Sitting of 27 September 1976

Preamble
Reassembling after the Summer Recess the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

LORD PEART
The Right Honourable Thomas Frederick Peart, having been created Baron Peart, of Workington in the County of Cumbria, for life—Was, in his robes introduced between the Lord Shepherd and the Lord Blyton, and made the solemn Affirmation.
The Lord Monteagle—Took the Oath.

TRIBUTES TO LORD SHEPHERD
2.47 p.m.
Lord CARRINGTON: My Lords, I think your Lordships would expect me to say something about the changes which have taken place in the House during the Recess. Noble Lords opposite, and indeed all your Lordships, have lost a shepherd who has led and driven and looked after us for two and a half years. I hope that our situation will not be as the prophet observed: "I saw all Israel
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scattered over the hills as sheep without a shepherd." I have known the noble Lord for nearly 30 years. We have looked at each other from opposite sides of the House for three decades. He has not changed my views nor I, alas!, his, but I can truthfully say that despite our political differences we are personal friends. Particularly, therefore, I regret, though I understand, his wish to resign his position as Leader of this House.
It is comparatively easy to be Leader of the Opposition when there is a Conservative Government, but to be Leader of the House when faced with a large Conservative, Liberal and Cross-Bench Opposition is a very difficult task indeed, one calling for a mixture of tact, resolution and exceedingly nimble footwork. If he placates the Opposition too much he will infuriate his own supporters. If he does not placate them at all, the Leader of the Opposition will, if it does not seem too far-fetched to your Lordships, become a little unfriendly.
The noble Lord, Lord Shepherd, has steered an admirable course to the general approval of all of us, and that is a considerable tribute to his skill. Perhaps more important, however, the Leader of the House is not primarily a Party Leader; he is the Leader of all of us, representative of our interests, guardian of our privileges and spokesman and defender of this House against the predators down the passage. He must take us to task if we

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offend against the rules; he must suggest delicately that we sit down when we have talked too long; and all this with no power but with only the influence that he has as Leader of the House.
The noble Lord has never taken a Party line on all this. He nearly did so once, but under considerable provocation—and nobody can provoke more splendidly than my noble and learned friend Lord Hailsham. Lord Shepherd has invariably stood up for all of us, whether it be for our customs, our expenses, our peculiarities or our rights, and we are very grateful to him. On this, his 58th birthday, we tender him our warm good wishes and thanks for a job well done.
Perhaps it would not be amiss, too, to say something about the noble Lord, Lord Peart, who, your Lordships may not know, has hurt his leg. In spite of that, he has just completed the course without touching a fence, though I must tell him that we do not usually genuflect to the Lord Chancellor. He, too, is an old friend. His interests—and I hope I do not misrepresent him—are agriculture and defence. No man who has those two interests can be wholly bad. I should know. We welcome him warmly. He will find us different from another place. He will find us courteous, kindly and extraordinarily quiet—not adjectives which immediately spring to mind when describing the House of Commons. He will have the good will of all of us. He will know from Lord Shepherd of the tightrope that he walks. He will, I know, walk it with grace and agility, and we wish him well.
2.54 p.m.
Lord BYERS: My Lords, in fully endorsing the tribute which has just been paid to the noble Lord, Lord Shepherd, by the noble Lord, Lord Carrington, I should like to put on record from these Benches our sense of very real regret at the decision of the noble Lord to leave the Government, though we fully appreciate and understand his reasons for doing so. We are indebted to him during his tenure of Office as Leader of the House for the staunch way in which he has upheld the conventions and practices of the House without assuming the regulatory role performed by the Speaker in another
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place. It has not been an easy task, nor an easy period in which to discharge that particular function. We should all be very grateful to him for the way in which he has carried it out. We should also be grateful for all the work that has been done by Lady Shepherd over the long period in which the noble Lord has served this House. She has established herself as an ambassador in her own right among the Commonwealth and other representatives of overseas missions in the capital of the Commonwealth.
To the new Lord Privy Seal, the noble Lord, Lord Peart, whom many of us have known for many years, I add my congratulations on his appointment. We pledge him full support in upholding the practices and conventions of this noble House—when he has discovered what they are! From these Benches we promise him the most vigorous opposition to the contentious legislation with which he has had the ill luck to be lumbered at such short notice.
2.56 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, I am very pleased that it should be my first duty as Leader of the House to acknowledge the generous tributes which the noble Lords, Lord Carrington and Lord Byers, and other noble Lords have paid to my noble friend Lord Shepherd and to associate my noble friends behind me with everything that they have said. We all feel a real sense of loss at his retirement from the Front Bench and my noble friends are truly sorry not to see him in the place he has occupied for so long. For my own part, I have been able to admire his wise leadership and his political skill from a different standpoint as one of his colleagues in the Cabinet for the last two years. During that time I have been most impressed by his deep knowledge of this House and his concern for it. I am delighted that he is here today on the Bench below the gangway and I am confident that, with his love for the House, he will go on giving valuable service here for many years to come.
As for myself, I am deeply honoured to be taking his place as Leader of the House, and I am conscious of the very heavy responsibility that rests on my shoulders. It is extremely rare for someone to make

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his maiden speech from the Dispatch Box as Leader of the House. I believe that the only precedent is Disraeli, who came to this House in 1876 as the Earl of Beacons-field. I realise that I shall need even more than the usual indulgence which your Lordships so generously give to maiden speakers.
My task will be difficult both in earning my position as Leader and in earning the respect and good will of the House. I was, of course, Leader of the House in another place from 1968 to 1970, but I recognise only too well how different the two Houses can be. I shall try to make use of my experience in that office, but I shall also remember that the role of Leader here has no parallel and that I am really starting from scratch. I hope that I can count on the support of all Members of the House to guide me and to see that in our debates the conduct of the House is as sensitive as it was under my noble friend Lord Shepherd.
I can assure the House that I come here with real humility and a recognition of the problems that lie ahead. I shall therefore make it my business to be available to all noble Lords, wherever they sit, and I want to be accessible at all times. I have no doubt that I can rely on the usual channels and particularly my noble friend the Chief Whip to keep the House running smoothly but, if things are not always as they should be, I hope that I shall be the first to know and that I can play my part in resolving any difficulties. I have already expressed the honour that I feel at being made Leader of the House. I shall now try, through this appointment, to maintain the honour and the traditions of the House and to further the interests of your Lordships in every way I can.
Lord MAYBRAY-KING: My Lords, nobody can speak for the Cross-Benches. Unlike the noble Lords, Lord Carrington and Lord Byers, we are not members of the Opposition; everyone speaks for himself. However, I feel that, on this occasion, someone from the Cross-Benches ought to express to the noble Lord, Lord Shepherd, our admiration for the distinguished way in which he has carried out his office and our good wishes to the new Leader of the House.
2.58 p.m.
The Earl of LONGFORD: My Lords, as
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an ex-Leader of the House, I rise to express my sadness at the fact that my noble friend Lord Shepherd is Leader no longer, but at the same time to express every possible good wish to my noble friend Lord Peart. My noble friend Lord Shackleton, who was as intimately associated with Lord Shepherd as I was for many years, wishes to say that he does not feel that endless ex-Leaders ought to address the House, but he would like his own sentiments to be fully understood.
I sat next to my noble friend Lord Peart in the Cabinet for a time and I thought he possessed many qualities to make him an excellent Leader of the House—`friendliness, courtesy and a capacity to suffer fools gladly. I am not saying that that will come in useful here but once or twice in the Cabinet of those days—and I shall not say to which Party that belonged—it helped. So I am sure, as are Lord Shackleton and all of us, that he will be a great success here.
Speaking personally, I must pay my tribute to my noble friend Lord Shepherd for all he has done. In a personal sense, I benefited from his kindness and helpfulness so greatly when I was Leader of the House and he was Chief Whip, and on many other occasions. In my time, counting the noble Lord, Lord Peart, we have had 11 Leaders of the House. I do not know what they would look like if they ever went, so to speak, in to bat, but we now have 11 Leaders and ex-Leaders. I would say that there has never been a Leader who was more effective or more acceptable than the noble Lord, Lord Shepherd. I can say that without saying that he was better than anyone else.
Some of the older Members of this House will remember the song, "I want to be happy, but I can't be happy unless I make you happy, too". Well, I feel that that was the signature tune of the noble Lord, Lord Shepherd. I am sure that no Leader was ever quite so happy, so obviously happy, as Leader of the House, and he made us all very happy accordingly. Therefore, with everybody else here, I want to join in most heartfelt tributes to him.
3.1 p.m.
Lord SHEPHERD: My Lords, I did not think it was going to be quite so

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difficult to respond to what I believed to be the feeling of the House towards me during my period as Leader of your Lordships' House. I am overwhelmed by the generosity of what has been said, which has been supported by very many letters written by Members from all parts of the House—and, frankly, I have no idea at all who some of them are. They signed their letters with their Christian names on House of Lords notepaper, and I am sorry that I could not identify them. But I have been more than grateful for all that has been said. As a result of those letters I should like to deal with two misconceptions, on behalf of myself and I believe, the House. There were some who wrote to me feeling that I was ill, that I was resigning on grounds of ill-health. I hope I can dispense with that particular fear. Secondly, it was felt by some that my departure was a consequence of creating a facility for a Cabinet reshuffle. My Lords, there is no truth in that whatsoever.
My decision was taken last May. I have always recognised the nature of your Lordships' House; that none of us can genuinely be professional politicians, and that one day I would return to industry and commerce. Last May I was asked to return to an interesting and demanding post. I gave it very great thought indeed. At the end I decided that this is what I should do—that I should go back—and I informed the Prime Minister at the end of July. I had only two dates in mind. The first was that I could be released by the 1st January 1977, the second that I might remain until the end of this Session, recognising the very heavy burden that my noble friends on the Front Bench would have to bear during the spill-over period. But one can well understand the Prime Minister's difficulty. Mr. Roy Jenkins was due to go to Brussels. A Cabinet reshuffle is never an easy thing and, therefore, one can understand why the Prime Minister wished to make the change in one go. I fully understand it, but I must say that I have a sense of regret that I cannot be with my colleagues at the end of this Session, with the programme completed. But, my Lords, I am quite happy to leave that credit to my noble friends Lord Peart and Lady Llewelyn-Davies.
I should like to add my congratulations
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to those already extended to my noble friend Lord Peart upon his appointment as Lord Privy Seal and Leader of the House. I think the House knows the qualities of leadership involved here. I thought that the noble Lord, Lord Carrington, touched upon this point quite well. My noble friend has led the House of Commons with distinction. Above all else, he was a very popular Member of another place. I think that these two qualities are the qualities which will see him through, not only during this particular difficult period, but during the years in which he is called upon to be Leader of the House.
I should like to express appreciation to the Clerk of the Parliaments and to the Clerks who sit at the Table, and to all the many officials who have given not only to me, as Leader, but to all Members very sound, sensible advice. I should like to express my appreciation to Black Rod and to all those who work under him. Without them, Parliament, your Lordships' House, could not work. I should also like to express appreciation to Paul Hayter, who was my Private Secretary; and I am glad to see that he is to advise my noble friend Lord Peart. I should also like to express appreciation to three people who, during my period as Lord Privy Seal, served me well: Nick Gurney, Louise Chanter and Richard Pratt. They were three civil servants who were to be found in Whitehall at eight o'clock in the morning most days of the week.
I should like to thank my noble friends on this side of the House. Their loyalty has never been questioned. As I said to the Prime Minister, I hope that the sense of duty, the sense of loyalty, which they have given to the Party will one day be fully appreciated by our Party as a whole. I wish to pay a special tribute to the usual channels, to my noble friend Lady Llewelyn-Davies and to the noble Lord, Lord Amulree. But if I were to single out the noble Earl, Lord St. Aldwyn, it would not be because he is Chief Whip of the major opposition Party, but because he and I have served together in the usual channels for very many years. The noble Earl has, perhaps, done more for your Lordships' House than have those who speak with great regularity from the Front Benches. I say this because without the usual channels, without the spirit of co-operation and understanding, and sometimes

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sympathy, whether it be a Conservative Government or a Labour Government in Office, the business of your Lordships' House could not be conducted with the spirit, the understanding and the precision with which it is.
My Lords, my last words of gratitude must be to every individual Member of your Lordships' House. My noble friend Lord Longford said that I was always happy. By nature I am happy, but I could well imagine under certain circumstances that one's happiness could be less. But I have enjoyed every moment of my time, not only as Leader of the House, but in undertaking the various other functions in which I have been involved. This House has always risen to the difficulties of the day. It has sometimes risen with a touch of asperity, particularly from the noble Lord, Lord Carrington; but that asperity has often helped to get a movement forward and an agreement reached upon the arrangements of business.
My Lords, there is one thing I shall take with me, and that is a sense of friendship and happiness which time will never erase; and if I can in any way repay all that has been offered and given to me, I hope it will be by continuing to remain a Member of your Lordships' House and doing what I can to ensure that this House plays its proper part within the constitution and life of our country.

ECE AND THE HELSINKI FINAL ACT
3.11 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the United Nations Commission for European Co-operation have formulated proposals to implement the Helsinki Final Act on co-operation in economic and environmental spheres.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, at the plenary meeting of the United Nations Economic Commission for Europe, which was held from 30th March to 9th April,
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careful consideration was given to the way in which the ECE might play the fullest possible role in the implementation of the relevant provisions of the Final Act. With this in mind, the members of the Commission, including ourselves and our partners, put forward many proposals for the work programme. These are now being put into effect by the subsidiary bodies of the Commission.
Lord BROCKWAY: My Lords, while thanking the Minister for that reply, may I ask him whether he is able to tell us in some degree the proposals which are now under consideration? Would he not now agree that, while the criticism of the Soviet Union in its treatment of dissidents is justified, the instrument of the Helsinki Act was economic co-operation? Is it not the case that in June the Soviet Union proposed a discussion on pollution, transport, power and engineering, and has not COMECON proposed closer co-operation with the ECE? Will there be a response to both those initiatives?
Lord GORONWY-ROBERTS: My Lords, it is indeed true that some months ago the Soviet Union put forward interesting proposals for, as they call it, pan-European conferences on three subjects. The Final Act signed in Helsinki, however, specifically names the Economic Commission for Europe as being the proper vehicle for the development of such European co-operative policies. It has seemed to us and to a great many other signatories of the Final Act that the right and proper course to take is to involve the ECE increasingly in the consideration of such proposals. Since last April, that is exactly what has happened. In addition, the plenary meeting held in April instructed the executive secretary of the ECE to write a report specifically on the Soviet proposals.
Lord BROCKWAY: My Lords, in view of the fact that the review conference is to be held in June next year, may I ask the Minister whether it is not possible, between now and then, to seek implementation of these proposals, which were the very heart of the Helsinki Act and about which, because of delay, very little has been done?
Lord GORONWY-ROBERTS: My Lords, that, in fact, is happening, as I indicated in my first reply. Subsidiary

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bodies, as they are called, of the ECE are now working on a number of practical matters on which they will report as soon as possible. It so happens that a plenary meeting of the ECE is due to be held early next year—that is, in 1977—and I should imagine that that would be a very useful run-up indeed for the review conference which is to be held somewhat later that year in Belgrade.
Lord JANNER: My Lords, in view of the constant breaches of the Helsinki Agreement which the USSR are committing in relation to people who are being detained by them, imprisoned by them and maltreated by them, may I ask my noble friend whether he will see to it that they fulfil that side of the Agreement as well as any other aspect of it?—because from a humanitarian point of view there is no doubt that that side of it is most important.
Lord GORONWY-ROBERTS: My Lords, certainly it is our policy and intention that all signatories of this very hopeful agreement in Helsinki shall implement it in toto and not selectively.

GREEN HOWARDS: BAND EQUIPMENT
3.15 p.m.
Lord TRANMIRE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they can now confirm that, as stated by Lord Winterbottom on 25th May (col. 254), the Green Howards in June 1974 could have insured their band instruments for £23,000.
Lord WINTERBOTTOM: My Lords, I am afraid the noble Lord, Lord Tranmire, is misquoting me. I did not state that the band could have insured its instruments for £23,000. What I did say was:
"…the regiment could have insured its instruments properly and it did not.—[Official Report, 25/5/76; col. 254.]
This is rather a different matter, since the band's own estimate of the cost of buying new instruments to replace those which they lost was about £15,000 only, not
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about £23,000. The additional £8,000-odd was, according to the regiment's original claim, for replacing uniforms, helmets, accoutrements and music scores. I am being rather meticulous about this because I do not wish to mislead your Lordships.
I confirm that Her Majesty's Government have been advised that the band could have insured its instruments in June 1974 for a sum which would have enabled the lost instruments to be replaced by similar, new ones.
Lord TRANMIRE: My Lords, while thanking the noble Lord for this attempt to clarify the issue, may I ask him whether he still agrees that, just as he could have insured his life for a quarter of a million pounds, he said the band committee could have insured their instruments and equipment for any value they wished: and, as that is contrary to both the opinion of the insurers and the opinion expressed by the Prime Minister, is there not need now to reconsider that attitude?
Lord WINTERBOTTOM: My Lords, we have been advised by Lloyd's that the band could have insured its instruments for agreed replacement value. That, I believe, confirms the point that I made, that the regiment could have insured its instruments properly and it did not.
Lord ORR-EWING: My Lords, could the noble Lord tell us this? Surely, to a band, instruments are just as much part of their equipment as a rifle is to a rifleman. Are they expected to take out insurance on other parts of essential equipment, or is it only bands which have to be insured?
Lord WINTERBOTTOM: My Lords, the rifle is the property of Her Majesty's Government: the band's instruments are the property of the regiment.

ORDNANCE SURVEY CHARGES
3.18 p.m.
Lord TEVIOT: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have approached the Ordnance Survey concerning charges

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made by that Department to the map publishers, as stated in this House on 21st June by the Baroness Stedman (col. 142), and whether they can now state when a re-examination of the fees structure will be carried out.
Baroness STEDMAN: My Lords, prior to our debate on the 21st June discussions were already proceeding within the Government about Ordnance Survey costs and revenues, including the royalty charges to map publishers. These discussions have continued, and the Ordnance Survey are of course a party to them. I hope that it will be possible within the next few months to make a Statement about the future pricing policy.
Lord TEVIOT: My Lords, while thanking the noble Baroness very much for that reply, I should like to ask her, first, what consultations are now taking place; secondly, whether she thinks that a Statement by the price policy reviewing body will be made by 1st January 1977, when the next increase is likely to take place; and, thirdly, whether she has any news on the educational side of the map publishing industry?
Baroness STEDMAN: My Lords, discussions have already taken place with the map publishers. We are at the moment arranging interviews with Lord Shackleton and some of his colleagues to get the view of the geographers, and these discussions are continuing all the time. I cannot anticipate, my Lords, when the Statement will be made, but I should be very surprised if it was not made before 1st January. So far as the educational books are concerned, the noble Lord will know from the letter which I have sent him that the Ordnance Survey already intend that, where the map extract material does not exceed 20 per cent. of the total content of the publication, a lower rate of charge, the category A rate, which is about 25 per cent. less than the facsimile rate, should be made; and this is to be made retrospective to the 1st January of this year.

INTERNATIONAL HUMANITARIAN LAW
3.20 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the second Question
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which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government who instructed the British delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable to armed conflict to vote against an amendment to paragraph 4 of Article 10 of the Second Draft Protocol to the 1949 Geneva Convention, which proposed that mothers of young children should not be executed.
Lord GORONWY-ROBERTS: My Lords, the vote on this particular amendment, which was introduced while Committee 1 of the Conference was in session, was cast on the basis of the delegation's understanding of the attitude taken by Government Departments concerned to the legal issues involved. An explanation of vote, a copy of which I have now placed in the Library, makes clear that the delegation was concerned about the vague drafting of a principle which might ultimately have to be carried into United Kingdom law.
Lord BROCKWAY: My Lords, somewhat reassured by that Answer, may I ask this? Is it not a fact that this Amendment was carried by 37 votes to 2; that Japan was the only Government which voted with us on this matter; and that our Western Allies were absolutely stunned that the British delegation should have voted against this humanitarian proposal? Will the Government seize the opportunity, in April 1977, when an amendment in the same sense, to delete Article 67(2) dealing with the application of the Convention is discussed, to put the matter right?
Lord GORONWY-ROBERTS: My Lords, it is a fact that 37 Governments represented on this Committee voted in favour of that draft and that 11 were opposed, two of which saw fit to vote against and nine others to abstain. It is, after all, a very important principle as well as a question of practicality in implementation that drafting is properly carried out at the right stage. We failed during the Committee to get the draft we needed. We still feel that the humanitarian purport of this amendment, which we fully understood, is not well served by

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the draft which the great majority felt that they could accept; and we shall continue between now and the plenary meeting next year to amend that draft. For instance, what is meant by "a mother"? Is it the natural mother only or a guardian? Shall we be restricting the humanitarian effect of this amendment if we do not define more precisely the categories who are to be protected? Similarly, what is a "young child"? We need to define that. I hope that I have said enough to my noble friend, whose concern about these matters equals my own, to make it clear that the British delegation, as always, was concerned with two things: to achieve the humanitarian objective of the amendment but also to get the proper drafting so that when possibly our own Parliament needed to legislate it could do so on firm grounds of definition.
My noble friend also asked about what we intend to do at the plenary meeting. I am glad to assure him that having made our point, although we shall persist on this question of drafting, which is very important in this field, hoping to get Protocol 2 properly drafted so that whatever internal legislation we pass can be implemented properly, we shall not oppose the draft if there is still a majority in favour of it among the members of the Committee. I am bound to tell him that it is my duty to ensure that the right kind of drafting is achieved.
Baroness ELLES: My Lords, can the Minister explain what he said about changing legislation in this country? Surely the United Kingdom have a record better than any country in the world for not having the death penalty in on any ground, regardless of whether or not a mother has a child. Surely it is not a question of drafting legislation in this country. Can the Minister say to what extent this refusal to support the amendment reflects the thinking of the Home Office on this issue?—and, presumably, that is the Department responsible. Thirdly, can the Minister say why, if they were afraid of the drafting, the delegation could not have abstained on the voting and not voted against? There are ways of dealing with these matters without being one of the two countries to vote against an important amendment reflecting humanitarian laws throughout the world.
Lord GORONWY-ROBERTS: My Lords, on the last point, it is a question of judgment on the spot when an amendment is moved without much notice. It is a matter of how strongly a country and its delegation feel about the importance of the drafting rather than the principle of the amendment. On the point of departmental concern, as the noble Baroness knows, more than one department would be concerned with a matter which involves not only internal legislation (as certainly this would) but also international agreement. On the third point, the question of the inclusion of the drafting in our own law, we would need in an international instrument of agreement to ensure that the drafting was such that, if there were consequential legislation in our own country, it would be as firm and secure as possible.

BUSINESS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, my noble friend Lord Goronwy-Roberts will shortly make a Statement on Rhodesia.
May I intervene briefly to tell your Lordships that dinners will be available every night from Monday to Thursday each week until further notice?

RHODESIA
3.25 p.m.
Lord GORONWY-ROBERTS: With permission, my Lords, I wish to make a Statement on Rhodesia. When I last spoke on the question of Rhodesia in this House on 6th July, it was to explain why it would be to the advantage of the Europeans in Rhodesia to accept the principles set out in the Statement made in another place by my right honourable friend the Prime Minister on 22nd March.
It was therefore with satisfaction that Her Majesty's Government greeted Mr. Smith's acceptance, in his public statement on 24th September, of the proposals put to him by Dr. Kissinger as the basis for a peaceful settlement in Rhodesia. His acceptance of majority rule within two years represents a major step forward. So, too, does his willingness to meet immediately with Rhodesian nationalist leaders to discuss the formation of an interim Government. It was a realistic statement.

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At their meeting in Lusaka which concluded yesterday the five African Presidents issued a communique. There are some points in this communique which need to be clarified, but it appears that the Presidents have accepted the principles of a transition to independence on the basis of majority rule and the need for early discussions to establish an interim transitional government. Her Majesty's Government welcomes the statesmanship shown by this decision. The Presidents also called on Britain to convene a meeting outside Rhodesia to discuss, among other matters, the structure and functions of a transitional government and the establishment of such a government. Britain is ready to play a constructive role in the process of establishing an interim government.
My right honourable friends the Prime Minister and the Foreign and Commonwealth Secretary have been in urgent consultation with the African Presidents over the weekend. Messages have been sent to Presidents Kaunda, Khama, Machel and Nyerere to say that the British Government are prepared to help organise a meeting or conference to consider the structure and functions of such an interim government; and that we wish to learn from the parties concerned how and where this conference could be arranged and especially who the participants should be. Our joint aim is to work for an independent government that will be truly representative of the people of Zimbabwe. My honourable friend the Minister of State for Foreign and Commonwealth Relations has put forward his departure for Botswana and is leaving tonight. In the course of his visit to Africa he hopes to have full discussions with those concerned.
While there are points arising from both Mr. Smith's statement and the communique of the Conference of African Presidents which need to be resolved, we feel that these matters should and can be dealt with in the coming negotiations. The important thing is that the essential requirement for majority rule has been met. This provides the necessary framework and it is vital that we do not delay in building on it. It would be tragic if we failed to take advantage of the opportunity that has been created. It should now be possible for Africans and Europeans to work together to lay the
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foundation for peace and prosperity in an independent Zimbabwe in which all races can live in harmony. The end of guerrilla warfare and the lifting of sanctions are important to progress, and should take place after the formation of the transitional government.
Assuming that all goes well, we will at the appropriate time take such legislative action as is necessary to meet the requirements of the situation. This would initially include action to establish the transitional government. We would also at the appropriate stage, and paying due regard to United Nations procedure, revoke the existing sanctions legislation.
In conclusion, my Lords, I must appeal to you not to press me to comment in detail on issues which are likely to be the subject of delicate negotiation in the coming weeks. The concern of all of us must be to create the right climate for negotiations to begin. It will not help matters to indulge in recrimination or speculation one way or another. I am sure we can count on the support of men and women of good will everywhere in seeking a definitive and happy solution to this long-standing problem.
3.32 p.m.
Lord CARRINGTON: My Lords, the House will be grateful to the noble Lord, Lord Goronwy-Roberts, for making this Statement. I think it is very difficult at this moment to assess the likely course of events. No one, though, can deny that there has been movement due, I think, in great part to the vigorous diplomacy of Dr. Kissinger, whose intentions I applaud and whose vigour seems to be lacking on the part of Her Majesty's Government. I think that on this occasion the attitude of Dr. Vorster was even more important than that of Dr. Kissinger in causing such a sudden change of heart on the part of Mr. Smith. It is to me sad to reflect on the wasted opportunities of the last decade, opportunities which Mr. Smith has allowed to go by. If he had accepted the offers made to him in "Tiger" and "Fearless", and even later by my noble friend Lord Home, and the noble Lord, Lord Goodman, he would have had much better terms; and over these past years there

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would have been growing up in Rhodesia a multi-racial State on the way to harmonious majority rule.
But it is no good looking back. The African Presidents' reactions have been disappointing but not entirely unexpected. It is very difficult for us to know exactly what is happening since only Mr. Smith, curiously enough, has interpreted what are said to be the Anglo-American proposals. Nevertheless, it seems that there has been no outright rejection by the African Presidents. I am very glad that the Government have accepted the idea of a constitutional conference. I am glad that the Government have been prodded into a rather more active role than they appeared to be willing to play in the past. Your Lordships will remember that we on this side of the House have been advocating just such an initiative as Dr. Kissinger has made over these past months.
There are two further things that I should like to say to the noble Lord. I would remind him—if the Government need to be reminded, and I do not think they do—that when the constitutional conference takes place they have a duty to safeguard the interests of the Rhodesians and not allow extremists to ignore the rights and contributions of the white community. Secondly, I would ask the noble Lord to elaborate a little more on the Statement he makes that the end of guerrilla warfare and the lifting of sanctions should take place after the formation of the transitional Government. I would have hoped that we should begin to lift sanctions as an evidence of good faith to Mr. Smith, who has come a long way. We need not proceed with that if the negotiations break down. More particularly, I am worried at the Government's statement that they do not expect the end of guerrilla warfare until after the transitional Government has been set up. I should have thought it totally unacceptable after Mr. Smith's intentions, and after the speech he made, that there should be a continuation of murder and warfare in Rhodesia on behalf of the Africans. It seems to me so unlikely to lead to the atmosphere in which good will and a settlement can exist, that we particularly, and I hope Her Majesty's Government, should insist that part of the price for a constitutional conference is the ending of guerrilla warfare.
Lord BYERS: My Lords, we on these Benches certainly hope that this is the beginning of the end of UDI and, to that extent, if it proves to be so we shall be grateful to Dr. Kissinger and those who have been associated with him for everything that has been achieved. The situation to us is still somewhat obscure; a great deal has to be done before we can be certain that we have a lasting solution. I should like to put two points to the noble Lord, but I do not press him for an answer if he feels the matters are too delicate. First, have we any idea what the timetable is likely to be? When will the form of constitutional talks be agreed and announced in some form or another? Secondly, following on the point that the noble Lord, Lord Carrington, made, what part, if any, is it intended that representatives of the guerrilla forces shall play in those talks? I agree with the noble Lord, Lord Carrington, that it is inconceivable that we should go on with sanctions and hostilities while these talks to form a transitional government are being undertaken. The sooner we can get rid of hostilities—and, for that matter, sanctions—the better. One way to do that might be to get representatives of the guerrillas in at the beginning so that they are locked into the negotiations.
3.38 p.m.
Lord GORONWY-ROBERTS: My Lords, I am very grateful to both noble Lords for the way in which they have commented on what is, after all, an interim Statement. If I may deal with one or two points raised by the noble Lord, Lord Carrington, it is difficult at this moment to forecast the likely course of events. The key event is the meeting, as I call it (in contradistinction to the more formal "constitutional conference"), which should, we hope, get under way as soon as possible, and at which representatives of all sections of Rhodesian opinion, whatever colour, creed or background, are represented. We are very willing, indeed enthusiastic, to take part. From that will flow the necessary setting up of the interim or transitional government. As to the speed with which sanctions are lifted and guerrilla warfare is ceased, success with that first crucial decision would make it pretty certain—automatic—that the other two results would follow. I certainly take note of what both noble

21
Lords said about the need for consideration of these points.
I will not go into detail about some other points which have been raised. It will indeed be the intention, if I may refer to the intervention of the noble Lord, Lord Byers—and we have repeated this more than once—that all representative attitudes in Rhodesia, however repugnant to one person or another they may be, including the guerrilla fighters, should indeed be brought into discussions so that there is no potential implacable minority who can claim not to have had any responsibility in what augers well to be a reasonable final settlement. We regard this settlement as one which, if it comes about—and the difficulties are still very considerable—will not only give Rhodesia a better future but will possibly give to the whole of Central and Southern Africa something like a model of how these things can be done without recourse to force.
I cannot part with my noble friends without replying to Lord Carrington's damnation with very faint praise for the role of Her Majesty's Government in all this. They have been working very hard over this matter during the last few years and it is not for me necessarily to deliver encomia to the present Prime Minister and his predecessor, as well as to the noble Lord, Lord Home of the Hirsel, for the honesty of purpose and the determination they have all shown in trying to solve this intractable problem, especially since I notice that both Dr. Kissinger and President Ford have done so already in very eloquent terms.
Lord SHINWELL: My Lords, is the noble Lord aware that he has not answered the question which was addressed to him by the noble Lord, Lord Carrington, and emphasised by the noble Lord, Lord Byers?—namely, why should they proceed with the creation of a transitional government before there is a definite decision that hostilities should cease? Why should they permit guerrilla warfare, bloodshed and violence to continue in the meantime while they are creating the transitional government? At the same time, would my noble friend be good enough to explain when responsibility for Rhodesia was transferred from the United Kingdom Government to Dr. Kissinger? Is not the responsibility specifically that of the
22
United Kingdom Government? Was there any consultation, or did Dr. Kissinger intervene without consulting the United Kingdom Government or even the United Nations, which has not specific responsibility but an overriding responsibility?
Lord GORONWY-ROBERTS: My Lords, the answer to the second question, is, of course, by consultation. The answer to the first question is that the only way to end guerrilla warfare and get a speedy ling of sanctions is to introduce an interim government based on the aim of African majority rule.
Lord HARMAR-NICHOLLS: My Lords, is the noble Lord aware that while one recognises the conciliatory nature of his Statement, one can be forgiven for thinking that at this time someone appears to have retreated from an implied agreement? If it is that the new alliance between America and Britain seems to be succumbing to that sort of pressure, then it will mean that the whole Western World will be demoralised as to what sort of stand we make. One would have thought that the interpretation of the agreement, as it has been presented so far, would make certain that the guerrilla fighting would cease and that there would be a sympathetic look at whether the whole of sanctions should be proceeded with. Anything short of that may be put into words which sound fair but which will not have the impact as regards getting back real justice to the world which should be the aim of all of us.
Lord GORONWY-ROBERTS: My Lords, I certainly do not disregard the import of the noble Lord's statement. It is a difficult and delicate situation. What we say is this: if we can move now quickly and decisively by means of this agreement to an interim Government, that more than anything will lead to the speedy raising of sanctions and the speedy cessation of guerrilla warfare.
Lord AVEBURY: My Lords, would not the noble Lord agree that one reason why the freedom fighters will not lay down their arms is because when Mr. Smith has previously agreed to proposals submitted to him he has found an opportunity to escape from them? Is the noble Lord satisfied that in this instance the safeguards

23
to ensure that this agreement is carried into effect are adequate to prevent Mr. Smith from sliding out from under it yet again?
May I ask the noble Lord one non-controversial question about the proposals? Does he agree that with the transfer of power there will have to be a tremendous acceleration of education and training of the Zimbabwe Africans who are to take over key positions in politics and the economy? What contribution are the United Kingdom Government prepared to make in making available additional places at our universities, polytechnics and technical colleges for this purpose?
Lord GORONWY-ROBERTS: My Lords, I think the whole House, and indeed Parliament as a whole, would agree with the noble Lord that a tremendous effort must be made not only to sustain and strengthen the Rhodesian economy, but also to engage in large-scale and far-reaching training programmes in order to make an equitable reality of majority rule. Our own contribution, I hope and believe, will be very substantial and, of course, we shall be glad of the support and help of friends because this is rather more than a bilateral matter. It involves the whole question of the stability and peace of a Continent—a crucial Continent—and this is one reason why Her Majesty's Government have been in consultation with influential friends as to the best way to carry forward these discussions. As to the first question put to me, of course I agree with the purport of what the noble Lord said.
Lord TRANMIRE: My Lords, would the noble Lord clear up one ambiguity? Did Dr. Kissinger claim that the terms of his package deal had been accepted by the five Presidents before they were published?
Lord GORONWY-ROBERTS: My Lords, I am not too sure whether I have quite followed the noble Lord's supplementary question. The package deal was put to Mr. Smith and resulted in his broadcast speech, accepting it in those terms. Those terms presented some difficulties, but I would not say that they were necessarily insurmountable, as one or two noble Lords have suggested. They are not. The same description of the
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package was, of course, imparted to the five African Presidents who, like Mr. Smith, have commented upon them. They have, in no way dealt with them any differently from Mr. Smith in that they have expressed, as we see it, broad agreement and acceptance, with certain reservations. Those reservations we do not regard as of now as being in any way impossible to surmount. We strongly suggest that we move immediately, or as fast as we can, to the preliminary conference—or to the meeting, as I call it, of all concerned, including this country—so that those reservations can be accommodated in the discussions which will, of course, finally be aimed at setting up as soon as possible an interim or transitional government.
Lord BARNBY: My Lords, the Minister in his Statement has commented on what was said by my noble Leader, who emphasised two points; that is, the cessation of guerrilla warfare and the lifting of sanctions. With regard to the first, because it involves a wider range than the second, it is understandable that it is difficult to make a statement today; but on the question of sanctions, since the Press have for long reported that Britain has been more vigilant and more energetic in applying the intentions of sanctions than any other, and since in this period our commercial competitors have gained by our inaction, can the Minister perhaps remember, as has been said in the past several years when we have discussed the question of sanctions as the order has come around, that there are circumstances in which initial action by Britain would be justified? Can he perhaps consider, remembering the terms which were put forward as giving a possibility of action, whether there can now be swift action, because commercially and industrially there are a lot of orders to go out for the infrastructure of Rhodesia in any development or solution? Delay and inaction must be very inconvenient and difficult, and because of our past action it would seem that we now have a right to emphasise that there must be initial and swift action on the lifting of sanctions.
Lord GORONWY-ROBERTS: My Lords, I agree that it would be in the interests of everybody concerned that sanctions should be lifted as swiftly as possible. I repeat that the key to this is the meeting, of which everybody seems

25
to be in favour, to set up the interim government. I believe that the objectives of the noble Lord and of others will be achieved all the more certainly and more swiftly once we have done that.
The Marquess of SALISBURY: My Lords, will the noble Lord clarify two points with which he has already dealt? I am sorry to trouble him again. First, as I understand it, he regards the agreement reached with Mr. Smith as binding on Mr. Smith's part in the case of the headings enunciated by him in his broadcast. If this is so, does he also regard it as binding on Her Majesty's Government, on the Government of South Africa and on the Government of the United States? Secondly, the noble Lord, Lord Tranmire, asked what was the position of the African leaders in the neighbouring States. I understood from the papers—it may not be correct—that they were consulted prior to the negotiations, and that they had agreed to the terms. Can the noble Lord say whether or not that is correct?
Lord GORONWY-ROBERTS: My Lords, I have some difficulty in identifying the two points—I think there were two separate ones—made by the noble Marquess. I hope I am not misleading him in any way when I say that certainly we, and the Americans, will regard the proceedings of the meeting leading to the setting up of the interim government as binding on everybody concerned. The package which the noble Lord, Lord Tranmire, mentioned will, of course, be the basis—and some of it is quite essential—for those discussions. We will take a full part in that essential meeting and we hope to emerge from it with the others fully bound by it. I hope that the noble Marquess will forgive me if I ask him whether he will either repeat his second point now, or have a word with me on the margin, as it were, afterwards.

RACE RELATIONS BILL
3.54 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve
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itself into Committee.—(Lord Harris of Greenwich.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Earl of Listowel in the Chair.]
Clause 1 [Racial discrimination]:
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 1:
Page 2, line 1, leave out ("he cannot show to be") and insert ("is not").
The noble and learned Lord said: It might be for the convenience of the Committee if I began my words in support of the first Amendment with one or two general observations which apply to a great many more than simply Amendment No. 1. I think it will save me from repeating myself at various stages of the debate and will also make the position of those who sit behind me, and who agree with me, more plain. First, I believe that the enormous majority of people in this country, and we are certainly among them, dislike racial discrimination of any kind, although I must say that looking around the world today I see just as much anti-white racialism as anti-black racialism and I dislike it every hit as much. Secondly, I think that the enormous majority of people would like to see an improvement in relations between communities of all kinds within the country, quite irrespective of what may be going on elsewhere. The questions which we shall be discussing in Committee are therefore concerned with means and not with aims and, in particular, we are limiting ourselves in the very nature of things to questions of the part or role which law can play in their attainment.
To give an example of what I mean, a great number of us—and I expect in all quarters of the House—would think if the economic position permitted it, that to do something substantial in housing and employment would probably do a great deal more for race relations than anything we can do by means of this Bill, because in the nature of things the pressure of discrimination is harder at a time of economic difficulty than at any other time, and the newest arrivals in this country, or in any country, tend to find themselves at the back of the housing queue and certainly

27
not at the front of the queue for employment. Those are things which, of course, we cannot discuss.
What we have to discuss and what miss—and I must say that I have now attended, I should think, well over a dozen debates on this subject in one House of Parliament or the other—from the proponents of legislation in particular, is a clear idea of the role which law can reasonably be expected to play in the improvement of race relations, and the prevention of racial discrimination as part of that improvement, and the limitations which are inherent in the use of law as an instrument for this purpose.
I ventured to remind the House on Second Reading that I had predicted that certain features of the Act of 1968, upon which this Bill to a large exent builds, would prove counter. productive, and I believe in fact that they have done so. I think it would hardly be contended that relations are much better than in 1968. The disputes in that field would largely revolve around the question whether the Act itself had produced the result, or whether the result was brought about by other causes.
I have tried in these Amendments to put forward a fairly coherent philosophy of the use of law in this field. As I explained on Second Reading, it has never been part of my outlook upon the question that law has no part to play. On the other hand, I have from time to time ventured to put forward the view that the part which law has to play is a rather more difficult and sophisticated one than has emerged either from the violent opponents of legislation, some of whom would object to any legislation of any kind, or from the enthusiastic supporters of legislation who seem to think that the stronger and more stringent the rules one seeks to apply the more one will improve the situation. On the contrary, I think that one must try to put forward a more sophisticated and coherent philosophy than either of the two extremes.
I have not attempted to put down Amendments on everything upon which I disagree with the Bill. On the contrary, the House will see that there are no Amendments put down in either my name or those of my noble friends on the Front Bench on the proposals to amalgamate the
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Race Relations Board and the Commission in the new body which is to be created. This is not because we agree with it. As I explained on Second Reading, we are hostile to it. However, it does not seem to me that the kind of role that we in this Committee can usefully play can be furthered by seeking to tinker with something to which, for better or for worse—and we think for worse—the Government are unalterably committed. What we have sought to do is to eliminate the unenforceable and the unintelligible, to revert to well-tried and well-proven legislative principles which run through the entire body of English law and to eliminate also the potentially oppressive, because in a number of these cases—and I think I can establish it and will be seeking to do so over a range of the Amendments that we are backing—it can be found that such provisions are quite counter productive.
I noticed that on Second Reading—this is fairly relevant to the Amendment which I am rising to propose—the noble Lord, Lord Avebury, very much objected to what I said about the rather miserable Mr. Relf, although not nearly so much as those who wrote to me afterwards and seemed to treat me as the black man's best friend, which I hope that I am, but for rather different reasons. The noble Lord seemed to think that it was naïve of the media, naïve of the Press and naïve of Lord Hailsham to point to Mr. Relf and seek to get wisdom from it. Everybody was naïve except old Ben Whitaker's Almanack. But I do not think that we were so naïve as that. Mr. Relf was an example of somebody who tried deliberately to defy the law. That is why he became notorious; that is why the media reported him; that is why I pointed to him. He is somebody who deliberately sought to disobey the law even after it was applied to him personally by a judge. I do not refer to that with any degree whatever of pleasure or approval, but it is inevitable that such things attract publicity and the reason why it continues to attract publicity is because Mr. Relf was successful. He successfully defied the law and he successfully defied the judge and it was the judge who had to climb down. That is counterproductive and this, I believe—and we shall deal with it in greater detail when we come to the clause which he defied, the advertisement clause—is the result of

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bringing forward and passing, for idealistic reasons, legislation which is demonstrably unenforceable.
What I find difficult to understand is that the Benches opposite, who are the very people who advanced this perfectly valid argument against me almost ad nauseam when we were discussing industrial relations, should not see that this principle applies in this case, too, whether or not it applied to the original case. This Amendment is an example of that principle, but it is also an example of trying to revert to the well-established principles of English law. One of the well-established principles of English law is that a man is innocent unless he is proved guilty. That principle applies right across English law. It applies to tort and to crime. It differs in tort and in crime in this respect; that is, that in crime the standard of proof required is much higher than in tort. In crime it is proof beyond reasonable doubt. In tort, it is proof on the balance of probabilities, but the principle applies that a man is innocent unless he is proved guilty. This Bill deals with both tort and crime, although in this Amendment its repercussions are more in the field of delict or tort than they are in the field of crime.
It is said in support of reversing the burden of proof in the definition clause—and this is what the definition clause, which means that a man is guilty unless he is proved innocent, does unless my Amendment is passed—that racial discrimination is peculiarly odious. Indeed, the noble Lord, Lord Avebury, who dislikes naïvety so much, said, so far as I can remember what he said on Second Reading, that it was the worst of all possible torts, omitting to remember at that stage that tort includes creating a paraplegic by running him down in the street or by deliberately wounding him so that he is only just alive at the end of the assault. Nevertheless, the noble Lord's view is that racial discrimination is peculiarly odious. So are rape, murder, malicious wounding and other offences. It is precisely because they are particularly odious that the law has found it prudent, not merely just, to insist that a man is innocent unless he is proved guilty. In none of the other cases I have mentioned from murder downwards has it been necessary to alter the burden of proof in the fields of crime, fatal accidents or tort. On the contrary, it is generally considered as a principle of British law in both parts
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of Great Britain that the more odious the offence alleged the more important it is to insist upon strict adherence to the principle that a man is innocent unless he is proved guilty.
The reason why this is done and the reason why it is so important is that if you make it the law that a man is guilty unless he is proved innocent, you are going sooner or later—and, in fact, rather sooner than later—to achieve the position that you have convicted innocent people. It is generally thought in the fields of delict and crime more important to prevent the conviction of the innocent than to avoid the acquittal of the guilty, quite apart from the inherent justice of the conception from the point of view of human rights, endorsed as it is both in the European Convention and in the Universal Declaration. The contrary opinion—and this is the point I am mainly urging in this sequence of Amendments—is counterproductive because the conviction of the innocent shakes the whole foundation of respect for law, because respect for law is based upon confidence in the legal system.
I am aware that there are examples on our Statute Book of departure from the fundamental principle. In my opinion, in recent years there have been too many departures, but that is by the way. In my view, exceptions should exist only on one of three principal grounds. In the first place, we recognise that in cases of national emergency the security of the State is in immediate danger and we apply the contrary principle. We did so in Regulation 18 (b) during the war. Secondly, it is generally recognised, and I have every sympathy for this and support it where the principle is applicable, that where a matter is distinctly within the knowledge of the accused and not within the knowledge of the party asseverating the ingredient in the crime or the delict, then the possession of that knowledge—for instance, the possession of a licence in certain cases—is something which the accused ought to bring forward and establish to the satisfaction of the court on the balance of probabilities. This is perfectly good justice and I would not object to it as a general principle.
Lastly, where an offence has no moral guilt attached to it and it is purely a question of regulation, there are a number of cases where the law applies a more

31
rigorous standard once certain preliminary facts have been established. Those are perfectly well considered, but so far as I can see none of this applies here. In Clause 1 there is a general principle contained in the subsection, which the first Amendment seeks to reverse, that a man is guilty unless he is proved innocent.
"A person … discriminates against another person … in any circumstances relevant for the purposes of any provision of this Act if"—
(a) is irrelevant for this purpose; (b) he applies a requirement or condition which he applies, or would apply, equally to persons not of the same race as the other, but—and these are the relevant words—
"which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied."
My first Amendment is designed simply to leave out the words, "he cannot show to be" and to insert, "is not". The purpose of that, and I hope the effect of it—although I am quite prepared to be told by the Government machine that I have not achieved my purpose—at any rate the purpose I know, and the effect I apprehend, is to reverse the burden of proof so that a man continues to be innocent either of delict or of crime throughout the Bill unless the contrary is contained in one of the minor provisions; that is, unless he is proved guilty.
I hope that is a plain exposition both of the general philosophy upon which these Amendments are framed and of the purpose of this Amendment. I only wish to add this: one must consider the consequences of not doing so. If we look, for instance, at Clause 12, we see that as it stands at the moment a person who is guilty of discrimination can be prevented from joining a profession. Is he to be innocent unless he is proved guilty?
If we look at Clauses 65 and 66 we find that the Commission can proceed against him either of its own motion and subject him to a compulsory inquisition, or in Clause 66 an action may be brought for damages against him in which his civil liability is unlimited and can be financed against him by the Commission. In my view to introduce clauses of this kind to say that he is guilty unless he proves himself innocent will not command the moral respect or adherence of the British public. Instead of doing what you want
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to do, which is to isolate from public opinion those who are guilty of offensive conduct and make them appear to be the odious characters that you feel them to be, they will acquire sympathy, because among them will be innocent people whom you have convicted under a presumption against them which is contrary to the rule of law. I beg to move.
4.13 p.m.
Lord AVEBURY: Since the noble and learned Lord has been good enough to refer to the speech which I made on Second Reading perhaps I may say one or two words on this first Amendment, and particularly on the philosophical point which he has raised, which I suppose ought to have been part of the Second Reading debate, to the extent to which we believe the law has a role to play in preventing racism as opposed to tackling it by other means.
I think it must be fairly obvious to your Lordships that the noble and learned Lord has always been quite consistent in wanting less law, while some of us, including myself, have been equally consistent in wanting more law. If one looks at the various countries where a spectrum of extent of the law has operated we find that most experts and most of those who have given some consideration to the subject believe that the role of law can be very much more extensive than we may have thought it to be ten or thirteen years ago. We are not now dealing with the situation which we faced in 1965 and 1968, to which the noble and learned Lord referred. We find, with the benefit of hindsight, that generally speaking the law has been beneficial, and I believe it is by no means coincidental that, as the noble and learned Lord said, we find that discrimination to some extent has been reduced, both in this country and elsewhere, as a result of, and not merely coincidentally with, the operation of the laws that we already have. We find that in many cases the law has not been effective, and that is why we are trying to strengthen it now. I do not think it helps to refer to one individual case—that of Mr. Relf—which I think I am right in saying was a case under the 1965 Act and not the 1968 Act.
Lord HAILSHAM of SAINT MARYLEBONE: No, it was under the 1968 Act.
Lord AVEBURY: I accept the correction. The noble and learned Lord appears to think that just because Mr. Relf was able successfully to defy the 1968 Act this means that we have too much law and, as I understood him, instead of dealing with this Bill now his general principle is that we should be thinking of dismantling some of the existing apparatus of legislation which we already have. With great respect, he did not erect any alternative sophisticated and more coherent philosophy, which he said ought to be the task of those who maintain either that there should be more or less law. I do not really think we can see him as having constructed that edifice in his speech, nor do I believe one can limit such a coherent philosophy merely to questions of the burden of proof.
May I examine the criteria which the noble and learned Lord suggested ought to be applied in looking at this burden of proof. National emergency obviously does not enter into it at all, but the second criterion he mentioned might enter into it in certain circumstances. He said that if a matter was particularly within the knowledge of the accused and perhaps nobody else, then Parliament was justified in shifting the burden of proof. In this Amendment we are concerned with a situation in which a man has applied to someone else a requirement or a condition which he would apply equally to persons not of the same racial group. That is a matter of fact, as I think the noble and learned Lord will agree. We have to establish first that the person who is being accused has discriminated and then, having done that, it is for him to say, "The reason why I was discriminating was nothing to do with the man's colour, race, nationality or ethnic and national origin; it was something totally different, and I can show to the court that there were perfectly valid reasons why I did not grant this person the job for which he was applying".
To give an example which was discussed in another place when this clause was under consideration, if an employer said that in any of his factories he was not going to have as storekeepers persons wearing headgear, one would imagine that was directed against the Sikhs because they wear turbans and religious considerations prevent them from taking off their turbans at a place of work, or indeed in any other
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public place. But if an employer should come forward and say, "Yes, I do refuse to grant storekeepers who wear headgear employment in my factories, but there is a perfectly good reason for it", and he satisfies the court that there are reasons connected with the nature of the work in the factory and nothing to do with race or ethnic origin, then of course the court would acquit him of that offence. In the circumstances, I dare say your Lordships might think that if there was a good reason of a non-racial character, the case would never get as far as the courts of law.
But in the nature of things it is very difficult to show absolutely that an offence has been committed for racial and no other reasons, and the shifting of the burden of proof in the way we have it in this Bill will be helpful in establishing complaints that no one would doubt are justified; and if one looks at the volume of complaints which have been made under the Acts one must come to the conclusion that they represent only the tip of the iceberg. Just recently I was sent the report of the West Midlands Conciliation Committee, and I noted that during the year under review about 140 complaints were taken into consideration by the Committee, 30-odd of them were withdrawn, leaving just over 100 in the whole of the year which were properly examined. This, in a community where, according to the 1971 Census there were 68,000 people belonging to ethnic minorities, that is to say, people who were born in the New Commonwealth or one or both of whose parents were born in the New Commonwealth. It passes the belief of anyone who has studied these matters that only 100 cases of reasonable complaint could arise in a community of as many as 68,000 during a period of twelve months. The obvious reason for so few complaints is that it has so far been very difficult to substantiate them. The strengthening of the law as we have it in Clause 1 is vital and necessary, and I hope that the Committee rejects the Amendment of the noble and learned Lord, Lord Hailsham of Saint Marylebone.
4.21 p.m.
Lord HARRIS of GREENWICH: Before I come to the point of this particular Amendment—and I am bound to say that my conclusion is that of the noble Lord, Lord Avebury, that it would be a

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retrograde step to pass it—I will, if I may, respond briefly to what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said at the beginning of his speech. As always, the noble and learned Lord spoke with force and persuasiveness. He outlined the wider considerations affecting him in discussing not only this Amendment but others that he and his noble friends have put down to the Bill. He said he was doing this in order to avoid the risk of repeating himself, which is an admirable objective, and I, too, will do the best I can to avoid repeating myself. But I think both the noble and learned Lord and I may find this exceptionally difficult during the debates we have this week.
The noble and learned Lord spoke about the belief that the law, in a matter of this sort, could cure the entire problem. Of course, I entirely agree. It clearly cannot, and I said so on Second Reading. I am bound to say that I think it is going far further than the facts would dictate to say that the law does not have an absolutely crucial role to play in the field of race relations. If one looks at the experience of the United States of America, where there is first of all the protection of the United States Constitution, that did not prevent the Kennedy and, indeed, the Johnson Administrations from feeling it necessary to bring forward significant civil rights legislation. I do not believe it would be possible for us today to pretend that without that legislation the civil rights situation in the United States would have improved, as improved it certainly has, over the last decade or so.
Lord O'HAGAN: May I interrupt the noble Lord, Lord Harris of Greenwich, in order not to repeat myself? Would the noble Lord be prepared to admit that it is very dangerous to make comparisons between the situation in this country and the situation in the United States of America? In the United States they have a written Constitution. The black population came as slaves into the country, not as willing guests coming to work; not as citizens to the country in which they were arriving, but merely as machines for labour. The black problem there has lasted for much longer, and is a much larger problem than we have here in
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this country. So would the noble Lord not agree that to export solutions that were possible in the United States may well be much more of a recipe for disaster than for success?
Lord HARRIS of GREENWICH: No, I would not agree that this is a recipe for disaster; that is a gross over-statement. There are substantial differences between the two countries for the reasons the noble Lord has given. But it would be quite impossible, in a debate of this sort, for us to ignore the American experience, albeit that they have a totally different background from ours to their racial situation. But, having said that, it is absolutely essential to recognise that the legislation which has been enacted by Congress, which buttresses the United States Constitution, has had the most significant effect in the development of race relations over the past 10 years in the United States.
Having outlined my answer to the particular point raised by the noble and learned Lord, Lord Hailsham, may I come now to the particular Amendment which we have before us. As the noble and learned Lord rightly pointed out, this Amendment gives us the opportunity of discussing the whole concept of indirect discrimination in the Bill. If I may, I will explain just for a moment how the definition works. Under Clause 1(1)(b) the Bill defines as discrimination for the purposes of Parts II and III, which actually render discrimination unlawful, treatment which is equal in a formal sense but unjustifiably discriminatory on particular racial groups. The treatment concerned must, for the purposes of the definition, involve the application of a condition or a requirement which has to be satisfied before a particular benefit such as a job can be obtained or a detriment avoided. The condition or requirement must also be such that it has operated to the disadvantage of the complainant; it must be such that the proportion of members of his racial group who can comply with it is considerably smaller than the proportion of people not of that group who can comply with it. All this is for the complainant to show. When he has done so, under Clause 1(1)(b) as it stands, it is for the respondent either to rebut the evidence which the complainant has adduced, or if he cannot, to show that the condition or

37
requirement is justifiable, having regard to all the circumstances in which it is applied.
If I may turn to the Opposition Amendment, as the noble and learned Lord, Lord Hailsham, has pointed out, this shifts the burden of proving that a condition or requirement is justified from the respondent to the complainant. Clause 1(1)(b)(ii) is as it is because the Government consider, as Parliament considered in relation to the Sex Discrimination Act, that the question of whether or not a condition or requirement is justifiable is one which the person applying it is in the best position to know. Indeed, the noble Lord who has just spoken pointed out the validity of this particular argument. There is a great difficulty in proving a negative, yet that is precisely what we are being asked to impose upon complainants in indirect discrimination cases. It would surely be an exceptionally heavy burden for a complainant to have to discharge if he were to have to prove that a particular requirement or condition was not justifiable. Presumably he would have to go through all the possible justifications he could think of, and then dispose of them one by one. He would have to show in each case that it could not be sustained, or could not be regarded as reasonable. I do not think that this would be in the interests of justice. Indeed, I believe this Amendment would wreck the entire concept of the indirect discrimination provisions in this Bill.
We believe on these Benches that it is not unreasonable to require a person who has applied a condition or a requirement which can be shown to have operated disproportionately to the disadvantage of a particular racial group in general, and to the member of that group in particular, to attempt to justify that condition or that requirement. If he cannot do so, he should cease to apply the condition or requirement, or should be required to do so. This is achieved by Clause 1(1)(b) taken with Parts II and III of the Bill.
The noble and learned Lord, Lord Hailsham, referred to the inherent justice of this Amendment, and cited provisions of the kind to which he objects in this Bill, and which he fears have had an increasing part in legislation in the last few years. He cited a number of instances where he thought a provision of that sort,
38
where you change the burden of proof, would be justifiable. The noble and learned Lord mentioned a situation of national emergency; he referred to certain licensing questions, and referred to cases where moral guilt did not apply. I began by saying that I hoped I would not repeat myself, but unfortunately I am going to make this point on a number of occasions during the passage of this Bill.
I am bound to say I did not quite understand why a number of noble Lords indicated their warm approval of the speech of the noble and learned Lord, given the fact that 12 months ago they did not take this point in relation to the Sex Discrimination Act. Of course, the noble and learned Lord is quite right in saying, as he did on Second Reading, that there are a number of issues where there are going to be significant differences in these two pieces of legislation. I entirely accept that point. But I am bound to say that I do not understand why, if it is right to do this in the case of the Sex Discrimination Act, it can be objectionable in the case of this Bill. I hope the Committee will support the Government and reject this Amendment.
Lord MONSON: I rise to support wholeheartedly the noble and learned Lord's Amendment, because if Clause 1(1)(b) is not tightly circumscribed I believe that at least two and possibly more of our basic freedoms will be in jeopardy. The first is the freedom of the denominational schools to stipulate that their pupils shall adhere to a particular religious faith. So far as Jewish schools are concerned, the proportion of Africans and Asians who can comply with this particular condition is certainly likely to be considerably smaller than the proportion of persons of European or Near-Eastern origin. So far as Roman Catholic or Anglican and Methodist foundations are concerned, the proportion of Asians—excepting the Goans and South Indians, who can so comply—is also likely to be extremely small in relation to other nationalities and races.
The other freedom which is in jeopardy, in my opinion, is the freedom of a person to decide whom he wishes to admit to his own home. If a man is unexpectedly sent abroad on business for six months and has not got time to canvass privately to obtain a tenant but has to advertise,

39
he is caught by the provisions of this Bill. If he wishes to let his home on a furnished basis, which would normally be the case, and if he tries to insert a restriction into the lease, a perfectly reasonable restriction in my belief, forbidding the tenant from using highly-spiced cooking materials—as noble Lords know, excellent though this food may be to eat, over a period of time the cooking smells permeate curtains and other soft furnishings—he would be caught by this provision as it stands, because a small proportion of certain groups could comply with this.
If the Amendment moved by the noble and learned Lord is not carried, it is quite likely that a headmaster might be called before the Commission to explain why in present day circumstances an Anglican foundation insists upon its pupils practising the Anglican faith; in the second case, why in this day and age a person cannot get used to the fact that people cook using exotic materials, and so on and so forth. I believe the Amendment will go some way towards improving the subsection and I hope it will be supported by the Committee.
Lord FOOT: I had no intention of intervening in the debate on this Amendment, or indeed intervening in the discussion on this Bill in Committee at this stage. But I think it would be cowardly on my part if I did not declare that I am convinced that the noble and learned Lord is right about this matter. It is perhaps appropriate that I am delivering this speech somewhere in the passageway between the Benches on my left and the Benches on my right.
Lord HAILSHAM of SAINT MARYLEBONE: Come over into Macedonia.
Lord FOOT: Nothing would discourage me more in making a further movement towards the right than the invitation of the noble and learned Lord. Seriously, the noble and learned Lord appears to me perfectly right. It seems to me incontrovertible—and indeed the noble Lord the Minister agreed with this—that the effect of these words which the noble and learned Lord seeks to alter is, at a certain stage in the proceedings, to throw the burden of proof that he is innocent upon the accused. I am very
40
reluctant to allow the defence of the basic civil liberties of this country to be left either to the noble and learned Lord, Lord Hailsham, or to the Tory Party. I think this is a serious breach of this basic principle.
My noble friend Lord Avebury took as an example of how this might work in practice the case of an employer who advertises to take on staff but provides that they shall not wear certain headwear. He said the situation is quite safe and satisfactory because what will happen is that the prosecution will establish the fact that he did make this requirement in the advertisement for the job, and then it is quite right that the obligation of showing that there was not any discriminatory purpose should fall upon the defendant.
What is the consequence of that? The consequence is this: the noble and learned Lord will correct me if I have got it wrong. Once the prosecution have proved the fact that he imposed this condition upon the taking of such a job, then the court before whom this matter comes have got to ask themselves, "Has the defendant nevertheless satisfied us and shown that this was justifiable irrespective of matters of race and the like?" Supposing the court is in doubt. Supposing the court says, "We really do not know. We have listened to the prosecution, who have said that this is obviously discriminatory. We have listened to the explanation given to us by the defendant, and he says it was not intended to be discriminatory but was imposed for quite different reasons". If they should come to the conclusion that the burden of proof has not been satisfied by the defendant, then they are obliged to convict. That is the inescapable conclusion.
Lord HARRIS of GREENWICH: If the noble Lord will forgive me, he uses the term "innocence" and he raises the question of "conviction". He will, of course, realise that we are talking about civil law at the moment.
Lord FOOT: Certainly. I use the word "conviction" which is a perfectly comprehensible expression used in regard to civil proceedings. In point of fact—I say this by way of parenthesis—I would have thought this question of what constitutes discrimination might well arise

41
in criminal proceedings of all kinds. The question will arise: was this discrimination within the meaning of the Act? The argument I am addressing to the Committee covers the question of criminal as well as civil proceedings.
I come back to this point. The noble and learned Lord has pointed out that if a person who is "convicted" is found to have discriminated, if I may put it like that, very serious consequences might flow, particularly under Clause 12, as the noble Lord said. A person who had been convicted because he could not demonstrate positively that he was innocent might be excluded from taking part in a profession. These are the appalling consequences which might flow if we once take the dangerous course of departing from what the noble Lord described as the well established and well proven principles of law upon which the legal administration of this country has so long been conducted. I do not think the Minister gave any adequate reply to the arguments which the noble and learned Lord made, and if this matter is taken to a Division, even if I am at odds with my colleagues, I shall feel bound to go into the Contents Lobby.
Lord AVEBURY: Before my noble friend concludes his remarks, I wonder whether he could address himself to one question which he does not seem to have answered. If the employer has applied a rule which discriminates against a particular ethnic minority, and this is established to the satisfaction of the courts, but he has done so for reasons which are connected with the employment—as I suggested, it might be for reasons of safety—why should he not come forward to the court, if it gets that far, and say, "I had to impose that requirement not because it discriminates against Sikhs, or West Indians, or people from Kashmir, or whatever it may be; I did this for reasons connected with the employment, and here they are"? What is to stop him from giving the simple and true explanation if it has nothing to do with discrimination?
Lord FOOT: This presents no problem. I am sorry that I failed to convey to my noble friend what I was trying to convey. I said that if you get a case of that kind and the prosecution prove the fact that for example, the employer said "You can
42
only have a job with me so long as you do not wear certain types of headgear" and they say that that was discriminatory against Sikhs, there is nothing to stop the defendant from coming forward and saying, "I did not impose the condition for that reason at all. I imposed it for the purposes of safety." There is nothing to stop him. But the complaint I make is that the court then have to decide whether they think that the intention was discriminatory or not, and in making that vital decision the burden of proof is on the defendant. One can think of many circumstances in which it might not be possible for the defendant in that sort of case to prove positively that he had not discriminated.
The noble Lord said earlier on that the justification of this was that it is very difficult to prove a negative, but that is exactly the burden that you are throwing upon the individual in the case which my noble friend has posed. The noble Lord the Minister shakes his head. Let us look at the wording which the noble and learned Lord wants to amend. It specifically says:
"which he cannot show to be justifiable irrespective of … race"
et cetera. What is that except proving the negative? The clause itself says that in certain circumstances the burden of proof will fall upon the defendant, and the burden will be to prove the negative.
Lord HAILSHAM of SAINT MARYLEBONE: It is always a pleasure to debate with the noble Lord, Lord Harris. He always is both courteous and reasonable. But I think this is a perfectly clear question of principle, and I shall only be very short indeed in what I have to say in commenting on the various speeches. The noble Lord, Lord Avebury, is quite wrong in thinking that I necessarily want in this field either no law or less law. It is not a question of quantity, it is a question of quality. He is quite wrong also to suggest that at Second Reading, and on I think at least a dozen occasions when the former legislation was going through the House, I did not put forward a perfectly coherent view as to the circumstances in which legislation is valuable and the value, if any—and it varies—of American experience. What I endeavoured to do at the outset of this debate was to show the philosophy upon which my Amendments in this Committee stage was based. I was not going outside that sphere. All I was

43
doing was to say that I want three or four criteria which I have sought to apply to the Bill. One is to eliminate the unintelligible; one is to eliminate the unenforceable; one is to try to take, if it can be shown to be justifiable, the ordinary well-established and proven principles of English law and apply them to this Bill, and the other is to eliminate the oppressive. Those are the four criteria I apply, and I think they form a coherent view to which all my Amendments are intended to conform. Whether they do or not we can only see as the Committee stage proceeds.
Having said that both to the noble Lord, Lord Harris, and the noble Lord, Lord Avebury, I come to look at the substance of this clause. My Amendment is certainly not intended to be wrecking. This is not my idea at all. But I would venture to say to the noble Lord, Lord Harris, and to the noble Lord, Lord Avebury, that they really should take to heart what the noble Lord, Lord Foot, has just said, because I agree with every word of it. This is not because it happens to coincide with my opinion but because quite independently I have formed the same view. The noble Lord, Lord Avebury, is making a profound confusion of thought—and so is the noble Lord, Lord Harris, with respect— when he says that this can be subsumed behind the general exception to the burden of proof that a matter which is within the accused's own knowledge should be a matter which he should establish a prima facie case about. As the noble Lord, Lord Foot, said, and what is really quite incontrovertible, is that when you have a case of the kind which the noble Lord posits in which an employer says "I impose this restriction for reasons of health, or reasons of safety", if the tribunal is left in doubt they have got to find against the accused.
Of course, as the noble Lord, Lord Harris, pointed out, there is a difference between crime and tort, or delict, if we are dealing with Scottish law; but the difference is not one of principle, it is one of the standard of proof which is required. In crime it has got to be proved beyond reasonable doubt by the prosecution if the general rule applies, and in tort it has to be proved on the balance of probability. I quite agree that in the main we are here talking about delict or tort and not about crime, but that does not
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alter or invalidate what the noble Lord, Lord Foot, said, that if the tribunal is left in doubt it has got to find against the accused, if I may use the word "accused" as did the noble Lord, in inverted commas. The consequences can be disastrous, and not merely at the time, but thereafter under Clause 12 and the other clauses to which I referred, Clauses 65 and 66 among others. In theory, at any rate, they can wreck the man's whole life.
What the Committee has really to make up its mind about is whether it is prepared to see that those consequences flow from an evenly balanced case where the tribunal is left in doubt and has to decide on the burden of proof alone. I am not so prepared. I must just say that the headgear case is, as a matter of fact, a very good one. The whole of the construction industry has to wear helmets in certain circumstances, and it is very reasonable for an employer to require it. It is not intended to apply against Sikhs, but of course in individual cases there will be doubt as to whether it ought to be applied, and in what cases. The Government got themselves into terrible hot water about motor cycles on this very point.
Lord AVEBURY: May I interrupt the noble and learned Lord?
Lord HAILSHAM of SAINT MARYLEBONE: Just let me conclude the point. I will of course give way if the noble Lord wishes to intervene, but I just wantto conclude this point on headgear. The Government got themselves into terrible trouble about motor cycles. This has not really been resolved by just giving in, because firms, like those we see running about London at the moment with private despatch riders, have exactly the same problem. The employers' liability will be entirely different if a construction industry man does, or does not, wear a helmet. I do not know of course whether the Sikhs' turban is equally good. I was shown by a Sikh today a turban which he said had resisted the blow of a hammer from a thief, so they may be in the right. But it so happens that the argument is a good one. I was going to add a point, but I will now give way to the noble Lord, Lord Avebury.
Lord AVEBURY: I was going to tell the noble and learned Lord, since I am

45
presenting Mr. Bidwell's Bill next week that I have had the opportunity of some discussions with the Sikhs not only about motor cycles but also about the construction industry. They tell me that some of the biggest firms allow Sikhs to appear on construction sites with the turban while other people are required to wear helmets. I do not know whether I can tell the noble and learned Lord that it is as safe as a helmet, but the practice which is followed by the construction industry is to allow the turban, and if there is any alteration in that practice then of course one would say that discrimination had come into it.
Lord HAILSHAM of SAINT MARYLEBONE: The only point I am making, and the noble Lord has illustrated it, is that this is a matter about which opinions differ. There are statutory regulations which demand the wearing of helmets and there is an Act which compels
motor-cyclists to wear them. I am not saying who is right—maybe the Sikhs are right—but simply that one is putting the burden of proof in these matters, where a matter is in doubt and where people hold different opinions about it, on the accused person to be guilty unless he proves himself innocent, in this case where the arguments are fairly equally balanced, and the consequences are not limited to the actual occasion but may follow the man through life. If noble Lords are prepared to do that then I hope the Committee will say so but, speaking for myself, I am not, and I shall therefore press the Amendment.
4.51 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents 65.

CONTENTS

Adeane, L.

Faithfull, B.

Mottistone, L.

Airedale, L.

Falmouth, V.

Mowbray and Stourton, L. [Teller.]

Alport, L.

Foot, L.

Amherst, E.

Fraser of Kilmorack, L.

Munster, E.

Ampthill, L.

Gainford, L.

Newall, L.

Amulree, L.

George-Brown, L.

Northesk, E.

Armstrong, L.

Goschen, V.

Nugent of Guildford, L.

Arran, E.

Greenway, L.

O'Hagan, L.

Balerno, L.

Grey, E.

Orr-Ewing, L.

Balfour of Inchrye, L.

Grindley, L.

Porritt, L.

Barnby, L.

Grimston of Westbury, L.

Redesdale, L.

Barrington, V.

Hailsham of Saint Marylebone, L.

Reigate, L.

Belstead, L.

Remnant, L.

Berkeley, B.

Hanworth, V.

Rochdale, V.

Birdwood, L.

Harmar-Nicholls, L.

Romney, E.

Boothby, L.

Harvington, L.

Ruthven of Freeland, Ly.

Bridgeman, V.

Hatherton, L.

Sackville, L.

Brookeborough, V.

Hawke, L.

St. Aldwyn, E. [Teller.]

Byers, L.

Hives, L.

St. Davids, V.

Campbell of Croy, L.

Hood, V.

Salisbury, M.

Carr of Hadley, L.

Hornsby-Smith, B.

Sandford, L.

Carrington, L.

Howe, E.

Sandys, L.

Chelwood, L.

Hylton-Foster, B.

Savile, L.

Clifford of Chudleigh, L.

Ilchester, E.

Seear, B.

Clitheroe, L.

Incheape, E.

Spens, L.

Colyton, L.

Inglewood, L.

Strathcarron, L.

Cottesloe, L.

Jessel, L.

Strathclyde, L.

Craigavon, V.

Killearn, L.

Strathspey, L.

Cullen of Ashbourne, L.

Kimberley, E.

Sudeley, L.

Daventry, V.

Kinnoull, E.

Tenby, V.

de Clifford, L.

Lauderdale, E.

Terrington, L.

de Freyne, L.

Loudoun, C.

Teviot, L.

De La Warr, E.

Luke, L.

Tranmire, L.

Denham, L.

Lyell, L.

Trefgarne, L.

Drumalbyn, L.

Macleod of Borve, B.

Vickers, B.

Dundonald, E.

Macpherson of Drumochter, L.

Vivian, L.

Ebbisham, L.

Marley, L.

Wakefield of Kendal, L.

Eccles, V.

Merrivale, L.

Ward of North Tyneside, B.

Effingham, E.

Meston, L.

Ward of Witley, V.

Elles, B.

Monck, V.

Westbury, L.

Elliot of Harwood, B.

Monson, L.

Wigoder, L.

Elton, L.

Morris, L.

Yarborough, E.

Emmet of Amberley, B.

Morris of Borth-y-Gest, L.

Young, B.

NOT-CONTENTS

Allen of Abbeydale, L.

Hale, L.

Ritchie-Calder, L.

Avebury, L.

Harris of Greenwich, L.

Rusholme, L.

Aylesford, E.

Henderson, L.

Sainsbury, L.

Banks, L.

Hughes, L.

Segal, L.

Birk, B.

Jacques, L.

Shepherd, L.

Boston of Faversham, L,

Janner, L.

Shinwell, L.

Blyton, L.

Kirkhill, L.

Slater, L.

Brimelow, L.

Leatherland, L.

Snow, L.

Brockway, L.

Lee of Newton, L.

Stedman, B.

Buckinghamshire, E.

Llewelyn-Davies, of Hastoe, B.

Stewart of Alvechurch, B.

Champion, L.

Lyons, of Brighton, L.

Stone, L.

Chorley, L.

Melchett, L.

Stow Hill, L.

Collison, L.

Morris of Grasmere, L.

Strabolgi, L. [Teller.]

Cooper of Stockton Heath, L.

Murray of Gravesend, L.

Taylor of Mansfield, L.

Davies of Leek, L.

Oram, L.

Vaizey, L.

Donaldson of Kingsbridge, L.

Paget of Northampton, L.

Weidenfeld, L.

Douglass of Cleveland, L.

Pannell, L.

Wells-Pestell, L. [Teller.]

Evans of Hungershall, L.

Peart, L. (L. Privy Seal)

Wigg, L.

Gardiner, L.

Peddie, L.

Winterbottom, L.

Gordon-Walker, L.

Phillips, B.

Wootton of Abinger, B.

Goronwy-Roberts, L.

Pitt of Hampstead, L.

Wynne-Jones, L.

Greene of Harrow Weald, L.

Popplewell, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
5.1 p.m.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie): Noble Lords will have observed that Amendments Nos. 2 and 3 have been marshalled in the wrong order. I will therefore call Amendment No. 3 first.
Baroness VICKERS Baroness VICKERS moved Amendment No. 3:
Page 2, line 2, after ("race") insert ("religion or creed,").
The noble Baroness said: I will, with permission, discuss Amendment No. 15 at the same time as Amendment No. 3; No. 15 also stands in my name and is on the same subject. I have tabled this Amendment for several reasons. To begin with, I think it rather strange that the very important aspect of religion has been left out of the Bill, particularly as it was brought into the Protection of Employment Act. A great many unfortunate things have happened through misunderstandings in regard to religion; many wars have been fought, starting with the Crusades, and now we have the war in the Lebanon.
I should have thought that, if we are to have the Bill—which, as the noble Lord knows from my speech on Second Reading, I do not much care for—this would be one aspect that should be included, because there could be discrimination in regard
48
to religion. After all, Jews have their Sabbath on Saturday and Mohammedans have theirs on Friday. We have already heard of the Sikhs and their wish to wear their turbans as one of their five religious beliefs. Therefore, I think it essential for this word to be included in the Bill. If noble Lords had had the pleasure and the opportunity, as I have, of attending the Speakers' Conference, they would have been most impressed by the attitude of the speakers to important matters such as religion. They had their debates in the Committee Room and I attended some. They were all, whatever the beliefs of the speakers, very amicable and the speakers were most agreeable in the way in which they put their points of view. I should therefore like to suggest that we should add "religion" to the Bill. If the noble Lord will accept "religion", I shall not press the word "creed", though I consider that it would be beneficial to have that word in the Bill so that there can be no future misunderstanding about the question of a person's faith. I beg to move.
Lord HARRIS of GREENWICH: I am grateful to the noble Baroness for raising this matter. Let me begin on a happy note, because I am afraid that the Government are not persuaded that a proposal on the lines that the noble Baroness has suggested would be right for the present Bill. I start by saying that I agree with the noble Baroness on one of the fundamental points she has made—that is, that discrimination on the grounds of a

49
person's religion is in no way less offensive than is racial discrimination. But before concluding that we ought to take the opportunity of this Bill to make religious discrimination unlawful, we ought to think very carefully whether this is the right step to take.
The first place which comes to mind when religious discrimination is mentioned is obviously Northern Ireland. This Bill does not extend to Northern Ireland—with all its other problems, the one thing that can be said is that racial discrimination is not a problem in Northern Ireland. In the very different circumstances of Northern Ireland, it is necessary to pass special legislation directed specifically at the problems arising there. Fortunately, those problems do not face us in Great Britain. So far as Great Britain is concerned, we can surely agree that religious discrimination, important as it is, is not a problem of the dimensions of racial discrimination. It has been suggested that the Irish situation might spill over into Britain, giving rise to some discrimination on religious grounds here. That, fortunately, remains an entirely hypothetical situation. But even if it did happen, would race relations legislation necessarily be the right vehicle for counter-measures? Our Bill does more than just make certain forms of behaviour unlawful. The discrimination provisions go hand-in-hand with the enforcement provisions. And an integral part of the latter is the Commission for racial equality, with its wide powers of law enforcement and promotional activity. The new body has a major task before it in tackling the complexities of race relations and I do not think it would be prudent to add to its already substantial burden of work a new area of activity—the highly sensitive subject of religion.
There is another, I believe in some ways arguably more telling argument against the noble Baroness, much though I sympathise with the thought behind her Amendment; that is, that it would certainly not be sufficient—and I am sure that the noble Baroness would agree with me on this—simply to make the Amendments now under consideration. Religious discrimination is in general an undoubted evil, but organised religion does at the same time give rise to many distinctions based on religion which would have to be protected in the Bill were the Amendment to be carried. Clearly, the appointment of
50
clergy, priests and office holders may rightly be restricted to membership of the religion concerned. Similarly, we should not want the Bill to interfere with established patterns of religious schools and religious associations and organisations. It would thus be necessary to incorporate a range of carefully drawn exceptions to preserve the special basis of religion in our society. I think the noble Baroness will appreciate that, even if this Bill were the right vehicle to do this, given the time scale under which we are now operating, it would be very difficult, if not quite impossible, to envisage the sort of detailed negotiation that would be necessary with a very wide range of interest groups between now and the time when we hope that the Bill will go on to the Statute Book.
Therefore, as I have indicated, though we certainly have much sympathy for the intentions behind the Amendment of the noble Baroness, I do not believe that, at this stage, it would be at all prudent for us to insist upon an Amendment of this sort. I very much hope that for the reasons I have given, the noble Baroness will not press the Amendment.
Lord BROCKWAY: When, 25 years ago, I introduced in another place a Bill against racial discrimination, I included religious discrimination. That Bill also extended to Northern Ireland and I have some regrets that the present Bill does not do so. What I want to say is that it is perfectly true that there is not in this country the religious antagonism that there is in Northern Ireland. However, it is there. It exists in Liverpool; it exists in Glasgow. This was illustrated only last Sunday, when there was opposition by a group to an Anglican Bishop speaking together with Nonconformist representatives supporting the magnificent Women's Movement for Peace in Ireland. Therefore, it is not quite true that religious discrimination does not occur in this country. There are potentialities of it.
Therefore, I should have liked to see in the Bill not merely action against racial discrimination, but also against religious discrimination. I appreciate the difficulties, which have been indicated by the Minister, in all kinds of problems which arise from different religious denominations and the appointment of representatives in those organisations, in either clerical positions or in other posts. But

51
I would put it to the Minister that it is not beyond legal definition to include in the Bill a clause against religious discrimination which would at the same time avoid the kind of practical difficulties which he presented, and I hope very much that that may be the case.
Let me say this in conclusion. I am also considering the Jewish community. Often any antagonism to the Jewish community is on the ground of race, and it would be covered by the Bill—but not entirely. There is some opposition to the Jewish community on the ground of religious views, and I believe that it would be to the advantage of toleration in this country if we could include in the Bill action against religious intolerance in broad principle, which could at the same time avoid the practical difficulties which the Minister has indicated. I hope that the Government will be able to look at this matter again.
5.12 p.m.
Lord GEORGE-BROWN: I should like to add my very strong views to those expressed by my noble friend Lord Brockway, and of course by definition therefore to those expressed by the noble Baroness, Lady Vickers. In my long experience, living as I do in an Anglican-Jewish atmosphere, it is exceedingly difficult to distinguish between that which is called racial and that which is called religious. So many of my Jewish friends in this country deny that they are of a different race, and indeed they have every reason to so deny. They have lived here for as many generations as the rest of us—and scratch any of us and you will find somebody else. But they either practise a different religion, or even where they do not practise it they are assumed to be of it.
With great respect to the Minister, it seems to me quite unreasonable to try to make this distinction between the two, because if one does one will inevitably leave at risk some who should not be because the racial issue does not arise at all. The Minister gave us—and he is sufficiently an old friend of mine to forgive me for putting it fairly bluntly—a list of bureaucratic objections which no doubt were written down for him by a number of fellows who would find themselves
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put to much trouble to try to put the consequences right. As a man who has had longer Ministerial service than the Minister has yet chalked up—though it must be said that he is not doing badly—I have therefore longer experience of checking this kind of almost mechanical objection. Usually the answer to it is that one looks the fellow straight in the eye and says, "Well, old boy, I am going to give in. Just find out how easily can I." One will be very surprised how easily they can so find it.
I believe that something will be missing from the Bill if one leaves out religious discrimination, because one is never then quite sure what the discrimination is about. One can get at the Jews for being racial, then the Jews prove that they are not—they have been here so long—but they are still Jewish. Therefore one then gets at them for being religious. I have lived so much of my life in this atmosphere in South-East and East London. I know how easily the enemies switch from one accusation to another. I am by extraction, by derivation, Irish. I happen to be, I think, racially totally British. But when they could not think of anything else to say to us they used to say, "You are Catholics", to which I have to answer, "Yes, I am a Catholic." One then gets into a terrible argument about Romans and Saint Augustine and the original Church.
I honestly think, if I may say so to the Minister, that he is stopping halfway down the road if he does this. It is to be discriminatory on both racial and religious grounds that is wrong. If the noble Baroness pushes her point, I hope she wins it. If she does press it I shall most certainly vote with her. But in view of the argument which the Minister put up, which was much too bureaucratic to carry weight anywhere, I hope that he might feel able to say, "We will take another look at it and see whether we cannot do it."
5.19 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I should like to say something at this stage. I think that my noble friend Lady Vickers has put her finger on a very great defect of the Bill. The question is whether it is a curable defect. During consideration of the earlier Amendment

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the noble Lord opposite twitted me—for the sake of brevity I did not reply—for not having made my Amendment gleichgeschallet with the Sex Discrimination Act, and the noble Lord, Lord Avebury (who has now nipped out), started to present an enormous argument based on turbans for Sikhs. I did not point out the weakness of that argument at the time because it was not relevant to what I was saying, but I now do so. I have been defeated by successive Labour Governments in the past, and I will probably be defeated now, but I have always said that what is really wanted are not these silly little Bills about sexual discrimination and racial discrimination, but a Bill about discrimination, because until you have got a philosophy, though you have thought your problem out, you will not get a coherent piece of law. That is what I believe. When the Bill was going through the Commons in 1968, I tried to add sex and religion to it. I was ruled out of order by the Table, no doubt at the instigation of the Government; but, at any rate, that is what happened. Again, I did not play a part in the race discrimination Bill. We had a number of noble Baronesses here batting for us even better than anybody else could have done. But the fact of the matter is that you want a Bill about discrimination, and not a Sex Discrimination Bill; you want a Bill about discrimination, and not a race discrimination Bill; and you want a bill about discrimination, and not a religious discrimination Bill.
My point is not the point which the noble Lord, Lord Harris, put; that is, that we cannot deal with it in this Bill. The point is that you cannot separate it—and this is the point in favour of what my noble friend has said. I now come to the noble Lord, Lord Avebury, and the Sikhs. The turbans have nothing to do with race; they have nothing to do with nationality; they have nothing to do with racial origin. In fact, they are part of the Sikh religion. That is what it is; and if you discriminate against turbans for Sikhs you are discriminating, not on racial grounds but plainly on religious grounds.
Now Jews, if the noble Lord, Lord Janner, will forgive me, come all shapes, sizes and colours. There are black Jews called Falashas in Ethiopia; there are
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yellow Jews called something else in China; and there are white Jews with fair hair and blue eyes, with the best Aryan characteristics, in Europe. They come all shapes and sizes. They are not a race, and it is folly to believe they are. But some of them—not all of them, I am sorry to say, but some of them—have a religion. If you want to discriminate against Jews, it is no use discriminating against people with long noses: you must discriminate against people who will not eat bacon—and that is a religious discrimination. The truth is—and this is part of the folly of all this legislation which the Labour Government will habitually try to put through—that the Government will not think about the problems, and they try to solve them simply from a vote-catching point of view. They think they will get the immigrant vote, and so they put in something about race; they think they will get the women's vote, and so they put something in about sex; and they will not think the thing through.
Now why am I not going to press my noble friend to divide on this? I will tell her quite frankly. Naturally enough, after having said what I have just said, people will realise that I thought very seriously about putting this Amendment down myself; and the reason I did not was the second of the two reasons which the noble Lord, Lord Harris, gave, which is that you would have to tinker with this Bill from beginning to end to make sense of it. It is all very well for the noble Lord, Lord George-Brown, to say what he did—and may I say in passing, if it will not waste the time of the Committee, how glad we are to see that he has recovered sufficiently to play a part in our debates; we were all very sorry to see that he had been ill, and we are very glad to see him among us again—but it is not good enough, when you are dealing with legislation, to say that all these objections are bureaucratic. The truth is that the Government have produced a most detailed piece of legislation, tens of pages long, which is geared to race, just as they put forward a piece of legislation, nearly 70 pages long, geared to sex; and you cannot, just by shoving religion into the first clause of the Bill, make it into a Bill about religion, because it is not. It is inherently and structuarily a Bill about race. So, with great respect to my noble friend—and I agreed with

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almost every word she said; in fact, I think I agreed with every word—I still cannot recommend the Committee on my side to divide on it. I think it is just an illustration of the bad thinking of the Government.
Lord JANNER: Several references have been made to the Jewish religion, of which I happen to be a member, and I think it would be proper for me to say a word or two about this particular Amendment. I need hardly say that in so far as religious discrimination is concerned I, and I am sure the Jewish community, are dead against it, as is the noble Baroness who spoke. I hope that an opportunity will arise soon, as the noble and learned Lord, Lord Hailsham, has already said, when this will be considered in a way which will enable appropriate legislation to be introduced. The question in so far as the Jewish community is concerned obviously arises because from time to time attacks are made on Jewish people on religious grounds, and for my part I should like to see something effective done which could deal with that position. But I see the point which has been made here. It is a difficult position in so far as the immediate passing of this Bill is concerned. My fear is that if this matter is pressed to a Division there will be some people who will be voting in a way which might be entirely misinterpreted, because I am quite sure that everybody in this Committee would want to see to it that religious discrimination is put down in an effective way. In these circumstances, I think that perhaps the best course to take at the present time is to pass on without actually provoking a Division, which might create that entirely wrong impression. I, for my part, should of course like to see a proper Act passed soon which would supplement what is in the present Bill to deal with this particular issue.
Lord HARRIS of GREENWICH: Perhaps I could briefly speak again to say a few things. First of all, it is important to celebrate the fact that on one particular matter the noble and learned Lord and I are in agreement. It may not be often thus, but certainly it is right to welcome this fact. Secondly, I should like to join with the noble and learned Lord in saying how glad we are to see my noble friend
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Lord George-Brown back among us again. Could I say one thing to him? My noble friend said—and the noble and learned Lord picked up this particular point—that the points I had made were simply bureaucratic objections, and that if one had the officials round and spoke to them very severely and said one was going to insist on having these religious provisions written into the Bill, all would be well. But unhappily that is in fact not so, and it is not so for the reason given by the noble and learned Lord, Lord Hailsham. It is quite impossible, a few weeks before the end of this Session of Parliament, to involve oneself in what would be a major restructuring of this entire piece of legislation. It is a formidable Bill, and to start at this stage to go through all the detailed exceptions which would be necessary in order to write the religious provisions into this Bill would, in my view, make it quite impossible to get this piece of legislation on the Statute Book. For that reason, I very much hope that the noble Baroness will not press her Amendment.
Baroness VICKERS: I am not at all satisfied with the reply. It seems to me very unfortunate that this issue has not been thought about before. It also seems to me to prove how badly this Government arrange their business that we should be forced, as the noble Minister has just said, not to consider a very important matter because there is not time. This is a Bill which is going to affect so many people throughout the land. In view of what my noble and learned friend, with his expert knowledge, has said, I will not press it on this occasion, but I hope that this will be borne in mind in the future because—and I did support my noble and learned friend in the other place on this question of sex—we could have done without another Bill completely, the Sex Discrimination Bill, if we had only got that one word in the Bill we were considering at that time. With your Lordships' leave I beg to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.31 p.m.
Baroness ELLES Baroness ELLES moved Amendment No. 2:
Page 2, line 2, leave out ("nationality").
The noble Baroness said: My noble and learned friend has set out very much better than I ever could the philosophy on which we have put down Amendments

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to this Bill which is before your Lordships' Committee, and this Amendment that I have put down dealing with nationality draws attention to the basis on which the Bill is constructed; and, in particular, because nearly all the arguments put forward in another place either for or against any particular clause or subsection of any clause in the Bill always referred to colour or race and never to the question of nationality; so this raises a whole area of problems which I do not think have been so far adequately considered. I think it quite right that your Lordships should consider this point before the Bill goes any further. The grounds on which discrimination against anyone living in this country may become illegal are contained in Clause 1 of the Bill. Up to now, race relations legislation has been based on non-discrimination on grounds of colour, race, ethnic or national origin—the same wording, except for religion and political opinions and social origins as in the Universal Declaration. But it has not included non-nationals or aliens who now, for the first time, come into the scope of the legislation being considered.
We must remember that the purpose of the Bill is to remove discrimination among the multi-racial elements in our society. We have been, in any case multi-national for 2,000 years and will continue to be so—none of us want to see discrimination among any racial groups in this country. This is the purpose of the Bill; to remove discrimination among people of different racial origin and colour in this country. Since there are elements in this Bill which may have a profound effect on the future structure of our society, it is, with permission, worth spending a short time to consider what the effect will be if the Bill as it now stands includes the extended rights for aliens regardless of their length of residence, regardless of whether or not they are here legally, regardless of whether, when they form in any area a racial group, their employment may act to the detriment of the British population. In this is included all British subjects regardless of colour, race or national origin.
The reasons given in the White Paper on Racial Discrimination (Cmnd. 6234) for the inclusion of nationality are, frankly, not very convincing. Indeed, reading the particular paragraphs on this aspect
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made me wonder even more whether we are right to include the word at all; because paragraph 55 of the White Paper begins:
"The new Bill will contain a similar definition."
Similar, that is, to the definition in the Race Relations Act 1968. Then it goes on to say:
"In addition, for the reasons given in paragraph 35 above,…"
Details are then given of the difference about proportion and the different aspects of discrimination which will be dealt with in this Bill. Reading this paragraph, one would assume that it was precisely the same as the original Bill; but paragraph 56 is another matter.
Paragraph 56 apparently contains the explanation as to why the term "nationality" has been added. Although the main reason given is based on a decision of the House of Lords in Ealing London Borough Council v. Race Relations Board that national origin refers to race and not to nationality or citizenship, the decision was not a new one. It confirmed what had always been the intention of the Race Relations Act 1968 and also confirmed all the conclusions and discussions which have taken place in the United Nations since 1946 on the meaning of national origin in the various human rights conventions. In fact, even in the convention on the elimination of all forms of racial discrimination which is the main convention on human rights issues concerned with racial discrimination adopted by the General Assembly (and to which we are a party), there is a specific provision in Article 1 which allows that any distinction between citizens and non-citizens is permitted in the application of the convention. The provisions as to non-discrimination do not apply to non-citizens.
What the convention clarifies is that distinction as opposed to discrimination is lawful; and it is not discrimination to distinguish between unequals.
Nationals and non-nationals are not equal. They have different obligations and different rights. Non-nationals do not have to obey the same exchange control regulations as do nationals. There are all sorts of legal and other differences between nationals and non-nationals where it is perfectly proper to have a distinction. A national does not pay the same taxes and has many rights which a non-national

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does not have. I would hope that there is going to be some kind of guidance to the employer who has to distinguish between employing, say, a white non-national and a black national. Is he going to discriminate against a white Scandinavian if he takes a black boy from Brixton? Or is he going to discriminate against a white South American if he is going to employ a Pakistani who happens to be a British national? You can have discrimination where people have equal rights, but it is almost impossible to decide by law which is a discriminating factor. Is it going to be the nationality which is to be the discriminating factor or is it going to be the colour or race of the person concerned?
There are two points made in paragraph 56. The first (which I have already touched on) is that it says that:
"it is not unlawful to discriminate against someone because he is an Indian national but it is unlawful to discriminate against him because he is of Indian national origins."
Surely that is quite right. It is justifiable to distinguish between a non-national whether he is an Indian, a Brazilian, an American or an Australian or whatever. It is not necessary, merely because he is an Indian national—and there are British subjects who are of Indian national origin—that there should be no legitimate distinction between the two classes of people. They have different rights and duties.
The third point raised in paragraph 56 which made me wonder—and possibly the Minister will be commenting on this—is the question of EEC legislation. It says here:
"In this way, the obligations of the Treaty of Rome in relation to EEC workers and their families will be expressly incorporated into the law of Great Britain…"
I should have thought that that was a misleading statement. There is, after all, the European Communities Act 1972 and the Treaty of Rome will have a direct effect in English and British legislation. It would not have been necessary, therefore, to have had this Bill to enshrine EEC legislation into Scottish, English and Welsh law. So this I consider to be misleading. It was used as an argument as to why the Bill should be drafted in this way. I think it is not correct to use it as an argument.
Then, I think, we should also consider what the effects will be if the question of nationality is maintained throughout the Bill. I should like just to refer to one or two clauses which I think are affected badly by this. Consider, first, Clause 4, the employment clause. With the enormous amount of unemployment in this country, I think that priority should be given to British subjects if there are jobs available, regardless of colour and racial origin. I do not think it right that an alien should necessarily have priority over white, black, or other coloured British national. Secondly, under Clause 16, in relation to the police force, is it right that in any particular area or in general aliens should be employed in order not to be discriminated against by a local police force? I do not think as a whole the British people would wish to be policed by foreign nationals, and I think it is a perfectly legitimate sentiment.
Lord HARRIS of GREENWICH: To anticipate that point, an alien cannot be a police officer in this country.
Baroness ELLES: I am grateful to the Minister for that reply. Clause 11 applies to trade unions and there is nothing in trade union law to stop an alien from being a member or taking office in a trade union. If you had sufficient pressure groups it would be perfectly possible for aliens to be voted, in the normal and proper procedures of trade unions, to take control of any particular union. I am not saying they will, but you have to envisage these things now long term. We have seen before what happens when we do not envisage things in the long term. I do not think an alien being in control of a union is necessarily in the interests of this country, though it may be so. It sounds unlikely that this could happen today but, as with many things that we have not foreseen in legislation before, at least the attention of the Committee should be drawn to this point.
Another point which is of considerable concern is in Clause 29 regarding advertisements. Perhaps the noble Lord the Minister will say whether it is correct that under Clause 29 in keeping in the word "nationality" as grounds for non-discrimination, it will no longer be possible for anyone to advertise for British subjects or use the word "British"

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in any advertisement. This is something which would not be acceptable to many people. I am not thinking in any jingoistic or any other view, but many foreign companies—particularly when they set up their businesses in this country—may wish to have British subjects as representatives here. An enormous amount of investment comes into Britain which keeps British people employed. One of the things we need most in this country is investment in order to create new jobs. Many foreign companies would wish to employ British subjects in various capacities regardless of colour, race or national origin. I must ask the Committee to think seriously before proceeding on this Bill whether it is common sense to eliminate from our vocabulary in terms of advertisements the word "British".
In particular, I should like to refer to the Second Reading speech of the Home Secretary when he introduced the Bill. He gave the principles on which the Bill was built and the reasons for it. He said, in column 1547 of the Official Report of another place, on 4th March this year:
"The first principle upon which the Government's policy is based is the clear recognition that the vast majority of the coloured population will remain permanently in this country, and that a substantial and increasing proportion of that population belongs to our country in the fullest sense of being born and educated here as fellow citizens."
I beg to move.
Lord MONSON: I should like to support the Amendment of the noble Baroness, for slightly different reasons from the ones she advanced. The other day I heard about a well-known actor (whose name I had better not mention) who was captured in Singapore in 1942 and was sent to a prisoner-of-war camp. His experiences at the hands of the Japanese were so horrible that to this day this man cannot even travel in the same lift as a person who is, or appears to be, Japanese. I have only the happiest memory of those Japanese whom I have met, and I would have no objection whatsoever to employing somebody of that nationality, if the occasion arose, and no doubt most other noble Lords hold the same view. But there must be a body of people in this country who have had very different, unhappy experiences. Would it not be the height of cruelty to say to
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these people, if they refused to employ such a person in a close relationship like personal assistant or secretary, or did not wish to let their house to them, that the full rigour of the law would descend upon them?
There must be many—not all, of course—among the Jewish and Polish communities in this country who feel equally reluctant to employ or let their house to people of German nationality or, indeed, Russian nationality. One may think of similar tensions between Greeks and Turks or, in some cases, between Indians, Bangla Deshis and Pakistanis, or between Syrians and Palestinians, Gibralterians and Spaniards, and so on. One must allow for human nature in these circumstances and not force people to do things which are so much against the grain so far as they personally are concerned. For that reason, I strongly support the Amendment of the noble Baroness.
5.46 p.m.
Lord HARRIS of GREENWICH: I hope the noble Baroness will agree that I begin on a not too niggling point, and that it is necessary for me to point out that the provision which we have been debating in this Amendment, the principal provision dealing with this matter, does not come under Clause 1(1)(b)(ii). It admittedly contains the first reference to this. The principal clause in which this issue arises is Clause 3(1) where this question is laid out in rather more detail. Having said that, perhaps I could explain, as the noble Baroness has, the background to this particular matter. She covered some of this ground very fairly. The formula of discrimination on grounds of colour, race or ethnic or national origins appeared in the 1968 Act. That seemed to include discrimination on grounds of nationality. This is not, for that reason, a new issue. It was assumed, on the basis of the 1968 Act, that nationality was covered.
We then come of course to the decision of your Lordships' House sitting in a Judicial capacity in the case to which the noble Baroness referred, Ealing London Borough Council v. Race Relations Board in 1972, when they said that "national" in the reference to "national origins" did not cover nationality. That decision has therefore thrown up the policy question

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of whether the legislation should cover discrimination on the grounds of nationality. The Government have concluded it should, not least because of the anomaly which results if such a discrimination is not covered. Paragraph 56 of the White Paper—and the noble Baroness referred to this—says that it is not now unlawful under the 1968 Act to discriminate against someone because he is of Indian nationality, but it is unlawful to discriminate against him because he is of Indian national origins—that is, of Indian descent. This seems to be a lacuna in the law. For that reason, we think it is right in this Bill to clear it up; certainly for us it is a matter of principle.
The noble Baroness went through a number of points and asked questions concerning the position of foreign nationals when this Bill is on the Statute Book. I will deal with one small point first and then come to the substance of the matter. She talked about people being here illegally, and asked herself the rhetorical question: In such a situation, why should there not he discrimination? The answer is that if somebody is here unlawfully, the most obvious way of dealing with that is by using the law to remove that person. It is not to be used as a justification for discrimination against people who are not of British and United Kingdom nationality. She made the point about the police force and I answered that at the time. Of course there are going to be substantial differences between citizens of this country and citizens of other countries once this Bill is on the Statute Book. Of course that will be so. The right to vote is an obvious example, and there are other questions concerning health and education benefits and similar matters.
It is also necessary to bear in mind—and here I would refer to the police example raised by the noble Baroness—that Part I of the Bill, which is what we are now discussing, is largely concerned with definition. What acts constitute unlawful discrimination can be discussed only by reference to Parts II to IV of the Bill. Protection covering the sorts of distinctions made by the noble Baroness is given, for example, in Clause 41, which deals with acts done under statutory authority, and in Clause 75. which deals with the general question of the Civil
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Service. For these reasons I think it would be unreasonable to exclude nationality from this Bill. It was clearly the intention and belief of Parliament on the last occasion that nationality was covered by the Bill. As a result of the decision of your Lordships' House sitting in its judicial capacity, we discovered that it was not. That has given rise to the sort of anomaly to which I referred a moment ago. That being so, I think the reasonable step which this House should now take is to confirm the original intention of Parliament. I hope therefore that the noble Baroness will not press her Amendment.
Lord O'HAGAN: I listened with great interest to the noble Lord, Lord Harris of Greenwich, and of course he has illustrated how deeply the Government have fallen into a pit from which they are finding it extremely difficult to extricate themselves. When citizenship and nationality arise, the pit is not entirely—I must be fair—of the Government's own making, because the absence of clear law about citizenship and nationality has been with us for a very long time. I should like to put several questions to the Government. and the first is this: the Home Office, I understand, have been conducting a review of the British law on citizenship. I should like to ask how far that review has got and whether the results will be published before this Bill completes its stages through Parliament. If the review will not be published before that is done, how can we legislate for nationality or citizenship when we do not know what the Government want either nationality or citizenship to be, and whether they may indeed be proposing serious changes about these matters very soon?
Perhaps the noble Lord would tell us, first, when the Government are going to give us their views on nationality and citizenship, and, secondly, whether they have been consulting with the various members of the Commonwealth and those countries which have British protected persons, British subjects and all the other 57 varieties of British subjects as to who will and will not be a British citizen, subject or national.
Even if it is incorrect procedurally, I think it must be sensible to link citizenship with nationality in our discussions because in Clause 3(1), the interpretation clause, it is said that "nationality" includes

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citizenship. I do not see how "nationality" can include citizenship, because British citizenship is a very much larger category than British nationals, however one chooses to define nationals, and certainly if one uses the definition of "national" as was appended to the Treaty of Accession to the EEC.
The category of British nationals is much smaller than that of British subjects or British citizens. That is a quibble, of course; but what it illustrates is the difference between citizenship and nationality. The Government say that "nationality" must include citizenship. The two are inherently different. Citizenship is a matter of allegiance, and British Common Law has evolved from the feudal tradition of loyalty to the lord or to the Crown, and has also been fertilised by the Roman and Greek ideas of citizenship and the city state. Nationality is something quite different: a much more modern idea—18th century at the earliest—connected with the growth of the nation State. It is of a quite different nature. British law has got itself into a tangle between the two, and by spatchcocking the idea of nationality into this Bill we are giving grounds for preposterous persons to make this Bill appear much more preposterous than it should be, because the whole concept of nationality is very unclear.
There are various aspects of this confusion to which I could refer, hut perhaps the one in which I am most interested concerns the impact of our membership of the European Economic Community on our law concerning nationality and citizenship. If one examines what membership of the Community has done to the already confused state of our nationality and citizenship law, one can only conclude that it is very rash to introduce nationality as one of the criteria at the core of this Bill. When we joined the Community the fact of our membership made some serious alterations to our law. It was astonishing to read that during the Committee stage in another place no mention whatsoever was made of this from either Front Bench, I am ashamed to say. To take it at its most fundamental, certain Articles of the Treaty of Rome entitle citizens of Member States of the Community to certain rights above and beyond nationals of any other country, whether or not they be British subjects. Those who are defined as
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"nationals" of Member States have a whole series of privileges conferred upon them by the Treaty of Rome. For example, Member States are not allowed to discriminate between Community workers on grounds of their nationality but must afford to them the same rights of employment, trade union organisation, entry, welfare benefits, residence and the accompaniment of their dependent relatives, on exactly the same basis as the citizens of their own countries.
I should like to know whether the Government have considered the relationship between this legislation we are now considering and the Treaty of Rome. If a national of a Community country feels he has been discriminated against on the grounds that he is foreign and he has certain rights under the Treaty, how does the Treaty relate to this Bill we are now discussing? Of course, I understand that the Treaty of Rome takes precedence, but could the noble Lord give us some idea of the Government's thinking about this, and also as to whether associate Member States of the Community, such as the MAHGREB countries, Turkey, Greece and Portugal, whose citizens have certain rights in the Community, are themselves protected by the Treaty of Rome? How would their position be affected by the legislation we are now considering?
I will sit down now rather than bore your Lordships any further with the interminable complications of our nationality and citizenship law, but the mere fact that it has taken the Government over two years to consider the whole matter and that the Foreign and Commonwealth Office had to withdraw one of their Written Answers in reply to a Question from me because they themselves had got the answer wrong as to who was and who was not a British protected person illustrates the dangers that one can be led into by introducing the concept of nationality into this Bill.
6 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: May I just say something at this stage? Of course, I am very anxious not to divide on questions where no great issue of principle is concerned, but I confess that I was not quite happy about the answer of the noble Lord, Lord Harris, because among my objectives in these

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Amendments is to remove the unintelligible. What is meant by "nationality"? I can understand what is meant by "citizenship"; that is a question of law. Either you are a citizen of the United Kingdom and Colonies or you are not, and you can understand where you are. But what is "nationality"? "National origin" is even more bewildering, as the House of Lords found in its judicial capacity.
But we are discussing only nationality. What is nationality? Are the Scots a nation? Let us suppose that somebody discriminated against a Scotsman under this Bill. I think everybody would agree that the Scots are not a race, but they would claim—at any rate, the Scottish Nationals would claim—that they are a nationality. Is it lawful or unlawful under this Bill to discriminate against a Scot because he is a Scot, or against a Welshman because he is a Welshman? Are the Welsh a nation? I do not know, but they are very ancient inhabitants of this island. Are the Jews a nation? In my opinion, they are not a race but they may be a nation.
What is nationality? Let us see whether the Bill tells us. We look at Clause 3(1) to which the noble Lord, Lord Harris, referred, and we see these splendid words:
"In this Act, unless the context otherwise requires—…'nationality' includes citizenship."
That tells you only that it includes citizenship. It does not tell you what else it includes. It says nothing about the Scots, the Welsh, the Jews, the Hottentots or, for that matter, the Bushmen who, if there are any left, are South African citizens. What is nationality? That does not tell us. Even odder, we look at Clause 78 and we see the splendid words repeated without alteration that,
"In this Act, unless the context otherwise requires"
—I am reading from page 50—
"'nationality' includes citizenship".
Why do we have two clauses in the Bill saying exactly the same thing? It is a doublet. Who has been drafting this extraordinary measure, and what is the poor Lord Harris expected to do when it is drafted like that?
I shall not ask the Committee to divide on this, even though my object is to
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remove the unintelligible. But I seriously ask the noble Lord, Lord Harris, to undertake to the Committee to consider what has been said by my noble friend Lady Elles and the noble Lord, Lord O'Hagan, and what I have just said about this extraordinary definition clause repeated in two different parts of the Bill, as well as what I have said about the Scots and the Welsh, and come back and tell us why he wants "nationality" included in the Bill. when it comes back on Report, because I really do not think that it has been properly thought out.
Lord HARRIS of GREENWICH: There are two points which I should reply to at this stage. The noble Lord, Lord O'Hagan, asked a number of questions about our responsibilities to associate members of the EEC. As he will appreciate I could not give an answer this afternoon, but I will gladly write to him before the next stage of the Bill. Also, he has perfectly reasonably continued his campaign for getting some announcement of when the Government's intentions will be made clear on the earlier point he raised. I am not in a position to add anything to what I have previously said, but again I will let the noble Lord know whether the situation has changed.
In answer to what the noble and learned Lord said in his engaging intervention, I do not think the Parliamentary draftsmen would join me in applauding his speech. Nevertheless, I take the point he has made. There is, of course, a point of substance here, as he will realise. We could not possibly—and I would not in any way suggest that it would be right for us to do so—reconsider the issue of principle here for the reasons which I outlined in my earlier contribution. Nevertheless, the noble and learned Lord asked a number of questions to which he is entitled to have answers and he will have them by the next stage of the Bill.
Lord MONSON: Before the noble Lord sits down, can he give us his answer to the problem of the emotions and the strong feelings of the ex-prisoners of war, and of some of the Jewish and Polish communities which I cited?
Lord HARRIS of GREENWICH: I agree that many people have very strong

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feelings. Some people do not like black men. Some people do not like Germans. I am afraid that these are very disagreeable traits in the human character. That is one of the reasons why we are discussing this Bill today. This is one of the arguments which was adduced during the earlier discussion of the European Communities legislation, that there was a deep and passionate dislike of some of our fellow members of the European Community. I am afraid the answer is that we live in a rational society, and that being so we must try to repress motives of this kind which disfigure our society.
Lord HAILSHAM of SAINT MARYLEBONE: Surely, there is another and even simpler answer to the noble Lord, Lord Monson, that if you left out "nationality" all the discrimination to which he refers would be covered by "national origin", which is already in the legislation that we are amending. What I think the noble Lord, Lord Harris, will tell me at Report stage is exactly what is added by "nationality", and what he says about the future of the noble and learned Lord, Lord Morris of Borth-y-Gest, who has been sitting here so patiently listening to our discussion although he could have contributed so much, and whether I am entitled to discriminate against him because he is a Welshman.
Baroness ELLES: I should just like to reply to something that the Minister said when he referred to the fact that the question of nationality comes in Clause 3. It is important to point out that Clause 1 contains the definition of "discrimination" which goes right through the Bill and you discriminate if you do so unjustifiably,
"… irrespective of the colour, race, nationality or ethnic or national origins ".
I should have thought that at this stage it was extremely important to know whether you were going to discriminate against somebody of one nationality or another, and it was on those grounds that I raised the point at this stage. The noble Lord will realise that I am not particularly satisfied by his answer, and that feeling has been compounded by my noble and learned friend in a much more amusing and light-hearted but more effective way in hoping to get a more satisfactory answer from the Government at Report stage.
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Before asking leave to withdraw this Amendment, I should like to ask the Minister if he will reply to my question whether under Clause 29, by retaining the word "nationality" in the Bill, it will no longer be legal, with certain exceptions which are admitted in that clause, to use the word "British" in any advertisement.
Lord HARRIS of GREENWICH: I will look into that point.
Baroness ELLES: On those grounds, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.9 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 4:
Page 2, line 2, leave out ("or ethnic").
The noble Lord said: In a sense, we are continuing the discussion that we have had on previous Amendments about the exact limit of the various words listed to define the different categories on the grounds of belonging to which discrimination is illegal. I was uncertain what the word "ethnic" meant, apart from its popular association with coloured dresses that are rather trendy at the moment, and Afro hair styles. But I noticed in the 1972 supplement to the Oxford English Dictionary that there is a new meaning in English listed and it goes:
"Ethnic—pertaining to or having common racial, cultural or linguistic characteristics especially designating a racial or other group within a larger system",
and I suspect—indeed, I have been told—that the insertion of the word "ethnic" was to cover groups such as the Jews, who may be classed as a race or as a denomination or as something falling between the two, because whatever else "ethnic" does it covers a wide variety of categories. I should like to know what the Government think "ethnic" means. What does it add to the other words that are listed here—colour, race and, perhaps, nationality and national origins?
What does "ethnic" add to the list that we already have? Apart from my natural desire for precision in this key part of the Bill right at the beginning, may I remind the noble Lord, Lord Harris of Greenwich, of words that he used at Second Reading.

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He said then:
"We are a multiracial society. Not only this, but the character of our coloured population is changing. An increasing proportion of this population has been born here. They think of Lambeth or Bradford, or Birmingham, as their home …".—[Official Report, 20/7/76; col. 732.]
If this legislation is to last longer than either of its two predecessors, the definitions which are inserted here must be ones which will stand the test of time. What may be "ethnic" now may not be "ethnic" in a few years' time. Let me express myself more clearly. There are many people now who show characteristics which are primarily cultural but which may disappear as they, their children and their grandchildren become more wholly absorbed into the customs, manners and traditions of British society. In those circumstances, of what use is the word "ethnic"? Is it necessary and, if it is necessary now, are the Government sure that it will be necessary in 25 years' time, or will it lead to confusion?
Lord DAVIES of LEEK: I wonder whether the noble Lord, Lord O'Hagan, would give way for one moment. I do not know whether he looked up the etymology of "ethnic" as well, but I believe that it is important to leave in the word "ethnic". Without wishing to delay the Committee, let us consider gypsies. A good deal of discrimination is taking place because of the natural opposition of very respectable people to the mode of life of gypsies who form an ethnic group. I consider that throughout the world the ethnic problem of gypsyhood is fundamental. Therefore, I hope that the noble Lord will not press his Amendment to a Division.
Lord O'HAGAN: If I may continue, I was going to conclude with the point that whether the Scots or the Welsh are nations or nationalities, I am sure that they consider that they are ethnic groups. There will be ethnic groups in the various parts of Wales and Scotland and, no doubt, in the rest of the country—for instance, all over the West Country and certainly in other parts of England. Therefore the same questions apply. I hope that the noble Lord can give us a comprehensive answer as to what the Government think that "ethnic" means.
Lord HAWKE: The amusing and detailed arguments we have had on this subsection show how ridiculous it is to try to make amends by passing legislation. Almost all of the religions of the world, and certainly those who have no religion but a moral code, believe in the precept that you must love your neighbour like yourself, but to try to embody that precept in legislation leads you into the most ridiculous back alleys. I can instance one anomaly already. In years to come there will be considerable businesses built up in this country by people whose origin was the Indian sub-continent. Some of these businesses may be built up by Hindus, Sikhs or Moslems, and those Moslems may come from what is now India, not from Pakistan. They are all of the same ethnic origin; they are all of the same colour; presumably they are all of the same race. However, I shall be very surprised if the Hindu businesses employ any Moslems, or the Sikhs, either—and vice-versa.
Other businesses which are owned by Cypriots probably exist today in parts of the East End of London. I do not know what are the habits of Cypriots, but I shall be rather surprised if Greek Cypriot businesses at the moment are employing Turkish Cypriot employees. Therefore the whole question is riddled with nonsense before we start. The major areas of discrimination, which the fond supporters of this type of legislation imagine to be the Aryans against black men, will not take place at all. The major area of discrimination will take place between the various creeds and ethnic origins of the people who have emigrated to this country. This Bill will do nothing to stop that discrimination.
Lord HARRIS of GREENWICH: Tempted though I am to reply to that speech, it goes a little wider than the Amendment which has been moved by the noble Lord, Lord O'Hagan, so I will come back to the noble Lord's speech on a more appropriate occasion. If I were to limit myself to the general question which has been raised by the noble Lord in his Amendment, I think it would be for the convenience of the Committee.
In his Amendment, the noble Lord asked me a precise question regarding the meaning of the term "ethnic origins".

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Certainly similar questions have been asked in the past. The columns of the Official Report for the proceedings on the 1965 and 1968 Acts bear witness to the fact that there has been a formidable amount of discussion on this precise issue. They also bear witness to the difficulty which attends any close textual analysis of the formula "colour, race or ethnic or national origins". The formula has been modified to include "nationality", and we have just been discussing this very issue.
The formula "colour, race or ethnic or national origins" was taken for the purposes of the 1965 Act from what was at that time the current draft of the United Nations Convention on the Elimination of all forms of Racial Discrimination. However much we may question the particular formula, I think we should hear in mind that, leaving aside the question of nationality, it has stood the test of time remarkably well. It has been the cornerstone of race relations legislation for the last 10 years and, again leaving on one side the question of nationality, so far as I am aware it has given rise to no difficulty at all. I cannot give any guarantee so far as the next 25 years are concerned, which is what the noble Lord asked me to give, but on the basis of what we have experienced in the last 10 years I should have thought that the prognosis was a fairly hopeful one.
To understand the formula, it may be helpful to consider the nature of the evils that this legislation is designed to tackle. It is easier to identify these practical examples than it is to define them, which of course is what Clause 1 of the Bill is designed to do. The basic evil is one person treating another less favourably because that other is—and here are just a few examples—German, black, African, Pakistani, English, not English, white, Asian, European, Anglo-Saxon, Nordic, Latin, Sikh.
Obviously the definition cannot spell out all these examples in a clear-cut term. "Colour" is an obvious generic term for the definition, as I think is "race", as used in ordinary parlance. "Colour" and "race" by themselves, however, may not cover all the examples I have given. I am not at all sure, for instance, that to be English is to be a member of the English race or that to be Pakistani is to be a
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member of the Pakistani race. We simply do not speak in such terms in this country. It is necessary, therefore, to cover the examples which do not fit comfortably into "colour" or "race," and "ethnic or national origins" served—at any rate, until the decision in the Ealing London Borough Council case which was mentioned in the White Paper and which was touched on in the debate we had a few moments ago—to fill the gap. It has done so satisfactorily, and for that reason, I would suggest, it gets away from the idea of physical characteristics which inform the words "colour" and "race" and introduces the idea of groups defined by reference to cultural characteristics, geographical location, social organisation and so on.
I hope that your Lordships will appreciate from what I have said the reason why it is difficult to give a clear definition of "ethnic origins", which is what the noble Lord, Lord O'Hagan, has asked me for. The point is that the overall formula, "colour, race, nationality or ethnic or national origins", encapsulates a wide variety of ideas—sufficiently wide to cover all the various manifestations of racial discrimination. For that reason we think it is reasonable to keep it in the Bill.
Lord HAILSHAM of SAINT MARYLEBONE: I would advise the Committee to give the noble Lord the benefit of the doubt contrary to his general attitude in this matter. But I do not think "ethnic" adds very much to the joy of nations or to the clarity of legislation in this particular case. The word from which "ethnic" was derived in Greek was used by the Jews to represent anybody who was not a Jew, and was translated in the Bible as "Gentile". The word in the New Testament means anyone who is not a Christian and hears no relation to race whatever. As regards race, I do not think there is a Pakistani race: I do not see how there can be. These were the inhabitants of the Indian Continent who at one time or another, from different racial origins, embraced the Islamic and the Moslem religions and who lived in a particular part of India. The gypsies are not a race although they are of Indian national origin, as anybody can see from the Daily Telegraph today, because they use the word parni for water. There is a hotel in Glencoe which says, "Positively no

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Campbells", and if you have the misfortune to have the name which is borne honourably by my noble friend Lord Campbell of Croy you cannot get into that hotel. I wonder whether the noble Lord thinks that that is illegal under the Bill? I think it would be illegal at English common law, but fortunately in Glencoe the English writ does not run so I am not in a position to judge.
What does it all mean? I frankly do not know. I am not unfriendly to the Government on this, so I propose to give them the benefit of the doubt while expressing very considerable doubts.
Lord MERRIVALE: While not wishing at all to disagree with my noble and learned friend Lord Hailsham, I feel that the term "ethnic grouping" or "origin" has a certain meaning. I have no particular knowledge of this, but I have travelled a little in Africa and I think it is strongly felt there that there are, in Francophone anyhow, a number of ethniques which are ethnic groupings. There are also quite a number of countries in Africa who are carrying out or contributing to the study of the history of Africa. I understand, too, that there are about one thousand African dialects. There is also the question of negritude which is highly important in a number of countries, of which for instance Senegal is one of the leaders, and for that reason it seems to me that this question of ethnic grouping is very important to countries, at least in some of the developing countries of Africa. Personally, I think it would be a great shame if, in effect, the word "ethnic" or national origins of a person were taken out of the Bill. If it is possible, I should like the noble Lord, Lord Harris of Greenwich, to give the feeling of the Government on the question of the ethnic origins of certain African people because I think they feel rather strongly on this.
Lord HARRIS of GREENWICH: As I have said, I have set out with some care the Government's position on ethnic origins. As I have indicated, it has worked tolerably well for the last ten years. If I may say so, I hope to carry the noble and learned Lord with me on this point at least: that if in fact we have a very difficult definition in an extremely complex area of our law, something which has
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worked and which, so far as I am aware, has given rise to little offence, I think it is right to keep it as it is and on this occasion only I am, with the noble and learned Lord, a legal Conservative.
Lord FOOT: Before the Amendment is withdrawn, may I ask why it is that in the clause which we are discussing we have reference to "colour, race, nationality, ethnic or national origins" and so on, and when we turn to Clause 70 which is the proposed Amendment to the Public Order Act, we there find that a person commits an offence if he publishes written matter which is threatening, abusive or insulting or he uses such language in a public place in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group. Surely, the logic of the case is that at that stage we ought to have the words inserted: "hatred is likely to be stirred up against any coloured person, racial, national or ethnic group". But I ask why the offence is limited under the Public Order Act to stirring up racial hatred as opposed to ethnic or national hatred?
Lord HARRIS of GREENWICH: I will gladly deal with that when we come to Clause 70.
Lord HAILSHAM of SAINT MARYLEBONE: Surely there is a very simple answer contained in subsection (6) of Clause 7.
Lord O'HAGAN: I am not really any clearer as to what "ethnic" by itself adds to this definition, but I understand that it is like garlic in a recipe in that it makes the whole concoction more acceptable, and in that mood, as we are just coming up to dinner time, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
6.16 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 5:
Page 2, line 8, leave out ("segregating") and insert ("separating")
The noble Lord said: I beg to move Amendment No. 5 and to speak to Amendment No. 6. The word "segregate" has itself unpleasant overtones and is

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something that one cannot imagine oneself doing except in a spirit that other people will feel entitled to criticise one for. It is a pejorative word, and I wonder whether or not it has led to any trouble to date; whether it is wise to have a word with such strong overtones used in a subsection in which a cold, neutral, almost surgical definition of what is actually wrong or right is being attempted.
As I understand it, in the way in which the word "segregate" is used in this Bill it covers two activities. It covers the act of forbidding some people to join others. It covers the situation where Mr. Kahn is told that he cannot work with Messrs. Brown, Smith and Jones—and I had better add MacAlister, so that I am not discriminating against the Scots.
Lord HAILSHAM of SAINT MARYLEBONE: And O'Hagan.
Lord O'HAGAN: It also covers the situation whereby somebody is actually separated from the others. It is not merely the act of forbidding somebody to be a member of a particular group, but it also is the more positive act of forcibly associating a variety of people together, so it is a word that attempts to cover two separate activities. Is it satisfactory to have this rather unpleasant word describing two separate, and readily identifiable as separate, unpleasant activities? Would it not be better to express it slightly more elaborately in the words that I have suggested? I beg to move.
Lord HARRIS of GREENWICH: This Amendment invites your Lordships to substitute "separating" for "segregating" in Clause 1(2) and some of your Lordships—though not, I suspect, the noble Lord—will recall that Section 1(2) of the 1968 Act which is practically identical with Clause 1(2) of this Bill, was put into the Bill as the result of an Amendment moved in this House by my noble friend Lady Gaitskell.
During the debate on that Amendment and on an Amendment which had a similar effect tabled by my noble friend, Lady Birk, there was a good deal of discussion of the relative merits of the terms "separating" and "segregating". Parliament accepted the latter, and it has been on the Statute Book since then. This deals with a particular point raised by the noble
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Lord, so far as I am aware giving rise to no difficulty of any sort whatever. For that reason, we would obviously prefer the Bill to remain exactly as it is.
If I may now turn to the second Amendment moved by the noble Lord, I am afraid we are not particularly attracted to this one either. The fundamental principle upon which the Bill is constructed is that less favourable treatment on racial grounds should be unlawful. I emphasise "less favourable treatment". Clause 1(2) defines "segregation on racial grounds" as less favourable treatment. If I may discuss the question of associating people together on racial grounds, I can understand the suspicion of the noble Lord if he has it, and objections if he does have that suspicion, to social engineering of this kind informed by racial considerations. I can see the point that people should be treated without any regard being paid at all to their colour or race. However, I cannot regard with equal disapproval on the one hand racial separation, racial segregation, call it what you will, with all its connotations of racial superiority, apartheid and the like, and on the other hand, association on a racial basis with its connotations of integration and harmony. In other words, I cannot accept association on a racial basis, irrespective of whether any materially less favourable treatment is involved, should itself be defined as less favourable treatment. For that reason, I very much hope that the noble Lord will not push his Amendment.
Lord HAILSHAM of SAINT MARYLEBONE: Is the noble Lord, Lord Harris of Greenwich, quite right about the last thing he said? This is a very difficult field of legislation. Supposing I wanted to discriminate against someone on racial grounds. Supposing, for instance, I did not like blacks, or Cypriots. One of the ways in which you could do so, if the Bill is unamended, is by associating him with people of another race who did not like blacks either. To give an example which someone gave a few moments ago, supposing you do not like Cypriots and you are forced by the new authority to have one; one of the ways to discriminate against a Greek Cypriot is to make him work next door to a Turkish Cypriot—and this is a good way of discriminating against both. And the same can be true of quite a number of racial groups. We

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are very apt to think in terms of a white man discriminating against a black man. One says, "Well, in the interests of harmony let them work together", but it may create the very disharmony we want to avoid. If you deliberately, as a matter of racial discrimination, put someone of an identifiable race or national origin against someone you know to be particularly hostile to that race, or in between two people of such a kind, in fact you will make his life intolerable to him.
This is not just imagination on my part. Only a few months ago I was hearing proceedings in my judicial capacity in the Privy Council. It arose in an Australian factory and this is exactly one of the things which happened. A man of an alien racial origin had been put next to two people of a different racial origin who particularly disliked him on his racial grounds. He suffered an accident of which he will bear the marks until his dying day. So I just wonder whether the noble Lord, Lord Harris of Greenwich, is not being a little easy about this. If you are going to legislate about racial discrimination, we must make a good job of it. I do not in any way think my noble friend Lord O'Hagan ought to press this to a Division, but I just wonder whether the noble Lord opposite would look at it again.
Lord HARRIS of GREENWICH: I would be delighted to do so. The noble and learned Lord, Lord Hailsham of Saint Marylebone, has raised an interesting point. I will gladly look into it before the next stage of the Bill.
Lord O'HAGAN: With that undertaking, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
6.37 p.m.
Lord SANDFORD: The debate so far has been concerned with the definition of racial discrimination which we are using in the Bill. The views of the Government on this matter were set out originally in paragraphs 54, 55, 56 and 57 of the White Paper. The first issue with which the first Amendment of my noble and learned
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friend Lord Hailsham of Saint Marylebone dealt with was that contained in paragraph 55—the onus of proof. My noble friend Lady Elles in her Amendment covered the same topic as is covered by paragraph 56. I would ask the noble Lord, Lord Harris of Greenwich, to turn his mind for a moment to paragraph 57 and to answer two questions from me on that point.
Paragraph 57 begins by making the point that it is equally unlawful to practise reverse discrimination as it is to practise racial discrimination; that is to say, it is unlawful to discriminate in favour of a racial minority. I think we would all agree with that. Paragraph 57 then goes on to make the point that that is a principle which, and I am quoting from the paragraph, ought not to be adhered to
"so blindly…as to ignore the handicaps preventing many black and brown workers from obtaining equal employment opportunities ",
and so on. The paragraph then goes on to say what should be done for such groups by which I take it to mean the black and brown workers. Generally speaking, we can see what the Government are getting at.
However, I would put the point to the noble Lord that if you take some limited areas, smaller than the United Kingdom as a whole, or smaller even than whole cities, you will find that this opportunity—indeed, the necessity, the desirability—to practise a form of modified reverse discrimination will apply, or should be applied, in favour of any group that finds itself at a disadvantage. For instance, take a small area occupied to a large extent by the Chinese, who we would perhaps in a form of shorthand describe as brown.
Lord HAILSHAM of SAINT MARYLEBONE: Yellow.
Lord SANDFORD: Think of the disadvantages faced by the Scots and Jews there. Or think of a large area like Brixton, and the bus garage there, where it would be the Irish or the Cypriots, for instance, who would find themselves at a disadvantage, viz-a-viz the West Indians. I would like the noble Lord opposite to confirm my understanding that this permission, which is all that paragraph 57 is talking about, to practise modified

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reverse discrimination in favour of minority groups can operate not just in favour of black and brown workers, but any racial group which, in a particular area, finds itself at a disadvantage. That is the first question.
The second question is, if the noble Lord agrees with that understanding—and I hope he will—by what means is his right honourable friend the Secretary of State going to give guidance to the Commission in applying their judgment as to how to operate this? A great deal will depend on the way in which the geographical boundary is drawn around these particular areas where one particular racial group has established a majority. Is it to be by guidelines? If not, by what other means is the policy of the Government—which I am sure they must have—in this matter to be applied?
Lord O'HAGAN: May I follow that up by asking how the transferred responsibility for the inner city to the Secretary of State for the Environment is going to tie up with what my noble friend has said? I understand that the Home Office is primarily responsible for expenditure under Section 11 of the 1965 Local Government Act. I may be wrong about that, but that is what I understand. I also read in the papers that the Secretary of State for the Environment is to have some new co-ordinating role for the problems of the inner city. Could the Minister tell us which Government Department will be mainly working with the new Commission in this area? Will it be the Home Office or the Department of the Environment?
Lord HARRIS of GREENWICH: The Home Office is the answer to the noble Lord's question. As the noble Lord rightly says, the Department of the Environment has a substantial and increasing interest in this area, but obviously this is a Home Office Bill and this new organisation will be responsible to the Home Secretary.
On the particular question raised by the noble Lord, Lord Sandford, on paragraph 57 of the White Paper, I think the answer to his question is that any group requiring special attention because they have special difficulties will be covered by the Bill. As he will recall, at the end of the paragraph it announces that
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the Bill will contain provisions allowing but not requiring employers of training organisations—this is giving one example—to provide special training facilities to members of such groups and to encourage them to take advantage of opportunities for doing particular work. This is particular groups who have difficulties over getting a job or whatever it may be, and in some cases being able to utilise a whole range of educational facilities in the most advantageous way. Where there is a special problem there will be provision to deal with it. I think the intention of the Bill and the White Paper are set out fairly clearly in that respect.
Lord SANDFORD: With great respect, it is the fact that this is not set out clearly in the White Paper that led to my question. Although it is quite true about the paragraph at the end, the middle of this paragraph specifically says it is only black and brown workers and such groups who are receiving the benefit of this permission to operate modified reverse discrimination. I do not want to take up the time of the Committee now. In view of the noble Lord's assurance, I think we can see that this is not always going to be the case and in some smaller areas it will apply the other way round. The noble Lord still has not answered my question about how the operation of this permission is going to be applied and by what means the Secretary of State is going to guide the Commission.
Lord HARRIS of GREENWICH: We have confidence in this new organisation, which is headed by a new and distinguished chairman, to carry out the responsibilities entrusted to it by Parliament. This is not particularly a geographical question, which was the point made by the noble Lord; it is a question of a number of groups in our society—primarily black and brown but not exclusively so—who will have special problems, particularly in regard to education, and it is right that there should be reverse discrimination in matters of this sort. If there are other special problems affecting other special groups, of course it would be unreasonable to deny those groups the privileges set out in this Bill.
Viscount SIMON: Before we pass this clause I would want to ask the Minister if he could tell us whether, if the clause

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is passed in its present form it will be illegal, for example, to require foreigners to go through a separate guichet when they come into immigration? Since racial grounds include grounds of nationality, it would seem that that would be regarded as discrimination.
Lord HARRIS of GREENWICH: I will gladly find out the answer to that question.
Clause 1, as amended, agreed to.
Clause 2 [Discrimination by way of victimisation]:
Lord HAILSHAM of SAINT MARYLEBONE: I think we have now to make up our minds. This is likely to be quite a substantial debate. Shall we adjourn for a brief moment now before it begins? The general understanding was that we should work to 7 o'clock. It is a matter of convenience for the Committee. Shall we start on this now? But if we do I would like to commit ourselves to finishing now. If, on the other hand, we are not going to finish it. I would like to leave off now and start afresh.
Lord STRABOLGI: Yes, that would be acceptable to us. I suggest that the Committee should halt now in order to take the Scottish legislation. If that is acceptable to your Lordships, I beg to move that the House do now resume.
House resumed.

VALUATION AND RATING (EXEMPTED CLASSES) (SCOTLAND) BILL
6.46 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)
House in Committee accordingly.
[The VISCOUNT HOOD in the Chair.]
Clause 1 [Exclusion from valuation roll of subjects below low water mark]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 1:
Page 1, line 6, leave out ("which has been").
The noble Lord said: The purpose of this Amendment is to make it clear that lands and heritages are to be excluded from the valuation roll only while they are of a type so prescribed by an order for the time being in force. As the Bill stands at present the lands and heritages which are not to be entered in the valuation roll are those of a type which has been prescribed in an order. Without the Amendment the subsection might be open to the interpretation that an exemption once prescribed would remain in force notwithstanding the revocation of an order. This is a very straightforward drafting Amendment. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 2:
Page 1, line 10, leave out subsection (2) and insert—
("(2) An order under this section may provide for the deletion by the assessor from the valuation roll of any lands and heritages of the type prescribed in the order which are already entered in the valuation roll; and such deletion shall have effect as from such date as may be prescribed in the order, being a date—

(a) where the order is made within six months of the passing of this Act, not earlier than 16th May 1975;

(b) in any other case, not earlier than the beginning of the financial year immediately preceding the year in which the order is made.

(2A) Section 3(1) of the Act of 1975 (notification to rating authority of alteration in valuation roll), shall have effect as if after the word "Act" there were inserted the words "or upon deleting lands and heritages therefrom in pursuance of section 1(2) of the Valuation and Rating (Exempted Classes) (Scotland) Act 1976".
(2B) While an order under this section is in force, no rates shall be chargeable in respect of lands and heritages deleted from the valuation roll in pursuance of that order for any period beginning with the date on which the deletion has effect; and any amount by way of rates, which has been paid to a rating authority in respect of such lands and heritages for any such period as aforesaid, shall be repaid by them to the person from whom they received it or to any other person appearing to them to be entitled to that person's interest.
In this subsection "rates" includes "domestic water rates".")
The noble Lord said: The Amendment is a necessary consequence of the replacement of Clause 2. In its original form

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Clause 2 would have made it impossible for a valuation roll entry respecting subjects to which the Bill applies to be made without the concurrence of the Secretary of State for Scotland. But closer examination revealed possible dangers and difficulties in the procedures which Clause 2 provided, and the new Clause 2 provides instead simpler and more effective machinery. This new machinery does, however, open up the possibility—though it is not very likely in practice—that a valuation entry might be made before the Secretary of State has had an opportunity to inhibit it by direction under Clause 2(1). Clause 1(2) is, as a precaution, amended so that the order-making power may require the removal of valuation roll entries made during the year preceding that in which the order is made.
To take an example, suppose that in March 1980 the assessor discovers offshore property of a type not exempted by an order and makes a valuation roll entry. Under Section 2(2) of the Local Government (Scotland) Act 1975 the entry may have effect from the preceding 1st April (in my example that is 1979) but there would be no practicable possibility of securing Parliamentary approval of an exempting order until some time in the next year (that is after 1st April 1980) supposing that after consultation and consideration an order was laid in draft. The subsection will therefore allow, as near as may be, a backdating of orders corresponding with that available to assessors in the making of valuation roll entries. The Affirmative Resolution procedure is a safeguard against unreasonable use of this power which, to the extent that it is retrospective, will favour the ratepayer, and protect him against the existing powers of the assessor. These provisions will need special adaptation to cover the immediate problem of the existing valuation roll entries in respect of the oil fields and the road bridges because of the risk that full consultation over the drafting of the first exempting order may delay its making until after 31st March 1977, and so put the year 1975–76 beyond the reach of exemption. The Amendment accordingly allows an order made within six months of the passing of the Act to have effect from 16th May 1975, that is for the year 1975–76 onwards.
Subsection (2A) ensures that the deletion of subjects from the valuation roll in consequence of an exempting order will be notified by the assessor to the rating authority. Subsection (2B) provides that when the deletion of a valuation roll entry in consequence of an exempting order takes effect, rates cease to be chargeable while the order remains in force. The subsection further provides for repayment to the appropriate person of any rates paid, being in this respect precedented by Section 20 of the Local Government (Financial Provisions) (Scotland) Act 1963. The subsection extends to domestic water rate as it does to ordinary rates. I commend this Amendment to your Lordships.
Lord CAMPBELL of CROY: We are grateful to the noble Lord, Lord Kirkhill, for explaining this redrafting. I have noted that this and the other substantial Government Amendments result in most of the Bill being redrafted. I say straight away that I certainly have no objection, nor do my noble friends on this Bench, when the Government have second thoughts at such an early stage of a Bill and listen to proposals that are put to them and come forward with such a large change in the wording of the Bill. I understand that it was the assessors who particularly asked for simplification of the procedure and we, for our part, would not wish to object to these changes. I think that your Lordships' House is a place where such revision is entirely appropriate. All I would add is, provided that enough notice is given to Members of this House to have time to consult those affected who are outside Parliament. There was enough time in this case, and just enough, so I make no complaint, but when changes are made at short notice it is of course difficult. The noble Lord has listened to representations which have been made to him; the result is this change, and a further one to which we shall be coming, and I would recommend it to the Committee.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
6.55 p.m.
Lord CAMPBELL of CROY: I should like to raise a point on whether Clause 1

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shall stand part of the Bill. The Government's object is to prescribe for exemption all subjects connected with the offshore oil industry. They made this clear at Second Reading of the Bill. I must again declare the interest in your Lordships' House which I have declared before, in that I work as a consultant to the oil industry. When the petroleum revenue tax was being introduced in the oil taxation Bill—and I am very glad to see the noble Lord, Lord Hughes, here, because if I remember rightly he was connected with those items of legislation going through the House at the time; he was certainly the Minister of State for the Scottish Office, if not the Minister piloting the Bill through—and when those matters affected by the petroleum revenue tax were being considered, there was no suggestion that the oil industry would also be subject to local government rates. If there had been, the Government, and certainly we on this side, would have taken that into account when we were considering both the petroleum revenue tax royalties and corporation tax and their impact on the industry.
What the Government are now aiming to do is to remove at an early stage the oil industry from assessment where its installations are below the low water mark. There are some questions which need to be raised. First of all, is it the Government's intention—and I hinted at this at Second Reading, so I hope that was enough to give the Government notice—to cover everything connected with the oil industry in this exemption? For example, there can be construction being carried out by what are normally building companies three miles offshore. For example, at the moment on the West Coast of Scotland there is a structure being assembled as a purely building operation—oil companies are not engaged in the actual work—and that structure is eventually going to be towed several hundred miles away to the other side of Scotland to East of Shetland. While the structure is three miles offshore—it is going to be there about a year—will it be exempted simply because it is related to the oil industry? I hope that it will be, because I think that it is the Government's intention that everything connected with the oil industry should receive this exemption. But it should be made clear at this
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stage, because the operation of constructing what is eventually going to be a platform is a building industry operation and not an oil industry operation.
Then I come to activities which are not connected with offshore oil or gas, because the Government have made it clear that these will not necessarily be exempted from rating. Hitherto piers, estuarial bridges, and undersea coal mines, for example, have been entered in valuation rolls and at Second Reading the Minister stated that fish farms would continue to be rated and not exempted, as on land agriculture is. Where salt water fish farms arc concerned there can be equipment and installations below the low water mark, and as I believe that this is likely to increase as an activity it will be important to know on what principle the boundaries between local authorities will be projected seawards.
I have given the example of fish farms but there are other installations connected with shipping which could also be rated. Where they are offshore near the boundary between local authorities there could be a dispute as to whose area they fall in. Could I ask whether there has been progress in Government thinking on this? It is not an academic point. There will be increasing activity, as I am sure all your Lordships will agree. in the waters off our coasts. There is a principle which was accepted internationally for the North Sea, whereby the boundaries between countries were projected in order to meet median lines. That is one system that could be adopted. My question is what progress has been made in this, and whether the Government have yet reached a conclusion.
I should also like to note the procedure in subsection (6)—and here the noble Lord, Lord Hughes, was very much concerned at the time—because this stipulates a procedure where private interests are affected in some special way in an order which is made under this Bill and where that order is hybrid. In this Bill there is the special 28-day system. That was proposed to save time in the Offshore Petroleum Development (Scotland) Act early last year. The system was formulated and agreed in your Lordships' House and the original text of that Act was altered after your Lordships had realised that not to give private interests

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a reasonable time to petition to a committee would have been a serious diminution of the right which had previously been available to them, and the noble and learned Viscount, Lord Dilhorne, took a leading part in that.
The noble Lord, Lord Hughes, accepted for the Government that procedure, which I notice reappeared in the Industry Act later, and here it is again, this accelerated procedure, repeated in this Bill. I draw attention to it because the Government have clearly adopted something which we worked out in your Lordships' House as an improvement on what had originally been proposed. I have put some questions to the Minister, and if he cannot reply to them all now I hope that he will find an occasion on which to do so.
7.3 p.m.
Lord KIRKHILL: The noble Lord, Lord Campbell of Croy, has posed a number of questions which I will attempt to answer in so far as I have been able to link them in the course of his remarks. I think I should start by saying that the exact scope of the exempting order will be settled following consultations, and informal approaches to oil interests have already been made. I come immediately to the vexatious question of seaward boundaries. This seems to the Government to be indeed a complicated issue. As I understand the position, in England and Wales the limit of a local authority's area is, with certain special exceptions, the low water mark, and provision exists for accretions from the sea to be added to the appropriate local authority area. The Scottish position is very different.
By the Local Government (Scotland) Act 1973 the new regions and islands areas are defined solely by reference to the boundaries of the abolished authorities, mostly deriving from those of the ancient parishes. Difficulty rarely arises over determining the common boundary between the two local authority areas but their seaward limits appear for most purposes to be totally undefined. The Local Government (Scotland) Act 1929 transferred the functions formerly administered on a parish basis to county councils and boundary changes in subsequent local government reorganisations have defined new administrative areas by reference to pre-existing boundaries. Subjects which extend below the low water
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mark, such as coal mines, piers and estuarial bridges, have been held by the courts to be rateable. The boundaries between authorities is, I understand, a matter for determination by the process of law.
Lord Campbell asked whether I would comment on the Government's view as to the derating of marine fish farms. The legal position concerning the rating of fish farms is complicated. During discussion of the Rating Act 1971, Amendments were moved in both Houses of Parliament which would have had the effect of derating buildings used by fish farmers. Those Amendments were rejected on the grounds that they were inappropriate to a Bill strictly limited to agricultural purposes. Subsequently the definition of "livestock" used in both the English and Scottish parts of the Act has been interpreted differently in England and Scotland. In Scotland, the Lands Valuation Appeal Court has ruled, in Wallace v. Assessor for the Joint County of Perth and Kinross, that fish are not livestock within the meaning of the Act. That decision is final for Scotland. In England and Wales, however, it has been held by the Lands Tribunal, in Jones v. Bateman, that fish do fall within the Act, so that the trout farm in question was exempt from rates. When an opportunity arises, the Inland Revenue may of course seek rejection of that decision. Both of those decisions relate to inland fish farms but they would presumably apply in principle to marine fish farms. The Government's attitude therefore is that the claim of fish farms to be derated cannot be substantiated by presumed analogy with agriculture. Any claim for financial assistance for the industry by way of derating or otherwise must, in the Government view, be based on its merits.
The noble Lord then asked: what would the Government's view be as to the possible uses of the exempting powers? It is likely that a number of interests may continue to urge that the use of the order-making powers to exempt particular classes of property, for example yacht marinas, should be more seriously considered by us. The Government's view is that the exempting powers are being sought in the first place in order to deal with the two particular problems clearly itemised in the Bill. While the powers

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sought are of course of much wider potential application, the Government do not have a present intention of extending their use. After the Bill is enacted problems will be considered as and when they arise. I have covered the points, as I understood them, raised by Lord Campbell. They were of course of a detailed nature and if my reply is not totally comprehensive I will communicate with him.
Lord HUGHES: I had not intended to intervene until some interesting points were raised by the noble Lord, Lord Campbell of Croy, about sea lochs. At least, I had not intended to intervene until later, when I would have done so to congratulate my noble friend on the fact that when he started to make drafting Amendments to a Bill he did not stop half way. It is perhaps a step to be commended to the Committee that when a Bill is obviously capable of being put into better language, the Minister concerned does not hesitate to get his skilled men to do that job, and for that reason my noble friend deserves our congratulations.
On the question raised by Lord Campbell about sea lochs, obviously it would be totally permissible, in terms of the way in which the Bill is drafted, for a Secretary of State at some time in the future to amend the order which he will be making under the Bill to bring fish farming in sea lochs into the category of non-rateable subjects or derated subjects as the case may be. Quite obviously no Government would do that unless it was intended to go the whole hog because it would be quite improper for fish farming in sea lochs not to be rated whereas fish farming inland, which is more likely to play a prominent part in our fish stocks in the future, were not to be dealt with at the same time. So, while I should have liked to envisage the possibility that the Minister might, in some months, issue an amending order to make fish farming a little more likely in sea lochs, I have no doubt that he will not be doing so, particularly when, in reference to the conflicting decisions taken in England, in, I presume, Wales and in Scotland, he went on to say, "the Inland Revenue will be taking steps to have this amended". I presume that, in saying that, he was not talking about the Scottish provision being
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altered. It would be the English one which would be changed.
Lord KIRKHILL: The words were, "might be taking steps".
Lord HUGHES: Oh, well, perhaps we may yet hope that, if the Government decide to let the English decision stand, even those who, like the noble Lord, Lord Campbell, and myself are not perfervid Scottish Nationalists will claim justice for Scotland in that respect. Perhaps the attention of the noble Baroness, Lady Emmet of Amberley, who is not here at the moment, should be drawn to this, because she is the House's strongest exponent of fish farming, but I doubt very much whether the Minister is really offering much hope to either the noble Baroness or myself in this matter. I conclude by repeating that my noble friend the Minister has acted very wisely and generously in the way in which he has amended the Bill.
Lord BALERNO: Like the noble Lord, Lord Hughes, it had not been my intention to intervene in this part of the debate, but I am afraid that I cannot refrain from rising to the bait used by my noble Lord friend Lord Campbell of Croy when he came to the problem of fish farming. I feel that I should be very wrong were I not to adjure the Government to reconsider this matter and to bring in legislation that could put Scotland on a par with England in this respect. It would be relatively simple to do and, indeed, it might have been done in this Bill. However, we are hopeful that there are other means by which this may be achieved. I would just say this: in view of the major preoccupation regarding Scotland at the present time, if Scotland had its own assembly, that assembly would almost certainly de-rate fish farming.
Lord CAMPBELL of CROY: May start by saying that, like the noble Lord, Lord Hughes, I am grateful that the Government decided to make this major redrafting at this early stage of the Bill. I am not sure whether the noble Lord Lord Hughes, was here to hear me say that on Amendment No. 2, but I expressed approval of the Government not feeling that they should be inhibited in coming forward with a major redrafting at this very early stage of a Bill introduced into this House. So I agree with the noble

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Lord, Lord Hughes, that, when Governments have second thoughts because of representations which are made to them, your Lordships' House is eminently the place where this can be done. We on these Benches will support them where it is a simplification for those who will have to operate the Bill.
I am grateful to the noble Lord for giving me an answer about the rating offish farms. This was a point which I raised on Second Reading and he has kindly used this opportunity to give us the results of considerable research, including the fact that fish arc recognised as livestock on one side of the Border and not on the other side.
The point which I was making at this stage was that of the projection of bounderies and I gave fish farms as an example of the kind of establishment which might be subject to rating well out at sea and where the location of the boundary line drawn between local authorities would be important. I am grateful to the noble Lord for having used this debate on the Question, That the clause stand part of the Bill, to make the statement that he did.
Clause 1, as amended, agreed to.
7.15 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 3:
After Clause 1, insert the following new clause:
Provisions supplementary to section 1.
.—(1) The Secretary of State may direct—

(a) an assessor not to enter in the valuation roll,

(b) the Assessor of Public Undertakings (Scotland) not to give a direction to an assessor under section 5(2) of the Act of 1975 so to enter,

lands and heritages of a type specified in the direction given by the Secretary of State, being lands and heritages which lie wholly or partly on, over or under the bed of the sea but which are not of a type then prescribed in an order under section 1 of this Act.
(2) Notwithstanding anything in sections 1, 2 and 5(2) of the Act of 1975, on receipt of a direction under subsection (1) above—

(a) an assessor shall not enter lands and heritages of a type specified in the direction in the valuation roll,

(b) the Assessor of Public Undertakings (Scotland) shall not give a direction under the said section 5(2) in respect of such lands and heritages,

unless and until the Secretary of State revokes the direction given under subsection (1) above.
(3) The Secretary of State shall, as soon as possible after giving a direction under subsection
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(1) above, inform the assessor or, as the case may be, the Assessor of Public Undertakings (Scotland) whether or not he intends to make an order under section 1 of this Act; and if he does not so intend, he shall revoke the direction.
The noble Lord said: Clause 2, as introduced, would require the assessor to give the Secretary of State advance notice of his intention to enter in the valuation roll any subjects of a type respecting which an order under Clause I would be competent; and it would inhibit the making of an entry in the roll until the Secretary of State intimates that he does not intend to make an order. There is provision for the Secretary of State, by direction, to except from this procedure such types of property as he may think fit. The Scottish Assessors' Association has argued convincingly—and this may be a reason why the Government have, as has been mentioned this evening, taken on board a change in some of their earlier concepts—that this system of controls would open new areas of uncertainty and scope for litigation. For example, there could well be a difference of opinion as to the need for advance notice of a particular valuation roll entry and a challenge of the entry on the ground that the requisite notice had not been given. And the notification procedure would of course entail administration costs, which the Government accept must be minimised so far as possible.
Accordingly, the new Clause 2 provides a simpler system which will rely more on the co-operation of assessors and avoid continuous routine exchanges between the Secretary of State and the assessors. It entails no more than a power for the Secretary of State by direction to inhibit for the time being the valuation of property of any type respecting which an exemption order would be competent under Clause 1, coupled with a requirement that the Secretary of State should as soon as possible thereafter inform the assessor (that is, the local assessor or the Assessor of Public Undertakings as the case may be) whether or not he intends to make an order; and, if not, to recall his direction. Where the power is not to be used and the direction is withdrawn, the assessor will be free to deal with the subject in question in the normal way.
Informal contacts with the assessors and the other usual sources of information can be relied on to provide advance

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warning of the possibility that some new class of offshore subjects may come into valuation. The delaying power is nevertheless necessary to ensure that consideration and consultation about exemption should not be overtaken by the making of valuation roll entries, as was the case with the oil fields. And it will, of course, reduce for the future the need for an order to impinge on existing assessments, as is necessary for the current problem of the oil fields and the road bridges. These two subjects are what the Bill is all about.
Subsection (1) empowers the Secretary of State to direct the assessor—that is, the local assessor or the Assessor of Public Undertakings—to refrain from making an entry in the valuation roll or directing the making of such an entry, as the case may be, of subjects of any type specified in the direction, being subjects to which the Bill applies. Subsection (2) prohibits the making of a valuation roll entry, or the giving of a direction for such an entry until the Secretary of State recalls a direction affecting such subjects made under subsection (1). Subsection (3) requires the Secretary of State as soon as possible after giving a direction made under subsection (1) to inform the assessor whether or not an exempting order will be made respecting the type of subjects which were specified in the direction. The subsection further requires the Secretary of State to revoke the direction if no order is to be made. This is intended to provide against possible criticism that the power to make a direction might be used capriciously—for example, to circumvent the Parliamentary procedure which an exempting order will require. I therefore commend the Amendment to your Lordships' House and I beg to move.
Lord CAMPBELL of CROY: The remarks which I made on Amendment No. 2 also apply to this Amendment, where the Government have taken the opportunity to revise the original text in order to simplify the procedure at the request of the Assessors, and I would commend it to the Committee.
Clause 2 [Provisions Supplementary to Section 1].
Clause 2 disagreed to.
7.21 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 4:
After Clause 2 insert the following new clause:
Housing adapted for severely disabled persons.
.—(1) When a dwelling has been adapted to facilitate its use by severely disabled persons it shall be eligible for a reduction in its assessment for valuation.
(2) In the consideration of the reduction in the foregoing subsection regard will be had to whether one or more persons who are severely disabled are inhabiting, or are about to inhabit, the dwelling.
The noble Lord said: With this Amendment it would be convenient also to consider Amendment No. 6 which is a necessary addition to the Long Title of the Bill. I say straight away that these are probing Amendments, as the Minister knows. I make no claims to drafting expertise on these Amendments; my aim has been to make clear what is needed, and in that I think I have succeeded. If the Government accept the principle behind these Amendments and are ready to take action now, they can themselves table the correct Amendments at a later stage.
These Amendments would bring into the Bill the urgent and very topical matter of special assessments for housing for the disabled. Clarification is needed as a result of cases in both Scotland and England. In Scotland there was the Brodie case and in England there was the Vandyk case. In the Vandyk case the Appeal Court decided in favour of the disabled person, in favour of a reduction in the rating assessment, but your Lordships' Rouse in its judicial capacity had to interpret the law and decided the other way. Yet at the same time the noble and learned Lords criticised very harshly the ambiguity of the existing legislation. As a result, on 10th May Mr. Barnett, the Minister concerned, stated in the Commons that the Government were very carefully examining the situation in the light of that judgment and were examining the question of what further legislation was needed.
That was nearly five months ago, and I hope that the Government are now ready to tell us what they propose to do. The particular part of the law to which the Vandyk appeal case referred was Section 45 of the General Rate Act affecting England and Wales, but the Scottish legislation is similar and there was a similar result soon afterwards in the Scottish case.
Having made up their minds, the Government may well say—and this is something which we have heard many times and which we can understand—that there is neither time nor opportunity in the Parliamentary programme for a clarifying Bill, although they have decided that one is necessary. But where Scotland is concerned, here is a valuation and rating Bill now going through Parliament, and so there is no need for the introduction of a new Bill. If the Government have made up their minds they could therefore easily add this point if they are ready to do so.
I accept that this is a complicated subject. During the Recess the noble Lord, Lord Kirkhill, and I have been in correspondence about this, and so I am aware that this is a complicated matter. But I hope that he will use this opportunity to tell us what is the latest position, as it is nearly five months since the statement to which I referred was made by the Minister in another place, and I hope that there will be a decision which is favourable to the disabled.
I know that I have said so before, but I feel I must repeat the point that in this field action of this kind is reducing public expenditure, not increasing it, because it saves money for the taxpayers and for the Government. If severely disabled persons can be helped to live in their own homes and can be provided with more independence and with the means to live lives of their own—which is the humanitarian side of the matter—it saves money, in contrast to their having to occupy places in hospitals or institutions. So anything which encourages housing to be adapted for the disabled, and encourages the greater use of housing by the disabled is a help in reducing Government expenditure and is not simply a case of asking the Government or the local ratepayer for more money. I hope that I have explained the purpose of these Amendments, and may I again make it perfectly clear that I have no intention of pressing them.
Lord KIRKHILL: I agree with the noble Lord, Lord Campbell of Croy, that Amendments Nos. 4 and 6 should be taken together. As he has indicated, we have been in serious correspondence about the very point which he raises this evening. For my part, I have been in equally serious discussion with my right
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honourable friend the Secretary of State for Scotland, and indeed with the other Departmental Ministers whose concern this matter very properly is. I have to say to the Committee that this subject is one of considerable complexity. Nevertheless, I have been in serious discussion and I want this evening at least to make the following statement to the Committee.
The Government are obtaining legal advice urgently on the effect of the Brodie and Vandyk cases on Section 8 of the Valuation and Rating (Scotland) Act 1956 and on the corresponding provision for England and Wales; that is, Section 45 of the General Rate Act 1967. In the light of this advice, and consultations with relevant interests, we shall consider what changes are necessary in order to meet judicial criticism of the legislation and to simplify its operation, while at the same time ensuring sympathetic treatment for the disabled. Consideration will therefore extend to the whole field of application of the two sections; that is, to institutional premises as well as to dwelling houses.
Researches so far have revealed fresh complexities and this, in my view, indicates the danger of being tempted to an easy or quick solution which at the end of the day might even add to the problems of disabled people. It is not yet possible, therefore, to be specific about the Government's proposals, but I give an undertaking that any necessary legislation will be introduced as soon as possible.
Lord CAMPBELL of CROY: I ant grateful to the noble Lord for what he has said—that the Government are treating this as an urgent matter—but naturally I am disappointed that he could not say more at this stage. I can only tell him that I and some of my colleagues—noble Lords here and colleagues elsewhere—will certainly wish to pursue this point. As the Minister knows, this is a matter of concern to all parts of the Committee, not simply to those on this side, and it will be raised on other occasions.
Nevertheless I am grateful that the noble Lord has agreed that this is an urgent matter. I am sorry that new complexities are becoming apparent, but I hope that this will mean that the Government will tackle these problems with renewed vigour. At this stage I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3 [Interpretation and construction. 1975 c. 30. 1854 c. 91]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 5:
Page 3, line 15, leave out from second ("the") to end of line 19 and insert ("lowest point to which the tide ebbs at ordinary spring tides and includes any estuary, arm of the sea and the waters of any channel, creek, bay or river seaward of that lowest point;")
The noble Lord said: This is purely a drafting Amendment made in the interests of clarity.
Clause 3, as amended, agreed to.
Remaining clause agreed to.
House resumed: Bill reported with the Amendments.

RETIREMENT OF TEACHERS (SCOTLAND) BILL [H.L.]
7.30 p.m.
Lord KIRKHILL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)
House in Committee accordingly.
[The VISCOUNT HOOD in the Chair.]
Clause 1 [Age of retirement of teachers]:
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 1:
Page 1, line 14, at end insert ("or the end of the school term in which he attains the age of 65, whichever is the later.")
The noble Lord said: This is quite a simple Amendment, and I hope I shall not take very long about it. The Bill as it stands makes teachers retire at 65—indeed, on the day they reach 65—if they have not retired earlier, as many of them do. This is modified to some extent so that a teacher with special responsibility can go on for another three months, and any teacher, whether he has special responsibility or not under the Bill, can go on, on a year-to-year basis, for such further period as may be decided, but he
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may not retain any post of special responsibility if he goes on longer than three months. I think this is the way the noble Lord explained it at the time. The purpose of my Amendment is a very simple one, and it is to insert some words at the end of line 14, where the Bill says:
"Subject to subsection (2) below, a teacher employed by an education authority or by the managers of a grant-aided school shall retire from the post in which he is employed—
(a) in the case of a teacher the sixty-fifth anniversary of whose birth is after 1st January 1977, no later than the date of his attaining the age of 65",
and then my Amendment would add,
"or the end of the school term in which he attains the age of 65, whichever is the later".
The point is a very simple one. It is that it is undesirable for a class that a teacher should be changed in the middle of a term. The noble Lord explained quite clearly on Second Reading that it was possible to make arrangements before the beginning of a term to ensure that the teacher would not retire; and equally, I take it, it is possible to make arrangements so that a teacher will not start teaching at the beginning of the term in which he reaches 65. But I think it is unsatisfactory to leave the matter in that form. After all, the really vital question to ask here is: Where does the best interest of the children or the pupils lie? I should have thought it was just as undesirable to change teachers in the middle of a term as it is to change horses in the middle of a stream. You do that only if you have to, if the horse or the teacher, as the case may be, cannot go any further. So I suggest that this is a simple Amendment which should make it sure that, barring, of course, fatality or serious illness, teachers will not have to be changed in the middle of a term even although they reach 65 during the period of that term. I beg to move.
Lord KIRKHILL: As I made clear at Second Reading, the Government's aim in bringing forward this Bill is to make a contribution to the reduction of unemployment among newly-qualified teachers by fixing the statutory retiring age at 65. The Amendment which the noble Lord, Lord Drumalbyn, proposes, would run counter to this aim, since it would defer, in some cases by two months or more, the date on which a newly-qualified teacher could replace a teacher who has reached the age of retirement. Nor would the

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Amendment produce comparable benefits for all the individuals affected. For example, a teacher whose 65th birthday fell at the beginning of a term would benefit far more than a teacher whose birthday fell towards the end of a term. I think I should point out here that the length of a school term is not statutorily fixed. Education authorities are free to fix whatever terms are appropriate to local circumstances, and to vary them from year to year, provided that they meet the requirement of the Schools (General) (Scotland) Regulations 1975 that schools must be kept open for a minimum of 200 school days in a school year. So a teacher with a birthday falling at the beginning of a long term would benefit more than one whose birthday fell at the beginning of a short one. A teacher whose 65th birthday fell during a school holiday would not benefit at all.
The Government's proposal, on the other hand, is in my view more equitable in that it treats all teachers alike, regardless of the length or date of the school terms, the school holidays, or the school year. Nevertheless, the Government realise that there may be circumstances where the needs of the school or of the indivdual teacher would justify employment after the age of 65. The Bill therefore provides that a teacher may be re-employed in a non-promoted post for periods of up to a year at a time; and a promoted teacher may be retained for up to three months in the promoted post he held at the time of his retirement. This should allow sufficient time for a smooth handover of responsibilities. I trust, therefore, that the noble Lord, Lord Drumalbyn, will accept that the Government's proposals aim to give equitable treatment to all who will be affected, while leaving a reasonable amount of flexibility in the hands of employing authorities. I hope that, in view of what I have just said, the noble Lord will not seek to press his Amendment.
Baroness ELLIOT of HARWOOD: May I ask the Minister a question about this? If you said that a teacher must retire at the age of 65, which might well be in the middle of term, your chances of filling that vacancy in the middle of term with somebody who wants, let us say, a promoted post are very poor. I was chairman of an education committee for
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years, and I know that what happened was that you could not fill a vacancy in the middle of a term unless it was a case of illness or some such thing, or you put in a temporary person, because when you are employing full-time teachers on a job they want to begin at the beginning of a term. Therefore, if you allow this provision to go through what will happen, or could easily happen, is that a teacher will be suddenly told in the middle of, let us say, the winter term, which we are now in, that he is aged 65 and he must retire. There may be somebody to follow on, but if there is not it will be very difficult to get somebody in November for a term which started at the beginning of September.
It would be much more equitable for the children if the teacher went on till the end of any term which he had begun and then retired, as the Amendment proposes. I think you will get much more complicated situations by having to shift teachers around in the middle of a term than if you say that such a teacher can stay until the end of the term, which may well be after he has passed the age of 65. This seems to me to be infinitely more satisfactory from every point of view. The idea of switching about because somebody's birthday happens to be in the middle of a term seems to be most unfortunate, and I do not think it will work at all.
Lord KIRKHILL: As I emphasised on Second Reading, and as I mentioned again this evening to your Lordships' Committee, the principal reason why the Government have brought this Bill before your Lordships is to ease the chronic unemployment situation among young teachers in Scotland. Hence the definitive 65th birthday—which can be predicted anyway. I think authorities can foresee when teachers in their employ will reach the age of 65. The other point that the noble Baroness should keep in mind is this. Most education authorities of which I have had experience normally create their own promotion list in advance of promoting from the list to specific posts, and, of course, this is the safeguard against the fear which the noble Baroness has mentioned.
Lord HUGHES: I had thought when listening to the noble Lord, Lord

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Drumalbyn, that his Amendment was one that I might urge the Minister to accept, until heard the explanation of my noble friend. I do not think the difficulties which have been indicated are likely to arise. In the case of the promoted post, if the man or woman is reaching the age of 65 at the beginning or at the earlier part of the term, then, as my noble friend indicated, it is not something which is going to be a matter of surprise to the local authority; for they know the ages of the teachers and can make arrangements accordingly. I should have thought that any prudent educational authority with a man reaching the age of 65 within a short time of the beginning of the term would arrange the appointment of a successor to take effect either from the beginning of the term or from his 65th birthday.
In the other case—and here I rather thought that the noble Lord had a point—where it occurs some way through the term, it would be a disadvantage to displace the teacher at that point. But if it is a promoted post, the provision to which my noble friend drew attention, that of being able to extend the employment for a period of three months, would, I think, in almost any case enable the employment to be continued to the end of the term thereby accomplishing what the noble Lord, Lord Drumalbyn, has asked for. I am not certain of the position in relation to the teacher occupying a post which is not a post of special responsibility. I think my noble friend referred to the possibility of those teachers being carried on from year to year. Would it be possible in that case for them to be carried on until the end of the term only; or must it be for a year? If the latter, that would be defeating the Government's object. It ought to be possible to carry on the ordinary post for a less period than a year if the authority want to do so.
Lord KIRKHILL: Replying to the latter point raised by my noble friend, the position is that the non-promoted teacher can have his continuing employment reviewed by the employing authority upon an annual basis. It is within the discretion of the authority for what period they continue to employ him past the age of 65.
Lord HUGHES: May I be clear in my own mind that, so far as the promoted teacher is concerned or the teacher occupying a promoted post, he can be continued for only three months at most in that post. The other one can be carried on from year to year but it is not necessary for the authority to re-appoint or to continue his appointment for the full year; it could be two months, three months or four months if they so wanted.
Lord KIRKHILL: That is so.
Lord HUGHES: In that case, Lord Drumalbyn's points are already covered in the Bill.
Lord BALERNO: I think the debate that we have heard on this point is sufficient to show that it is fairly complex and is not going to be too easily understood. But I think that my noble friend Lord Drumalbyn has a very strong point in his Amendment. It will make it straightforward and clear that it is the interests of the children which is primarily the concern of the education machine and not necessarily that of the teachers. The teachers must be considered, but they are secondary to the vital interests of the children. Therefore, I strongly support my noble friend in his Amendment.
Lord DRUMALBYN: I was going to emphasise the point that my noble friend has just made. I would at the same time fully acknowledge the points made by the noble Lord, Lord Hughes. The point really is a simple one. As I understand it, as the Bill stands the discretion is left in the hands of the employers as to whether they displace a teacher who reaches the age of 65 during the term at the point when he reaches that age of 65. They can make arrangements before or afterwards to mitigate or get over the difficulty; but they can do it. I say that this is bad for the pupils and if it is possible to avoid it should be avoided; and to make certain that any harm to the pupil is avoided there should be statutory provision for it.
I appreciate the purpose of the Bill in trying to create opportunities for young teachers, but I do not believe that this is the right way to do it. I think it is wrong to bring in a young teacher for the first time in the middle of term; just as I

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think it is wrong, if avoidable, to displace a teacher in the middle of term. Neither is for the benefit of the pupil. I would ask the noble Lord to consider this further. It is something which arose many years ago when I was in the Department of Education in Scotland and several changes have been made since. I still think this would be the right solution. I hope that the noble Lord will look at it again. I leave it in his hands. I will not ask for an assurance. I am sure he will look at it again.
Lord HUGHES: Before the noble Lord withdraws the Amendment, may I ask the Minister whether it is not customary in matters of this kind for the Department to issue not directions but administrative guidance to local authorities. Assuming that the Bill remains as it is—which makes it possible to do exactly what Lord Drumalbyn wants—would the Minister consider drawing the attention of the education authorities to the fact that they can do this; that it would be a proper exercise of the Bill to extend a teacher, promoted or otherwise, either for three months or to the end of the term in the case of the second case if this is in the interests of the education of the children?
Lord KIRKHILL: As to the latter point raised by my friend Lord Hughes, I will give some consideration to it without giving him at this time an unequivocal assurance. I can only say that I cannot add to the remarks that I made earlier. My position is somewhat different from that of Lord Drumalbyn, and I hope he will not press his Amendment.
Lord DRUMALBYN: As I know this must have been a question of negotiation with the IES and other bodies, it is rather difficult to amend without further negotiation. In the circumstances, I feel it right to ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
7.47 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 2:
Page 1, line 24, leave out from ("part-time") to end of line 25.
The noble Lord said: I beg to move Amendment No. 2, which is a probing Amendment. It is designed to inquire of
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the Government why it is proposed that the extension of employment of a teacher who has to retire under the terms of this Bill can be for only one year at a time. The question of the period for a teacher in a post of special responsibility is the subject of my next Amendment, Amendment No. 3. The aim of the Bill, which was described at Second Reading and confirmed again today by the Minister, is to help young teachers to get jobs; but I suggest that it ought also to be fair to the older teachers.
There have been special schemes and appeals to suitable men and women to enter into the teaching profession late in life at the times of shortage of teachers. Some of those who acceded to those appeals have been counting upon continuing to teach up to a certain age. They have also been counting upon their pensions. The Bill permits them to continue teaching up to the limit of one year at a time; but the decision whether they should be re-employed after the age of 65 will depend entirely upon the individual employer who will, in almost all cases, be the local education authority. Unless the Government change the Bill in the sense of this Amendment, it will be the local authorities who will have the decision as to whether or not a teacher can continue after 65. Naturally, there are some teachers who are anxious about this. When the Bill has been enacted, the Government can send out guidance, as the noble Lord, Lord Hughes, says, but they cannot dictate to the local authorities what they should do.
The noble Lord, Lord Kirkhill, at Second Reading said that the local authorities would be acting in a humanitarian fashion. I am sure they will; but none the less there is this anxiety among teachers. May I give an example of where pension rights could be affected. This is the case of an older teacher who is now 66 years of age. He entered teaching through the emergency plan of the late 1940s after military service. Four years ago he decided to buy in past added years for pension purposes. If he now has to leave teaching on 1st January 1977 he estimates that he will owe the superannuation fund about £400 since he had committed himself to paying 8 per cent. of his salary annually into the fund until 4th April 1978. When lie undertook to buy those past added years, he was

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given to understand that he would be able to teach until at least 68 years of age.
There is an example where it looks as though this Bill could have an adverse retrospective effect upon some teachers. That teacher tells me that he would never have committed himself to paying 8 per cent. of his salary over four years ago if this possibility of compulsory retirement by the local authority at this very short notice, any time after 1st January 1977, had been known. I hope therefore that the Government will consider how they can deal with that situation. Perhaps they can consider exemption by an amendment to the Bill later so that teachers who have never been in a post of special responsibility and have less than 35 years' reckonable service, could be exempted. That exemption could last for a set period, perhaps three years from the entry of this Bill into force.
There is a danger in trying to create vacancies for young teachers of being unfair to some of the older teachers who have to retire. I have given an example; the noble Lord is aware of this because I have been in touch with him about it during the Recess. I hope he can tell us what the Government will do to try to mitigate the circumstances which I have described. I beg to move.
7.52 p.m.
Lord KIRKHILL: At present Section 16 of the Education (Scotland) Act 1969 gives employers discretion to retain a teacher in employment after retiring age. Section 16(2), which deals with non-promoted teachers, prescribes a retiring age of 70 unless the employing authority otherwise determines. There was no apparent limit to the exercise of this discretion, and in areas of teacher shortage I am sure that employing authorities used it widely.
However, as I reminded your Lordships during the Second Reading debate on 27th July, we are now in a situation of teacher unemployment and such unlimited discretion is, in the Government's view, no longer appropriate. Nevertheless, it is not the Government's view that no teacher aged 65 and over should be employed. The Government accept that in certain circumstances continued employment may
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be necessary; for example, where it is otherwise impossible to find a teacher able to teach a particular subject or perhaps to take account of the teacher's personal circumstances. But in the present situation of teacher unemployment it is important to ensure that where a teacher is re-employed after retiring age that re-employment is on a short-term basis. The period of one year proposed in Clause 1(2)(a) does not mean that the individual is limited to one re-employment period of one year. If the authority think fit and the teacher is willing, there could be several successive re-employment periods but each one must not exceed one year. The effect of this is to ensure that at yearly intervals the employing authority re-examines the justification for keeping that particular teacher in employment.
I expect that the authorities will consider the individual circumstances of the teacher as well as the general teacher supply position in coming to a decision. The Amendment which the noble Lord has proposed would remove the obligation on employing authorities to re-examine the cases of re-employed teachers regularly, and would also leave those re-employed teachers in some measure of uncertainty. Given the present situation of teacher unemployment and the need of employing authorities to consider the circumstances of individual teachers and individual schools, the proposal in the Bill achieves the best compromise.
As the noble Lord, Lord Campbell of Croy, said, he has been in correspondence with me about a specific case, in particular about the case of the teacher with added years for pension purposes and his need to purchase these additional years by additional contributions while still teaching. The noble Lord pointed out such service might not be completely paid for by the time the teacher reaches the age of 65 or is already over 65 by 1st January 1977. I have explained that such a teacher will not be deprived of the additional years for pension purposes, but that instead of continuing to pay for them by additional contributions, any outstanding payment will be deducted from the lump sum element of his superannuation benefits.
It would be appropriate to mention that the Educational Institute of Scotland,

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with whom we have been in consultation, take the view that the Government's proposals could not reasonably be resisted at a time when so many newly-qualified teachers were unable to find work. I hope that in view of what I have said the noble Lord will not press his Amendment.
Lord DRUMALBYN: May I say a few words. In other vocations, when there is pressure of unemployment, it is not unusual to make arrangements for retiring older people. Is it not the case that there is always some form of compensation, some financial recognition of the special early retirement? Is there going to be none in cases such as my noble friend raised?
Lord KIRKHILL: In the terms of the question put to me, there would be no financial recompense. Within the structure of whatever pension and superannuation agreement with which the teacher is concerned, there would be full entitlement depending upon years of service and time of entry to the profession. Those would obtain.
Lord BALERNO: As the question of pensions has been raised, there are two questions (of which I have given the Minister notice) which I should like to put. First, I should like to inquire whether a teacher retired in the terms of this Bill and who is then re-employed in the terms of this Bill continues to draw a full pension as well as the remuneration for the re-employment? Secondly, will the Minister give an assurance that the potential pension due to a retired teacher will not be adversely affected by a retirement at 65 instead of at 70, as in many cases at present? Looking after the young entrant is a laudable thing to do. I support the Minister in what he says and the principle of this Bill. But it must not be done at the expense of those teachers at the other end of the scale.
Lord KIRKHILL: I should like to thank the noble Lord for giving me advance notice of these questions. In reply to the first question, the answer is, No, during the period a teacher is re-employed, the pension may be abated or withheld according to the level of earnings. In response to his second question, promoted teachers must already retire at 65. For
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Non-promoted teachers, there could be some adverse effects because pensions depend essentially on length of service. The Bill gives scope for re-employment which could earn additional pension after retirement.
Lord BALERNO: Might I suggest to the noble Lord that with regard to the abatement of the superannuation for retired teachers when they are re-employed, this might be an opportunity to put right this long-standing grievance of the teachers in Scotland. It would go a long way to compensate for the loss of pension they would otherwise have if they stayed on longer.
Lord KIRKHILL: I am pleased to note that the noble Lord, Lord Balerno, acknowledges that there has been a longstanding grievance from the point of view of the teaching body. Certainly there was no compensation in 1969, when promoted teachers were reduced or retired at the age of 65. However, I could not undertake at this time to press an initiative in the manner suggested by the noble Lord.
Lord CAMPBELL of CROY: I must confess to being a little disappointed that the noble Lord the Minister was not able to be more forthcoming on this matter. I am speaking of teachers who came into the teaching profession late in life as a result of appeals from the Government of the day to help to meet the shortage of teachers that then existed. The fact that they have only a certain number of years' pensionable service to their credit arises because they came in late in life at a time when they were very badly needed.
My noble friend Lord Drumalbyn pointed out that in many other professions there is some compensation when a change like this is introduced into a profession or business and people are asked to retire earlier. Far from there being compensation, in this case it is clear that such teachers are not going to receive all the emoluments which they had anticipated because they cannot go on for as long as they expected, though the pension rights, as the noble Lord said, are indeed protected.
Might I ask this? My understanding is that if this is going to be settled as the result of a lump sum payment and the £400, for example, the teacher I mentioned will find himself doing that because the

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superannuation fund is going to be dealt with as part of a lump sum. Am I right in thinking that a teacher in that position will suffer from a tax point of view more than if he had continued to teach, received his salary and continued to pay a percentage of his salary into a superannuation fund? To that extent, far from getting compensation, the teachers will be penalised to some extent as a result of this Bill. If I am right, could the noble Lord tell us whether the Government are applying their minds to that question and whether they can make any changes in the law that may be necessary to ensure that teachers in that situation do not suffer as a result of the tax situation?
Lord KIRKHILL: If I may for a moment revert to the earlier point made by the noble Lord, Lord Campbell, I should like to remind your Lordships that the special group scheme was intended primarily for applicants under the age of 45, although in practice some teachers were over 50 when they finally qualified. In publicity about the scheme, no mention was made about the possibility of remaining in post until the age of 70—and, of course, we are now dealing with the age group 65–70 this evening. The most recent brochure describes, for example, the benefits of retirement at or after age 60, with a minimum of five years' service. Other teachers who have re-entered teaching late in life may or may not have taken a refund of pension contributions when they left the teaching service. Those who did not will be able to aggregate, as we discussed, all their teaching service for pension purposes. Others, if they wish, may buy back their earlier service and thus bring their pension to a level which reflects their total teaching service. As to the point raised by the noble Lord, Lord Campbell, about the disadvantage a teacher may suffer as a consequence of a change in the tax position, I should require notice of that point. I will, of course, examine it and contact the noble Lord.
Lord CAMPBELL of CROY: I am grateful for the undertaking given by the noble Lord, and we can return to this at a later stage. I agree with the noble Lord that in the scheme of some years ago no retiring age was stipulated, but in the case of the teacher I mentioned who entered
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into this undertaking to buy back added years, he entered into that arrangement only four years ago and, of course, he had no indication that he would not be able to go on teaching until the age of 68. That is the kind of teacher we need to consider, who did come into teaching late in response to appeals from the Government.
Lord KIRKHILL: I ought to say, of course, that at no time was a guarantee given beyond the age of 65. As the noble Lord, Lord Campbell of Croy, will know from his own experience at the Scottish Office, there have been ebbs and flows in the teacher supply position in Scotland. This Bill primarily relates to a chronic shortage of jobs for newly qualified teachers and it has relevance only to those teachers who are aged 65 and above. In the circumstances I would have thought it was a most realistic Bill.
Lord CAMPBELL of CROY: The noble Lord is almost saying that anybody over 65 is incapable of teaching. I am not prepared to accept that. I am saying that this is a change in the conditions of service which is unfortunately going to have an adverse effect on some teachers who had no warning that this was going to happen. It will affect the pattern of their lives over the next four years, as it is coming into effect so soon. However, shall not detain your Lordships further on this point. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.8 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 3:
Page 2, line 5, leave out ("three") and insert ("six").
The noble Lord said: I beg to move Amendment No. 3. This is also a probing Amendment, because we should like to hear from the Government why the period of three months has been chosen for teachers who are in posts of special responsibility. I would suggest that it might be six, but this Amendment is moved merely to ask the Government to explain why they chose three. During Second Reading, the Minister said that the intention was to aim for a smooth hand-over and that this would be relevant halfway through a term if the 56th birthday occurred then, or if there was a special

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period of preparation for examinations. But if the teacher is employed beyond three months, his re-employment has to be in the basic grade post only, and we should like the Minister to explain the reason for that. I would remind your Lordships that in Scotland about 35 per cent. of teachers occupy posts of special responsibility, which is a fairly high proportion of the total of teachers. That is why it is important that we should have the Government's thinking on the subject. I beg to move.
Lord KIRKHILL: Section 16(1) of the 1969 Act prescribes a mandatory retirement age of 65 for promoted teachers, but gives employing authorities discretion to determine otherwise. At the time of the 1969 Act, in a situation of teacher shortage, it was important to allow employing authorities a good measure of discretion, but, as I have already pointed out to your Lordships, in a situation of teacher unemployment the Government do not consider that such unlimited discretion is appropriate.
As I indicated at Second Reading, the Government accept that automatic retirement of promoted teachers on their 65th birthday could cause difficulty or disruption in a particular school, especially if the 65th birthday fell during the middle of a period of preparing pupils for a special examination. That is one of the areas we have already touched on. However, in an admittedly uncertain world, I made the point in earlier discussion that birthdays can be fairly clearly foreseen, and I would expect that most education authorities would be able to arrange for the successor to such a promoted teacher to take over his responsibilities with a minimum of disruption. Nevertheless, there is a need for an element of flexibility, and the period of three months was determined as being that period which would enable the teacher to stay in post until the next following natural break in the school's activities, such as the middle or the end of a term, which would then be an appropriate time for the teacher's successor to take over.
To extend the period to six months, as the noble Lord's Amendment proposes, would allow a measure of discretion and flexibility which is not, in the Government's view, in present circumstances necessary and, indeed, could well be undesirable.
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As I said during the Second Reading debate, this is a time of rapid development, excitement and awareness in the world of education. It is clearly sensible that when an individual reaches retiring age his successor should take over from him as quickly as possible and with the minimum of disruption to the school timetable, and in the Government's view our proposals achieve that end. I hope the noble Lord, Lord Campbell of Croy, will not feel that he needs to press the Amendment.
Lord CAMPBELL of CROY: I asked the noble Lord whether he could explain why, when a teacher is retained after the three months, he then has to go down to another post and cannot remain in a post of special responsibility.
Lord KIRKHILL: Because, quite clearly, a teacher in a position of special responsibility will not be able to teach beyond the age of 65 within that post. There is a need for movement as between posts at that age, and I believe that that is the thinking behind the Government's position.
Lord CAMPBELL of CROY: Perhaps we could pursue that at a later stage. I now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Remaining clause agreed to.
House resumed: Bill reported without Amendment: Report received.

RACE RELATIONS BILL
8.13 p.m.
House again in Committee.
Clause 2 [Discrimination by way of victimisation]:
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 7:
Page 2, line 16, after ("brought") insert ("in good faith").
The noble and learned Lord said: We now come to Clause 2 of the Bill and I rise to move the first of a number of rather different Amendments relating to

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this clause. This Amendment which I am now moving is to insert at line 16 the words, "in good faith". At first sight, I think the Committee would be rather slow to appreciate the real purpose behind such an Amendment, the purpose of which is really to get rid of subsection (2) and the aim of which is to change the burden of proof in proceedings from the defendant to the complainant or the prosecutor. In fact, in some ways—
Lord HARRIS of GREENWICH: May I just ask the noble and learned Lord a question? As he has just indicated, he is moving the first of these Amendments. Would it be his wish to confine the debate entirely to the first of the Amendments, or would he like to assume that we shall discuss the broader issues which relate to this entire group of Amendments?
Lord HAILSHAM of SAINT MARYLEBONE: My thought was that the Amendments do not all raise exactly the same point, but we might have a fairly broad debate on this Amendment and, if we did have one, we could probably take separately those which do not involve the same point, but possibly at rather shorter length. But strictly speaking, and technically speaking, not all the Amendments to Clause 2 which stand in my name involve the point which I am now currently engaged in making.
The purpose of inserting the words "in good faith" after the word "brought" in paragraph (a) at line 16 is ultimately to get rid of subsection (2), and the purpose of doing that is exactly the same as the purpose of my previous Amendment in relation to Clause 1. The purpose in relation to Clause 2 is to put the burden of proof firmly on the prosecution or the complainant. I hope that I have now made that much plain. That being so, a great deal of what I have to say on Amendment No. 7 has already been said and will not be repeated. But I must point out that it must be seen, as indeed must the succeeding Amendments be seen, against the background of Clause 2 which is different from Clause 1, because Clause 2 is a particularly onerous and oppressive clause, whatever the desirability or undesirability of it may be thought.
The purpose of Clause 2 is to make a person guilty of discrimination, even when
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otherwise he would not have been found guilty of discrimination at all. That is its purpose and that is what, if it is unamended or passed in any form, it will achieve. Clause 1 and the succeeding parts of the Bill tell people, in substance, that if they discriminate against a fellow on grounds of race, colour or whatever we have been describing, they are guilty of an unlawful act under the Bill. But Clause 2 deals with people who have not, in fact. discriminated against others on grounds of race, colour or whatever else. That is the purpose of Clause 2 and one can see the arguments in favour of it, and I hope that the noble Lord will be as frank in conceding the arguments against it.
The purpose of Clause 2 is to say, notwithstanding the fact that you have not discriminated at all under the main provisions of this Bill, that if somebody brings proceedings against you under paragraph (a), or gives evidence or even information against you under paragraph (b) or paragraph (c), which will require separate consideration under a different Amendment, in relation to anything else under the Bill, or if it is known or even suspected, then you are to be treated as having discriminated against him. In my opinion, that is pretty rough stuff. A man who is innocent of anything is to be treated as guilty of something, though he has not admittedly done it, if somebody else says something untruthful against him.
Let me give your Lordships an example. I have already said how oppressive this can be in relation to Clause 12. It can stop a man from entering a profession. Under Clause 65 it can submit him to various penal procedures. Under Clause 66 it can submit him to an unlimited action for damages. But look at it in relation to Clause 25, to which we shall come in due course, about clubs.
Clause 25 says that people who will not allow on racial grounds people into clubs of 25 or over shall be guilty of an unlawful act. Let us suppose that I am a member of the Carlton Club, that somebody wants to join the Carlton Club and that he suspects or thinks that I have said, "You can't have this fellow because he is an Irishman"—or a black man or, perhaps worst of all, an Englishman. Let us further suppose that he thinks I have done that, with the result that he

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gives evidence against me to the Board and that they make me the subject of an inquisition or a charge.
This clause says that if I do not treat that man who has brought this false information against me in the same way as everybody else, I am to be treated as guilty of having done the thing which he has wrongly accused me of doing. That is the intention and that is what they want to do. It means that under Clause 12 I cannot become a barrister, that I may be liable to damages under Clause 66 and that I can be made the subject of an inquisition under Clause 65. This seems to me to be even rougher stuff because it is more than human nature will stand if you are made the victim of a charge of this kind, and the more odious the charge the more likely you are to resent being made the victim of it. I would not have such a man in my club. If originally I had been in favour of it, I should say I would resign rather than have that man in my club. But not a bit of it; I would not dare to say so if this Bill goes through.
All that is, as I say, pretty rough stuff; but, in the light of that, let us look at subsection (2) because it is that subsection with which I am concerned. Subsection (2) says that I am guilty unless I can prove myself innocent. It says so in plain and unmistakable terms. I have to prove both that the information was false and that it was not made in good faith before I can get out of all these adverse consequences. That is what the noble Lord is doing.
On the previous Amendment that I moved to subsection (1) the noble Lord, Lord Harris of Greenwich, assumed the white sheet of total innocence. He said, "Oh dear, no, we are not trying to make you prove a negative; quite the reverse. You have to prove a positive." But what about this point? You have to prove that the allegation was not made in good faith unless you are to be held guilty of something that admittedly you have not done. That is what this subsection is doing and it is pretty rough stuff. It is removing from the Statute Book any sense of propriety from the ordinary rules of law and the ordinary procedures which English law has hitherto proceeded upon. I think that the Government have gone mad simply because "race" is mentioned
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here. We are subverting the proven values of English law and it is for the purpose of re-establishing the values of English law that I move this Amendment.
How does my Amendment do this? It does it in a perfectly simple way. It is a very modest Amendment because hope I have made it clear that I do not like Clause 2; it is very oppressive. What my Amendment does is simply to say, "The Government have admitted to me by Clause 2 that if information was false and not made in good faith, Clause 2 should not apply". Therefore all I have said is that the proceedings must have been brought in good faith. That puts the burden of proof on the complainant before you can bring in this oppressive series of consequences. Whether it is good to bring in the consequences at all I beg leave to express considerable doubt about.
My whole object in moving Amendments at this late stage of the Bill is to remove some of the most glaring injustices. I said at the beginning that I am trying to remove the unintelligible, the unenforceable, the oppressive and the contrary to English procedures. This goes against the oppressive and it goes against the contrary to English procedures. In those words I beg to move the Amendment.
8.25 p.m.
Lord HARRIS of GREENWICH: I will, if the noble and learned Lord will forgive me, deal with a group of Amendments which have the same central purpose—that is, Amendments Nos. 7, 9, 11 and 14—and cover the same point. I will speak to them together although if the noble and learned Lord wishes on a subsequent occasion to speak to them, well and good. As the noble and learned Lord has said, this is an important clause of the Bill and it is right that it should receive the most careful scrutiny. It might be most appropriate if I were to say a few words about the general effect of Clause 2 of the Bill before I come to the precise question raised in this group of Amendments.
The proposition embodied in Clause 2(1) is that where a person has asserted rights under the legislation, or otherwise been involved in its enforcement, he should be protected from less favourable treatment

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on account of his actions. The question to which Clause 2(2) and the Amendments we are now considering are directed is, in what circumstances should a person forfeit the right to that protection. The Government's view, reflected in Clause 2(2), is that it would not be right for the protection to extend to a situation in which the action taken, on account of which the less favourable treatment was given, was malicious—in other words, if the action amounted to an allegation which was false and which was not made in good faith. It is also our firm view that this is the only situation in which the clause should not apply.
Before I come to the Amendments themselves, I would ask your Lordships to bear in mind how important the victimisation proposals in this Bill are. Your Lordships will be aware that the enforcement provisions of the Bill invite the victims of racial discrimination to assume more responsibility for the enforcement of legislation than they had hitherto had. To put it in more colloquial terms, they have got to stick their necks out in a way which they have not had to do in the past. If that purpose is to succeed it is surely important that we should ensure that adequate protection is afforded, and should be seen to be afforded, to those who seek to assert their new rights of redress. This is why, apart from the arguments of principle and more practical considerations, it is important to keep to the minimum the exceptions to Clause 2 and to ensure as much certainty as possible so far as the operation of this clause is concerned.
If I may take what I have described as this group of Amendments together—that is, Amendments Nos. 7, 9, 11 and 14—these Amendments would jointly have the effect of reversing the evidential burden in the clause in relation to the vital question of whether the complainant did in fact act in good faith. As the clause stands, it will not protect a person who makes an allegation which the respondent can show to be both false and made otherwise than in good faith. If Amendments Nos. 7, 9, 11 and 14 were made, the onus would be on the complainant to show that in doing what he did he acted in good faith. We have given this important question of the burden of proof in relation to good faith very careful
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consideration, but I have to tell the Committee that we do not believe that it would be right to reverse it in the circumstances which I have outlined. It has to be borne in mind in considering this matter that a complaint that a person has victimised another will not succeed unless the complainant can satisfy the tribunal or court on the balance of probability not only that he was treated in a situation to which the Bill applies less favourably than other people were, or would have been, treated but also that the reason for the treatment was the fact that he had done one of the things specified in subsection (1), paragraphs (a) to (d).
This is not a light burden for the complainant to have to discharge, and it puts the point raised in Amendments 7, 9, 11 and 14 in proper perspective: the question we have to consider is what exceptions the Bill should afford a respondent who has been shown to have treated the complainant less favourably on account of an act by the complainant within subsection (1)(a) to (d).
We remain of the view that an exception is only appropriate in cases where the complainant has made an allegation within subsection (1)(a) to (d) and where the respondent can show that the allegation was false and not made in good faith. If the respondent cannot show this, I do not believe he was justified in treating the complainant less favourably on account of the allegation, and do not believe that it would be right for him to escape liability. That is why the Government oppose and resist the Amendments which I have outlined.
In moving Amendment No. 7, the noble and learned Lord referred to subverting the values of English law and an oppressive series of consequences. Now he will realise, of course, the point that is about to come. We both agreed earlier today that we would do our best to avoid repeating ourselves, but I must point out that this was agreed in the Sex Discrimination Act of last year. That being so, I do not quite understand why rhetoric of this sort is employed, because I do not believe that this is oppressive, as the noble and learned Lord has suggested today. I think this is a reasonable series of steps which the Government have outlined in order to deal with the situation where complainants in the future are in fact

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going to have to take greater risks than they have taken in the past. They may conceivably be the victims of victimisation, and that being so it seems to me perfectly right that at a time like this we should take all appropriate steps to safeguard the people who are in that position. That is why we adopt the position we do.
Lord HAILSHAM of SAINT MARYLEBONE: That is one of the most extraordinary defences that I have heard for some time. First, about victimisation. There will be victimisation under the Bill, both ways. Let us not make any mistake about that. The coloured people will bring complaints—and they have been doing so—in cases where they suspect that employers have not employed them because of their colour. People who want to join clubs under Clause 25 will bring complaints, and equally tenants who want to obtain accommodation will bring complaints. Some of these complaints will be in good faith, some will be in bad faith. One does not wish to predict how many will be in good faith or how many in bad faith, but there will be some in bad faith. Indeed, my experience over 12 or 15 years has been that a great number of people feel that they have failed to get appointments or degrees, accommodation or employment on grounds of colour when in fact they have been rejected on grounds of competence.
There will be victimisation both ways, and when one enters into the field of clubs, which is the particular example I chose, there will be a number of complaints of one sort or another related to the admission of somebody to a voluntary organisation such as a club. To say to a man: "I may have accused you falsely. I may have done so in bad faith but you will first have to prove that or else you will have to admit me to the club or employ me to work next door to you or to enter into accommodation which you provide, or else you will not be allowed to join a profession or you will be submitted to an inquisition or else you will be made to pay damages", not for the original offence which was false, but for the subsequent offence, seems to me to be straining human nature to the utmost.
I said at the beginning that unenforceable and oppressive law is counter-productive. It really is not true that I am in favour of any form of discrimination on grounds of
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race, but if we start going mad when we use the word "race" and destroy the entire fabric on which English law is based we shall get into very deep water indeed. The noble Lord thought that he had made a very good point when he spoke about the Sex Discrimination Act. I did not take any part in the debates on that Bill, but I said during the Second Reading of this Bill that in my opinion the Sex Discrimination Act had been too short a time in existence for it to be found to be oppressive. We spent hours and hours discussing the placing of commas and other details of the Sex Discrimination Bill when it was going through this House, and if by any chance we did not discuss this aspect we did not do our duty; but I simply fail to understand why, if we did, we must introduce it again in this Bill. I am really not going to take the res judicata argument from the noble Lord in this respect, and I will venture to say that years ago, long before the noble Lord was a member of the Government, when the noble Lord's predecessors were passing through the House of Commons the Race Relations Act of 1968, I deliberately made them face the situation of race, religion and sex as a single complex and they defeated me by the rules of order. So I am innocent in this respect. The truth is that the noble Lord has made no effective defence whatever of a repressive clause and he seeks to retain the burden of proof on the defence in a way which I believe is not only repressive but will worsen race relations in this country. Therefore I propose to take this matter to a Division.
Lord AVEBURY: I have listened to both speeches on this Amendment, and I must disagree with the noble and learned Lord. I thought the Minister made an extremely effective defence of Clause 2 of the Bill and in particular the rebuttal of the arguments advanced by the noble and learned Lord, Lord Hailsham, in favour of this particular series of Amendments. While I do not accept that there is such a doctrine of res judicata in relation to the Sex Discrimination Act, I think it is becoming more and more obvious as we proceed with this Bill that points of principle arise on the Tory Front Bench in relation to race where they were conspicuously absent in relation to sex. This is not coincidental. Although the noble and learned Lord may not himself

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have been involved in the proceedings on the Sex Discrimination Bill, the reason is that the Tory Party takes a much more lenient attitude in relation to discrimination in regard to race than it did in regard to sex, and I am sorry that this should be coming across so clearly in your Lordships' House at the moment.
In regard to the instances advanced by the noble and learned Lord, let me take the Carlton Club first, because on one occasion I attempted to persuade the Government that the matter of clubs should be dealt with in advance of the general legislation now before your Lordships, and I am convinced that if that had been done it would have been conducive to better race relations in this country. However, that is now water under the bridge.
Let us suppose that somebody wishes to join the Carlton Club and he suspects that the noble and learned Lord has blackballed him. He makes a complaint to whatever organisation under the Bill deals with complaints against clubs, and in the meantime in some totally different relationship he treats him less favourably than another because he is aware that this person has made a complaint against him. Let us say, for example, that the noble and learned Lord is the employer of this individual who has applied to join the Carlton Club and at work he gives him all the nasty jobs to do because of the complaint that the complainant has made against him in respect of the Carlton Club. Does the noble and learned Lord think that that is a proper attitude? Does he think that if someone has made such a complaint against him it is right for him to exact retribution in some totally disconnected field?
Or let us take the question of complaints against employers, mentioned in the second speech of the noble and learned Lord. Does he think that, in this closer connection where someone made a complaint of discrimination at work, the employer is justified in victimising that person, for example, again by giving him the nastiest jobs in the factory to do while that complaint is pending? As the Minister said in his reply, we are asking complainants to do something which may have quite serious consequences for them. The noble Lord the Minister said we are
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asking them to stick their necks out in conducting the complaints on their own behalf, where previously they have had a powerful organisation to do it for them.
The Committee will be aware that this is one of the criticisms that some people have made of this Bill; that is, that we are placing too great an onus on the complainant, and, unless we provide for him the back-up resources of the Commission for Racial Equality which have been strengthened as the Bill passes through Parliament, it is likely that the number of complaints will be diminished, and that many injustices will not be rectified even though, as Jeoffrey Viner put it, this Bill represents an extremely powerful legal armoury. It is only an extremely powerful legal armoury for the complainant if he actually uses the machinery offered to him, and he will not do it if he thinks there can be retribution exacted by the person complained against in the manner described by the noble and learned Lord, Lord Hailsham.
So I hope that the Tory Party, if they are of the same mind as the noble and learned Lord, will reconsider their attitude on this matter. It is one of the cornerstones of the Bill that complainants should have free and unrestricted access to the machinery which is provided for them. If you deny this access or undermine it by making them subject to victimisation, you will destroy the Bill.
Lord HAILSHAM of SAINT MARYLEBONE: I am reluctant to detain the Committee, but it would be a disappointment to some of my noble friends if I did not reply to that quite extraordinary speech to which we have just listened. I very much regret that the noble Lord, Lord Avebury, in sharp and startling contrast to the reasonable attitude of the noble Lord, Lord Harris of Greenwich, should introduce Party politics into this matter, and talk about the Tory Front Bench, and things of that kind. I have established quite plainly that, in so far as I am concerned—and for this purpose I am speaking solely for myself, although on both of the occasions I referred to I was speaking from the Front Bench of the respective House I was in—I have always treated sex, religion and race on the same footing. I established that I had sought to move in the other place, when the 1968

125
legislation was going through, a clause or clauses which would have put them on the same footing and contained them within the ambit of the same rules in the same legislation. So, far from taking a different view about sex and religion from race, I have failed but tried my best; so as usual, when it comes from the noble Lord, Lord Avebury, that is wholly without foundation.
I now deal with the substance of the speech of the noble Lord, Lord Avebury. We are here discussing the burden of proof; we are not discussing what conduct is reprehensible or not reprehensible. That was the question the noble Lord put to me, but it is irrelevant. We are discussing whether conduct designated by
Resolved in the affirmative, and Amendment agreed to accordingly.
8.52 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 8:
Page 2, line 18, after ("given") insert ("accurate").
The noble and learned Lord said: If I am not going to be tied too closely, I think really this is consequential; the
126
the Bill as reprehensible should be assumed against a person so that he is guilty unless he is proved innocent, or whether he should be innocent unless proved guilty. That is the only point at issue in my present Amendment. I really think that the noble Lord is less than his intelligent self if he requires to be told it twice, but now he has been told it twice, and I hope at least the Committee, even if not he, has taken it in. I beg to move.
8.45 p.m.
On Question, Whether the said Amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 26.

CONTENTS

Armstrong, L.

Gridley, L.

O'Hagan, L.

Balerno, L.

Hacking, L.

Redesdale, L.

Belstead, L.

Hailsham of Saint Marylebone, L.

St. Aldwyn, E. [Teller.]

Bridgeman, V.

Harvington, L.

Salisbury, M.

Byers, L.

Hatherton, L.

Sandford, L.

Carr of Hadley, L.

Hives, L.

Sandys, L.

Carrington, L.

Hornsby-Smith, B.

Savile, L.

Chelwood, L.

Hunt of Fawley, L.

Seear, B.

Clifford of Chudleigh, L.

Inglewood, L.

Strathclyde, L.

Clitheroe, L.

Kemsley, V.

Tenby, V.

de Clifford, L.

Killearn, L.

Tranmire, L.

Denham, L. [Teller.]

Lyell, L.

Tweedsmuir, L.

Dundee, E.

Macleod of Borve, B.

Vernon, L.

Elles, B.

Monck, V.

Vickers, B.

Elliot of Harwood, B.

Monson, L.

Vivian, L.

Elton, L.

Mottistone, L.

Wigoder, L.

Falmouth, V.

Mowbray and Stourton, L.

Yarborough, E.

Foot, L.

Newall, L.

NOT-CONTENTS

Avebury, L.

Hughes, L.

Rusholme, L.

Birk, B.

Jacques, L. [Teller.]

Slater, L.

Brockway, L.

Kirkhill, L.

Stedman, B.

Champion, L.

Lee of Newton, L.

Strabolgi, L.

Collison, L.

Llewelyn-Davies of Hastoe, B.

Taylor of Mansfield, L

Davies of Leek, L.

Lyons of Brighton, L.

Wells-Pestell, L.

Delacourt-Smith of Alteryn, B.

Oram, L. [Teller.]

White, B.

Goronwy-Roberts, L.

Pitt of Hampstead, L.

Winterbottom, L.

Harris of Greenwich, L.

Popplewell, L.

main object of this Amendment is identical with the last Amendment. The difference is that I did not insist that the proceedings should be successful proceedings. I had originally put down an Amendment in this sense instead of No. 7, but I took it out again. But I think that the information should be shown to be accurate. The only effect of this is to reverse the burden of proof again. Now that we have had two Divisions, I would only say by way of addition to the noble Lord, Lord Avebury,

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that it was he and not I who introduced Party politics into this discussion. I would like him to study both Division Lists to see how many of the Liberal Party supported his fantastic view.
Lord HARRIS of GREENWICH: On the particular point that the noble and learned Lord has just raised, I would not contest that Amendment No. 8 is related so directly to No. 7 that the views of the Committee have been made known. I would say the same for Nos. 9, 11 and 14.
Lord HAILSHAM of SAINT MARYLEBONE: I beg to move Amendment No. 8.
On Question, Amendment agreed to.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 9:
Page 2, line 18, after ("given") insert ("in good faith").
On Question, Amendment agreed to.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 10:
Page 2, line 21, leave out paragraph (c).
The noble and learned Lord said: It would not be fair to say that this Amendment is consequential on the other two, so I had better propose it shortly. This is still the victimisation clause which we have discussed in the previous two Amendments. It is provided by this clause that a person, although he has not discriminated on the grounds of race or colour, is to be treated as having done so if the person against whom he acts in a discriminatory fashion has "brought proceedings"—which we have passed"—given evidence or information "—which we have passed—or
"otherwise done anything under or by reference to this Act in relation to the discriminator or any other person".
I said at the outset that I was concerned to eliminate the unintelligible, I was concerned to eliminate the unenforceable. I was concerned to eliminate the oppressive, and I was concerned to deal with things that were contrary to the principles of English law. I cannot indict paragraph (c) as being the last, because I do not understand it; it is unintelligible; it is certainly unenforceable and it is certainly oppressive. I beg to move.
Lord FOOT: May I add to the noble Lord's indictment that it is meaningless.
Lord HARRIS of GREENWICH: I have once or twice pointed out the apparent inconsistency between the position of the noble and learned Lord and the position taken, in his absence, on the Sex Discrimination Act. The noble Lord, Lord Foot, having just intervened, I would join him with the charge. He has been cheerfully voting against the position of his Party on the Sex Discrimination Act. I am sure it will be taken into consideration by the Liberal Members of another place, who, of course, took a totally contrary view. Having made that point, not between the noble and learned Lord and myself, who are behaving impeccably, but in relation to the Liberal Party or certain representatives of it, I would turn now to the particular Amendment.
Certainly I would agree that this appears to go rather wide. The noble and learned Lord will not be astonished to learn that I would not go so far as to say that it is unintelligible, as he describes it. I think the most sensible thing for me to do would be to give a couple of examples in which the protection of the victimisation provision ought to be available but which are not covered by paragraphs (a),(b) or (d). First, only paragraph (c) will afford protection to a person who gives evidence to the Commission for Racial Equality during the course of a formal investigation. If this provision were not there, there would be no protection whatever for a person who was giving evidence in an investigation of that character.
Secondly, only paragraph (c) will afford protection, for example, to a person who assists another to assert his rights under this legislation. Short of spelling out every example we can think of where the protection of the clause is desirable, we see no alternative to the form of words set out in paragraph (c). That is why it is drafted as it is. I agree that it appears to go rather wide. On the basis of the explanation I have given, of two quite important examples where there is a quite significant protection afforded, and taking into account the argument that it is important to look very seriously at this question of victimisation—given the fact, as Lord Avebury pointed out, that there has been substantial criticism outside the House

129
and to some extent in another place that the rights of some people who have a justified complaint will be to some extent deleteriously affected by this Bill—I think it is right to consider very carefully before we strip away protections offered in the Bill to the possible victims of victimisation.
Lord HAILSHAM of SAINT MARYLEBONE: I think the noble Lord has done his best but it is a very feeble best, is it not? He is trying to conceal what is really, if he will forgive my saying so, the nakedness of the land. Of course, if he put forward in a properly drafted form, a case which needs protection one would consider whether the victimisation clause ought to apply to it. But to say that because we have drafted the thing so badly that it does not cover information given to the Commission which we are setting up, and one other instance which I have now forgotten, is not a good reason for saying that anything which the man does under or by reference to the Act is to be penalised, is to count towards the penalisation of a person who has not himself been guilty of racial discrimination. This is really draftsmanship run wild.
I am not in the least interested in whether the thing is already in the Sex Discrimination Act or not. I simply am considering the merits or demerits of this Bill. It is the first time I have turned my mind to it, and I am encouraged to know that the noble Lord, Lord Foot, has turned his mind to it in the same way. He thinks it is meaningless; I thought it was unintelligible. Well, there is a difference between us, but perhaps it is unintelligible because it is meaningless.
Lord FOOT: If I may intervene once again, I should like the noble Lord the Minister to answer this question. Supposing it comes before a bench of magistrates to decide whether a person victimised has done something he should not have done or not done something he should have done, how are they going to answer the question as to whether the person victimised has otherwise done anything under or by reference to this Act in relation to the discriminator? Does it mean that the person supposedly discriminated against, the person victimised, if he has done anything in relation to the discriminator, has then a source of complaint? The words appear to me to be
130
completely unqualified and undefined. I should like to ask the noble Lord whether he comprehends the circumstances in which the person victimised can make a complaint.
Lord HARRIS of GREENWICH: As to a bench of magistrates, if I may begin with that point, a case will go to a county court. If I may say so, though the noble Lord became rather cross with me when I pointed out that he appeared to have been confusing the civil law with the criminal law, he appears to be continuing to misunderstand this provision of the Bill. There is no question of a bench of magistrates being involved in this. It is a question for the county court, as the noble and learned Lord, Lord Hailsham, has just pointed out.
It is a difficult question, and, though I would not accept the implied criticism that I had accepted something of what the noble and learned Lord said, certainly I would consider very carefully any question of any amendment at the Report stage on this important question. If the noble Lord, Lord Foot, feels that the language which has been used is too obscure, too imprecise, I would certainly be prepared to look carefully and as sympathetically as possible at any form of words he might put before the House.
I believe, however, that the two examples which I gave are important examples. First of all, on the question of the person who gives evidence to the Commission for Racial Equality during the course of the formal investigation, there is a protection there. I do not know whether the noble Lord thinks it right to give such a protection. I should have thought that he probably would take the view that it was reasonable to give such a protection. Secondly, there is the question of whether a person who assisted another to assert his rights under this legislation should be protected as well. These are the two issues which are affected so far as paragraph (c) is concerned.
I think that we have done as well as we possibly can to define what is, in fact, a rather difficult thing to achieve. If I may say so, it is easy to poke fun at this, but we are moving into a difficult situation where complainants are going to have to become much more actively involved in the pursuit of their own complaints than

131
is the position at the moment. If this Bill is to be workable, and I am quite sure that every Member of your Lordships' House would wish it to be so once it is on the Statute Book, it is essential that we have reasonable guarantees against victimisation of people concerned.
If the noble Lord, Lord Foot, on reflection would like to discuss this with me, or put down an Amendment, I shall gladly look at the matter most carefully. I am only anxious to ensure that we have as reasonable a piece of legislation as is possible in a very difficult field. Without that, I am bound to say that I think that the Bill, as drafted, is as reasonable as it possibly can be.
Lord HAILSHAM of SAINT MARYLEBONE: To be honest, I really do not think that this will do, because in this case the burden of proof is on the Government to justify their proposals. I do not think that the Government have justified their proposals. It is all very well to say to two unfortunate Members of the Opposition, the noble Lord, Lord Foot, and myself, of different Parties, that we must think up an Amendment to make sense of the thing.
Lord HARRIS of GREENWICH: With great respect, the noble and learned Lord is always fair, and I did not say anything of the sort. I said that if the noble Lord, and indeed I extend the invitation to the noble and learned Lord himself, would choose to put down an alternative form of words, I would ensure that the matter is considered and I am sure that my right honourable friend the Home Secretary would want to consider it. What I have said quite explicitly is that I think the present form of words is as reasonable as it can be in the difficult situation that arises on this particular question.
Lord HAILSHAM of SAINT MARYLEBONE: There is the point of difference between us. I think that the words as proposed are unreasonable and much too wide, and the Government have not established a case for doing it. Obviously, between now and Report, I shall try and scratch my head, as I have scratched my head throughout the Recess, as to how to improve this wretched
132
subsection, but I do not think I can. I shall do my best, but the burden is on the Government and I am bound to tell the Government that at this stage I think that we ought to take the provisions out because if they want to put something back in the burden rests on them.
Lord AVEBURY: I wonder whether I could put my question to the Minister. It might assist the noble and learned Lord to decide whether or not he spends his time in drafting a further Amendment. The noble Lord the Minister said that there were two examples of circumstances that might be covered by paragraph (c). He mentioned the person who gives evidence before the Commission when it is conducting its general investigation under Clause 48, and the person who assists the complainant in making out a case, for example, before the industrial tribunal. If those were the only two cases that we could identify, then we could cite them explicitly instead of having the general wording of paragraph (c). On the other hand, perhaps what the noble Lord really means is that the two examples he gave are ones that he has been able to identify at short notice, and that it would be an enormous task to go through the whole Bill and make sure of every possible action done under, or by reference to, this Act in relation to the discriminator, or any other person; to identify all the possible references in the Act which might have some implication here would be an enormous task for the Parliamentary draftsman. At the end of the day, one could not be absolutely certain that one had covered them all, and therefore one needs the blanket wording that we find in this provision.
With respect to my noble friend Lord Foot, I should not have thought that the county courts would find that much difficulty in interpreting these words in relation to the discriminator or any other person. The Minister outlined one example relating to the discriminator and one that could relate to any other person. As I say, I should not have thought that the county courts would have much difficulty in seeing which of the cases referred to which of those phrases in the provision.
The noble Lord, Lord Harris of Greenwich, said that this provision was in the Sex Discrimination Act. Maybe we have not had long enough experience of

133
that Act to know whether the county courts have had any difficulty in interpreting these words. If they had, I imagine that some indication of that fact would have been given by the lawyers. If there had been any insuperable difficulties they would have reported that fact to the Home Office and the Minister would have been able to tell us about it at this stage, and obviously he would have suggested that the wording be modified and I have no doubt that later on we would have made a corresponding Amendment to the Sex Discrimination Act so as to make the phrase more easily interpreted in both contexts. As the noble Lord has not done that and as I have not heard of any lawyers coming forward with such a suggestion, I do not think that the difficulties of interpretation mentioned by the noble and learned Lord and my noble friend are likely to arise.
Lord HAILSHAM of SAINT MARYLEBONE: So far as I am aware, there has been only one case under the Sex Discrimination Act and that concerned a woman who wanted to become a lorry driver, which did not raise any point in this connection. In other words, the Act has not been long enough on the Statute Book for anybody to see what it means.
Lord HARRIS of GREENWICH: The noble Lord, Lord Avebury, is right when he said that I gave two examples, but there could be others. If there were only two cases where one thought that there would be a problem of the kind which I defined, one could write them
into the Bill, but there could be others and that is why paragraph (c) is drafted in this way. If I may say so in the amiable spirit that has characterised all the exchanges between the noble and learned Lord, Lord Hailsham of Saint Marylebone, and myself, I am bound to say that he has made on some occasions the point that he has been in favour consistently, as indeed he has been, of one general omnibus discrimination Bill affecting sex and race and other questions. Increasingly I should welcome the position of being a fly on the wall when the noble and learned Lord is discussing these matters with his noble friends who discussed the Sex Discrimination Act with us because, as Lord Avebury said in somewhat partisan terms, which I dare not reproduce in the noble and learned Lord's presence, it seems to me remarkable that there are such substantial issues of law about which the noble and learned Lord feels strongly—I have no doubt about that at all—but which nevertheless were not taken on a previous occasion. Having made that short and slightly, though mildly, ill-tempered remark, I would only add that for the reasons I have set out I think that the wording of paragraph (c) is reasonable, but if the noble and learned Lord wishes to press the matter, he must of course do so.
9.14 p.m.
On Question, Whether the said Amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 23.

CONTENTS

Armstrong, L.

Foot, L.

Newall, L.

Balerno, L.

Hailsham of Saint Marylebone, L.

O'Hagan, L.

Belstead, L.

Harvington, L.

Redesdale, L.

Bridgeman, V.

Hatherton, L.

St. Aldwyn, E.

Byers, L.

Henley, L.

Sandford, L.

Chelwood, L.

Hives, L.

Sandys, L. [Teller.]

Clifford of Chudleigh, L.

Hornsby-Smith, B.

Savile, L.

Clitheroe, L.

Hunt of Fawley, L.

Seear, B.

de Clifford, L.

Inglewood, L.

Strathclyde, L.

Drumalbyn, L.

Kemsley, V.

Tranmire, L.

Dundee, E.

Killearn, L.

Tweedsmuir, L.

Elles, B.

Lyell, L.

Vernon, L.

Elliot of Harwood, B.

Monson, L.

Vickers, B.

Elton, L.

Mottistone, L.

Wigoder, L.

Falmouth, V.

Mowbray and Stourton, L. [Teller.]

Yarborough, E.

NOT-CONTENTS

Avebury, L.

Hacking, L.

Pitt of Hampstead, L

Birk, B.

Hale, L.

Rushholme, L.

Brockway, L.

Harris of Greenwich, L.

Stedman, B.

Champion, L.

Hughes, L.

Strabolgi, L. [Teller.]

Collison, L.

Jacques, L.

Wells-Pestell, L.

Davies of Leek, L.

Kirkhill, L.

White, B.

Delacourt-Smith of Alteryn, B.

Llewelyn-Davies of Hastoe, B.

Winterbottom, L.

Goronwy-Robert, L.

Oram, L. [Teller.]

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
9.20 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No.11:
Page 2, line 24, after ("alleged") insert ("in good faith").
The noble and learned Lord said: This is a consequential Amendment. It raises the same point as one which we have already fully discussed. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 12:
Page 2, line 27, leave out lines 27 to 29.
The noble and learned Lord said: This Amendment goes on the unenforceable and unintelligible line. I simply do not think that one could possibly enforce, or even understand or prove, anything which is so vague as to say,
"by reason that the discriminator … suspects that the person victimised has done, or intends to do,"
any of those things which are mentioned. I think it is quite unintelligible and quite unenforceable, and so I beg to move.
Lord HARRIS of GREENWICH: Once again, unhappily, the noble and learned Lord and myself are in disagreement. We start in this matter from the premise that the victimisation clause should protect people who have done any of the things specified in Clause 2(1) paragraphs (a) to (d), provided, that is, that they can prove to the satisfaction of the court or tribunal that the less favourable treatment they have suffered was on account of the action they had taken. We do not accept that the protection should be denied to a person who is contemplating legal proceedings under the Bill or who is about to give evidence to the Commission. Indeed in such cases the removal of the protection seems particularly dangerous.
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It seems to me that that is a significant argument which the noble and learned Lord, if he will forgive me saying so, does not meet by saying that this is unintelligible. I think that it is perfectly intelligible. The intention here is to protect the person who is about to give evidence and who the potential victimiser may well know is contemplating doing so. In a situation of this kind it seems to me, with respect, to be going a very substantial distance indeed to say that the person concerned, who is contemplating giving evidence to the Commission, can be victimised and have no redress as a result of it. Therefore, it seems to me that this particular form of words is reasonable, and I do not think that the case against it has been made out. For that reason I hope that the noble and learned Lord will not press it.
Lord HAILSHAM of SAINT MARYLEBONE: We are, I hope, still in an amicable frame of mind. I still do not know how the Government think that the alleged victim is going to prove what was a suspicion in the mind of the person against whom he makes a complaint. I can understand how he can prove knowledge; that is familiar territory to those of us who practise in the courts. If the Government had said, "believes on reasonable ground" or even, "believes he could prove it by evidence" that would be something to consider, but a suspicion is a purely subjective state of mind in the mind of the defendant. How one can tell what the defendant suspects I do not know, nor has the noble Lord said. However, being in an amicable frame of mind, and without the slightest intention of not putting down something else on Report, I will on this occasion, just as a gesture of good nature and good faith, ask leave to withdraw the Amendment, because it may be that I have not drafted it perfectly.
Amendment, by leave, withdrawn.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 13:

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Page 2, line 28, leave out from ("things") to end of line 29.
The noble and learned Lord said: This Amendment is really consequential on what we have already discussed. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 14:
Page 2, line 30, leave out subsection (2).
The noble and learned Lord said: I am sorry; I think I have made a mistake here, have I not? I think I am one Amendment in advance; but No. 14, certainly, dealing with subsection (2), is consequential on what we have decided. I am not sure that I did not mislead the Committee about the earlier one.
Lord HARRIS of GREENWICH: Yes, it is consequential.
Lord HAILSHAM of SAINT MARYLEBONE: It is consequential. At any rate, this one, I feel sure, is consequential. I am sure that the noble Lord, Lord Harris, if I did unintentionally mislead the Committee on the last Amendment, will put me right, but I am sure this one is consequential. I beg to move.
Clause 2, as amended, agreed to.
Clause 3 [Interpretation]:
9.26 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 17:
Page 3, line 1, leave out subsection (2).
The noble Lord said: This is the interpretation clause, and subsection (2) deals with racial groups. Racial groups are defined under subsection (1) as meaning:
"… a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls".
That seems to me fairly self-evident. However, in subsection (2), which I suggest should be left out, we have these qualifying words:
"The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act".
I am sure that those who are more intelligent
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or more well versed in the ways of the law than I am can understand what this means, but to the laymen reading this Bill this tends towards meaning that a door is a window if you like to call it a window, but if you want to call it a door you can call it a door. Could the noble Lord the Minister explain exactly what a racial group that can sub-divide itself like a bulb or a corm into more racial groups means, and how this provision could be useful in carrying out the purposes for which the Bill is brought before us? I beg to move.
Lord HARRIS of GREENWICH: The Committee will observe that, for the purpose of the Bill,
" 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, …"
The term "racial group" will be found in a number of provisions in the Bill: in the definition of indirect discrimination, and in a number of exceptions such as the Clause 5 exceptions for genuine occupational qualifications.
Generally speaking, where the term "racial group" is used in an exception, it appears qualified by the word "particular". Thus, by virtue of Clause 35, for example,
"Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare …"
When the Home Office were drafting the Clause 35 exception it was felt that there was a risk that the courts and tribunals might interpret "particular racial group" restrictively, so that, although Indians and Pakistanis, for example, might have the same special needs, such as language training, which required discriminatory provision—that is, to take an example which we have already used, language training courses restricted to Indians and Pakistanis—the Clause 35 exception might be held not to apply because the special needs were not the special needs of a particular racial group, but special needs of two particular racial groups. That is why the Bill is drafted as it is. Clause 3(2) was included in the Bill to overcome this difficulty and to ensure that the term "particular racial group" is not interpreted in this narrow fashion. I hope that that meets the noble Lord's point.
Lord O'HAGAN: What the Minister is talking about is not a racial group but a cultural or linguistic group. The references he made to Clause 35 in regard to education deal with those who have a particular cultural or linguistic tradition or heritage that needs special provision. It is nothing to do with race but with heritage and other matters. However, given the time of night, I will study what the noble Lord has said to see whether there are any improvements that I could make at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 18:
Page 3, line 13, leave out ("the same, or").
The noble Lord said: This is meant to be a helpful Amendment. It seems to me that the words that my Amendment seeks to leave out serve no useful purpose. If something is "materially different", it cannot be the same as something else. What is the use of having the words "the same, or". In the interests of economy, I beg to move this Amendment to leave out three words.
Lord HARRIS of GREENWICH: This Amendment raises the question of the extent to which the circumstances of, on the one hand, the person who claims to have been treated less favourably on racial grounds must be comparable with those of the person, not of the same racial group, with whom he is comparing his treatment. This is the comparison that must be made for the purpose of establishing whether or not an act of direct discrimination has occurred, and subsection (4) of Clause 3 spells out the basis of that comparison. It says that:
"the relevant circumstances in the one case [must be] the same, or not materially different, in the other."
The same provision, is to be found in Section 5(3) of the Sex Discrimination Act.
I accept that the words "the same" are encompassed in the words "not materially different": that if the relevant circumstances are the same in both cases there will be no material difference between them. To this extent, if the words "the same, or" were removed, nothing would be lost as regards the degree of comparability required by Clause 3(4). However,
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it could conceivably, be confusing for the courts and industrial tribunals if what I might term the "comparability provisions" in the Race Relations Bill and the Sex Discrimination Act were different in that the latter included the words "the same" while the former did not. However, having subjected the Committee to that argument, I will look at this point before the next stage.
Lord O'HAGAN: I am grateful to the noble Lord for having made yet again the case for having one comprehensive Act for dealing with discrimination. In view of that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.35 p.m.
On Question, Whether Clause 3 shall stand part of the Bill?
Lord SIMON of GLAISDALE: May I ask the Minister about the relationship of this clause to Clause 78?—because it is generally very inconvenient to the users of the Statute Book to have two interpretation clauses. It is still odder when one looks at line 33, page 52, to see "racial grounds" and "racial groups" having the meaning given by Clause 3(1), but that "nationality" in line 18 includes citizenship—which is exactly the same wording as is used in Clause 3.
Lord HAILSHAM of SAINT MARYLEBONE: May I reinforce this? I will do so in a few other words because something has gone wildly wrong with the drafting of these clauses. Let us look at Clause 3 first, which is the one we are discussing. It says:
"In this Act,"—
it does not say, "In this part of this Act" or refer to any particular clauses of the Bill. It continues—
"'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins".
Now move to Clause 70. One finds:
"In this section … 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and in this definition 'nationality' includes citizenship".
That is Clause 70. But Clause 3 has already defined "racial grounds" and "racial group" for the purpose of the

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whole Bill in exactly the same terms as is done in Clause 70. As to "nationality", in Clause 3 it says:
"'nationality' includes citizenship."
Although it is enacted for the whole Bill in Clause 3, it is repeated in Clause 70 for the purpose of the clause. If you go further and look at Clause 78, which is the clause to which my noble and learned friend referred, you find the words repeated for yet a third time. There must be something absolutely wildly wrong with the draftsmanship of this Bill. Please, will not the noble Lord take seriously the extraordinary muddle that these definition clauses arc in? I hope I have demonstrated this. If the noble Lord is in any doubt I beg him and his advisers to look it up in Hansard.
Lord FOOT: The noble and learned Lord is in error when he says that the definition of "nationality" is repeated in Clause 70. I think he was intending to refer to Clause 78.
Lord HAILSHAM of SAINT MARYLEBONE: I did, yes. And it is in Clause 72. There again, I hope that the noble Lord will look at it. If I was misled, I was misled in very good faith, because if the noble Lord looks at Clause 70, he will see that it says:
"In this section".
It may refer back to the 1936 Act; that is just a possibility. But this is in the Bill. In Clause 78, it reappears again. Whether or not the point which the noble Lord, Lord Foot, made—which may be a very good one—is valid, something has gone very wrong with the drafting. I recommend the noble Lord to look at it again.
Baroness ELLES: May I support my noble and learned friend when he said there was a repeat of part of Clause 3(1) in Clause 70? Subsection (6) of Clause 70 refers to "racial group" and gives the definition again. It is already given in Clause 3. My noble and learned friend is perfectly correct.
Lord AVEBURY: Does not the noble and learned Lord agree that the words in Section 70 are words to be inserted in the Public Order Act 1936, and it is necessary to have a separate definition in that Act?
Lord HAILSFEAM of SAINT MARYLEBONE: This is one of the matters I want looked at. It is the same point as the noble Lord, Lord Foot, made. If you look at Clause 78 there is a repetition of part of Clause 3. I omitted to point out that if you look further down in Clause 78, you find, bizarrely enough, that:
"'racial grounds' and 'racial group' have the meaning given by section 3(1)".
This cannot be sensible drafting. Either you put your definition section for the whole Bill in Section 3 or you put your definition section for the whole Bill in Section 78. It cannot be right to put it in the way it is in the Bill at present.
Lord FOOT: Nothing can disguise the fact that the three definitions in Clause 3(1) are repeated in Clause 78, the interpretation section. They are absolutely redundant and unnecessary.
Lord HARRIS of GREENWICH: A number of points have been made, and I will certainly cause them to be examined before the next stage of the Bill, which seems to me to be the most appropriate way of proceeding.
Lord SANDFORD: If I may make one other point before we leave Clause 3, reverting again to paragraph 57 of the White Paper, the general tenor of the Bill is that it is unlawful to discriminate either against or in favour of a racial minority. Earlier in the Session we were looking at an EEC Directive under which obligations would be laid on this country, as on all Member countries of the Community, not only to provide education for the children of migrant workers in the language of this country—which is obviously required—but also to provide facilities, if not more than that, for training and education in their mother tongue and their mother culture.
Obviously this will be desirable for many groups, but a requirement to provide that specially for certain groups defined by reference to their national or racial origins seems to me to constitute a breach of the legislation we are now dealing with, and not to be covered by paragraph 35, which renders exceptions for people's special needs. I would make the point that education and teaching for the children of migrant workers in their

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mother culture and mother tongue is not a special need but a perfectly normal one. Could the noble Lord explain how the EEC Directive and this legislation are harmonised in this respect?
Lord HARRIS of GREENWICH: No, I am afraid I cannot, without notice; but I will look into the point.
Clause 3 agreed to.
Clause 4 [Discrimination against applicants and employees]:
9.43 p.m.
Baroness VICKERS Baroness VICKERS moved Amendment No. 19:
Page 3, line 31, leave out from ("training") to second ("or") in line 32.
The noble Baroness said: I beg to move Amendment No. 19. This, in a way, is a probing Amendment because I should like to understand what certain words mean. The wording seems extremely wide and very vague. T refer, of course, to the question of
"any other benefits, facilities or services".
As I understand it, a person will get full details of a job when he takes it up. He has the opportunity for promotion and the chance of training—and "training" is described in Clause 78. It says there:
"'training' includes any form of education or instruction;".
It also says in the same clause:
"'education' includes any form of training or instruction;"
So we have it both ways in Clause 78.
I should like to know what is meant by "benefits and facilities" that are not included in the normal contract of work when an individual takes up a job. Surely all the benefits and facilities are explained to people. It is difficult to know what is actually included in "services" and "benefits", particularly benefits. If we are not careful, I think we shall have endless discussion on what are the rights of the individual and what are the facilities and services. Surely it is up to the person employing them to explain all the details about the employment so that people know exactly where they are. Also, I presume that the trade
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unions would keep an eye on their various members to see that they had all the facilities which are necessary. To write it into the Bill in this very vague way I consider could lead to difficulties, and I therefore put down this Amendment to find out exactly what is left out concerning this question of affording,
"access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services".
Perhaps we could be told what is meant by, "other benefits, facilities and services" which are not covered in the contract of employment. I beg to move.
Lord JACQUES: The inclusion of "other benefits, facilities and services", which the Amendment would remove, is intended to cover such things as housing, sports facilities and other fringe benefits which are not necessarily part of the contract of employment. For example, banks and some building societies often give preferential terms for mortgages, and many organisations give advantages in housing, while travel firms give advantages in holidays to their employees. It seems to the Government that these benefits ought to be covered by the Bill, and we have accordingly put in this paragraph.
Baroness VICKERS: I should like to thank the noble Lord for that explanation. I still believe that this provision is very vague, but at the present time I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.46 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 20:
Page 3, line 38, at end insert ("or to an establishment at which, apart from the employer and members of his household, fewer than six persons are employed.").
The noble and learned Lord said: I am afraid that this Amendment is rather more important than I should like it to be at this hour of the night. The point is that I have always maintained, and I believe it to be true, that this kind of legislation becomes decreasingly valuable, increasingly counterproductive and decreasingly enforceable as one gets down to smaller and smaller units in the field of employment, which is what we are discussing here, or in the field of housing if it is discussed in another

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context. I have chosen six as a figure, because it happens to coincide exactly with the figure which was chosen by the Government in Clause 10 for the minimum number of partners to whom the Bill should apply, and when one is dealing with very small establishments it does not make much difference whether one is dealing with employees or partners. Six is, of course, an arbitrary figure, but it was arbitrary when the Government chose it in Clause 10, and it is arbitrary now I have chosen it in Amendment No. 20. The point in both cases is that it can work both ways, and in both ways it can be oppressive and unenforceable.
When one is dealing with a group of, say, five workers, which is one below the figure of six that I have chosen, what happens if they choose to be Turkish Cypriots and a vacancy occurs which a Greek Cypriot proposes to fill? That can be repeated over a variety of cases. Let us suppose that five happen to be Pakistanis and Moslems who do not eat pig or bacon, and the new man turns out to be a Hindu who will not eat beef, but all have to be provided with dinners. Let us suppose that five happen to be Moslems and the new man is a Jew, or five are Jews and the new man happens to be a Moslem. Problems of human relations at that level and size of importance become insoluble. If one is dealing with a factory of 200 or 300 people, or even of only 25 or 30 people, it should be very easy to accommodate people with different prejudices and outlooks within the same workforce. But when one comes down and the number dwindles to six, the problem becomes very difficult.
There is a great deal of importance in this subject. I am sorry that it has come on at this late hour of the night, because if I were to elaborate it at inordinate length I should weary the Committee and I do not know that very much good would be obtained by it. I ask the Government seriously to look at this problem in the light of what they have put in the principal part of the Bill. If one looks at the later clauses of the Bill, I think it is in the late 60s, the miscellaneous field, that the Secretary of State is given the chance by Order in Council, or by some form of Statutory Instrument, to amend the sections relating to employment.
Therefore if I happen to be wrong about
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what I have said—and there is always that theoretical possibility, however unlikely it may be in practice—the Secretary of State and Parliament can put it right without amending legislation. I am told that it is Clause 73, so I was not all that wrong. If the noble Lord who is to answer will look at Clause 73, what I am ultimately suggesting is that one should exclude from the clause which we are discussing, Clause 4, very small establishments, in the same way as the noble Lord has already excluded establishments limited to a single household, and that if by any chance he is opening a door to abuse which can be remedied by legislation the remedy still remains in his own hand by looking at Clause 73 and introducing an Order in Council to that effect.
The only other point I should like to make is that I am not by any means suggesting that small establishments contain no discrimination. In fact, discrimination occurs in small establishments. Probably it occurs as frequently. It may be that it occurs more frequently than in large establishments, but when one comes to small establishments one faces employers with impossible dilemmas as between different races and groups. Also one reduces the powers of enforceability to vanishing point the smaller the establishment becomes. I am putting forward this Amendment in good faith, therefore, so that the Government may consider the problems and try to grapple intellectually with the real difficulties which I foresee. I beg to move.
Lord MONSON: I rise briefly to support. this Amendment, partly for the reasons which the noble and learned Lord has already advanced, with which I agree entirely, partly because it ties in to a certain extent with my Amendment No. 36, which it appears that we shall reach on Wednesday, and partly because, given that the word "nationality" is apparently to remain in the Bill, acceptance of the noble and learned Lord's Amendment will help to minimise the frequency of the potentially tense situations which I predicted when we were discussing the question of nationality in Amendment No. 2. I should also say that the number—six—is justifiable, in my opinion, because not only does it follow the precedent set in Clause 10 but also the precedent set in Clause 22 where exceptions are made for small dwellings.
Baroness SEEAR: I should like to question the noble and learned Lord's argument in connection with the enforceability side of his case. Enforceability in relation to small organisations is surely a valid argument where one relies on inspection—as, for example, in the Factory Inspectorate where it is virtually impossible for factory inspectors ever to get near the vast majority of very small organisations. But in this legislation, as under the Sex Discrimination legislation, we are not dependent upon inspection. We are not using inspection. These cases depend upon individuals bringing a case to a tribunal. It is no more difficult for an individual in a concern employing six people to bring a case to a tribunal than it is for an individual in a concern employing 6,000 people to bring a case to a tribunal. Therefore, I submit that whatever merits there may be in the other part of the noble and learned Lord's argument, there is no merit in his argument that it makes enforceability almost impossible.
Lord INGLEWOOD: I should like to support the Amendment put forward by my noble and learned friend because I feel that the addition of the words that he suggests would make the administration and the enforcement of this clause much easier than it is at present. The words, "private household" sound simple enough to most of us, but when we think about them we realise that they are very difficult to define and there is no help to be found. If any noble Lord looks at Clause 78 in which various terms used in this Bill are explained he will find that the words "private household" are not mentioned. Nowadays most of us probably think in terms of a small house with perhaps at most one or two people who may, for professional or other reasons, find employment there. But there are other forms of private household which could give rise to great difficulty if the Bill as at present drafted should ever become law.
There are still in this country a large number of private households where the main rooms are open to the public from time to time or where parts of the house are let as flats. Are they private households or are they not? If they are open to the public part-time, as something like 1,000 houses in this country today are open, they are manned by people who are not
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employed permanently but who in the main are neighbours, well-wishers and people of various interests who work part-time on those days.
I do not think I need say more. The words, "private households" standing alone in the Bill are not enough. These complications are very real and I think the definition should be clearer. I happen to live fairly near the Scottish Border. Whether or not the word "racial" can be taken to apply to differences that may arise in a short time when legislation which we hear about reaches the Statute Book I do not know, but I think it would be wise to follow the boy scout tradition and to be prepared. Therefore I submit that the words "private households" as they stand in the Bill at the present moment are likely to lead to endless difficulties, whereas if the words proposed by my noble and learned friend are added I think we shall avoid a great deal of trouble and a great many hard feelings.
Lord JACQUES: I think there is general agreement that the Bill should not apply to personal and intimate relationships. The difficulty is that we disagree as to where the line should be drawn. So far as the Government are concerned they say that there should be an exception for private households; there should be an exception for partnerships of five or fewer partners because in those cases there are personal and intimate relations. But we cannot agree that the same considerations apply to the small firm. We do not think that the relationships that exist there are of the same order as, say, in the case of a partnership. The partners are much more equal and the relationships are much more intimate and much more personal.
There was indeed an exception in the 1968 Act. It was temporary and it was phased out completely by 1972. Since then all firms of whatever size have been within the scope of the 1968 Act. In the view of the Government there is no reason for taking small firms which have been subject to the provisions of the 1968 Act for the past four years outside the scope of the Bill. We are not aware that small firms have found particular difficulties in complying with the provisions of the Act which in general are continued in the present Bill. There is also some evidence to suggest that it would be wrong to

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except the small firms. Research studies suggest that discrimination is likely to occur in smaller establishments, such as shops and that anti-discrimination policies are less often found in small plants. We feel this would be a retrograde step. We had it as a temporary measure under
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the 1968 Act; it was phased out in 1972; we have had four years without this exception for small firms, and we have no evidence to show they have suffered. I would hope the with that explanation, the noble Lord would withdraw his Amendment.
10 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I wish the noble Lord, Lord Jacques, would be a little more accommodating about this. Of course I realise that small firms are at the moment caught by the 1968 Act, but the reason why they are caught—and there has been very little complaint—is that the terms of that Act are not being observed inside small firms. They are not being observed, as I shall venture to show again in reply to what the noble Baroness, Lady Seear, said, because they are unenforceable. The Government must face the realities of the situation.
Some of us received a document which has received fairly wide circulation in the Press as well, called, No Bloody Suntans. This document expressly says that the small firms are those which probably discriminate in the bad sense worst of all. And the reason that they do it is that it is quite unenforceable. I myself do not believe that it is any good passing unenforceable legislation. I believe it is valuable to pass legislation which people will respect, because if they break the law, they will find that the law catches up with them.
If I may turn from that to what was said by the noble Baroness, Lady Seear, I think that for once she is making a mistake. Normally, I agree very much with the force of what she says, but on this occasion she has missed the point both from the point of view of the employer and also the point of view of the employee. I have never been a very large employer, and differ in that respect from some Members of the House. I once ran a small farm with a team of five, just about the size of the team I am discussing here. The whole reason one was able to make it work was that those five people got on very well with one another. If there was ever a row—and there was occasionally—either it had to be composed by diligence and patience, or else someone had to go. That is what happened. In these very small teams of people working for small concerns, everything depends upon a spirit of co-operation and team spirit. Enforceability in this field has nothing whatever
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to do with inspection. That is where I part company with the noble Baroness, Lady Seear.
Supposing you get these pictures which I painted in my introductory remarks. What is an employer to do, for instance, if he is faced with four people who will not eat pork or bacon, with one who will not cat beef, and he has to provide them all with dinners for seven days a week if it is on a farm, and five days a week if it is in a factory? In the end, they can have lamb and fish every day, but it may be that they will get tired of it, and it may be they will quarrel.
Supposing you get a firm in which there are four or five people, and the four or three make a dead set at one or two of the others. They may do it because the one or two are Jews, or Sikhs, or Moslems, or simply because they do not like their faces. Anyone who has worked in the conditions of five or six people working together in a single unit knows that one employee can have his life made a burden to him by ways which have no relation to what the real reason may be. He may find his clothes are missing from a locker; he may find someone spills something over his food. These things happen in real life. What are you to do if you are an employer? What are you to do when faced with this kind of situation? If you have a situation in which one Greek Cypriot is introduced into a firm consisting of five Turks, or vice versa, or one Hindu introduced into a firm consisting of five Moslems, or one white introduced into a firm consisting of five blacks—because, as I say, black racialism is just as violent and unpleasant as the other kind—what are you to do if that man's life is made a burden to him? I am trying to beg the Government—and I am trying to beg those who have at least as much idealism as I do; and I hope that I have some left after a long life in politics—to come to terms with the facts of life. However good their intentions, this is not going to happen in small firms and it is not happening now.
I wish the Government would try with some degree of intellectual honesty to grapple with these problems and not

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simply repeat the arguments we heard in 1968, as if they were pronouncements from Sinai, and as if those who did not happen to agree with them then and think they have been proved right since were morally defective, because the truth is that laws which are unenforceable and unenforced, as these are, are not good laws. I do beg the Government to be a little more accommodating.
Lord INGLEWOOD: May I ask the noble Lord to reply to my points, which I put forward in all seriousness because I felt that the words "private household" as in the Bill were very misleading. When the noble Lord replied, he did not refer to my points at all.
Lord BROCKWAY: I am only intervening because of the reference which the noble and learned Lord, Lord Hailsham, made to the document which has been sent to a number of us from the Wandsworth Community Council. It was a document in which a woman employed by an agency indicated that in that employment all kinds of subversive methods were used to prevent public evidence that the Race Relations Act was being outraged. She indicates in that document that the method of the agency was never to refer to anyone being refused on the ground of colour; "sun tan" and other terms were used. The noble and learned Lord has quite correctly said that the evidence of that document suggests that larger firms generally have obeyed the law in these matters. It is the smaller firms who are not obeying the law, and who, when they get in touch with this agency, indicate by the use of other terms that they do not want any person of colour.
I take exactly the opposite view from that expressed by the noble and learned Lord. I have read that document very carefully, and the impression it has left on me is that it is imperative that this law should apply to the smaller firms. He gave instances where it is going to be difficult. This document indicates that the reason why smaller firms refuse to obey the law is not because of difficulties of personnel who are employed by them: it is due to an instinctive prejudice; it
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is due to the fear in the case of shopkeepers that if they employ a person who is non-white they may lose customers. There is evidence in this report that that is even said when most of the customers are non-white.
I say very strongly to this Committee that if this measure is necessary, if we are going to take the view that race discrimination is wrong, that view has to be impressed on small firms more than on the large firms, because the small firms are even now disobeying the present Race Relations Act. I hope, therefore, that your Lordships will defeat the Amendment which has been proposed by the noble and learned Lord.
Lord JACQUES: I did not reply to the point on households because we are not dealing with households, we are dealing with small businesses. I shall read the record, and if I feel there is a point to which the noble Lord should have an answer I shall be pleased to reply to him in writing. I ought to say bluntly that there is a major difference between the noble and learned Lord and the Government. The noble and learned Lord takes the view that in all spheres if the law is unenforceable then it should keep out of it because it would be bad law. We do not accept that. We believe that there are some spheres, such as sex discrimination and race discrimination, in regard to which any law is exceedingly difficult of enforcement but nevertheless it is worth while because of the results it produces.
For example, one of the most successful of the sections in the 1968 Act is the section against discriminatory advertisements. That has been most successful. It has been most successful not because it was enforceable. It has been most successful because most of our people are decent people who want to abide by the law, and because it would be unlawful for them to discriminate in an advertisement they have not discriminated. Consequently, advertisements have been less offensive and there has been a contribution to good race relations as a result of that part of the 1968 Act.
Of course we have had to pay the price. We have had to put up with people like

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Relf, but we contend that it is worth while putting up with the Relfs in order to get the psychological effect of legislation in this particular field. There is a major difference between us. We believe that in many respects points in the 1968 Act which are difficult to enforce have been of great benefit. We believe that while much in this Bill is difficult to enforce it will be of great benefit. Most important of all, we strongly believe that there is much in the Sex Discrimination Act which is difficult to enforce but is nevertheless of great benefit, and we stand by that even though the noble and learned Lord disagrees with us.
Lord HAILSHAM of SAINT MARYLEBONE: The noble Lord is still being very intransigent, but I do not want to intimidate him. I would only suggest that he copies the tactics of his noble friend Lord Harris who has always managed to conduct these debates in a much calmer spirit, and much more acceptably. I was very surprised to hear the noble Lord say that the advertisement clause had been successful. I take exactly the opposite view. As it happens we are going to discuss it later on, and so I shall not say much about it at this stage, although the noble Lord might have provoked me into doing so.
The fact of the matter is that, like so much else in this Bill—and I am only repeating something I said in 1968—it is a curate's egg; some parts of it are good and some are bad, but unfortunately, like the egg which was given to the curate, instead of the good being easily separable from the bad, the bad has been allowed to infect the good. The advertisement clause is perfectly all right except that it prohibits advertisements from advertising that which would be lawful if done; it is a perfectly good clause apart from that, and to that extent I would accept that it is good and I think it probable that it has good results. But it has led to a very great deal of criticism from time to time. It is one of the things which made the Race Relations Board—for which, and for its chairman, I had a great deal of respect—ridiculous because they had to enforce a ridiculous law. By having to do so, they made themselves ridiculous.
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The noble Lord has altogether underestimated and misunderstood the relevance of Mr. Relf. Mr. Relf has defied the law with impunity. Whatever may have been the pre-Relf situation, he has now advertised to every member of the National Front that they can do so if they are willing to pay a price. The noble Lord and the Government really must not expect the post-Relf situation to be like the pre-Relf situation; they must make up their minds that sooner or later when they are dealing with something that is unenforceable they may for a time get a psychological result. They have done so in their traffic legislation. But if one has a law which does not command popular opinion at the level at which it is sought to be enforced, and if one tries to enforce it, one gets into a situation when people will defy the law and will defy it with impunity. The noble Lord is flying in the face of all human experience when he believes that when people can be shown to defy a law with impunity and make fun of it and make it ridiculous as well as create hate, they will do any good either by passing it and not enforcing it, which is what they have done so far, or by passing it and trying to enforce it, which is what I suppose one must assume they will do hereafter.
That brings me to the noble Lord, Lord Brockway. If anything was capable of provoking me into causing a Division at this stage I suppose it would have been his speech. However, I would have expected exactly that speech from the noble Lord, whose idealism is well known but who sometimes takes off into the stratosphere of idealism to the point at which he loses touch with reality altogether, and as I have known him for the best part of 50 years, both inside and outside Parliament, I am sure that he will not resent what I am saying about him now.
He takes off occasionally into the stratosphere of unrealism, and what I had hoped the noble Lord, Lord Jacques, would do was, in the spirit of his noble friend Lord Harris of Greenwich, who had general charge of the measure, really to show some sense that he was seriously taking on board practical criticisms from somebody who has spent his life trying to enforce the law and inculcate respect for

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it and who has actually been engaged in legal proceedings for over 50 years, and not simply sweep them aside and say out of the plenitude of his own knowledge and power that he knows better and that there is a fundamental difference between him and me.
That is a wholly unacceptable attitude, but I am not to be provoked on this occasion. It is late in the evening and I do not believe that the Committee, in its present rather sparse state, would be doing itself any good by yielding to the noble Lord's provocation and having a narrow Division on an important subject. I will therefore ask leave, in spite of the provocation that has been offered and in spite of the rather self-satisfied way in which the noble Lord replied, no doubt on instructions, to withdraw the Amendment, but without any undertaking that it will not be reintroduced at a later stage.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Exceptions for genuine occupational qualifications]:
10.20 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 21:
Page 4, line 30, leave out ("special ambience") and insert ("particular style or setting").
The noble Lord said: This clause deals with exceptions for genuine occupational qualifications and lists some of the varieties of occupation which grant dispensation from the provisions of the Bill as a whole. In view of the temperature which the discussions have reached, I shall try to be as uncontroversial as possible when I say that this Amendment is intended to be serious. One general ground that has been canvassed by those who have questions about the effectiveness, though not about the purpose, of the Bill is intelligibility. If any member of the public or person engaged in any of the activities for which exceptions are made should be looking at the Bill, if and when it becomes an Act, he will have to try to decide whether what he is doing falls within one of the categories listed in subsection (2) and so entitles him to do something which is apparently against the spirit and the letter of the Bill.
Subsection (2)(a) includes dramatic performances; sub-paragraph (b) includes artists' or photographic modelling work, and sub-paragraph (c) deals with restaurants. I ask the noble Lord, Lord Jacques, to put aside his views about the major clashes in policy between the two sides of the House and to think about the implementation of the Bill when it becomes an Act. I ask him to imagine himself in the position of somebody who is trying his best to interpret the provisions of the Act. That is the spirit in which I am moving the Amendment. Will the person who is likely to be wondering whether what he is offering in his restaurant or cafe comes within the terms of the Act know what a "special ambience" is? I understand that "ambience" has not been included in any law on the Statute Book until now. This is the first occasion on which it has been included. In that case, can the noble Lord tell me why the word "ambience" is not included either in the definition or the interpretation clause?
Accepting that most people may have some vague idea what a "special ambience" is and that the rest of the phrasing in sub-paragraph (c) may give a general idea of the objective, would it not be simpler to substitute for this rather vague phrase, for which there is no precedent in British law, something which is more easily understandable such as the words which I suggest in my Amendment—that is, "particular style or setting"?
It is not only on the grounds of general intelligibility that I bring the Amendment before the Committee. It is on the grounds that it is the small, isolated case where this law will be seen to be unworkable that will bring the whole apparatus of the new Commission and the legislation itself into disrepute. We have only to remember what happened in the case of the gentleman who wanted Scottish porridge. The "Scots porridge case" caused endless trouble and made the Race Relations Board look ridiculous.
It is on the minute matters of drafting that the Committee have to take particular care to ensure that the admirable intentions of the Bill are not made utterly unworkable. I suggest to the noble Lord, Lord Jacques, if he is feeling more conciliatory, that this is one phrase which needs looking at again, because the words "special ambience" have not

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occurred before, I understand, in British law. Even if they have, I am not sure whether this is something which most people who might be seeking to obey the law will readily understand. I beg to move.
Lord JACQUES: We found this Amendment rather attractive and we have given it very careful scrutiny. What we are trying to convey in this exception, for example, in a Chinese restaurant, is the general idea of the atmosphere which is created by the decor and surroundings together with the Chinese speech and appearance. We would agree with the noble Lord that style and setting go some way towards doing that. However after close scrutiny of his suggestion we believe that the phrase "special ambience" has the advantage of capturing rather more of the elements which go to create the distinctive atmosphere of such restaurants and that it does so more succinctly.
Another difficulty which the noble Lord may already have noticed, is that if his suggestion were adopted the wording of the subsection would mean that the tribunals would have to consider the style in which the food was consumed, rather than the style of the place concerned. This might mean, for example, that a Chinese restaurant would be covered if people used chopsticks, but a restaurant where knives and forks were used in a conventional way, such as an Indian restaurant perhaps, would not be covered.
I hope that the noble Lord will withdraw the Amendment, but would add that if any noble Lord can bring forward suggestions for improving these words we shall be very pleased to look at them; but we do not feel that the Amendment which has been moved makes the improvement which is desired.
Lord BYERS: I should like to suggest to the noble Lord that that is one of the worst briefs I have ever heard in this Chamber. It really is a travesty. I do not know where the noble Lord got it from, but it really ought to go back with instructions to have it reconsidered and re-written. We have got "particular style or setting" as against "special ambience". I honestly think that this is a
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nonsense, not to allow the noble Lord at least to be given the assurance that this will be looked at by the Government and not by other noble Lords in this House. Can your Lordships imagine going into a restaurant and ordering two ambiences and a lager?
Lord HAILSHAM of SAINT MARYLEBONE: I should like to reinforce the words spoken by the noble Lord, Lord Byers. This law has to be observed by ordinary people, not by people who know what "ambience" means and can translate it from French. When I go home tonight as I hope I eventually will, I might choose to go by Fulham Road. In Fulham Road there is an Arab restaurant. It is called I think—although my reading of Arabic characters is not quite what it was—"Beit el Baghdadi", which means the Baghdad House. I am trying to put myself in the position of the owner of the "Beit el Baghdadi", who, when he reads this Bill, will have to decide what it means and what he is going to do with it. There is a reasonable chance that an English-speaking Arab in this country, one who has been carrying on business here for some time, would know fairly well what my noble friend Lord O'Hagan meant when he was talking about "style or setting", but if he did not he could look it up in the dictionary or ask his friends.
But when he is asked to construe the words "special ambience" he will be referred to the speech to which we have just listened by the noble Lord, Lord Jacques. He will then be told that it depends entirely on whether the clientele eat their whatever it is—el helwah, or sheeps' eyes—with their fingers, by flicking the food into their mouths, or whether they do not. This does not do. The noble Lord made a very civilised speech, reading out what had been put into his mouth by those characters whom we are not allowed to name, but of whose existence those of us who have been on the Government Bench are perfectly well aware. Will the noble Lord not say, just to please my noble friend Lord O'Hagan, that he will take his suggestion seriously and that he will take it back and ask the Parliamentary draftsman to talk English, and not French, for a change—although there will come a stage, I suppose, eventually, when "la reine" will "la veult", or "voudra" or "veudra". But, at any rate, do let

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him talk English in the text of the Bill and think of something better or accept what my noble friend has put forward.
Lord JACQUES: This is not a matter of any great importance. We do not believe that the Amendment is an improvement.
Lord O'HAGAN: Is it any worse? That is the question.
Lord JACQUES: It is worse in what the clause will mean if the words in the Amendment are used, for the reasons I gave. It is better as it is in that it is a better understood language. That, I think, we would all accept. We will have another look at the wording. We might be able to fit in the words which are suggested
Resolved in the affirmative, and Amendment agreed to accordingly.
10.39 p.m.
Lord HARRIS of GREENWICH: I think at a moment like this the most appropriate motion to move is That the House do now resume.
Moved, That the House do now resume.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: I think we can all agree with that.
House resumed.

GREAT NORTHERN LONDON CEMETERY BILL [H.L.]
Commons Amendments considered and agreed to.
in the Amendment by recasting the paragraph altogether, but if any other noble Lord has any suggestions then, as I said earlier, we shall be very pleased to consider them.
Lord O'HAGAN: I do not quite know what to do. Perhaps I should offer the noble Lord a takeaway Chinese meal for a discussion on this important matter, but, because it is half-past ten, I think it is time to have an immediate decision. I press the Amendment.
10.32 p.m.
On Question, Whether the said Amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 29; Not Contents, 12.

CONTENTS

Armstrong, L.

Hailsham of Saint Marylebone, L.

Newall, L.

Avebury, L.

Hives, L.

O'Hagan, L. [Teller.]

Belstead, L.

Hunt of Fawley, L.

Redesdale, L.

Byers, L.

Inglewood, L. [Teller.]

St. Aldwyn, E.

Clitheroe, L.

Kemsley, V.

Sandford, L.

Drumalbyn, L.

Lauderdale, E.

Sandys, L.

Dundee, E.

Lyell, L.

Seear, B.

Elles, B.

Monson, L.

Vickers, B.

Elliot of Harwood, B.

Mottistone, L.

Wigoder, L.

Foot, L.

Mowbray and Stourton, L.

NOT-CONTENTS

Birk, B.

Jacques, L.

Stedman, B. [Teller.]

Brockway, L. [Teller.]

Llewelyn-Davies of Hastoe, B.

Strabolgi, L.

Goronwy-Roberts, L.

Oram, L.

Wells-Pestell, L.

Harris of Greenwich, L.

Pitt of Hampstead, L.

Winterbottom, L.

On Question, Motion agreed to.

  UNITED KINGDOM CITIZENSHIP
  UNITED KINGDOM CITIZENSHIP
  ROADS IN SCOTLAND: 1974 REPORT
  ROADS IN SCOTLAND: 1974 REPORT
  OIL PLATFORMS: BUILDING LAND
  OIL PLATFORMS: BUILDING LAND
  CHEMICAL WEAPONS OF WARFARE
  CHEMICAL WEAPONS OF WARFARE
  RHODESIA SANCTIONS AND AFRETAIR
  RHODESIA SANCTIONS AND AFRETAIR