§ 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.
§ 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 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 28 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 29 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 30 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
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 32 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 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 34 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 35 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 36 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 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 … raceet 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 44 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 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 65.47
|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.|
|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 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 52 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 53 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 54 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 55 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.
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 56 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.
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 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 57 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
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 59 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" 61 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 62 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 63 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 64 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 65 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 66 "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 67 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 68 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 69 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.
70 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.
§ Amendment, by leave, withdrawn.
§ 6.9 p.m.
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.
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.
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". 73 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 74 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 75 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 76 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 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 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 77 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 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 78 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 79 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.
§ 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 80 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 toso 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 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 81 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 82 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 83 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.
§ 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.