other, the more they mix and the more they do things together, the less likely they are to be prejudiced. More prejudice is broken down by people working together for a common objective than in any other way. Therefore, I do not agree that the fact that people have to work together, discuss matters together and come to certain agreements about the way they work is a reason for agreeing that they should be able to discriminate against each other. I do not agree and I therefore cannot share the Government's approach to this particular point.

However, what the noble Baroness, Lady Seear, has said is even more important. One of the things we must aim at—and I cannot believe that the Government do not agree, because I was always led to believe that both Parties have this objective at heart—is to have people of all races functioning together at every level of society. The danger of this clause—and this has not been answered by the Minister—is that, at a very section of society where it is important to encourage the maximum getting together, we are agreeing that people should discriminate. The real danger of the clause is it allows discrimination at a certain point where I should have regarded it as of the utmost importance that discrimination should not be encouraged and where I feel that any obstacle to people being able to play their full part should be removed. It is at that level that we are allowing discrimination.

I am rather loath to test the Committee by dividing. However, I shall at least appeal to the Minister to undertake to have further consultations and to look at this clause again, and to think of the consequences of allowing discrimination in all our learned societies to go on unchecked. Of course the noble Lord, Lord Winstanley, is right: if it is an assistant one is employing, one is caught by the Bill, but what happens afterwards? The noble Baroness is also right: many things can happen afterwards, and we should not say, as we are saying in the Bill, that it does not matter.

Lord W1NSTANLEY

Perhaps the noble Lord will allow me to make my position clear. I was not suggesting that I disagreed with his Amendment in any way when I made the point I did. What the noble Laid, Lord Jacques, said in reply to my noble friend was not an answer at all. All she said was that there was nothing in the Bill, the Amendment, or anything else, to stop any partnership from taking on not a partner but an employee—an assistant—from an ethnic minority. They can do it if they wish and neither the Bill nor the Amendment will stop them. Many do so. But, if they want a partner—and there are very clear and obvious financial advantages and incentives to partnerships in the National Health Service to take another partner—and if they want to have a look at the person first before they finally make him a partner, then they have to advertise. They are already caught by the kind of advertisements which the noble Lord objects to so strongly—and I agree with him and with the noble Lord, Lord Avebury, on the same point. Those advertisements are already clearly in breach of the law as it will be without the present clause.

Lord PITT of HAMPSTEAD

I was not touching the question of advertisements. I am talking essentially of the clause as it affects partnerships, and what I was saying before I gave way to the noble Lord was that, in so far as they are employing assistants, they are covered by the Bill as it is because the Bill deals with employment. However, in so far as they are promoting the assistant to become a partner, we are saying in Clause 10 that they are free to discriminate. It is that that I am challenging, that that I am saying is not a good thing. That is what I am appealing to the Government to look at again, because I believe they are mistaken in their attitude to this and that the consequences that could flow from this exemption under Clause 10 could be quite calamitous. I hope that the Minister will undertake to look at this question again and so not force me to divide the Committee.

Viscount SIMON

I should like to put a point to the Minister. He was speaking of the close relationship between the members of a small partnership, which is something I understand; but it is no closer—is it?—than the similar relationship between a group of managers managing a company. Yet I think that if it was a question of appointing a manager that would immediately apply.

Lord JACQUES

I should say that there is a difference between colleagues who are managers and those who are partners. To start with there is a financial difference. I think there are differences. I can give my noble friend one consolation by saying that the number can always be reduced by order without new legislation: provision is made in Clause 73 to change the number. I am also quite willing to say that we will obviously look at what has been said in the debate, in particular what my noble

friend has said, but I cannot offer much hope because this question of partnership and the number has already been the subject of many consultations and long deliberation.

Lord RITCHIE-CALDER

I should like to ask my noble friend to think very hard before starting to quantify prejudice and attach numbers to it.

Lord HAILSHAM of SAINT MARYLEBONE

I should like to suggest that we come to a conclusion on this matter in one way or the other.

6.52 p.m.

On Question, Whether the said Amendment (No. 27A) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 97.

CONTENTS
Amherst, E.	Hives, L.	Seear, B.
Amulree, L.	Janner, L.	Simon, V.
Avebury, L.	McNair, L.	Taylor of Mansfield, L.
Banks, L.	Maelor, L.	Vickers, B.
Barrington, V.	Mais, L.	Wade, L.
Brockway, L.[Teller]	Mottistone, L.	Wigoder, L.
Crook, L.	Pitt of Hampstead, L.[Teller]	Wilson of Radcliffe, L.
Davies of Leek, L.	Platt, L.	Winstanley, L.
Foot, L.	Rhodes, L.	Wynne-Jones, L.
Gladwyn, L.	Ritchie-Calder, L.
Grey, E.	St. Davids, V.
NOT-CONTENTS
Alport, L.	Ellenborough, L.	Hawke, L.
Ampthill, L.	Elliot of Harwood, B.	Houghton of Sowerby, L.
Auckland, L.	Elwyn-Jones, L.(L. Chancellor.)	Hughes, L.
Balerno, L.	Energlyn, L.	Hylton-Foster, B.
Belstead, L.	Evans of Hungershall, L.	Jacques, L.
Berkeley, B.	Falmouth, V.	Kemsley, V.
Birk, B.	Ferrers, E.	Kinloss, Ly.
Blyton, L.	Gainford, L.	Kirkhill, L.
Boston of Faversham, L.	Garner, L.	Lee of Newton, L.
Bridgeman, V.	Gisborough, L.	Lindsey and Abingdon, E.
Broadbridge, L.	Glendevon, L.	Long, V.
Brougham and Vaux, L.	Goronwy-Roberts, L.	Loudoun, C.
Campbell of Croy, L.	Gray, L.	Lovell-Davis, L.
Castle, L.	Greenway, L.	Lyell, L.
Cathcart, E.	Greenwood of Rossendale, L.	Macleod of Borve, B.
Champion, L.	Hailsham of Saint Marylebone, L.	Mancroft, L.
Chelwood, L.		Mansfield, E.
Clifford of Chudleigh, L.	Hale, L.	Melchett, L.
Craigmyle, L.	Harcourt, V.	Monck, V.
de Clifford, L.	Harmar-Nicholls, L.	Monson, L.
Denham, L.	Harris of Greenwich, L.	Mowbray and Stourton, L.
Dundee, E.	Hatherton, L.	Murray of Gravesend, L.
Newall, L.	Savile, L.	Terrington, L.
Northfield, L.	Segal, L.	Teviot, L.
Oram, L.	Shepherd, L.	Tranmire, L.
Paget of Northampton, L.	Slater, L.	Vernon, L.
Peart, L. (L. Privy Seal)	Slim, V.	Vivian, L.
Pender, L.	Stedman, B.	Ward of North Tyneside, B.
Redesdale, L.	Strabolgi, L.[Teller]	Ward of Witley, V.
Robbins, L.	Strathclyde, L.	Wells-Pestell, L.[Teller]
Rochdale, V.	Strathspey, L.	White, B.
St. Aldwyn, E.	Suffield, L.	Winterbottom, L.
Sandys, L.	Swansea, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 10 agreed to.

Clause 11 [Trade unions etc.]:

7.2 p.m.

Baroness SEEAR moved Amendment No. 28: Page 8, line 2, after (" applies ") insert (" or any person concerned with the affairs of such an organisation ").

The noble Baroness said: With the permission of the Committee I should like to move Amendment No. 28 and speak to No. 29 because the arguments are precisely the same in both cases. The purpose is to apply to the Bill requirements which have been inserted in a number of other Acts, particularly the Health and Safety at Work Act, dealing with relationships of people in the place of employment. In the Bill as it stands responsibility for discriminatory action is laid at the door of the organisation but not at the door of individuals employed within the organisation who in fact commit the discriminatory acts.

In my view it is extremely important that in this Bill, as in the other Acts in which this principle has been used, the legal liability should be extended. Of course the organisation should not be excepted, but the legal liability should be extended to cover both the employer and the organisation as well as the agents of the organisation or other persons who are in a position to discriminate or to commit discriminatory acts of any kind inside the place of work.

There are two very important reasons why I believe these provisions should be included. Employers are urged—ever since the 1968 Act they have been urged by the Race Relations Board—to have non-discrimination policies; and, of course, the beginning of a good policy in a place of work is the introduction by the employer of a non-discrimination policy. But that policy is absolutely worthless and meaningless unless in fact everybody in the place of work is imbued with the idea that they themselves have to take part in seeing that this policy is carried out. It is all too easy—and I am sure the Race Relations Board would bear me out by saying that they have found this on a number of occasions—to get employers to say, and to say in all sincerity, that they intend to have a non-discrimination policy, but they do not in fact follow it through in order to get that policy fully implemented inside the place of work.

Now if you ate trying to get implemented a policy coming from the top, it is of the very greatest help, where the managers in the concern are putting this policy over or where the trade unions are saying to their shop stewards inside the place of work that this is the company's policy and it is a policy supported by the trade union—because after all, the trade unions have given, at top level, the greatest support to non-discrimination policies—if they can say that there is a personal responsibility on first-line supervisors or on shop stewards themselves to see that discrimination does not take place and that they have a personal liability in that respect.

This is one of the very important ways in which the policies of companies can be turned into reality at the level of the factory floor; and, of course, any one of us who is familiar with what goes on knows that it is at the level of the factory floor that it is so very easy for discrimination to take place, and to take place by acts of agreement, collusion, between people who wish to avoid trouble—a supervisor and a shop steward who agree between themselves that they will not raise those issues which are inconvenient to be raised. Those of us who are examining what is happening in connection with legislation with regard to non-discrimination against women know that this is going on. A supervisor and a shop steward can very easily come to an understanding that awkward issues about women and, similarly, awkward issues about race just will never surface. But if there is a personal liability on the supervisor and on the shop steward, then it is that much less likely that this will happen.

Moreover, this legislation applies to everybody in this country. Everybody, as individuals and in their office, whatever that may be, in the role that they fulfil, has an obligation to see that this nondiscrimination legislation of the Government is carried out. Why ever should we not include people inside the place of work, putting on them the kind of personal responsibility which in other legislation we have placed on individuals as well as on organisations? I beg to move.

Lord HAILSHAM of SAINT MARYLEBONE

I rise to support the noble Baroness and also to ask one or two questions, some of which I was rather hoping that perhaps the noble and learned Lord the Lord Chancellor, who made such a brief and welcome appearance on the Front Bench a moment or two ago, might be able to answer; but I am quite sure that either the noble Lord, Lord Jacques, or the noble Lord, Lord Harris, will be more than capable of facing the ordeal of answering my rather simple questions. I personally think that, in the field of employment, this Bill would not be worth the paper it is written on if effect was not given to what the noble Baroness has just said. Indeed, however critical I may be of either the Act of 1968 or of this one, I have always said that there is a place for legislation in the field of employment (and, incidentally, in the field of tenancy, but employment is what we are talking about here). One of the reasons why I have always said that is precisely because an employer could say to these workpeople, if they wanted to discriminate, "But what you are suggesting is against the law". I think that is absolutely vital. It is one of the main reasons why there is some good in this legislation. Faced with that, I believe workpeople on the whole would not discriminate, or at any rate would acquiesce in a non-discrimination policy applied by the employer, because the employer could say, "I cannot discriminate because it is against the law". Therefore, I welcome Clause 11.

Clause 11 says, in effect—and I hope I am not misleading the Committee, but I shall be contradicted if I am—that trade unions are bound by this nondiscrimination law. I think that is of absolutely vital importance by way of principle if in fact the law is going to be worth the paper it is written on; because by applying discrimination in a union you could indirectly undo the whole benefit of the Act in so far as it affected the field of employment. Such are the facts of factory life.

I had assumed in my innocent kind of way that if a trade union was bound by the law a shop steward, let us say, who deliberately broke it would be offending against the provisions of the Act. That was my innocent thought. I was slightly encouraged in that innocent thought by Clause 33, which provides that anybody who knowingly aids another person to do an act made unlawful would himself be committing an act unlawful. That is what I had thought.

When this matter was raised in another place, I understood the Government to say that on the whole they agreed with this view and that such persons were, in fact, already within the Bill. Indeed, the reason, I believe, that they objected to this Amendment was that in their view it was unnecessary. I was therefore much disturbed when I read a Press report to the effect that Mr. Len Murray, who is a person of great importance in the trade union world, had said that if this becomes law the whole system of shop stewards could break down. That is very startling. You would think that this might be an overstatement; but this is what he said.

In a statement earlier, I went on to read, the TUC had said that the new legislation proposed to make shop stewards personally responsible in law if they refused to take up a member's grievance because of racial discrimination. We point out"— their statement went on— that if a union member felt a steward has acted in this way, he or she could take up the matter through the normal channels of the union who would investigate it. To make stewards personally responsible would create many industrial relation difficulties without necessarily leading to the grievance being taken up. We are not unwilling to accept our obligations. But we believe we can deal with these problems in the informal way we have done up to now without the introduction of a legal definition that would expose shop stewards to legal action. That is a bit "thick", is it not? Here we are enforcing non-discrimination in the courts against small employers in circumstances which I outlined earlier; against partners, against landlords who let tenancies; but one group of persons claim immunity from the law. Why?—because, "Oh dear! We can deal with the matter ourselves." Why cannot partners deal with the matter themselves? Why cannot the small employers or the large employers or the landlords deal with the matter themselves? To claim immunity from the law in these circumstances, that there must be one group of privileged persons above it, seems to me to make a nonsense of the whole principle on which Parliament legislates.

The first question that I want to ask of the Government is this. Do they agree with my view that they are within the law even without this Amendment? I venture to say to them that the matter should be put beyond a peradventure if there is any doubt about it. Therefore, I support the noble Baroness.

I am glad to say also that I have in this respect the support of the Confederation of British Industry; because they have written to me personally to say: In fact we know very little more than what has appeared in the Press … We do, however, know that the matter was mentioned at a Press Conference following a TUC General Council meeting on 25 August … in which apparently the General Council issued the statement that I have read. Is that so? Then the letter goes on to say: My personal feeling on this matter is that there can be no good reason for shop stewards being exempt from the normal law of the land. I should like to know from the Government what is the position in the Bill as drafted? Will they not accept this so that the position is made plain? I entirely support the noble Baroness.

Lord HOUGHTON of SOWERBY

There certainly is room for a great deal of confusion and misunderstanding, perhaps, on the meaning and application of this clause. I was looking to the noble and learned Lord, Lord Hailsham, to clarify the position—

Lord HAILSHAM of SAINT MARYLEBONE

It is not my Bill.

Lord HOUGHTON of SOWERBY

But I am afraid that his speech has made things more difficult. I thought that this clause related to membership of the trade union. Subsection (2) deals with admission and subsection (3) deals with the treatment of the person when he has been admitted. It seems to me that we are dealing here with an entity. We are not dealing with individuals. We are dealing with a union and a union has a legal entity. It can be proceeded against. There may be decisions taken in executive councils or in membership committees on matters which will commit the union when those decisions are taken.

It seems to me that it is difficult to proceed against individuals who may be participants in the reaching of those decisions and isolate them for pursuit for a breach of the law on the grounds of race discrimination. This is not a witch hunt. It seems to me that the intention of the Amendment is to pursue individuals to the uttermost, whatever their actions and in whatever connection. But they are acting as officers of a union with a responsibility laid on them by the constitution. If the executive council of a union takes a certain decision, if that is against the law, it is the union that must be proceeded against and not individual members of the executive council on which there might be divided opinion.

I think that on the first point, that of discrimination against a person on the grounds of race for admission to a union, the issue is clear. No individual is responsible for the decision or action of a union in that connection. The union through its proper instruments of decision, reaches a conclusion on admission to membership and it is the union who can be proceeded against, and is proceeded against, if they are unlawfully excluding a person from membership. There are many cases where a person has been excluded from membership with grave consequences upon his right to employment. He does not proceed against an individual; he proceeds against the union which has excluded him.

We come now to the second point of discrimination against a person who has been admitted. The noble and learned Lord, Lord Hailsham, was referring constantly to shop stewards who have been quoted in various comments made on this clause; but I am not aware that shop stewards are necessarily "any person concerned with the affairs of such an organisation".

The shop stewards, generally speaking, are not officers of the union. They are elected by the workers of their particular works or shop; and although they will be union members because in many cases there is a preponderance of union members or it may be a closed shop, the shop stewards are not usually acting on behalf of the union. There are branch officials, regional officials and national officials. They deal with the actions of the union. If a shop steward is discriminating against a person in the respects mentioned in the clause, that might constitute grounds for action against the shop steward, because action might not, in those circumstances, lie against the union. But this clause deals with the union and not with any persons who are not representative of and duly authorised persons of the union. I think that we want to be clear about this.

Also, it seems to me that this clause does not at all touch discrimination against a worker who is not a member of a union. If he does not apply for membership, he cannot be discriminated against, and if certain actions are taken to his detriment at his work place, this clause does not cover that, for it is not necessarily the union who will be responsible. I think that there is a certain amount of legal difficulty here, and I think it ought to be cleared up.

I speak as a secretary of a registered trade union for very many years and I am very conscious of the position of the union and its officials in these matters. I am anxious that we do not make discrimination a matter of pursuit of individuals beyond their responsibilities. The union has the responsibility. It is a properly constituted body in law; and it is against the union that one proceeds if it is acting contrary to the law. Within that union, within its democratic processes, within the responsibility of those in the union, they are entitled to act as free men and women inside their union. If they contribute to a decision of the union which is unlawful, that is the responsibility of the union.

This applies, surely, in many other respects where unions may take action which is actionable in damages or otherwise. The democratic processes must be safeguarded. Let the union take the responsibility; it has the funds. The union is accountable to its membership and not individual members of it. Those of us who were concerned with trade union law many years ago deliberately set out to preserve the individual from being victimised as a person in the union who might be proceeded against separately in tort or otherwise. I beg the Committee to get this matter clear before we introduce words into this clause which I believe go far beyond what is the legitimate responsibility of the unions. I am content with the clause as it stands and I oppose the Amendment.

Lord WIGODER

Is the noble Lord by analogy saying that if a manager who is employed by a limited company discriminates in the field of employment only the limited company should be responsible?

Lord HOUGHTON of SOWERBY

No. What is the status of the person taking a decision? If a person is acting in the name of the union—after all, he cannot act otherwise—he is doing something in the name of the union. He is either admitting a person or refusing to admit a person in the name of the union; he is either dealing with him fairly or unfairly as a person of the union. It is the union which is responsible for that action. There is a difference here. A manager may have personal responsibilities placed upon him and he discharges those under whatever authority he is given. But officers of unions are discharging their responsibilities in the name of a democratic organisation governed by its constitution, the resolutions and the policy of the union. I want to fix the responsibility on the union not on individuals.

Lord HAILSHAM of SAINT MARYLEBONE

May we hear from the Government as to what the real situation is under the clause?

Lord JACQUES

I will try.

Lord HAILSHAM of SAINT MARYLEBONE

Send for the Lord Chancellor!

Lord JACQUES

First of all, I should like to clear up some misunderstandings before coming to the "bones" of my argument. We are here considering two Amendments, Nos. 28 and 29. When the noble and learned Lord said he saw that the Government had said it did not matter about those words being included, he was quite right. That was referring to Amendment No. 28. When he said that Mr. Len Murray had said this and that, that was right. That was referring to Amendment No. 29. The question was also raised as to the effect of Clauses 32(1) and 33(2). The effect of these two clauses is that employees who commit discriminatory acts are liable together with their employers. So, for example, a supervisor or shop steward, as employees of the employer, are liable for their discriminatory acts as employees. But the shop steward is not an employee of the trade union, and therefore in relation to the trade union he is not covered by Clauses 32 and 33 because he is not an employee. I think that clears up a number of the points. It clears up also the point raised by the noble Baroness.

Lord HAILSHAM of SAINT MARYLEBONE

May I intervene? If I have read Clause 33(1) correctly, it says: A person who knowingly aids another person"— it says "a person" not "an employee"— to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description. It does not say anything in that subsection about employee, agent or anything else. That is dealt with by Clause 33(2). Subsection (1) says "a person". Will the noble Lord not agree with me that a shop steward is a person?

Lord JACQUES

I agree with the noble and learned Lord that a shop steward is a person; but the more important clause is Clause 33(2) which has to be read in conjunction with Clause 32(1). That is where the employee's liability arises.

Lord HAILSHAM of SAINT MARYLEBONE

But the noble Lord must do himself justice. If he goes on like this we must call for the Lord Chancellor because subsection (2) of Clause 33 clearly says this: For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable … shall be deemed to aid the doing of the act by the employer or principal. That adds to subsection (1); it does not detract from it. In other words, it adds an additional liability on an employer or principal for the acts of his agent or employee, but it does not in any way diminish the force of the simple words of subsection (1). If the noble Lord is really going to read subsection (1) in the way in which he has, I must ask seriously that he gets the Lord Chancellor here to justify what he is saying.

Lord JACQUES

I am not going to get the Lord Chancellor here; he has other work to do.

Lord HAILSHAM of SAINT MARYLEBONE

This is difficult because we shall have to adjourn this debate if we are going to be treated with this contempt. The Lord Chancellor's duty to this House is paramount over the other work he has to do. I am not asking for him to detach himself from his ordinary work. I asked for a fair answer to a fair question based on the meaning of Clause 33. What the noble Lord, Lord Jacques, has said, with the greatest respect to him, is absolute nonsense. We are entitled when we are passing a Bill to ask the Government to give a proper legal construction. If the noble Lord, Lord Jacques, does not feel himself able to do it, then we must have the Lord Chancellor here. I beg him not to blunder into this field himself and so mislead the Committee, otherwise I shall move that this debate be adjourned until such time as is convenient to the noble and learned Lord to assist the House as he is bound to do.

Lord JACQUES

The noble and learned Lord is being unreasonable. First of all, he did not give me a chance to finish what I was going to say. I said I thought it was unreasonable and I certainly was not going to call the Lord Chancellor. But, so far as I am concerned, I have taken legal advice before speaking. If the noble Lord is not satisfied with my reply, I will certainly give him an undertaking that we will give him a written reply, which I think is the normal practice.

Lord HAILSHAM of SAINT MARYLEBONE

With respect, it is not. We are being asked to pass a clause to a Bill in a Committee stage when there is a serious doubt as to what it means. Speaking for myself, I am not going to treat Parliament with such contempt that we pass a clause on an undertaking that I get a written reply when it is passed. I am entitled to know, and the Committee is entitled to know, and to be treated with respect. We are entitled to know the meaning of Clause 33(1) in connection with this Amendment.

Baroness SEEAR

As the mover of this Amendment, a written reply sent to the noble and learned Lord, Lord Hailsham, would not meet my particular problem.

Lord WIGODER

May I ask the noble Lord, Lord Jacques, whether he can answer one simple question: Is an organisation of workers under Clause 11(1) "a person" within the meaning of Clause 33(1)?

Baroness SEEAR

May I suggest we adjourn for supper? Perhaps after supper it would be possible for the Lord Chancellor to come to the Committee.

Lord JACQUES

I am advised the answer to Lord Wigoder's question is, "Yes". We have not yet reached Clauses 32 and 33: we are dealing with this particular clause on which we have a reply to the Amendment based upon the legal advice available to us. Perhaps I can reply to the Amendment. I was merely dealing with the incidental points which have been raised. If the noble and learned Lord is not satisfied, he has of course an opportunity of raising these issues when we come to Clauses 32 and 33.

We have two Amendments here. The first relates to membership. Any complaint of discrimination which may arise in respect of membership of an organisation covered by Clause 11 can already be resolved within the terms of the Bill as it stands, without amendment. For example, a trade union is responsible only for persons acting with the authority of that union. No shop steward can do this without such authority. The Bill ensures that when anyone acts with the authority of a trade union or other organisation covered by Clause 11, both he and the organisation are liable for any unlawful discriminatory acts which are authorised by the organisation. So a shop steward who is authorised to act for his union is liable for a discriminatory act, and so is his union.

Supposing the shop steward has no authority. If a shop steward acts without authority and discriminates on racial grounds by, for example, declining to process an application for trade union membership, the aggrieved person can take his complaint to a full-time union official. That official would be able, on behalf of the union, to ensure that the application was properly dealt with and if, after this had been done, membership was refused and the aggrieved person still believed the refusal was on racial grounds, it would be open to him to make a complaint against the trade union to an industrial tribunal under Clause 11. That covers the position so far as Amendment No. 28 is concerned. We believe that the position is adequately covered in relation to applications for membership through a shop steward.

I turn now to the much wider Amendment. It is the kind of situation to which Mr. Len Murray referred—

Lord WIGODER

Would the noble Lord forgive me? I want to be quite sure that I have understood him. Has he just said in terms that if a shop steward acts unlawfully without the authority of his union he can be proceeded against under this Bill?

Baroness SEEAR

Nor can the union.

Lord JACQUES

I did not say that. I am of the opinion that he cannot be proceeded against as a shop steward, not being an employee of the union. But I did not say what the noble Lord said, as I think the record will show.

Viscount BARRINGTON

Can the union be proceeded against in those conditions?

Lord JACQUES

The union cannot be proceeded against for actions taken by someone who is not authorised.

Baroness SEEAR

Is that not saying that nobody in these circumstances can be proceeded against? The union cannot be proceeded against, not having authorised the action. You say the shop steward cannot be proceeded against because he is not authorised, so nobody can be proceeded against.

Lord JACQUES

We are saying that if someone wants to join a union they should make their application to the union or to an official of the union who is authorised to deal with the application, not someone else—and the shop steward is someone else. That is what I am saying.

Lord AVEBURY

The noble Lord cited as an example a case where a shop steward, without the authority of the union, declined to process the applicant's application. In those circumstances, the noble Lord told the Committee that the aggrieved person would have a right of representation to the union and then, if they failed to clear it up, to the industrial tribunal. But he would have no remedy against the person who originally declined to process his application. It follows from that that he would have no right of redress against the person who refused to process the application, does it not?

Lord JACQUES

A person can discriminate only if he has authority in a particular matter, and I dealt with a case where the shop steward has no authority.

Lord WIGODER

So a shop steward with no authority can discriminate without being proceeded against?

Lord JACQUES

Because he has no authority, there can be no proceedings against him for discrimination. If, on the other hand, he has authority and there is discrimination, both he and the union are laible. If the shop steward has no authority the aggrieved person, as has always been open to him, may go to the proper employee of the union, an official of the union or to the union itself, and in that case if there was discrimination both would be responsible.

So much for Amendment No. 28. I come now to Amendment No. 29, which is a much more serious Amendment. We would see serious difficulties if this Amendment or anything like it was made. We believe that difficulties could arise which have no counterpart in the operations of other provisions of the Bill, because of the special circumstances in which shop stewards operate when handling the grievances of their members. A union member from a minority racial group might believe, for example, that he is not being allocated to the best paying jobs because of his colour. He might complain of this to his shop steward, who would generally explore the matter with the foreman. He might be persuaded that the allocation of the work was in fact reasonable but be unable to convince the worker concerned that this was the case. If subsection (3) were amended as suggested, the worker could subsequently make a complaint to the industrial tribunal, alleging that the shop steward had discriminated in failing to resolve his grievance. The shop steward, however, would have taken proper steps to follow up the complaint of the worker concerned, and it is impossible to see what more he could have done or what he had done that was wrong.

Baroness SEEAR

Would the noble Lord not agree that in that case the shop steward's case will go to the industrial tribunal, as would the case of any other person accused of discriminatory action, and if the shop steward had acted properly then the man will lose his case and the shop steward will win?

Lord JACQUES

That is a point I shall be dealing with later. Nevertheless, he will be subject to close and extensive examination of his actions and motives. Such a resort to the law would have serious and harmful effects on race relations and industrial relations. It might tend to discourage the shop steward in the eyes of the work group to whom he was directly responsible. It might well make it more difficult to find union members in the future who are willing to take on a shop steward's responsibilities. It would also bring one worker into face-to-face conflict with another before an industrial tribunal.

It has to be borne in mind that there is an important distinction between this Bill and the 1968 Act. Under the 1968 Act, all complaints of unlawful discrimination against, say, a shop steward are made and investigated by the Race Relations Board. The Board alone can take the proceedings to the courts. Under the provisions of this Bill an individual worker may make a complaint direct to an industrial tribunal if he believes he has been discriminated against in employment or related fields.

It is TUC policy that unions should provide in their rule books for effective procedures for dealing with complaints of all kinds arising out of the relationship between the individual member, the union and its officials. We think it is in the best interests of a worker, who believes that he is suffering from racial discrimination, to use these procedures rather than invoke the law against a shop steward who will be his fellow worker. Such action would not be in the interests of the individual complainant, or in the interests of good industrial relations or good race relations. In the special circumstances in which a shop steward operates in the handling of grievances of members of his union, the Government believe that the union's own procedures are the best way of handling any complaints.

I would point out that in the last two years there have been, in total, 17 complaints against shop stewards that they have not been handling grievances properly. Four of the cases have not been heard, but in none of the others has a case been upheld against a shop steward. We believe that this is a problem which, for the reasons I have given, is subject to some exaggeration, and I hope that, with the explanation which I have given, the noble Baroness will feel that she can withdraw her Amendment.

Lord HAILSHAM of SAINT MARYLEBONE

At the moment, I hope she will not. I do not know what she is thinking and I do not want to bring pressure to bear upon her, but at the moment I am not at all satisfied with that explanation, and I am still more disquieted by the speech of the noble Lord, Lord Houghton of Sowerby. I am not at all satisfied either with the explanation on the point of law, or with the principles which underlie the two speeches from the other side of the Committee. We are applying the law against discrimination to clubs of purely voluntary association. It may be that we can argue that later, but that is how the Bill stands. We are applying it to small businesses, farms, limited companies and partnerships, subject to the limitation of six persons: in fact, to everybody. Why should it not apply equally across the board? What justification is there for any difference at all in principle? That is the first question that I feel has not been answered. Secondly, I think we ought to know what the Bill means as it stands. My reading of it remains what it was when I spoke earlier. I may be wrong, but the noble Lord has not at all convinced me about that.

I would also draw his attention to the fact that under Clause 28 of the Bill a shop steward might quite easily be liable, because it states that a "discriminatory practice", for the purposes of employment, …means the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part II or III taken with section 1(1)(b)"— and— (2) A person acts in contravention of this section if and so long as—

1. (a) he applies a discretionary practice; or
2. (b) he operates practices or other arrangements which in any circumstances would call for the application by him of a discriminatory practice."

I must say that I read that as having a wide application to shop stewards, among others. The noble Lord has at least agreed with me that a shop steward is a person. I do not know at all where we stand. What is clear to me is that since the matter remains in doubt we must put the words in, because we cannot afford, if we are convinced about this, for there to be any doubt about it.

That leads me to make one or two observations about the rather peculiar speech which the noble Lord, Lord Houghton of Sowerby, made. He said that a union is an entity and therefore nobody but the union can be proceeded against if there is a breach of the entity of the Bill. But exactly the same, as the noble Lord, Lord Wigoder, pointed out, applies to a limited company. A limited company is an entity, but under the Bill it is proposed that employees of a limited company or persons acting with its authority are equally responsible. If the argument of the noble Lord, Lord Houghton of Sowerby, was to be taken seriously, which I frankly—

Lord HOUGHTON of SOWERBY

Will the noble and learned Lord give way?

Lord HAILSHAM of SAINT MARYLEBONE

I will in a moment. If the noble Lord's argument were to be taken seriously, as I suppose he intended us to do, the argument would be that because a limited company is an entity, or it might be a club is an entity—some clubs are—anybody who acts in contravention cannot be sued, because he is a person and not the entity; only the entity can be sued. This would drive a coach and horses through the Bill, and that is the logical implication of what the noble Lord, Lord Houghton of Sowerby, was saying. I will give way now.

Lord HOUGHTON of SOWERBY

I draw the attention of the noble and learned Lord to the fact that, of course, Clause 33 deals with the employer and, therefore, managers and others acting in discriminatory fashion, and it states that they shall be deemed to be doing the act of the employer or principal. There is no similar clause dealing with the position of officials of trade unions, and I am saying that in that connection it is the union and not the individual.

Lord HAILSHAM of SAINT MARYLEBONE

I am afraid that the noble Lord must read Clause 33(1), which does not deal with either employers or employees but with persons, and I really ask him to take seriously the words of Clause 33(1) before he embarks upon the statement that it deals with employers. It deals with persons. Clause 33(2) (if the noble Lord is interested in what it says, but it has nothing whatever to do with this Amendment) means that if an employer, in the ordinary sense, does an act which is in contravention of it, his employee—not the union's employee but the employer's employee—is liable under Clause 33(1). But it has nothing whatever to do with the point we are arguing.

If I may return to the original speech of the noble Lord, Lord Houghton, he said—and, of course, one agrees—that a shop steward is not an officer of a union in the sense in which the word "officer" is used of district secretaries and other officials. Of course not. I think he might give the Committee and members of it, who have dealt with trade union law for some time, credit for knowing that. In fact, it has nothing whatever to do with the point we are arguing.

Clause 11, which we are now dealing with, has very important implications for the rights of persons to gain employment, because in modern industrial conditions if a man is excluded from a union he will very likely lose his job. Indeed, he will very likely cause a strike. The effect of depriving him of membership of the union, is, in practice, to deprive him of his job. If it is done in a discriminatory way because of his colour, that makes nonsense of the whole employment policy of the Bill. Of course, nobody wants anyone pursued in a witch hunt. The noble Lord said that this is not a witch hunt, and of course we are against witch hunts. But the noble Lord has not pursued his argument to the logical conclusion.

If this Bill is passed, we pursue ordinary men and women, we pursue farmers, we pursue partners, we pursue doctors, we pursue professional men and we pursue members of clubs. But apparently, according to the noble Lord, Lord Houghton of Sowerby, there is a particular class of person who is sacrosanct; not apparently the district secretary because he is not sacrosanct, but a shop steward who is a person not to be touched. He is free from any kind of liability, because if you touch him you are conducting a witch hunt. But why is he different from anybody else? Why is he different from any other subject of the Queen? If he commits an act which is contrary to the provisions of the Bill, surely he is to be pursued in exactly the same way; and if he is pursued in exactly the same way it is neither more nor less a witch hunt than in the case of any other subject of the Queen when he is pursued for breaking the law.

Let us be quite clear about this. If there had been a logical case presented by the Government against the noble Baroness, I should have been the first to urge her to withdraw her Amendment. But I do not think that such a case has been presented. It is not for me to tell the noble Baroness what she should do, but if she decides to pursue her Amendment to a Division, as at present advised I shall advise my noble friends to go with her.

Lord HOUGHTON of SOWERBY

I do not wish unnecessarily to prolong the debate, but I must draw attention to the fact that the Amendment does not deal with persons who are properly authorised by and acting on behalf of the union. It deals with "any person concerned with the affairs of such an organisation." I draw a distinction between an officer who is acting in the name of the union and "any person concerned with the affairs of such an organisation." If we are to pin responsibility on individuals, surely we should pin it on the individuals who are acting with the authority of the union, otherwise they are out with the protection of this or any other clause.

If it were proposed to identify a union officer acting on behalf of his union in the same way as a manager or other employee is identified in Clause 33(2), then some of the objections in my mind would be removed. However, I want to make it clear to noble Lords that I am not prepared to see the rights of trade union officials and their status and position in the trade union movement trampled upon in the name of racial discrimination. Racial discrimination, offensive though it is, is not rabies, and one is not justified in pursuing individuals and giving them no protection whatsoever, even though they may be acting in the name of a body which has conferred authority upon them. Let us preserve our sense of proportion and our sense of the rights of individuals who are discharging particular responsibilities. I want some law and order to be introduced, whatever our dedication to the cause of the removal of racial discrimination.

When we look at Clause 12 we see that there is an Amendment in the name of the noble and learned Lord, Lord Hailsham of Saint Marylebone, to delete a subsection of Clause 12 which I regard also as

a sinister pursuit of the identification of people who are presumed to have some smear of racial discrimination in their record and in their attitude and conduct. I believe that by trying to remove one evil one can do grave harm by creating others.

I am not prepared to see other evils created and the rights, position and freedom of individuals set aside merely because we believe that we have something of transcendent importance which must be superimposed upon all liberty. We must take care about what we do in a Bill of this kind which, in all conscience, is sweeping enough. It is counter-productive to go on like this, for it can stir up racial discrimination and discord. Let us preserve a sense of reason and proportion in dealing with this very difficult and grievous social evil, but let us not brush aside the responsibilities of individuals who are acting in a properly authorised way. Let us go for the people who authorise them, not for those who are discharging their responsibilities.

Baroness SEEAR

I can only say to the noble Lord, Lord Houghton of Sowerby, that in my view the essence of liberty is the even-handed administration of justice without any particular regard to any group of people. I fear that I am totally unconvinced by what I have been told by the noble Lord, Lord Jacques, and I wish to divide the Committee.

7.55 p.m.

On Question, Whether the said Amendment (No. 28) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 39.

CONTENTS
Alport, L.	Dundee, E.	Hunt of Fawley, L.
Amherst, E.	Ellenborough, L.	Hylton-Foster, B.
Amulree, L.	Elles, B.	Kemsley, V.
Armstrong, L.	Elliot of Harwood, B.	Killearn, L.
Auckland, L.	Elton, L.	Long, V.
Avebury, L. [Teller].	Falmouth, V.	Lyell, L.
Balerno, L.	Ferrers, E.	McNair, L.
Banks, L.	Foot, L.	Mansfield, E.
Barrington, V.	Gainford, L.	Monck, V.
Belstead, L.	Gisborough, L.	Mottistone, L.
Berkeley, B.	Gray, L.	Mowbray and Stourton, L.
Carrington, L.	Hailsham of Saint Marylebone, L.	Newall, L.
Cathcart, E.		O'Hagan, L.
Chelwood, L.	Harmar-Nicholls, L.	Pender, L.
Colwyn, L.	Hatherton, L.	Platt, L.
Cullen of Ashbourne, L.	Hawke, L.	Redesdale, L.
de Clifford, L.	Hives, L.	Robbins, L.
Drumalbyn, L.	Hood, V.	Rochdale, V.
St. Aldwyn, E.	Stratheclyde, L.	Vivian, L.
St. Davids, V.	Suffield, L.	Wade, L.
Sandford, L.	Swansea, L.	Ward of North Tyneside, B.
Savile, L.	Teviot, L.	Wigoder, L.
Seear, B. [Teller.]	Tranmire, L.	Windlesham, L.
Simon, V.	Vickers, B.	Winstanley, L.
NOT-CONTENTS
Boston of Faversham, L.	Houghton of Sowerby, L.	Phillips, B.
Brockway, L.	Hughes, L.	Pitt of Hampstead, L.
Castle, L.	Jacques, L.	Ritchie-Calder, L.
Champion, L.	Janner, L.	Segal, L.
Collison, L.	Lee of Newton, L.	Stedman, B.
Davies of Leek, L.	Lovell-Davies, L.	Stewart of Alvechurch, B.
Delacourt-Smith of Alteryn, B.	Maclor, L.	Strabolgi, L.
Elwyn-Jones, L. [L. Chancellor.]	Melchett, L.	Taylor of Mansfield, L.
Evans of Hungershall, L.	Murray of Gravesend, L.	Wells-Pestell, L. [Teller.]
Goronwy-Roberts, L.	Northfield, L.	White, B.
Greenwood of Rossendale, L.	Oram, L. [Teller.]	Wilson of Radcliffe, L.
Hale, L.	Paget of Northampton, L.	Winterbottom, L.
Harris of Greenwich, L.	Peart, L.(L. Privy Seal)	Wynne-Jones, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

8.3 p.m.

Baroness SEEAR moved Amendment No. 29: Page 8, line 9, after ("applies") insert ("or any person concerned with the affairs of such an organisation").

On Question, Whether Clause 11, as amended, stand part of the Bill?

Lord SIMON of GLATSDALE

I wonder whether I might ask the Minister to look into a point arising out of an answer that I think he gave during the debate, if I understood him correctly; that is, whether an organisation is a person? As I read the Bill, this clause, so far as it relates to the organisation— and even as it has been amended—is only enforceable in so far as the organisation is a person. My understanding is that an organisation may be a person but is not necessarily a person. If the Minister thinks it right to do so, I should be grateful if he will look at this point, which could easily be put right at a later stage by an Amendment to the interpretation clause.

Lord JACQUES

I am grateful to the noble and learned Lord. We will certainly look at the matter and will be in touch with him, telling him what action, if any, we are taking. We will write to him in any case.

Clause 11, as amended, agreed to.

[The Sitting was suspended from 8.6 p.m. till 8.50 p.m.]

Clause 12—[Qualifying bodies]:

The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)

I call Amendment No. 30. If this Amendment is agreed to, I cannot call Amendments Nos. 31,32,33 and 34.

Baroness ELLES moved Amendment No. 30: Page 8, line 27, leave out subsection (2).

The noble Baroness said: This particular clause has given grounds for great concern, both to Members on my side of the Committee and in another place when the Bill was discussed on Committee stage. I particularly want to draw attention to the effects of Clause 12(2).

A good many authorities and bodies by their acceptance or refusal decide the career, profession, trade or business by which a man or woman may be able to earn a livelihood. That can extend from the age of, say, eighteen to the day that person dies. I think we must remember that this subsection will affect a man or woman for the whole of their lifetime. Apart from the normal horrors and terrors of exams, both oral and written, many authorities and bodies by Statute require a good character reference; so it is not only proof of general ability that the person has to provide, but a character reference.

What this Bill does for the first time is to impose a duty on an authority to have regard to one particular act, or suspicion of an act, which a man or woman may have committed at some stage at any time during their lifetime. This particular act—and for the time being we will call it an act—could have been done by a student at a university as a member, for instance, of Black Power, or a fascist organisation, or the National Front, or any kind of violent or extreme organisation (I take this as an example) which would tend to show that a person had some grounds for it being believed that that person had unlawfully discriminated against somebody else. Some evidence may show that at some stage during his career, in a profession, supposing he was a shopkeeper, he may possibly have racially discriminated against an individual by refusing him employment or promotion. Not only may this person have discriminated, but someone may have suspected that he discriminated. All that is required by this clause is for there to be some evidence tending to show that the individual may have discriminated against someone else.

Human nature being as it is, we all know that there is such a thing as jealousy; there is such a thing as vindictiveness, and such a thing as taking revenge on someone over some act totally unrelated to racial discrimination or anything else. It can be on quite personal grounds, and yet there may well be something written in a character reference giving just an insinuation or a suggestion that against another individual, that individual might have acted unfairly on the grounds of colour, race, or national origin. The person who is applying to join this particular profession or body has no right under the Bill either to know what is to be in the character reference or to defend it or to answer the accusation which is made against him. It need not even be an accusation; it could be only an insinuation that this particular individual has acted in a certain way. Surely this cannot be fair, humane or good sense for a person who has his whole life in front of him.

We all know that not even a criminal has this stigma on his record for the whole of his life in certain circumstances. In fact, the Rehabilitation of Offenders Act does precisely that: it removes the stigma against the individual in certain circumstances after a number of years. That stigma has been proved by a court of law. In the case we are dealing with, the individual who has to produce a character reference, there is no proven evidence to show that he has unlawfully discriminated against anybody. It can be a reference, with no proof of any kind, that this individual has committed unlawful discrimination. Even this is not the end of the matter. It could have been one of the employees of this particular individual; it could have been one of his agents. He may not have known that these individuals had committed an unlawfully discriminatory act against somebody else. He may have been quite unwittingly connected with the act of the employee or the agent.

Even further to compound the folly and nonsense of this particular subsection, the employee or agent could have been a past employee or agent of the individual. It does not even say in the clause that that person might have been sacked for having committed that particular act of unlawful discrimination. It, therefore, seems to me that not only is the clause worded in the most grossly unfair, inhumane way, completely contrary to all the elements of natural justice, but it is totally impractical and will act totally unfairly against any individual who has to join a profession or a business or a trade in order to earn his living. I beg to move the Amendment.

Lord HOUGHTON of SOWERBY

I think subsection (2) is a hateful subsection. How far are we going in this matter? I wonder sometimes whether the British public know what Parliament is doing in their name. It includes the words "any evidence tending to show". I think before the Committee passes a subsection of this kind we are entitled to know in considerable detail what exactly it is the Government are after. Let us have some examples of what they have in mind. What I suspect is that these bodies which have a duty to certify or approve or recognise are already charged with a general responsibility to survey character, fitness and so forth. They might listen to any information they get about a tendency towards adultery or a tendency towards homosexuality or any other tendency which convention says is undesirable in anyone who is to be given the stamp of official approval or recognition. I think this subsection is put there to say: "Ah, and while you are at it have a look at racial discrimination as another factor in general fitness". Cannot we leave it to anybody's good sense? Has this to be spelled out in this sort of way as a kind of directive to bodies who are asked to survey the qualifications and fitness of people for certain things?

I believe that we have now to scrutinise and challenge every incursion into the right of the citizen. I think that this is becoming a paramount duty of Parliament. I think that there may be a case, but let us hear what it is. Unless we are very convinced about it, I think we should refuse it. I cannot believe that putting this in the Bill will make for better race relations. I cannot believe that. I believe that it might do a great deal of harm, and a great deal of injustice to particular individuals who, as the noble Baroness just said, have no claim to know, to be told, to defend, to explain. No, this is all under cover—"any evidence tending to show". I think it is hateful. I think it is disgraceful. So far as it lies in my power, in this and other matters I am going to defend the right of the citizen to retain some semblance of what he has believed he has fought to gain throughout our history, come what may. These things matter more. Other people must adjust themselves to our rights and principles. I am sure that we can conduct ourselves as a civilised country, compassionate, reasonable, tolerant, friendly with those who come into our midst, without exposing ourselves to this kind of thing. That is all I have to say.

9.2 p.m.

Lord FOOT

I do not know whether in what I have to say I am expressing the views of my colleagues on these Benches, but I should like to say a word in support of this Amendment. I would apologise to the noble Baroness in that I missed the first few minutes of her comments. I think that the noble Lord, Lord Houghton, has struck on the right word when he says that this is a hateful clause. I think it is redolent of a sort of Pecksniffian vindictiveness, and I hope that it will be thrown out altogether.

I shall not speak about the exact wording of the subsection although I recognise the objection to the words "tending to show". My objections to this subsection go deeper than that. Even if the wording was approved, I should still object to the whole thing, first, because to my mind the subsection is peculiarly nasty in that it does not spell out what it is in fact implying. It says that any authority which is required to satisfy itself of a person's good character before conferring some qualification upon him, shall be under a duty to have regard to any evidence of his ever having practised discrimination, and so on.

What is the effect of this? If the authority have the duty imposed upon them to consider whether there is any evidence that somebody has at any time in the past practised discrimination, are they, if they find that he has, then automatically under a duty to deny him a good character?

A noble Lord

No.

Lord FOOT

No, I think they are not, but the clause does not make it at all clear what the authority's position is in that case. If the Government had the courage of their own intentions, what they would have written down is that if it is found that a person has been guilty of discrimination in the past then he shall not be regarded as a person of good character, but of course the Government would have hesitated to do that because it would have flown in the face of the public view of this matter.

I dislike discrimination in all its forms. I dislike racial discrimination in particular. However, I cannot bring myself to say that if a person has practised discrimination, forever afterwards he is to be regarded as a man of bad character, and that is the implication of the Amendment. I do not think the objections to this provision can be cured by the Amendments which we would be discussing later if this Amendment is not carried now. I hope that it will be thrown out and I believe that nothing that the noble Lord, Lord Houghton of Sowerby, said will be lost by throwing it out because I do not see that the clause is likely ever to be given any practical effect.

Lord AVEBURY

I have only one thing to point out before the Minister replies, following my noble friend's interpretation of what is not actually in the clause but what he thinks is hidden beneath the words in it. I always thought that it was a principle of English law that a person may do anything which is not expressly prohibited by Statute, and if the clause does not fetter the discretion of a professional body in the way that my noble friend seems to think it does and if the words are not specifically there enjoining the professional body to give a person a bad character on the basis of evidence brought before it of his having discriminated in the past, then there is no reason to think that that is the way in which the clause would or could be interpreted in practice.

Baroness ELLES

Why, then, is a mandatory duty placed on an authority or body to know if anything has tended to show that somebody has committed unlawful discrimination?

Lord AVEBURY

Because this is clearly something which the authority must have regard to, but in having regard to the matters alleged against an applicant the authority would equally take into account any defence that the person has to those allegations.

Baroness ELLES

Nothing in the clause says that the individual either has a right to defend himself or even to know what is in the reference.

Lord AVEBURY

With respect to the noble Baroness, I hardly think that any professional organisation would deny a person who is applying, and against whom discrimination is alleged, an opportunity of saying what he pleases in reply to those charges.

Baroness ELLES

I am sorry to intervene once more, but I must ask the noble Lord if he has ever had the good fortune or misfortune to have to apply to join a trade, profession or business. Has anybody who has ever made such an application ever seen the references written by people on his behalf? They never see them and they do not know what is in them.

Lord AVEBURY

I have had experience of trying to join professional bodies and, so far as I am aware, no harmful allegations were made by my referees against me.

Baroness ELLES

That is not the point.

Lord AVEBURY

It was of academic interest because the bodies to which I applied invariably admitted me. However, I think that if they had had good reason for excluding me it would have been their duty to make that clear to me—

Lord HAILSHAM of SAINT MARYLEBONE

No.

Lord AVEBURY

—so that I could reply to the allegations made. There is nothing in the clause which says that the body concerned will not take into account any evidence which might be brought forward in reply to such allegations.

There is another point which I want to draw to the attention of the Committee before we reach a conclusion. Once again, here is a clause which is copied exactly from the Sex Discrimination Act and, as we have said on numerous occasions, it is peculiar, to say the least of it, that all these matters are being raised now in relation to race where the Conservative Opposition did not see fit to do so in relation to sex. The noble and learned Lord, Lord Hailsham, when we were discussing other matters on Monday evening, said that he had not taken part in the proceedings on the Sex Discrimination Act but that it had always been his view that the legislation on race, sex and religion ought to run in parallel. That is precisely what is being suggested. It is proposed that the conduct of professional bodies in relation to discrimination on grounds of race should be exactly the same—

Lord HAILSHAM of SAINT MARYLEBONE

Is the noble Lord really contending—and I say this without admitting that we made a mistake in not fighting some of the provisions of the Sex Discrimination Act—that, if we made a mistake in not fighting those provisions, we are thereby bound to commit a second injustice in the Race Relations Bill? Is that what the noble Lord is trying to foist upon me?—because I will not accept it.

Lord AVEBURY

If the noble and learned Lord is saying that these were mistakes, there were an awful lot of them, because this is about the fourth case we have met in less than 12 clauses in which everything sailed through perfectly smoothly so far as sex was concerned but where, as soon as race rears its ugly head, the Conservatives find something to quarrel with.

Baroness ELLES

I strongly protest against that. Our Party has an extremely good record on race relations.

Lord AVEBURY

The noble and learned Lord talks about having made mistakes. I am merely pointing out to the Committee that it is rather odd that so many mistakes—if that is what the noble and learned Lord calls them—appear to have been made in relation to sex that we are now faced with the situation of having a total conflict between the two sets of legislation. I thought that it had been agreed on all sides—and the Conservatives did not argue against this when it was first put forward by the then Home Secretary—that, so far as possible and where there were no clear reasons for making a difference between the legislation, the two Bills should run in parallel.

However, there was a previous precedent before the Sex Discrimination Act which was pointed out by the Secretary of State when this matter was being discussed in another place. I feel that this too should be drawn to the attention of the noble Baroness, Lady Elles, in case she has missed it in her study of the proceedings in that House. That precedent, which was quoted by the Home Secretary, was the Consumer Credit Act, which was introduced in another place by the noble Baroness's right honourable friend Sir Geoffrey Howe and which contained a provision that is almost exactly the same as that which we are now discussing in relation to persons applying for a licence.

So I am just asking that, when the noble Baroness comes to wind up, she should attempt to justify—and I cannot see how it can be done—the Conservative Party putting forward legislation of its own containing such a provision, the Conservative Party next accepting a very important provision in identical terms in relation to sex, and the Conservative Party then making a tremendous song and dance when it comes to the Bill now before the Committee.

Lord MONSON

Like other noble Lords in all quarters of this House with the exception of the noble Lord, Lord Avebury, I find this subsection quite iniquitous. The fact that it is almost identical to Section 13(2) of the Sex Discrimination Act, which I, at any rate, strongly opposed at Report stage in this House, is no excuse, because I believe that that subsection should be deleted from the Sex Discrimination Act at the first convenient opportunity. All-Party Opposition to the subsection that we are discussing is by no means confined to your Lordships' House. On 13th May, in Standing Committee in another place, an honourable and learned Labour Member said that what was envisaged here in the subsection was that men or women might study for a qualification for five or six years only to be told at the end that they could not practise because of evidence tending to show that they had practised unlawful discrimination. They would not be allowed to say one word in their defence. There is nothing in the subsection stipulating that they must have consented to the discrimination if it took place, nor need they even have known about it if it was practised by someone in their employment or some agent of theirs. That is taking things too far.

As I have said, I should like this subsection to come out completely. I have tabled three Amendments, Nos. 31, 32 and 44, which refer back to Clause 12, and which are meant to tie in with Amendments Nos. 33 and 34 tabled by the noble and learned Lord, Lord Hailsham. If the Government can give any indication that they will compromise on this matter and accept the Amendments that I have just mentioned, I will not vote for Amendment No. 30, but if they refuse to give way I will then follow the noble Baroness into the Division Lobby.

9.15 p.m.

Lord HARRIS of GREENWICH

I am afraid that I cannot give that guarantee. I want to make that quite clear from the outset. The noble Lord asked for a particular answer and I thought it right at the outset to give it to him. Before I say what I hope will be some things which are only mildly controversial, I say to the noble and learned Lord—and I do not think that the noble Lord, Lord Avebury, would disagree with this—that in relation to the point which has just been raised I would not for a moment suggest that the record of the noble and learned Lord on racial questions is other than impeccable. I am well aware that over a number of years he has taken what has often been a very disagreeable but tough line in favour of civilised race relations in this country. I would never suggest anything to the contrary. Therefore anything which I may say is in no way an implication that his record on racial questions, often at times of great difficulty with his own Party, is other than impeccable.

But having said that, I must point out, as has the noble Lord, Lord Avebury, that there is a very curious inconsistency on the part of the Opposition in regard to this Bill when compared with the Sex Discrimination Act, as of course it is wholly inconsistent with that view. The Opposition's position is also wholly inconsistent, as the noble Lord, Lord Avebury, pointed out, with the Conservative Government's Bill in 1973 which dealt with consumer credit. I will come to that point in a moment.

So far as Clause 12(2) of this Bill is concerned we can certainly say that its parent is the Sex Discrimination Act, its grandparent is the Government's Consumer Credit Act of 1974, and its great-grandparent was in fact, as the noble Lord, Lord Avebury, rightly pointed out, the previous Conservative Government's Consumer Credit Bill. I have before me Section 25 of the 1974 Act, but in fact the 1973 Bill is very largely precisely in the same terms. There are one or two slight differences but there are no differences of great substance. Section 25(2) reads as follows: In determining whether an applicant for a standard licence is a fit person to engage in any activities, the Director shall have regard to any circumstances appearing to him to be relevant, and in particular any evidence tending to show that the applicant, or any of the applicant's employees, agents or associates (whether past or present) or, where the applicant is a body corporate, any person appearing to the Director to be a controller of the body corporate or an associate of any such person, has—

1. (a) committed any offence involving fraud or other dishonesty, or violence,
2. (b) contravened any provision made by or under this Act, or by or under any other enactment regulating the provision of credit to individuals or other transactions with individuals,
3. (c) practised discrimination on grounds of sex, colour, race or ethnic or national origins in, or in connection with, the carrying on of any business…"

It follows from what I have said that it is quite clear that not only is there a clear precedent in the Sex Discrimination Act, but it was also introduced in one of the later measures during the Conservative Government's period of Office when the noble and learned Lord was Lord Chancellor. I think it right to say that. I am not trying to score simple debating points, but when the noble Baroness uses the term "the folly and nonsense of this section", I think it is only right to point out the precedents for the "follies and nonsenses", as she described them.

Baroness ELLES

Would the noble Lord give way for one second? Would the noble Lord kindly tell me which Government were in power when the Sex Discrimination Act came in, and who brought it in? It is precisely relevant.

Lord HARRIS of GREENWICH

I will gladly answer the noble Baroness's question. The Labour Government was of course in office when the Sex Discrimination Act was brought in, but the section I have just read arose from a Consumer Credit Bill introduced by Sir Geoffrey Howe when he was the Minister in charge of that Bill. That is the fact of this matter. I do not in any way criticise people who are concerned about the powers which are being given to the Executive in this Bill, and I believe the Government have a clear duty to justify those powers. I would not in any way rest my argument on saying that, as there has been precedent for this in the past, therefore, clearly, it must be justified in this situation. The Government have an obligation to justify it, and I shall certainly endeavour to do so; but I thought it right to point out the background to this particular piece of legislation.

Subsection (2) of Clause 12 of this Bill applies to certain kinds of bodies which control access to particular occupations which are needed for, or facilitate the carrying on of, these occupations. We are not talking about any old qualifying body, but only about those required by law to satisfy themselves as to an applicant's good character before conferring the qualification upon him. This means that we are concerned only with responsible bodies which are required to act judicially, and which will therefore be subject ultimately to the supervision of the courts. Clause 12(2) requires the bodies I have just described to have regard, in deciding whether or not to confer an authorisation or qualification on an applicant, to any evidence which tends to show (the same term as in the Consumer Credit Bill) that he or any of his employees or agents, past or present, have practised discrimination in, or in connection with, the carrying on of any profession or trade.

One of the things that Clause 12(2) does is to define racial discrimination as a factor which is relevant to the question of good character. This is the point which was raised a few moments ago. But that is not altogether surprising since we are in the process of making racial discrimination a full civil wrong. In fact, I am sure that many professional bodies might well regard unlawful discrimination as relevant in principle to character. But it is perfectly true that Clause 12(2) will leave them with no option in the matter, and I would not disguise that from the Committee in any way. However, what is crucial in this is that it will be left to each professional body to decide, first, what weight to attach—and this is, I think, the most important point—to any evidence of unlawful discrimination and, of course, subject to this, second, how important a factor such evidence is in satisfying itself as to an applicant's character.

I think it is, as I have indicated, perfectly reasonable that the Government are asking for these powers. They are well precedented, and I do not believe that there are the grave dangers which the noble Baroness indicated she feared would arise from this particular clause of the Bill. To take one example, being a member of the National Front is not anything which would provide evidence tending to show that the person concerned has discriminated unlawfully. It would not, in fact, carry any such direct implication.

I come back, therefore, to the point raised by my noble friend Lord Houghton. I perfectly well understand people, particularly (if one may say this) at a time like this, worried about the powers which the Executive can sometimes insist on adding to its armoury of weapons, but I do not believe that the powers which are asked for here are unreasonable. They are well precedented and I think it would be a very strange thing indeed if, at a time when we are passing a major piece of legislation of this sort, we decided not to introduce powers of this kind which, I repeat, have been well precedented and which, as a result of that, I do not believe create the sort of dangers which have been set out by some speakers in this debate.

Lord HAILSHAM of SAINT MARYLEBONE

The noble Lord always puts his points in such a courteous way that he puts a particular obligation upon those who reply to him to live up to his very high standard. I shall try to do so. He began with a particularly courteous reference to myself for which I was deeply grateful; because there have been times during these debates when I wondered whether I was being singled out for criticism or for things which I am not guilty of. But certainly this would not be true of the noble Lord, Lord Harris of Greenwich.

If I may venture a word of advice to the Committee, I hope not presumptuously, I would advise the Committee to come to a conclusion upon what is right in this case—not upon what was right in 1973 or upon what was right even in the last Session about sex discrimination. I have come to say a word about these things because I do not think that the noble Lord has quite given justice to my right honourable friend Sir Geoffrey Howe. I would recommend the Committee to do what is right in this case. If there are bad precedents, then it is time we called a halt to them; and it is time that we told the public that we are going to stand up for the things we think to be right.

This is a clause which has very serious implications for the individual. I am very glad to find myself on this occasion on the same side as the noble Lord, Lord Houghton of Sowerby. I have a great respect for him. We have served in the same Chamber of Parliament for many years and we do not often agree. It is a particular pleasure to agree with him, therefore, when we do find our minds moving in the same direction. I have had to apply many years ago to become a barrister, but mutatis mutandis, the same is true for chartered accountants, surveyors, or any of the major professions and certainly for solicitors. We have to produce a certificate of good character and we do not know quite what weight is given to the various factors and, moreover, we do not quite know what is contained in the various references about us. The body which adjudicates upon us is wholly unresponsible to Parliament. I do not mean to say that it is in any way irresponsible. All the great professions are and ought to be autonomous and self-governing. There is no recourse against them at all. None whatever—unless they behave in a really outrageous way. And as the burden of proof is on you when you start, they can simply say that they are not satisfied that you are a person of good character. Normally, you get through, as did I for some reason and the noble Lord, Lord Avebury, undoubtedly because he was a person of good character.

But to say that they are bound—not entitled, but bound—to listen to tittle-tattle and give what weight they think they are entitled to give to tittle-tattle is a very serious thing to put in an Act of Parliament. That is what this Act of Parliament at the moment does. It says that the body must have regard to any evidence tending to show…". In other words, anybody can inform against an applicant to become a chartered accountant or a solicitor or a barrister and the body has to take it into account. They cannot just shove it aside.

There is no limit of time. When the noble and learned Lord, Lord Gardiner, introduced his Bill about spent convictions when I was Lord Chancellor, there was a tremendous piece of eloquence from the noble and learned Lord about the convictions being spent after a certain amount of time. But this is not a conviction; it is tittle-tattle and is never going to be spent. It is possible of course that a sensible, responsible professional body would treat as irrelevant and frivolous things long forgotten; but there is no guarantee. The noble Lord has justified putting into the Act of Parliament that it must take into account evidence tending to show past misdemeanours, if any. But there is no spent conviction provision contained in this subsection. I put one in in one of my alternative Amendments. I hope we shall not come to that because I hope we will divide on this Amendment.

There is no provision that the evidence must be conclusive that a court of competent jurisdiction has gone into the matter. What is the professional body supposed to do? The evidence has to tend to show that the person concerned has been guilty, but has the professional body got to try out the case? Supposing it happened a long time ago but the case is a serious one and the witnesses are mostly not available? What is the professional body to do? If it was a serious allegation a long time ago, is it bound to have a trial within a trial before a man is to be allowed to join his profession? My belief is that the professional body ought to be autonomous, self-governing. That means it can take into account allegations tending to show that a person is of bad character. If I were on the professional body, I would certainly take that into account. In this one case and two others I will come to in a moment cited by the noble Lord, the Act of Parliament says it is bound to do so. That is very rough.

I should like to say a word about these two alleged precedents. I have already talked about the Sex Discrimination Act. The question which the Consumer Credit Act asks people to take into account—and I do not necessarily defend it because it might be a bad precedent—is a different one. In this clause we are dealing with cases where a person applying to join, let us say, a profession—perhaps the Civil Service—is bound to establish good character. That is not at all the test in the Consumer Credit Act. The test in that Act is that a man is entitled in effect to lend money to the public as a whole. He has to satisfy the director who is responsible to Parliament that he is a fit person to do that, and the director is, through the Minister, responsible to Parliament, as I say, so that he can be hauled up here and the whole thing can be subject to Parliamentary interrogation.

I have always taken the view—and I am a puritan in these matters—that before you start lending money or having certain things like a gambling house, you ought to satisfy a higher test than almost any other because it is so subject to abuse and has been known to be subject to abuse. When you come to look at the factors in the clause you can see that what the director has to pay attention to is alleged misconduct in the way of his business, not a wide ranging inquiry as if he might be alleged to have said in the bar of White's that he did not like blackmail, or something like that. It is limited to his business activities and his actions, not only to his words. Clause 70 would carry words and all sorts of things into it.

I am afraid that I agree with the noble Lord, Lord Houghton of Sowerby. He used the word "hateful" in relation to this subsection. I think he is probably right. I proposed, as did the noble Lord, Lord Monson, who also spoke in our favour, to have a number of alternative Amendments, but the more I reflect about this the more I think we ought to insist on this subsection coming out, and I so recommend this to my noble friends.

Lord BROCKWAY

I hope very much that we shall not make a decision tonight on the question of what was in the Sex Discrimination Act or in other legislation introduced by the Conservative Government. We have this Bill before us tonight and each of us has to decide whether it is right or wrong that this clause should be included. I feel impelled to say that we are seeking in this Bill to end racial discrimination. We seek that because we believe in human personality, human freedom and human equality, whatever may be the ethnic origins of a person. I think we have to be most careful that when we are thinking of human freedoms in that way we do not adopt methods which are a denial of human freedom.

Having listened to this debate very carefully, as well as having previously given some consideration to this clause, I have come to the conclusion that to carry this clause means that we are infringing human liberties and human rights and that we ought not, in a Bill which is seeking to establish human freedoms and rights, to use the method which is used in this clause. Therefore very reluctantly, as a supporter of this Bill, I hope that Her Majesty's Government will very carefully consider whether or not this clause ought to be included.

Lord HOUGHTON of SOWERBY

I regret troubling the Committee again but, quite clearly, if the Committee is contemplating deleting an important clause or subsection from the Bill, one need not apologise for spending a little time on considering what we may be about to do. I think we must be clear about the issues involved. I am not in favour of legislation by reference to the thin end of the wedge and I am not in favour of legislation by reference to bad precedents—not even by reference to precedents that seemed to be good at the time but appear less worthy as time passes and we see perhaps where things are leading.

Every now and again we tend to take stock when the latest edition of some erosion of freedom is involved, and ask: "Where have we got to? Where are we going? Is this where we should make a stand? Is this where we stop?" I concede at once that from the point of view of race relations and the significance of this Bill in public opinion at the present time, it is probably worse to take out a clause of the Bill than if it had not been in the Bill in the first place. We know this dilemma of old, but I do not think we should be deterred from doing what we think is right on that account. If what is done is misconstrued or misrepresented, then it is our duty to defend what has been clone by reference to the higher principles we may judge to be involved.

If acts of race discrimination are made unlawful, as previous Acts of Parliament do and as this Bill does, do we have to draw the attention of reviewing bodies to particular branches of the law to which they must give attention? In our time, we in Parliament have made the taking and possessing of certain drugs unlawful. Did we require these registration authorities to take into account whether there was any tendency to show that candidates possessed or took cannabis? Other social evils have been made unlawful over the years, but I am not aware that we have felt it necessary to register the new factor to be taken into account every time we have enlarged the scope of the criminal law. We have left it to the good sense of responsible persons who are on such bodies to take everything into account. Otherwise, let us make a catalogue of all the factors and not just bring out one or two. Why not say that any tendency to go thieving in the darkness of the night must be taken into account, or any tendency to do anything else which might be regarded as undesirable? Can we not leave this to the judgment of those with a responsibility to look at a candidate in the whole person, and at his reputation and at what evidence may be available about his general fitness for what he is seeking to do?

Lord AVEBURY

Obviously, the organisations would take into account the matters to which the noble Lord has referred, because they would be criminal convictions. If somebody was convicted of taking, possessing or trafficking in drugs, that would certainly be a relevant consideration in deciding whether to confer on that person the qualification for which he was applying. Here we are speaking about a civil matter and, therefore, it needs to be referred to when it would be unnecessary to refer to the criminal matters, because they would be automatically taken into consideration.

Lord HOUGHTON of SOWERBY

I admit at once to the noble Lord that all these parallels can be criticised, and that they are open to objection. But I would make another point, that I think that this Bill and this subsection are elevating attitude towards race almost to a religious test. It is as high as that. When you look at the provisions of the Bill, almost any tendency to deviation, anybody who aids deviation, virtually anyone who thinks deviation can be caught by some clause or other. This may be the price that some noble Lords and Members of another place think it is necessary to pay, in order to assure those in our community that they are going to have full justice and be allowed to develop fully their freedom, their rights of citizenship and their lives in this country. But we cannot enslave ourselves to the attainment of this ideal. I think that some concessions must be made, by those who come into our midst, on matters of principle which we regard as entrenched in the liberties of our people.

I make no apology if I have a stronger opinion today than I had two years ago, because I believe that the tendency now is to drift towards greater control of the citizen, the deprivation of some rights which we have regarded in the past as fundamental, all in the interests of higher things and, in the end, the higher things become the base things looked at in the light of human liberty.

Therefore I attach the greatest importance to this Amendment. I am very glad indeed to be on the same side as the noble and learned Lord, Lord Hailsham of Saint Marylebone, and I do not care how many times we return to this matter. I believe that this House, perhaps more than another place, is the custodian of certain of the liberties of our people. If we cannot make a stand for them in this House, I do not think that we justify our existence. At any rate, I believe that we are entitled to ask those who claim to be elected and to express the voice of the people to listen again to what they hear and also to reflect upon whether they are doing the right thing.

I am impressed indeed by my noble friend Lord Brockway. He is a man of the purest ideals and highest intentions, but all dedicated people sometimes pursue what is uppermost in their minds without full regard to the consequences. That is why a person like myself of a practical turn of mind is perhaps, if I may say so with great respect, to be listened to rather than my idealistic noble friend Lord Brockway. I have the highest personal respect for him.

I have been stunned by other things which have happened in recent months in relation to personal liberty and we may return to them a little later in your Lordships' Committee. In the meantime, we must resolve this dilemma. I do not believe that we shall go away from the Committee tonight feeling fully at ease with our consciences if we leave this subsection in the Bill.

Lord HAILSHAM of SAINT MARYLEBONE

I should like to congratulate the noble Lord, Lord Houghton of Sowerby, on what he has just said; but unwittingly I think that he has done an injustice to the noble Lord below the Gangway, the noble Lord, Lord Brockway, who, if I did not misunderstand him, was speaking in the same vein.

Lord MONSON

I, too, do not wish to detain the Committee, but I must put

one more point to the noble Lord, Lord Harris of Greenwich, on a more pragmatic plane than that of the noble Lord, Lord Houghton of Sowerby. In the expectation that your Lordships' Committee will vote tonight to delete the subsection, but in the fear that the other place may subsequently vote to reject your Lordships' Amendment, do the Government realise that under the subsection, as drafted, an employer can be held responsible for an employee's act even when that employee is not working for him If I employ a man as a foreman from Monday to Friday and that man behaves impeccably during the course of that employment so far as this Bill is concerned, but if on Saturday he goes to work, perhaps as a steward at a working men's club, and there commits an act of discrimination, does the noble Lord realise that under the terms of this subsection I am still likely to be held liable? I do not believe that either the noble Lord or the Government can possibly think that that is fair.

Lord HARRIS of GREENWICH

I am well aware of the strength of feeling of the noble Lord on this point and I have taken due note of what he has just said, but may I say one thing to the Committee. I say it in no reproachful spirit because we have had a very good debate, although I suspect that the Committee is about to take the wrong decision from the Government's point of view. We have now spent very nearly a day and a half discussing 12 clauses of an 80 clause Bill and I appeal to all Members of your Lordships' Committee to bear this in mind during their further deliberations on the Bill.

9.48 p.m.

On Question, Whether the said Amendment (No. 30) shall be agreed to?

Their Lordships divided: Contents, 62; Not-Contents, 26.

CONTENTS
Alport, L.	Brockway, L.	Drumalbyn, L.
Amherst, E.	Burton, L.	Dundee, E.
Armstrong, L.	Carrington, L.	Elles, B.
Auckland, L.	Cathcart, E.	Elliot of Harwood, B.
Balerno, L.	Chelwood, L.	Elton, L.
Barrington, V.	Cullen of Ashbourne, L.	Evans of Hungershall, L.
Belstead, L.	de Clifford, L.	Falmouth, V.
Berkeley, B.	Denham, L. [Teller.]	Foot, L.
Gisborough, L.	Lindsey and Abingdon, E.	Rochdale, V.
Gray, L.	Long, V.	Sandford, L.
Hailsham of Saint Marylebone, L.	Lyell, L.	Sandys, L.
Harcourt, V.	Macleod of Borve, B.	Savile, L.
Hatherton, L.	McNair, L.	Seear, B.
Hawke, L.	Mansfield, E.	Shuttleworth, L.
Hirshfield, L.	Monson, L.	Simon, V.
Hives, L.	Mottistone, L.	Suffield, L.
Houghton of Sowerby, L.	Mowbray and Stourton, L. [Teller.]	Terrington, L.
Hunt of Fawley, L.		Vickers, B.
Inglewood, L.	O'Hagan, L.	Wade, L.
Kemsley, V.	Pender, L.	Ward of Witley, V.
Killearn, L.	Redesdale, L.	Windlesham, L.
NOT-CONTENTS
Avebury, L.	Harris of Greenwich, L.	Pitt of Hampstead, L.
Boston of Faversham, L.	Hughes, L.	Ritchie-Calder, L.
Castle, L.	Jacques, L.	Stedman, B. [Teller.]
Champion, L.	Janner, L.	Stewart of Alvechurch, B.
Davies of Leek, L.	Lovell-Davis, L.	Strabolgi, L. [Teller.]
Delacourt-Smith of Alteryn, B.	Melchett, L.	Wells-Pestell, L.
Elwyn-Jones, L. (L. Chancellor.)	Murray of Gravesend, L.	White, B.
Goronwy-Roberts, L.	Northfield, L.	Winterbottom, L.
Hale, L.	Oram, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

Clause 12, as amended, agreed to.

Clauses 13 to 15 agreed to.

Clause 16 [Police]:

9.57 p.m.

Baroness ELLES moved Amendment No. 34B:

Page 11, line 6, at end insert— (" ( ) Nothing in this section shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of birth or the length of time for which he has been resident in Great Britain.")

The noble Baroness said: The noble Lord the Minister was kind enough to put me right on this particular point as to the question of whether aliens could be members of the Police Force in Great Britain. The noble Lord the Minister assured me that they could not. I should like to put to him one point on which I would not expect an immediate answer—although he may be able to give it to me. Is it under a provision or an enactment that they cannot be aliens, or is it a regulation of the Secretary of State under the Police Act? The noble Lord may not wish to reply now, but perhaps I could have a written answer.

Lord HARRIS of GREENWICH

My answer to the noble Baroness, Lady Elles, is, Section 3 of the Act of Settlement 1700.

Baroness ELLES

I am most grateful to the noble Lord the Minister for that piece of information, and on that I will very happily beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 to 19 agreed to.

Clause 20 [Discrimination in provision of goods, facilities or services]:

Lord O'HAGAN moved Amendment No. 35:

Page 14, line 34, at end insert— (" ( ) This section shall apply to discrimination by members of public services in the performance of their duties.")

The noble Lord said: Clause 20 deals with discrimination in the provision of goods, services and facilities to the public, or to a section of the public. It is unlawful to discriminate in these matters either directly or indirectly. The purpose of my Amendment is to give the Government an opportunity of saying what in fact the words in the first section covered relate to, what is or is not a service. I wonder whether the noble Lord can tell me whether someone who is carrying out a statutory function as a Government official, be he a local government official or any other sort, is in fact providing a service. If those officials are not providing a service, then they are not covered by the wording of the Bill without my Amendment. In the hope that the Government will be able to answer this question, I beg to move this Amendment.

Lord WELLS-PESTELL

I am very grateful to the noble Lord. Perhaps it would be helpful if I were to explain how the Bill affects public services. This Bill, like the 1968 Act and the Sex Discrimination Act, binds the Crown in respect of all situations covered by the legislation. We have already looked at the employment provisions of the Bill, which apply to Crown servants as they do to other employees. The provision of the Bill which we are now considering, namely Clause 1, applies to any organisation providing goods, facilities or services to the public or a section of the public. Here again Government Departments, public authorities, indeed all public bodies, I venture to suggest, are in fact covered. Thus to the extent that they provide goods, services or facilities to the public all public bodies and those who work for them are covered by the clause.

Perhaps I may give an example. I hope it will be felt to be a reasonable example. Take the police. An example of their functions which constitute a service to the public might well be providing crime prevention advice. In carrying out these functions the police would be subject to the provisions of the clause. In general, however, police operational duties are outside the scope of legislation. It can hardly be said that arresting a person or submitting a person to a breathalyser is providing them with a service; I do not think anyone would accept that for one moment. Similarly, the functions of some of the other public servants—I have in mind immigration officers, health inspectors, inland revenue oflicials and so on—do not constitute a service to the public for the purposes of the Bill and are therefore outside the scope of this legislation.

I imagine that what the noble Lord is seeking to achieve through this Amendment is to bring these non-service functions, so to speak, within the scope of the Bill; and I do not believe, if I may say so, that the Amendment as drafted achieves the purpose, but perhaps I need not dwell on that at the moment. It does not seek to alter the functions that are carried out. I take it that he wishes to ensure that the manner in which they are carried out is not racially discriminatory. That is the aim, as I am sure it is the aim of every one of your Lordships, and it would receive general support. At the same time, I believe it is not appropriate for legislation to be extended in the way I think the noble Lord proposes. We have given this a good deal of thought; I want to assure the noble Lord that this is so.

In so far as the legislation applies to the public authorities, it does not do so through any special provision but through its general application to the Crown. The Crown could hardly be given exemption from contexts like the provision of goods, services and facilities to which the legislation applies generally. But it would be quite another matter to put a special provision in the Bill to cover the police and other public authorities in the general exercise of what is in fact their duty. Authorities like the police have a duty in the first place to the public interest as a whole. It goes without saying that their duties must he performed without racial discrimination, and complaints of discrimination must, in the public interest as much as in the interest of the individual concerned, be absolutely fully investigated.

It would hardly be right to leave the matter to individual process through the county courts. Special arrangements, like the Ombudsman responsible for investigating complaints of maladministration by Government Departments and local authorities, we feel, are needed. If public confidence is lacking in these procedures, the solution is not, as I think the noble Lord proposes, to extend the scope of the Race Relations Bill but to strengthen the special procedure, as the new legislation which provides for new police complaints procedure does. The noble Lord will no doubt be familiar with it. I think in the circumstances we could not accept the noble Lord's Amendment, and I hope he thinks that I have satisfied him to that effect.

Lord SIMON of GLAISDALE

Although this Amendment deals with discrimination by members of the public services, it raises a cognate question. In one of the many cases which came to your Lordships' House in its Judicial capacity on the corresponding section of the 1968 Act there was a difference of opinion as to whether "section of the public" included "local authority". I have forgotten the name of the case, but it was about foster children. Perhaps the noble Lord will look into that matter and see whether it should not perhaps be cleared up.

Lord WELLS-PESTELL

I am obliged to the noble and learned Lord. I shall certainly do so, and if I have any comments as a result perhaps he will allow me to write to him.

Lord O'HAGAN

I am grateful to the noble Lord, Lord Wells-Pestell, for answering me so thoroughly. I shall read what he said and try to understand it more fully than I have succeeded in doing so far. The fact that he criticised my drafting I took as a compliment because it showed that the Government had obviously taken the Amendment seriously. However, there is a point on which he has not yet satisfied me. I understand from his answer that in so far as officials are carrying out a service they are covered by the Bill, but when they are doing something which they are obliged to do by Statute which is not a service, they are not covered by the Bill. Where does the boundary lie?

I can understand the noble Lord taking the example of the police because that is something we have been considering recently, and obviously the police are carrying out important duties to preserve law and order where the service element is probably fairly small; but in the case of Inland Revenue officials, traffic wardens, or public health inspectors the exact boundary between service and public duty to my mind is still rather obscure. If the noble Lord can say anything further on this point—I do not want to detain him or the Committee much further tonight—I would be reassured, because it still seems to me that there is some uncertainty as to how far these officials are covered by the Bill.

Lord WELLS-PESTELL

As the noble Lord will know, the Bill gives examples of services in Clause 20(2). I think the Bill covers public services by virtue of Clause 75. If the noble Lord turns to that clause he will see that the Bill covers public services. The question is whether services or facilities are involved, not whether the person concerned is a public servant or in the private sector. Public housing authorities are an obvious example of public sector provisions covered by the Bill. I do not think I can take the matter beyond that. If the noble Lord is not satisfied I shall certainly go into it further and see him before Report.

Baroness ELLES

Following on what has been said, I think the concern that my noble friend Lord O'Hagan and I share is as to the kind of service provided, for instance, by a welfare authority, or welfare services under a local authority. Would an individual be protected against discrimination under this particular clause? I think of the kind of area work, of which I know the noble Lord, Lord Wells-Pestell, has immense experience, the kind of care committee work where you have to see whether, in particular circumstances, certain services and welfare benefits are given to children. Would that come within this provision? Would people be protected by it from being discriminated against, because presumably the individuals giving the services would be part of the public services within a local authority? Perhaps we do not need to go into this matter in detail at this hour; possibly the Minister will write to my noble friend and me about it.

Lord WELLS-PESTELL

I have already undertaken to do that. Perhaps the simplest way would be for me to write to the noble Lord and send a copy of the letter to the noble Baroness.

Lord O'HAGAN

I thank the Minister for that undertaking and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.11 p.m.

On Question, Whether Clause 20 shall stand part of the Bill?

Lord MONSON

May I ask the noble Lord, Lord Wells-Pestell, to explain what the words "concerned with" mean where they appear in the first line of the clause? This worries me because in the next line are included the words "(for payment or not)". Supposing on a regular basis I were to drive to Leeds once a week and made it my habit to stop at the entrance to the M.1 to pick up hitchhikers, not for payment obviously, and it were observed that I always picked up hitchhikers of a particular nationality. Could I not be held to be providing a service, albeit not for payment, and be committing an illegal act under the clause?

Lord WELLS-PESTELL

I should have thought that almost certainly the noble Lord would not be committing an offence. However, that is only an opinion, which I appreciate may not be satisfactory, so I will inquire into the matter and let him know.

Clause 20 agreed to.

Clauses 21 and 22 agreed to.

Clause 23 [Further exceptions from ss. 20(1) and 21].

Lord Monson moved Amendment No. 36: Page 16, line 20, at end insert— (" ( ) Section 20(1) does not apply when a person provides facilities or services to not more than six persons at a time in his home.")

The noble Lord said: The White Paper which preceded the Bill asserted that the Government had absolutely no wish to interfere with or introduce coercive legislation in regard to private and intimate relationships. That reassurance has been repeated time and again by Government spokesmen in both Houses in the various debates on the Bill. The decision to exclude such intimate relationships has been enshrined in the Bill in several places, notably in Clause 4(3), which excludes the employment of domestic servants from the scope of the Bill; Clause 10, which excludes small partnerships; Clause 22, which excludes small boarding and lodging houses; and Clause 25, which excludes small clubs. For some extraordinary reason that I can only think is an oversight, no provision is made for excluding services provided by people to small numbers or groups of people within their own private dwelling-houses. I am sure that this is not intentional and I believe that it should be rectified, and that is the reason for the Amendment.

The sort of services I have in mind, provided from somebody's private house, are piano or violin lessons, tuition in French, Spanish, Russian or whatever, dress making, tailoring alterations carried out by a retired tailor and so on. I have not included goods but only facilities and services on the grounds that if anybody sells goods from a private house it is likely to be fruit or vegetables sold from a front garden or front drive and I do not think there is any need to include those. There is the borderline case of the sort of parties that are said to be given by housewives where they invite a few people in to sell cosmetics or kitchen utensils and the like, but they are normally by invitation so there is no need to worry about those.

I take the view that an Englishman's home is his castle, and I believe that most Asians and West Indians feel exactly the same about their homes. I cannot believe that they could possibly object to such an Amendment. I have confined the Amendment to the provision of services to six people or fewer at a time simply to keep in line with the rest of the Bill. I cannot believe that there is any stately home owner—to use a rather horrible phrase—who would wish to exclude one single member of the public anyway but, if that is a point that worries anybody, the limitation to six or under would take care of that. I beg to move.

Lord WELLS-PESTELL

I do not believe that there is a great deal between the noble Lord and the Government on this matter. At the risk of having to repeat some of the things I said on the previous Amendment—and I shall not do that unnecessarily—in considering the Amendment I believe we must bear in mind that Clause 20(1) makes it unlawful to discriminate in the provision of goods, facilities and services only where the person providing them is concerned with providing them to the public or a section of the public. This limitation reflects the Government's view that Clause 20 should not apply to personal and—to use the phrase in the White Paper which the noble Lord himself used—intimate relationships. The White Paper on Racial Discrimination promised that the Bill would include provisions to ensure that it did not apply to such relationships. Clause 20 does not extend to a person's domestic arrangements, and Clause 4(3) specifically excludes employment for the purposes of a domestic household.

We should bear in mind that Clause 20 does not embody a new principle. It follows Section 2 of the Race Relations Act 1968. There is no exception in the 1968 Act like that which the noble Lord is now proposing. The noble Lord's Amendment would limit Clause 20(1) so that it does not apply where the providing takes place in the person's home and if what is provided is provided to six or fewer persons at a time. The noble Lord gave a number of examples, and I can give another which might be where a teacher would give private lessons in his home. Provided he does not trade in classes of more than six, he should, the noble Lord is suggesting, be permitted to discriminate.

Is this the right approach? The Bill distinguishes between the private or domestic sphere and the public. Clause 20 is about the provision of goods, facilities and services to the public or a section of the public. Does the situation become private when facilities or services are provided at home rather than in another place of business? The discrimination to which the Amendment would give protection is surely no less invidious. Is trade carried out in the home so private a matter that the Bill ought to reverse the position as it is under the 1968 Act and give it protection? The Government do not feel or believe that this is so. In view of what I have said, I hope that the noble Lord will, on reflection, feel able to withdraw the Amendment.

Lord MONSON

I started by being heartened by what the noble Lord said, because he said that we were not very far apart and appeared to say that the examples I had given were not providing services to a section of the public. However, he then went on to say the reverse. I am afraid the answer to his question is that I do believe there is a difference between providing facilities in a shop, an office or a factory and providing them in one's own living room or kitchen. These are totally different things. I feel that the noble Lord would agree that sitting beside someone on a piano stool is a fairly intimate relationship.

I did not want to raise examples because I thought that the position would be self-evident, but in view of the fact that the noble Lord clearly does not understand I must cite a case which I heard about the other day. It concerned an elderly lady who ran a boarding house. She was perfectly happy to take in lodgers of every type and description. She had Nigerians, West Indians, Pakistanis, and so on. But for some reason she did not like turbans, she had a "thing" against them. Perhaps in her childhood she had looked at a picture book showing tribesmen coming down from the hills besieging a British garrison and wearing turbans. Perhaps it was something of that kind. But for whatever reason it was, she disliked turbans, and she would not have a person wearing one in her home. I believe that she had room for seven lodgers rather than six, and so I understand she was threatened in some way by the Race Relations Board.

It seems to me utterly wrong that such a person, in a very close relationship, where she may be giving tuition in music, or where she may be a dressmaker or a physiotherapist (although I doubt whether this would apply to many physiotherapists) should have to invite someone into her home. Such a person is not allowed to discriminate in advertising and I certainly do not object to that. But she may put a card in her window and someone may come along and she might say, "I am sorry, I can't do it." It does not seem to me that there is anything wrong in this. It is unreasonable for the noble Lord to suggest that this is comparable to providing a service in a public place like a shopping street.

Lord WELLS-PESTELL

I do not think that I can usefully add anything to what I have said. Listening to the noble Lord when he was introducing his Amendment, I thought that he was taking much the line which the Government had taken in this clause, but I can see that there is a great deal of difference between us. The Government feel that Clause 23 as set out is what they wish to see, and I have to leave it to the noble Lord to decide what he is to do.

Lord MONSON

I am not wedded to six. If that number were to be reduced to two, would the Government look any more favourably on this Amendment if I were to reintroduce it at Report stage? Surely a person must have the right to say who should come into his own living room. If the figure of six is too high, would the noble Lord think about the matter again?

Lord WELLS-PESTELL

If the noble Lord feels disposed to withdraw his Amendment, I will certainly read in Hansard what he has said and go into the matter. If I can give him a satisfactory answer, then presumably he will not pursue the matter, but he will be free to do so at Report stage if he feels like it.

Lord MONSON

In that case, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 [Discrimination: consent for assignment or sub-letting.]:

On Question, Whether Clause 24 shall stand part of the Bill?

10.23 p.m.

Baroness VICKERS

I propose that Clause 24 should be left out of the Bill. I do so because we have heard so much tonight about human freedom. One of the greatest freedoms is dealing with one's own house. I was glad to hear the noble Lord, Lord Monson, say that, just like the average Englishman, the average immigrant feels that his home is his castle. I refer again to the Government White Paper which says that nearly half the total number of coloured householders own their own houses, in almost exactly the same proportion as white householders.

The Explanatory Memorandum says: It is also unlawful to discriminate against a prospective tenant by withholding consent to the disposal of premises to him. It goes on, if I may refer back to Clause 22, to say that there is an exception in these provisions, in the case of residential accommodation in small premises"— I want to emphasise "small premises"— in which the landlord (or a near relative of his)"— and I should like to know how near a relative has to be— lives and shares certain accommodation with the lodger or tenant. Then, if you turn back to Clause 22 of the Bill and read paragraph (b) of that clause, you find it says: in the case of premises not falling within paragraph (a),"— that is, in Clause 22(2)— there is not normally residential accommodation on the premises for more than six persons in addition to the relevant occupier and any members of his household ". Then, returning again to paragraph (b) of Clause .24, we find: there is on the premises, in addition to the accommodation occupied by the relevant occupier, accommodation (not being storage accommodation or means of access) shared by the relevant occupier with other persons residing on the premises who are not members of his household". Then it goes on to say, in paragraph (c), the premises are small premises". I should like to know what are "small premises" if they are going to be able to house all these people. There is no provision that I can find in any part of the Bill—I may have missed it—which defines "small premises", and I think that if these conditions prevail there will be considerable overcrowding. But I am not at all happy that this clause is in the Bill at all, because I think it is taking away the human freedom to do what one would wish to do with one's own house and, again, is "clobbering" the landlords of all races in this country.

Lord WELLS-PESTELL

If the noble Baroness would turn to Clause 78, which contains the general interpretation provisions, I think she will find the answer to some of the questions she has raised. I have just noticed that subsection (5) of Clause 78 says: For the purposes of this Act a person is a near relative of another if that person is the wife or husband, a parent or child, a grandparent or grandchild, or a brother or sister of the other (whether of full blood or half-blood or by affinity), and 'child' includes an illegitimate child and the wife or husband of an illegitimate child. Clause 78 is rather long, but it in fact sets out the interpretation provisions.

Baroness VICKERS

I missed that. I am sorry.

Lord WELLS-PESTELL

So I will not go all through it; but perhaps I could try to answer the noble Baroness's general point about leaving out Clause 24. We are hoping that she will feel able to withdraw her objection to the clause in the light of what I am going to say. This clause corresponds with one which my noble friend Lord Harris introduced just over a year ago, when we were considering the Sex Discrimination Bill, and I believe that on that particular occasion the noble Baroness was in fact present. I rather fancy, indeed, that she contributed to the debate at that particular time.

Its purpose is to deal with what I think your Lordships will agree would otherwise by a lacuna in the provisions of the Bill dealing with the disposal of premises. Subject to the small dwellings exceptions in Clause 22, Clause 21(1) makes it unlawful to discriminate in the disposal of premises. This would deal with the situation in which a landlord refuses to grant a person a lease on the ground of his colour or race; and it would also make it unlawful for a tenant to discriminate by refusing to assign the lease or sublet the premises to a person on racial grounds. Perhaps I ought to mention at this point that any term in a tenancy agreement which specifically prohibited assignment or subletting to a person on racial grounds would be void by virtue of Clause 72(1)(c) because it would provide for the doing of an act which would be rendered unlawful by Clause 24; and, if I remember rightly, the noble Baroness will see that Clause 24 deals with contracts.

Clause 24 is designed to deal with the situation in which a tenancy agreement provides that the landlord's licence or consent is required to assignment or subletting. Let us say that the tenant wants to assign the lease to a person and that the landlord withholds his consent because the prospective assignee is a black. If the tenant abides by that refusal of consent and does not assign to that person, that person will, with some justification, feel that he has been discriminated against. However, the tenant has probably not contravened Clause 21 because the reason for his action was the withholding of consent by the landlord: and the landlord who is the real culprit in this situation has clearly not contravened Clause 21 because he is not disposing of the premises. It is true that the withholding of consent in a discriminatory manner would probably be held to be unreasonable and hence inoperative under landlord and tenant legislation (the landlord and Tenant Act 1927), but this legislation would impose no sanction on the landlord who is therefore at liberty to withhold consent in a discriminatory way in the hope that the tenant will think it legally binding.

The Government do not think that a landlord who discriminates against a prospective assignee or sublessee by withholding consent to the assignment or subletting of a tenancy should escape liability under the Bill, and Clause 24(1) would ensure that he does not. Subsection (2) applies the small dwelling exception in Clause 24; and subsections (4) and (5) define "tenancy" and make it clear that the new clause applies to tenancies created before the passing of the Bill as well as to those created afterwards.

I have gone fairly fully into this matter because I think it important. The Government feel that it is important that Clause 24 should be left in for the various reasons I have given. I hope that the noble Baroness, in the light of that, will feel it is essential that Clause 24 remains and will withdraw her objection.

Baroness ELLES

Before my noble friend decides what action to take on this Amendment I should like to make a couple of comments on what she has said. She has put her finger on two obvious lacunae in this Bill. The first is a formal point, the way in which the interpretations of the terms of this Bill are arranged. One must look from clause to clause and when one looks at the interpretation clause, Clause No. 78, one can never find the words one is looking for. Neither "small premises" nor "tenancy", the two phrases relevant to this clause, are in the interpretation clause.

I would ask the noble Lord if he could emphasise the point made by my noble and learned friend on Monday night, that the interpretation clause might be scrutinised to make it easier for people who have to apply the Bill when enacted to know where to look for a particular interpretation. The second point raised by my noble friend—and I think that this is fundamental to the whole Bill—is the kind of imposition being placed by this Bill on individuals. I am not going to make a long speech on this because I think the noble Lord, Lord Houghton of Sowerby, has already amply covered the points when dealing with another part of the Bill.

But my noble friends on this side find it intolerable that this Bill can be brought in which imposes certain conditions not only on future contracts or future tenancies but—in subsection (5)—also on tenancies created before this Bill becomes an Act. This goes against all grounds of justice because there is no way in which a landlord who has let his flat or house can now change his position. His position has been changed for him by this Bill.

I am thinking in particular of certain situations where a landlord has a furnished flat which he has sublet, and which he may want back. He may be badly off and may need to get it back again. He cannot, under this Bill, refuse consent to assign, for instance, to a non-national. We know that most non-nationals, like anybody else, are extremely honourable, but there are many also who return to their own country without paying any rent and it is difficult to follow them. Many people feel it more difficult to assign a flat to a foreigner than to a subject whom it is easy to pursue in the courts in this country. I do not make a particular point of it, but as an example, some people who want to take care of their furniture, who want to be sure of their rent—especially in view of their outgoings—would think very seriously now under the new clause whether they would let their flat at all.

At this late stage of the night I hope my noble friend will not press this to a Division. But I wish to make the point that this is another example of the intolerable, totalitarian attitude of the Government, in imposing on people conditions about which they cannot take any other action whatsoever, either to better their position or to have any justice whatsoever in the ordinary course of their business or lives.

Lord WELLS-PESTELL

I take the point the noble Baroness has made, although I think her language has sometimes been extravagant in these matters. Regarding the comments she made about general interpretation, the suggestion she made is perfectly reasonable. If something more can be put into Clause 78 on interpretation, rather than having to look in other parts of the Bill. it seems a wise Amendment to make.

Baroness VICKERS

I am grateful for the support given to me by my noble friend. I hope that, concerning the interpretation clause, we might have a definition about small premises so that people have some idea about this and what a "small premises" actually is, otherwise there might be a misunderstanding.

Clause 24 agreed to.

Clause 25 [Discrimination: associations not within section 11]:

10.37 p.m.

Lord MONSON moved Amendment No. 37: Page 17, line 15, leave out ("twenty-five") and insert ("five hundred")

The noble Lord said: This is an Amendment to try to reach an acceptable compromise over Clause 25, which deals with the inclusion of clubs and associations within the provisions of the Bill. I know a great many Labour Members of both Houses are not at all happy about Clause 25. I am sure that that goes for many Labour voters as well. In another place on 8th July, a very distinguished senior Conservative (one of the contenders for the Conservative Party leadership) said: "I do not know who drafted the Bill. It must have been some lunatic in the Race Relations Board". I would certainly concur so far as Clause 25 is concerned.

How can it be thought right to include clubs with a membership as small as 25? Only a small proportion of the membership meets at any one time, except on special occasions like Christmas, and so on. I often go into our local village club which has a membership of 60 or more. On a rainy night in mid-week there are frequently no more than three people there. This is not exceptional by any means. I do not think a club should be included on principle. A club is an extension of the home. None the less, I have tried to see the other point of view and I have read the remarks made by the Minister of State in another place, where he spoke of those large clubs, mainly in the North of England, where in some cases they were so large as to be scarcely clubs at all in the true sense. They were too large for everybody to know one another personally and in some cases they provided the only entertainment in the district.

With that in mind, reluctantly I concede that there is some case for including the really large clubs. The Minister of State said that the average membership of the clubs he was talking about was 900. I therefore suggested that the figure of 500 should replace the figure of 25. Wherever one draws the line, it is never entirely satisfactory. It could catch a few genuine clubs where everybody knows everybody else, but I think it is a reasonable compromise acceptable to the country as a whole. I beg to move.

Lord HARRIS of GREENWICH

The brevity of my reply will in no way indicate lack of respect to the noble Lord. To be frank, a compromise on these lines would not be acceptable to the Government. It would be in the interests of the Committee to discuss the major issue of Clause 25 as such. I appreciate the compromise as he expressed it, but I am afraid that that would not be acceptable.

The figure of 25 seemed right to us, partly because it is the minimum number of members a club must have if it is to qualify for registration under the Licensing Acts. Therefore it is a perfectly reasonable figure based on that. The figure of 500 is simply picked out of the sky, as the noble Lord indicated, and I do not think it would be really satisfactory to people, nor, I suspect, to noble Lords on either side of the House. I think it would be more appropriate to discuss the issue later.

Lord MONSON

Would the noble Lord say whether there is any figure on which the Government might be prepared to compromise—for example, 100? No immigrant group is particularly keen on this clause, so far as I know.

Lord HARRIS of GREENWICH

There has been a great deal of controversy about this issue. As the noble Lord will recall, there was a Bill introduced by the noble Lord, Lord Avebury, following a judicial decision. But, if I may, I would prefer to deploy my main argument on the Question, Whether Clause 25 shall stand part of the Bill?

Lord MONSON

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 38: Page 17, line 39, leave out from ("section") to ("he") in line 42 and insert —

1. ("(a) a person is a member of an association if he belongs to it by virtue of his admission to any sort of membership provided for by its constitution (and is not merely a person with certain rights under its constitution by virtue of his membership of some other association), and references to membership of an association shall be construed accordingly;
2. (b) a person is an associate of an association to which this section applies if, not being a member of it,").

The noble Lord said: I propose to move this Amendment briefly. It endeavours to tighten up some of the language in Clause 25. The background to the matter is that there was a great deal of debate on this in Committee in another place and a member of the Standing Committee drew attention to a potential loophole in the clause as now drafted. This is a fairly technical matter. One of the criteria for determining whether a club is within the scope of Clause 25 is whether it has 25 members, or more. It was pointed out that a club with more than 25 members which wished to evade the clause could do so by changing its rules and saying that membership is limited to 24 persons while other persons had the right to use the club premises on the basis that they were associates or associate members. It is a narrow point and, if I may, I will move the Amendment briefly and make an argument of substance later.

Lord HAILSHAM OF SAINT MARYLEBONE

I do not want to say very much about this, for reasons which are rather similar to those of the noble Lord. I think myself that this constant attempt to prevent evasion is certain to prove ineffective, even though the draftsmanship may be superior. The issue we have to face is the main issue. I shall in due course, if I remember—which I probably shall not—adduce this constant attempt to prevent evasion as a general argument on the unenforceability of the position generally.

On Question, Whether Clause 25, as amended, shall stand part of the Bill?

10.44 p.m.

Lord HAILSHAM OF SAINT MARYLEBONE

It is getting late. I think this is one of the more important issues of principle in the Bill, and it is not one, I confess, which I find at all easy, because my sympathy, in so far as one is allowed to have sympathy in matters of legislation —and perhaps that is rather a dangerous guide—is to some some extent with the Government. That is to say, I cannot summon up a feeling of warmth or enthusiasm for people who blackball members of clubs on the ground of their religious faith, their appearance, colour or nationality.

I think most of us know the story—although I cannot remember to which member of the Jewish community it was originally attributed—of the man who was excluded from a golf club because he was a Jew. He either was, or subsequently became, extremely rich and he bought the club, which was a proprietary club, and excluded all the other members. I felt a certain sympathy with that man, and not with the other members. I thought they got what was coming to them because, whether or not the original candidate was suitable for other reasons, the reason for which he was excluded, according to the story, was extremely bad.

I do not like associations which are halfway towards (if one may put it in that way) being associations which provide facilities for the public, but which try to exclude people on superficial grounds of prejudice or dislike. And I can quite understand that the bigger the club, and the less it insists on individual characteristics as a qualification for membership the more that kind of feeling impresses itself on one's mind. So I am not blaming the Government in a general sense for introducing this clause into the Bill. I have considerable sympathy with it. But the more I think about it, the more I believe it to be unenforceable and to be objectionable in principle.

I was to some extent afflicted with this feeling as earlier in the evening we were discussing partnerships and, indeed, I must tell the noble Lord, Lord Pitt, that if he had had the good fortune to carry his Amendment I should have voted against the clause which, in the event, I did not do. I thought that the Government had arrived at a reasonable compromise there. But as he was moving the Amendment something like this was passing through my mind.

I would not myself have allowed it to enter into my mind when I was considering a partner—not that barristers have partners; they do not—that a man happened to have a black face or a brown face. But if I refused to have somebody as a partner, I would see anybody off before I was made to do so and, what is more, I would refuse to discuss the reasons why I refused to take a man into partnership. I would say to the Government inspector, or the inspector of any board that this Government thought of imposing on me, "That is a matter for me. It is a matter, intrinsically, of my own business, and if I choose to behave badly I shall choose to behave badly". The only right of freedom which is worth having in this country, or in any country, is the right to do something which other people think is wrong. There is nothing else that is freedom, and I think I would have said it in relation to partnership.

I now come to the question of clubs. I belong to a number of clubs; probably most noble Lords do. One occasionally attends meetings which decide whether new members shall be admitted, and the general effect on my mind is: how on earth did I come to be elected to this body? Occasionally, I attend a meeting for the admission of candidates to All Souls College, and I ask myself the same question when I hear the reports of the examiners on the various candidates. In the end, some of the arguments bear the light of day; some of the arguments do not. But it is intrinsically a very intimate question.

If you go down Sackville Street to No. 31, you will arrive at the address of what was formerly my tailor's premises, which was called Denman and Goddard. Side by side, and written in large letters in front of the premises, is Nederlandische Vereeniging, which I believe means "Dutch club". There is a club which would discriminate against me because unfortunately I am not Dutch. If you go past Knightsbridge you will see another club called The Danish Club, and if you go to Belgravia you will see another club called The Irish Club. They are all clubs which discriminate against Englishmen. During the war I went to the Turf Club in Egypt. At that time the Turf Club included only Englishmen. I did not feel that any of these clubs were committing an offence against my sense of what was appropriate, and I do not feel it.

Regarding Clause 26, the Government say, "Well, it doesn't count unless you discriminate on grounds of colour". That is pretty rough stuff because it is very easy to discriminate on grounds which involve a discrimination against anything, whether it is red hair or the colour of your face, while on the face of it imposing a discrimination of a different kind. The noble Lord, Lord Brockway, quoted from a document that some of us received the other day which shows that it is very easy to use words which have no reference to colour, race or ethnic origin but which none the less can be understood as having that effect.

I have no doubt that there are coloured Dutchmen and coloured Danes, and there may be Red Indian Irishmen, but the fact is that, give or take one or two examples, I doubt whether there are many. All of these clubs will be to some extent at risk if we pass legislation which forbids discrimination on national origin in societies of over 25 in number.

This brings me to the question of principle. Most clubs are exclusive in the sense that you can be blackballed because people do not want you. Nobody quite knows what has led the person who puts his hand into the ballot box to actuate the blackball and nobody is prepared to argue very much, partly because nobody knows who has blackballed who and partly because the reasons may be ones which the man does not want to discuss.

I have come to the conclusion, rightly or wrongly—I admit that it is not a matter which is easy in some ways—that this clause is basically unenforceable. I can also understand the force of the argument in the case to which the noble Lord, Lord Monson, referred. Clubs are sometimes so very large that they cease in a sense to be clubs and become public facilities. The late F. E. Smith was alleged to have treated the National Liberal Club in this way. He said—well, I will not say what he said; the story is known to more noble Lords than one. When a club reaches that critical point I feel that it may be legitimate to treat it as something which is providing for a section of the public.

Up to this moment the 1968 Act chose the criterion that a facility which was provided for the public, or a section of the public, was something which one must not discriminate about, and I quite see that there might have been clubs which attracted that section. I am glad to see that my noble friend—if he will allow me to call him "my noble friend" which I have done for most of my life—Lord Simon of Glaisdale is here, because the House of Lords and the Court of Appeal found some measure of disagreement among themselves as to how to apply even that criterion.

There was a club, happily not a Conservative club—the other club which was a Conservative club I think came to an agreement about it, a dockland club—about which the Court of Appeal came to a decision which was different from that of the House of Lords as to what was meant in practice or as applied to a particular case by "a section of the public". Whereas the Court of Appeal had thought that this club was so wide in the cast of its net that it provided for a section of the public and therefore might not discriminate, the House of Lords, rightly or wrongly, came to another decision. So we see this clause. But I ask the House, I ask Parliament, and I ask the other place, whether we are wise to legislate when we cannot enforce, as I believe this cannot be enforced.

I said at the very beginning of this set of Amendments that I was out to remove the unintelligible, the unenforceable as well as the oppressive and the contrary to English legal principles. I believe that this is unenforceable, and it is for that reason and not because of any airy-fairy business in connection with the drafting that I am asking the Government to look again at the wisdom from the practical point of view of including this clause in the Bill.

10.56 p.m.

Lord AVEBURY

If I may say one or two words at this late hour, I will not detain the Committee very long but I must respectfully disagree with the noble and learned Lord in saying that the provisions of this clause are unenforceable. I beg leave to refer to the two cases which he cited and which have led to the provision which is now incorporated in the Bill. In the first case, that of the East Ham Conservative Club, Mr. Shah was in all respects qualified to join the club as a fully paid up member of the East Ham Conservative Association, and it had always been the practice up to that point of time to admit paid up members of the Conservative Association into the club as a mere formality. But it was a fact that the club had in its rules a provision that the committee had to ratify the application of a would-be member, and in the case of Mr. Shah the application was turned down on the casting vote of the chairman. It was absolutely crystal clear that the rejection of Mr. Shah's application was on grounds of his ethnic origin and no other. So that would clearly have been an easy case for the courts to deal with if the provisions that we are now examining had been on the Statute Book.

In the case of Mr. Sherrington and the Preston Dockers' Labour Club, the noble and learned Lord may remember that Mr. Sherrington was a member of an affiliated club and that in the club and institute union it was thought to be the practice that a person having made an application to be treated as an affiliate could go into any other club as a member of the union and enjoy the facilities there. Mr. Sherrington sought to exercise that right, with a number of his friends, in the Preston Dockers' Labour Club, but when he made to order a drink at the bar he was called aside and invited to come in to the secretary's office, where he was told in plain language that it was not the intention of the club to serve people with black faces.

So again there was no pretence at hiding the fact that Mr. Sherrington was refused a drink at the bar solely and entirely on the grounds of his colour, and I think that the noble and learned Lord can see from these two examples that there would have been no difficulty, if these provisions had been on the Statute Book, in establishing that discrimination had been practised by those two clubs.

Earlier we had an Amendment moved by the noble Lord, Lord Monson (which was disposed of very briefly), to increase the number of members below which these provisions did not apply. The noble Lord made reference to the average size of the clubs which are members of the CIU, which he said was 900. He has suggested that the figure of 500 would be appropriate so that the semi-public clubs affiliated to the CIU would be included in the Bill, but others of a more private nature would not.

The noble Lord, Lord Harris of Greenwich, suggested we might discuss this matter as part of the general arguments on the clause, and I think that the first thing one must say here is that to have any limit whatsoever, apart from the one which is naturally suggested by the licensing Acts, would lead to anomalies, because if the average size of the clubs to which the noble Lord, Lord Monson, was referring, is 900, presumably there are some which fall below the limit of 500 which he suggested. But wherever you pitch the limit, there will be some marginally below which are excluded for no other reason than they happen to fall within that limit.

This would be a most undesirable state of affairs, and would lead to the sort of widespread evasion which the noble and learned Lord, Lord Hailsham of Saint Marylebone anticipates with the clause as it stands. It would be very easy, I suggest to the Committee, for a club which is marginally above the limit to split itself into two, to form two separate organisations, each of which would be automatically eliminated. But why should we want to exclude a club composed of, say, 250 members? If there are very large numbers of clubs of that sort of order of magnitude, then they are equally as important a part of the social life of the country as a small number of clubs having a larger number of members.

What causes grave offence, such as in the East Ham Conservative Club and in the Preston Dockers' Labour Club, is that in large areas of the country these clubs are the centres of social life to which everybody goes, and where people would normally feel free to enjoy the facilities of entertainment, meeting their friends, with the very occasional exception that we are providing for in the legislation. I must emphasise that 99 per cent. of these clubs do not discriminate. They have always welcomed people of every nationality and ethnic origin. It is only the one or two clubs which have adopted a racially discriminatory attitude which have made it necessary to introduce this legislation.

None the less, it is absolutely vital that the clause should be passed, because to have any clubs at all which adopt this racist attitude poisons the whole atmosphere. It means your Mr. Sherrington cannot go into a strange club without wondering whether he is going to be welcomed even if, as I say, in 99 cases out of 100 the secretary will offer him a drink, and make it clear that all the facilities of the club are available to him. If in the hundredth case he is to be greeted with a snub, then always he will be anxious as he goes through a strange door, and he will wonder whether the treatment will be satisfactory or not.

I beg the Committee not to accept the advice given by the noble and learned Lord, Lord Hailsham. I think that if anything could harm the race relations in this country—and some of the Amendments passed by our Lordships have already done some harm—and if anything could greatly damage the possibility of good race relations being achieved in the future, it would be the exclusion of clubs from the provisions of this Bill. Therefore, I hope your Lordships will reject these Amendments.

Lord BROCKWAY

I hope this Amendment will be rejected. I think the noble Lord, Lord Avebury, has met the point of the noble and learned Lord, Lord Hailsham of Saint Marylebone, that this provision is unenforceable. The main problem today is the large working-class clubs in the North of England. I not know how many of your Lordships have been to those clubs. They are an extraordinary development of community association and entertainment in this country. They are the modern music hall. You will find there, at tables, the whole community, drinking, listening to entertainment. They may be called working-class clubs, but they are in fact community clubs.

I want to recognise at once that most of those clubs have no racial discrimination. They are free to all, whatever race or colour they may be. There are only one or two which have attempted to exclude members from what are community associations on the ground of race or colour. Because they are so universal in those great industrial towns in the North, I hope very much that the Government will stand resolutely by this clause and reject the Amendment that has been proposed.

11.6 p.m.

Lord SIMON of GLAISDALE

I do not propose to enter into the merits of the debate that your Lordships have so far heard, if only because I was a member of the Appellate Committees which decided each of the two cases that have been mentioned. But I did venture to hope, notwithstanding the late hour, that I might draw your Lordships' attention to a very grave constitutional defect that the legislative and forensic history that lies behind this clause has disclosed and the very great constitutional evils that can flow and indeed have been shown to flow from that defect.

When your Lordships' House debated the measure that was referred to, introduced on 3rd February 1975 by the noble Lord, Lord Avebury, the noble Baroness, Lady Gaitskell, said, speaking of the second of those two cases, the Preston Dock Labour Club case, that she supposed that the members of the Appellate Committee knew what Parliament had intended. In fact the Minister in charge of the Bill which became the Race Relations Act 1968, had told Parliament what was intended and had told Parliament what was his understanding of the Bill. But your Lordships' House sitting Judicially, like every other court of law, knew nothing of that. The reason is a perfectly sound one: that persons are entitled to guide their lives by what Parliament has said, by the meaning of what is said by Parliament, and not what a Minister says, or even what Parliament means to say. That is an aspect of the rule of law. But it means that where there is doubtful situation it is a constitutional incumbency that Parliament should express its meaning so that the courts are left in no sort of doubt; whereas in the case of clubs, under the 1968 Act, there was the most exiguous indication of what Parliament intended. There were only the words that now appear in Clause 20 of this Bill—"provision … to the public or a section of the public"—and also the slight indication that if Parliament had intended to bring clubs under the 1968 Act they would have included some such provision as Clause 26 of this Bill, so that clubs like, say, the Caledonian Club or the London Welsh Rugby Club were not rendered illegal.

I told your Lordships that the Minister in charge of that Bill had said exactly what it was intended to do in this connection. It was on the 15th June 1968 when the matter was being debated in your Lordships' House, and the noble Lord, Lord Strabolgi, asked the Lord Chancellor, the noble and learned Lord, Lord Gardiner, who was in charge of the Bill, at column 98 of the Official Report: I should like to ask about three clauses in the Bill. First, Clause 2, which refers to facilities and services. I wonder whether this includes clubs. Many clubs do not practise discrimination, but some do. And the noble and learned Lord, Lord Gardiner, said at the end of the debate, at column 156: My noble friend Lord Strabolgi raised several points … Then he asked about the clubs. Clubs, as such, assuming they are bona fide clubs, are not covered. Of that, no court of law was apprised at all.

When I wrote to the present Lord Chancellor pointing out the constitutional implication he wrote back, referring to that debate, "The Minister got it right". That was the letter he wrote to me on 31st July of this year. With respect, that is entirely the wrong way to put it. When he said, "The Minister got it right" he meant that the Minister said that the Bill that he was guiding through your Lordships' House meant what it was subsequently declared to mean by the Appellate Committee of your Lordships' House. But two cases had to be carried as far as your Lordships' House before that had been declared. If the cases had stayed in the Court of Appeal, a very distinguished and strong Court of Appeal, the Minister, to use the Lord Chancellor's words, would have "got it wrong". The right way of looking at it is that the courts would have interpreted an Act of Parliament contrary to what Parliament had been assured it meant and was intended to do. The first great evil that seems to me to flow from Parliament not making plain—possibly because it is embarrassing—what its intention is, is that the courts are liable to misconstrue an Act of Parliament.

But the matter does not stop there. There are two other very great evils. The first is that if the House of Commons had known that the clubs were outside the 1968 Act, I am by no means certain that that House might not have wished to amend the Act in that respect. In the debate on the 3rd February of last year I was under the strong impression that the noble Lords, Lord Brockway and Lord Avebury, both of whom I think were Members of the House of Commons in 1968, were surprised to know what the Lord Chancellor had said. Certainly the noble Baroness, Lady Gaitskell, who is very closely in touch with these matters, could not possibly have made the speech that she made on that occasion if she had known. So the second great evil of blurring and shirking an issue is that the whole relationship between the Executive and the Legislature is distorted; there is not proper Parliamentary control and there is grave danger of Parliament being misled.

The third danger is perhaps the gravest. The decisions of your Lordships' House, sitting judicially, in those two cases were the subject of violent protests and criticism. I hope that your Lordships will not think that I am complaining that a decision to which I was a party was criticised. On the contrary, I think it is good for judges to be criticised and it is inevitable, if they are criticised, that some of the criticism will be misconceived and some may even be mischievous. There is no question but that some of the criticism emanated from persons who must have known what the Lord Chancellor had said. There was more criticism that emanated from those who ought to have known. But there was a great deal of criticism from helpless people who could not possibly have known.

The noble Lord, Lord Avebury, on 3rd February last year, in relation to the second decision spoke of a wave of apprehension that went through the minority communities. I do not think that that is at all exaggerated. A number of helpless people felt that the protection of a law passed for their benefit was being capriciously withdrawn from them, and that seems to me a very great evil indeed, striking at the very basis of the rule of law; for if people cannot look to the law for protection, they will take the law into their own hands.

I hope your Lordships will be satisfied that owing to the matter not having been properly spelt out so as to be plain, not only to courts of law but to the citizenry, those three mischiefs followed: first, there was the danger of misinterpretation of an Act of Parliament; secondly, there was the danger of Parliament being misled; and, thirdly, there was the danger of loss of confidence in the rule of law itself.

I have raised this matter before, and in view of its importance I am quite unashamed in raising it again. I hope your Lordships will not think that it is merely a private obsession. The remedy is perfectly easy. It is that when a Minister is asked, as Lord Gardiner was asked on that occasion, whether a measure extends to such and such a situation which is envisaged, and gives an answer one way or the other, that should be written into the measure itself. That proposal has been supported by such great constitutional lawyers as my noble and learned friends Lord Kilbrandon and Lord Morris of Borth-y-Gest, and it immediately appealed to so experienced a layman as the noble Lord, Lord Soper, when I mentioned it on 3rd February 1975. Indeed, the noble Lord, Lord Harris, and the noble and learned Lord the Lord Chancellor were good enough each to say that the proposal merited and would receive careful consideration. Of course, I knew that that could mean that they could think of a plush pigeonhole in which it could be put to accumulate dust, and I therefore wrote to the noble and learned Lord the Lord Chancellor in the summer, asking what had been the result of all that greater cogitation. The letter I had from him in reply was entirely what one would expect in courtesy from an old friend and entirely what one would expect in obscurantism from a Minister faced with a proposition for reform which emanates from outside his own Department.

Your Lordships hold the noble and learned Lord in great respect, so I shall not parade the nakedness and the shabbiness of his arguments. Instead I would merely ask the noble and learned Lord to answer five questions. Four can be answered "Yes" or "No". First, was what happened in 1968 a satisfactory situation constitutionally? Secondly, was it an isolated example which could not possibly happen in any other circumstances or happen again? Thirdly, is it proposed to leave the mischief unremedied? Fourthly, would the remedy I ventured to suggest prevent it? Fifthly, if not, what remedy would the noble and learned Lord propose?

The LORD CHANCELLOR (Lord Elwyn-Jones)

Would the noble and learned Lord go back to Question No. 3? His interrogation was a little ferocious and fast.

Lord SIMON of GLAISDALE

Question No. 3 was: Is it proposed to leave the mischief unremedied? I think I know the answer to that. The fourth question was: Would the remedy I ventured to suggest—and that was supported by my noble and learned friends—prevent the mischief? In other words, when a Minister is asked whether a measure extends to some situation which may be doubtful, it should be explicitly stated in the measure whether or not it does. The last question was: What other remedy does the noble and learned Lord propose?

11.22 p.m.

The LORD CHANCELLOR

I do not know whether it would be convenient for me to reply now to the questionnaire, but before I give a series of "Yeses" and "Noes", may I indicate what precisely it is I understand the noble and learned Lord to be suggesting? It is that there should be a convention that whenever a Minister gives Parliament an opinion as to a Bill's specific operation in specific circumstances, the opinion he gives should be written into the Bill in all cases unless the point is too clear to justify specific mention. That is what I understand the suggestion to be. It is an important suggestion, but my view is that its implementation would be likely to clutter up the Statute Book in many instances where no explanatory gloss was needed.

There is no doubt that the probem of drafting legislation with clarity is fundamentally important and difficult. It was highlighted in the Renton Committee Report and in the debate we had on that, upon the Motion of the noble and learned Lord. There have been suggestions for greater clarity, but I know of no machinery for achieving it, other than the ordinary procedures of debate and discussion in the House. Where a Member raises a point which appears to be obscure, or uncertain, or ambiguous, I should think that if the House or Committee has the opinion that the criticism has merit, it would be the duty of the Minister in charge of the Bill to see that the matter was put right, so that the provision should be properly spelled out—to use the language of the noble and learned Lord.

Indeed, there is abundant machinery to enable that to be done. The Minister would refer the point to the Parliamentary draftsman and, as the noble and learned Lord knows, the draftsman has various techniques for dealing with valid requests for greater clarity. There is the declaratory provision and the avoidance of doubt provision, and more recently we have had the innovation for dealing with complex and technical provisions by example.

All those means are available, so far as human ingenuity and mental capacity can provide, to eliminate as far as possible obscurity and lack of clarity. It seems to me that to require a convention that, whenever in the course of a debate or a discussion a Minister gives an opinion as to the scope of a provision of a Bill—he having been asked that question and given his answer—it should then he an immediate requirement that it should be spelled out in the Bill, would clutter up the Statute Book and extend it intolerably. Indeed it might not have the clarifying effect that the noble and learned Lord seeks to establish. Therefore I am sorry to say that, obscurantist as my reply may seem to be to elevate as a convention something which in practice is done, seems to me extremely unhelpful and would indeed make confusion worse compounded.

I now come to answer the questions of the noble and learned Lord in the light of what I have ventured to say. Was what happened in 1968 satisfactory? I do not think that it was. That was a case, I think, where there was a certain ambiguity left in the drafting of the 1968 Act, and it might have been prudent for my noble and learned predecessor to have embodied as a provision in the Bill the specific statement that it was not intended to apply to bona fide private clubs, which was apparently the intention of the Government at the time. I agree that perhaps that would have been helpful.

However, it was not done, but I do not know that at that time it occurred to anyone that it did apply to bona fide private clubs. But I concede that what happened then was not satisfactory. Was it an isolated example? I think that it was fairly isolated. That courts sometimes at a later point of time after an Act has been passed construe it in a way that neither the public nor Parliament anticipated does arise, but I do not know of any convention in regard to drafting that can prevent that occasionally taking place.

Is it proposed to leave the mischief unremedied? I do not think the mischief is unremedied when we have the remedies available for an alert House, for alert Members of both Houses, for conscientious Ministers, to deal with and take advantage of. There is no lack of machinery to clear the obscure and to clarify it. Would the remedy that the noble and learned Lord has suggested prevent the mischief? I do not think it would. I do not think it would help. On the contrary, I think it would create a new mischief of over-elaboration and cluttering up of an already cluttered up Statute Book.

What other remedy do I propose? I propose that we maintain the present practices, strengthened as they are by the new device of the illustrative example. But all I can say to the noble and learned Lord by way of assurance is that if genuine and serious doubts about meaning or intention arise on this Bill, or indeed any other Bill that the Government bring forward, they would consider it their duty to introduce clarifying Amendments to resolve those doubts. I certainly give him that assurance, and I hope that on the strength of that and my explanation he will feel at any rate slightly re-assured by what I have said.

Lord SIMON of GLAISDALE

Your Lordships will want to continue discussing the merits of the Motion which has been put before your Lordships, so perhaps I can say that the noble and learned Lord's answer just now was more satisfactory than the letter he wrote before only in that we had his pleasant personal presence. No less than three times did he mention the cluttering of the Statute Book and clarity. Let us take the example of 1968. If it were intended to bring clubs within that Act, all that had to be done was to add that example to the list of examples that now appear in Clause 20(2) of this Bill. If it had been intended to leave clubs entirely outside, in accordance with the assurance given to Parliament, that would have been no more difficult than any of the other exclusion clauses. In fact, it could have been done in one sentence—the one sentence that was used by the noble and learned Lord the Lord Chancellor at the time. If it had been intended to have some compromise, like Clauses 25 and 26 of this Bill—in other words, a limitation on numbers and to exclude clubs like the Caledonian Club—you could have had Clauses 25 and 26. Are they cluttering up the Statute Book? Are they a blot on the clarity of this Bill? I am bound to say, after that reply, that I shall seek an opportunity to raise the matter again with your Lordships.

The LORD CHANCELLOR

May I at least take gratification from the implications of what the noble and learned Lord has said, that the drafting of this Bill, at any rate, whatever view he may take of its merits, is in an admirable condition?

11.33 p.m.

Lord JANNER

I believe it is likely that your Lordships would want a few remarks from myself. It is very late in the day, and I do not propose to keep the Committee long. I have a very high respect and regard for the views of the noble and learned Lord, Lord Hailsham, and very reluctantly indeed do I rise to disagree with him in respect to some of the comments he has made. I know very well he is a standard-bearer against discrimination of any kind, but I must say that, for example, the point that has been raised with regard to my own community is something which has caused very grave anxiety, not only to Jewish people but to a vast number of people outside the Jewish community.

The fact that some clubs have the audacity to make it clear at times—not to hide it, but to make it obvious at times—that they are not prepared to accept a member because he is a Jew even though he may have been proposed—in some instances by high officers of that club—is something which I think must be stopped by some method. I am not sure, of course, whether legislation of this description will have the desired effect. None of us can be sure that legislation will prevent abuses of this nature or of others.

I am not going to repeat what has been clearly said by those who support this clause. I agree almost entirely with everything they have stated; but I have knowledge relating to cases of this particular menace, albeit not a personal experience. I think the case that has to be answered is whether a club is entitled overtly—or covertly if it is known that it is covertly—to exclude a person because of his religious beliefs or because, for example, he happens to be a member of the Jewish community. I think it is important that steps should be taken to prevent this kind of action in the future, action which emanates in some clubs—let me put it in very plain language—from ugly anti-semitic views. I do not know whether I can persuade the noble and learned Lord, Lord Hailsham, to change his view on the probable effect of these clauses—I think that they should remain—not only for the purpose to which I have particularly referred, but for all the purposes which have been so cleverly outlined by other noble Lords.

11.38 p.m.

Lord MONSON

I should like to advance an important reason why the Government ought to reconsider their attitude to this clause, particularly when the Bill goes back to the Commons for consideration of your Lordships' Amendments. In recent months I have been approached by a good many people, some previously known to me and some strangers. Nearly all, I suppose, are people of modest means, some of them habitual Labour voters, some habitual Conservative voters hitherto. Their common theme is that an ivory towered self-styled liberal establishment—they have not used that phrase, but that is what they meant—has let them down so far as legislation of this nature was concerned. They feel that people living in Belgravia or Hampstead who never come across an immigrant from day to day unless he happened to be a graduate of the London School of Economics, are trying to dictate to working people how to spend their leisure hours and with whom to spend them.

Mr. William Deedes, the former Conservative Member of Parliament and now editor of the Daily Telegraph, wrote in March of a working man in West London who, when a Labour canvasser came to solicit his vote, said, mixing his metaphors, "We live, me and my mates, in a sea of colour all week. The club is our oasis" One can see what he means. The fact that 99 per cent. of clubs already admit people (as the noble Lord, Lord Avebury, has pointed out) does not make them happier about the remaining 1 per cent. who are being forced to do so. They are probably all too happy that gradually the remaining clubs should fall into line; but the coercing sticks in their gullets.

The consequence of this—and I ask noble Lords to believe me—is that a great many of these people are, really reluctantly, intending to vote at the next Election for one of the two racially extreme Parties, not because they heartily approve of them—they do not—but they feel that to be the only way to make their protests felt. I believe that this would not be in any way a good thing for the country. Therefore, I urge the Government to show more flexibility about this matter.

11.40 p.m.

Lord HARRIS of GREENWICH

The Committee, by result of the various contributions which have been made, recognises how difficult this issue is, and I would not in any way minimise the difficulties. As I observed during our brief discussion on Lord Monson's earlier Amendment, our first discussion on this, following the decision of your Lordships' House in a Judicial capacity that I participated in, was on the Bill introduced by the noble Lord, Lord Avebury, when I indicated that the Government would be coming forward with certain proposals, and those proposals are incorporated in this Bill.

Before coming to the substance of the matter, I very much enjoyed the reminiscences of the noble and learned Lord, Lord Hailsham, about the circumstances in which he adjudicated on membership applications in various clubs of which he is now a member, and asked himself the question as to how, given the stricter control over membership, he had ever possibly became a member in the first instance. I am a member of only two clubs. One is my county cricket club which, because of its parlous financial state, I fear will cheerfully accept anyone as a member so long as they pay the membership subscription. The other club is one of the more radical clubs in London, the Reform. This of course has a very rigorous selection procedure. There is only one additional difficulty, and that is they ask members to guarantee that they are wholehearted supporters of the 1832 Reform Act. One or two of my colleagues in another place hesitated before they gave that assurance; but I am glad to say they did in fact do so.

To return to the issue we are debating, it is a matter of some special difficulty. There were the Charter and Preston Dockers' cases where it was found that Section 2 of the Race Relations Act 1968 did not apply to the members or associates of social clubs. In these two cases your Lordships' House ruled that the test for distinguishing between a club which is in what I might term the "public sphere" and hence within Section 2 and one which is in the "private sphere" is whether the club operates a genuine selection procedure. As a matter of policy, the Government now regard the effects of this test as unacceptable. As we pointed out in paragraph 72 of the White Paper—and this comes to the heart of our debate: Some 4,000 working men's clubs, with a total membership of about 3½ million people, are affiliated to the Club and Institute Union and are not covered by the 1968 Act. In some towns they have replaced public houses as the main providers of facilities for entertainment, recreation and refreshment. In addition, thousands of golf, squash, tennis and other sporting clubs registered as members' clubs are, almost certainly, also outside the 1968 Act, except in so far as they may offer only limited playing facilities to the public generally. Many clubs do not discriminate on racial grounds but at present they may lawfully do so. A little later on in the paragraph from which I have just quoted we say that we believe: the relationship between members of clubs is no more personal and intimate than is the relationship between people in many situations which are rightly covered by the 1968 Act; for example, the members of a small firm or trade union branch, children at school, or tenants in multi-occupied housing accommodation. In principle it is justifiable to apply the legislation in all these situations because of the inherently unjust and degrading nature of racial discrimination and its potentially grave social consequences. In practice the objectives of the legislation will be seriously undermined if its protection does not extend beyond the workplace and the market-place to enable workers and other members of the public to obtain entertainment, recreation and refreshment together on the basis of equality, irrespective of colour or race. Having reached the conclusion that the dividing line which had been drawn betweeen clubs in the public sphere and those in the private sphere was unacceptable, we were faced with the problem of devising a more acceptable one. The solution which is embodied in Clause 25 is that the legislation should apply to all clubs except those with fewer than 25 members, of whatever kind. In other words, we have adopted the criterion of size. I acknowledge at once that it is a somewhat arbitrary dividing line, and I would not suggest otherwise. As I indicated in connection with the earlier Amendment, the reason is that 25 is the minimum number of members a club must have in order to qualify for registration under the Licensing Acts.

It has been suggested, though not particularly vigorously today, that the clause will prevent clubs from applying tests of personal acceptability to applicants for membership. Certainly that will be contrary to the Government's intention, but we do not believe that the clause will have this effect because clubs can require individuals to pass the test that, as individuals, they should be acceptable to a majority of the selection committee, but all but small clubs should not be permitted to say to an applicant "We personally find you unacceptable solely because of your race."

The second argument, deployed with great vigour by the noble and learned Lord, Lord Hailsham, was: "Whatever one's feelings on this issue may be, the difficulty is that it will simply be unenforceable." Let me say straight away that it will not be easy to enforce this. I would not suggest otherwise for a moment. But I must come back to the point which was deployed with some skill by the noble Lord, Lord Avebury. Of course we are discussing a situation which has arisen because the 1968 Act was enforced and the enforcement provisions did work, though your Lordships' House, sitting in its judicial capacity, took a certain view of the matter. Nevertheless, the law on those occasions did bite, and where there is overt or blatant discrimination, as there was in those particular cases, the law will undoubtedly be effective.

I think the Committee must recognise—this was referred to in the White Paper and also mentioned by my noble friend Lord Brockway a few moments ago—that these clubs are now centres for mass entertainment of many hundreds of thousands of our fellow citizens. I think we have to accept the fact, as I pointed out on Second Reading, that more and more young people are coming to the age when they will be wanting to apply for membership of these clubs which are providers of mass entertainment. They could find themselves in a wholly humiliating situation, notwithstanding the fact that, born in this country as many of them are, they are debarred solely and, in many cases blatantly, on grounds of their colour. In a situation of that kind it seems to me that it is reasonable to take the steps we are taking in Clause 25 of this Bill. I again concede to the noble and learned Lord, Lord Hailsham, that this is not an easy matter: I would not suggest for a moment that every single case of discrimination will be caught. That would be an absurd statement. Nevertheless, I think it will have a significant effect on the lives of many millions of our fellow citizens. For that reason, I believe that Clause 25, as it stands, is right.

11.50 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

I will not be as long as I would have been if we had not been getting on in time. Nor will I seek to intervene in the fascinating discussion which took place between my noble and learned friend in the profession Lord Simon of Glaisdale and the noble and learned Lord the Lord Chancellor, who has emerged from his seclusion once more and is a welcome occupant of the Front Bench. I must tell the noble and learned Lord that I was fascinated that five questions, four of which I think my noble and learned friend said could be answered Yes or No, should have taken so much time to answer. It only goes to show what the noble and learned Lord's ingenuity really is when he is stirred.

However, the short and simple point is whether this clause is enforceable. If it is, then I think there is a case for it. If it is not, then I think it will do more harm than good. That is the difference between us. It is a difference which I approach without passion. As I say, my sympathies are very largely on the side of the Government, but I still have to say to the noble Lord who leads so ably for the Government that I am not convinced. Of course, it is true, as the noble Lord, Lord Avebury, pointed out, that if you have no law against racial discrimination you are quite likely to get overt discrimination, and of course that is quite easy to deal with, because if you have overt discrimination you can say, "This is a case where the man is excluded on the grounds of colour". But assume that you support—and the noble Lord, Lord Harris, supports—the principle of selection on personal acceptability, where do you get if you pass the law? The problem is not where you got before the law was passed, when people could say, "We don't want a black man". The question is: what happens after you have passed the law? That is the question you have to face if' you want to question whether or not the law is enforceable.

Many times in my life I have suspected, rightly or wrongly, that in some situation prejudice of one kind or another has influenced a decision not to accept somebody into some position. They never give the right reason, if they think that the right reason is not acceptable or cannot be brought into the light. They say, "We don't like him". They say, "We hear things about him". They just perhaps, quite quietly, put a black ball into the ballot box. It is that situation which leads me to think that this rule, if you pass it, will be unenforceable.

I am not sure that I was at all convinced by the noble Lord, Lord Harris, when he said that the relationship between clubs is, perhaps, not more intimate than various other relationships like those of trade unions or some other bodies. The truth is that clubs set out to be, and are, persons who select one another as companions for social purposes on grounds of social acceptability. I quite agree that when you enter into a large and crowded bar in the North of England this seems rather an unreal way, or a less real way, of approaching the subject than if you are lucky enough to he invited to Brooke's by Mr. Roy Jenkins and find yourself enjoying a nice glass of claret and an excellent dinner. But the law which we are passing applies to both.

The other thing I would say quite seriously—and I say this to the noble Lord, Lord Janner—because it is not an easy point, is this. You go into a club where you are not wanted because you are an old Etonian, and plenty of people do not like old Etonians for reasons which I have never been able to understand, or because you are a Conservative, and there are some people who are wicked enough not to like Conservatives, and your life is that much more difficult in the company. It is indicated, very delicately, that if you removed yourself you would perhaps be happier elsewhere. It is never admitted what they do to you. I cannot help thinking that in those circumstances a man of the world probably does absent himself from company where he is not wanted, not because he approves of the disapproval of those who make their prejudice known to him, ever so obscurely but still unmistakably, but because on the whole he does not want their company, either. I quite understand that you can get at the publican of a licensed pub if he will not have black men, but what about his customers who happen to knock over his beer or who put water into it? What are you going to do about that? Will you send for the police? He will not have seen who has done it.

The real question which the Committee is being kept up so late to discuss is whether we are wise to try to make a rule of law about all this. When we were discussing the Trade Union and Labour Relations Bill some time ago we heard so much about bringing in the lawyers, having a lawyer's paradise and getting work for the lawyers. However, my conviction—it is not one which I approach with pleasure, or certainty or relish but it is still a conviction—is that in this field we shall encourage humbug. We shall not promote race relations.

Therefore, although with some reluctance—I will admit to a degree of doubt—I think that we had better take the opinion of the Committee about the clause, and take it fairly soon because time is getting on. I shall not complain if any of my noble friends who do not agree with me want to go into the opposite Lobby. I shall be going into the Lobby which is appropriate to the clause not standing part, but do not let my noble friends think that I am trying to whip them into something with which they do not agree. Nor should noble Lords opposite think that I am trying to turn this into a Party

Resolved in the negative and clause disagreed to accordingly.

Clause 26 [Exception from s. 25 for certain associations]:

12.5 a.m.

On Question, Whether Clause 26 shall stand part of the Bill?

Lord HAILSHAM of SAINT MARYLEBONE

I take it that the noble Lord agrees this is really consequential.

Clause 26 disagreed to.

Lord STRABOLGI

This may be a convenient moment to halt the Committee. I beg to move that the House do now resume.

On Question, Motion agreed to, and House resumed accordingly.

issue. It is a difficult question and we shall vote according to our consciences.

11.58 p.m.

On Question, Whether the Clause 25, as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 28; Not-Contents, 44.

CONTENTS
Amherst, E.	Jacques, L.	Seear, B.
Avebury, L.	Janner, L.	Segal, L.
Boston of Faversham, L.	Kirkhill, L.	Simon, V.
Castle, L.	Lovell-Davis, L.	Stedman, B.
Davies of Leek, L.	Melchett, L.	Strabolgi, L.
Delacourt-Smith of Alteryn, B.	Murray of Gravesend, L.	Wells-Pestell, L. [Teller.]
Elwyn-Jones, L.(L. Chancellor.)	Northfield, L.	White, B.
Goronwy-Roberts, L.	Oram, L.	Winterbottom, L. [Teller]
Harris of Greenwich, L.	Pitt of Hampstead, L.
Hirshfield, L.	Ritchie-Calder, L.

NOT-CONTENTS
Alport, L.	Falmouth, V.	Mansfield, E.
Balerno, L.	Gisborough, L.	Monson, L.
Belstead, L.	Glendevon, L.	Mowbray and Stourton, L [Teller.]
Burton, L.	Gray, L.
Campbell of Croy, L.	Hailsham of Saint Marylebone, L.	Newall, L.
Carrington, L.	Harcourt, V.	Pender, L.
Cathcart, E.	Harmar-Nicholls, L.	Redesdale, L.
Chelwood, L.	Hives, L.	Rochdale, V.
de Clifford, L.	Hunt of Fawley, L.	St. Aldwyn, E.
Denham, L. [Teller.]	Inglewood, L.	Sandford, L.
Drumalbyn, L.	Kemsley, V.	Sandys, L.
Dundee, E.	Killearn, L.	Shuttleworth, L.
Elles, B.	Lindsey and Abingdon, E.	Vernon, L.
Elliot of Harwood, B.	Long, V.	Vickers, B.
Elton, L.	Lyell, L.	Ward of Witley, V.