House Of Lords
Wednesday, 29th September, 1976.
The House met at a quarter-past two of the clock: The LORD CHANCELLOR on the Woolsack.
( Prayers—Read by the Lord Bishop of Saint Edmundsbury and Ipswich.
Sir Bernard Delfont, having been created Baron Delfont, of Stepney in Greater London, for life—Was, in his robes, introduced between the Lord Shawcross and the Lord Peddie.
Daily Part No 53/1975
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask the Leader of the House whether he will arrange for the Official Report of the business of the House of Lords for 26th February 1975, now out of print, to be reprinted.
My Lords, there is insufficient demand to justify the expense of reprinting this Daily Part of the Official Report. The weekly edition and the bound volume covering this period are both still in print.
My Lords, will the noble Lord look at this matter again, because although this is an exceptional request, this is also a report of a very exceptional debate—the debate on subversion and extremist elements in this country, which was introduced by the noble Lord, Lord Chalfont? Bearing in mind the times in which we live, does the noble Lord not think that it is important that as many people as possible should be familiar with all this information? The noble Lord can see the interest which there was in this debate as revealed by the fact that the original edition was so soon sold out.
My Lords, I sympathise with the noble Lord who is my neighbour. I agree with him that the debate itself was important, and I have read it. It concerns a very important subject. But in the circumstances, in view of the fact that there are bound copies of the weekly Hansard, and in view of cost and other matters, I think it is right to stick to the existing position. But bearing in mind the eloquence of the noble Lord of course I will look at this matter.
My Lords, I should like to ask the noble Lord the Leader of the House whether it would not be possible to have typed copies of this debate, as has been done on earlier occasions when there have not been printed copies?
But, my Lords, there are copies in the Library and there is the bound copy. There is also the weekly Hansard. Noble Lords could easily have that photostated.
My Lords, this is not for us to look at. The reprinting is requested so that this report can be circulated all around the country to those who are in need of a certain amount of information if they are really going to get rid of Marxism.
My Lords, I do not think that that debate will get rid of Marxism. But whatever the arguments about that, I hope that the views contained in that Hansard will be widely publicised. I accept that. For that reason I will have a talk with the noble Lord afterwards.
My Lords, can the noble Lord say how many copies were originally printed?
My Lords, 4,350 copies of Part 53 and 4,700 copies of Part 54 were printed—quite a considerable quantity.
My Lords, if the noble Lord is not prepared to have another run on this, would he authorise the waiving of the copyright on it?
I do not think that I have powers to do that, my Lords.
My Lords, is my noble friend aware that many of us think that this would be an unnecessary expenditure at a time when we are supposed to be economising?
My Lords, I agree that £322 is a considerable amount of money, even though it may seem small. One has to be cautious about this from a Parliamentary point of view.
My Lords, does the noble Lord agree that since the original edition was exhausted so quickly—and this was not just through Members getting free copies—he might recover a very large part of the £300-odd if he were really brave and had this report re-published?
My Lords, I know that the noble Lord has responded to what I have suggested. Let us have a discussion about it.
World Disarmament Conference Proposal
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they endorse the draft report prepared by the United Nations special committee on a world disarmament conference for submission to the forthcoming sessions of the General Assembly, and what view was expressed by the United Kingdom in the working document on the attitudes of Member States.
My Lords, as a Permanent Member of the Security Council, we were not a member of the Ad Hoc Committee but of course we co-operated fully with it. On the 14th July we welcomed the balanced and comprehensive nature of the Committee's latest report. Our view, expressed in the working documents, remains that such a conference might well give fresh impetus to the negotiation of disarmament if attended by all militarily significant States and certainly all nuclear Powers.
My Lords, I welcome that Answer, but is it not the case that the great majority of the 100 Governments consulted, including our own Government, have endorsed the proposal for a world disarmament conference, after due preparation? In view of this, would it not be possible to have, if necessary, a special Assembly of the United Nations to try to further this project?
My Lords, as no consensus exists among militarily significant States, the report of the Ad Hoc Committee concludes that efforts to create more favourable conditions for a World conference should continue. On the question of whether a United Nations Special Assembly for this purpose might be useful, my noble friend is aware that the "Non-allying" Summit in Colombo last August called for such a Special Session to be held in New York not later than 1978. We shall certainly examine any such proposal very carefully and I think very hopefully.
My Lords, is it not the case that the real difficulty is that the one nuclear power, China, is making this proposal rather difficult? Through our influence in the Security Council, is it possible, in co-operation with the United States of America, to try to resolve this problem of the Chinese objection?
Yes, indeed, my Lords; we and our American friends are constantly trying to do this. Regrettably it is a fact that the People's Republic of China have certain reservations about the possibility of such a conference; and such reservations, coming as they do from a nuclear Power, prevent a consensus from being formed. That is precisely what the Ad Hoc Committee was enjoined upon to try to secure.
Civil Service Manpower
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement on their latest views on the size of the Civil Service.
My Lords, the view of this Government is that the Civil Service must be properly staffed to carry out the work that Parliament gives it to do. The strength on the latest available date, 1st July 1976, was 744,100, which is some 3,500 less than the 1st April figure.
My Lords, I am grateful to the noble Lord for that reply. Is he aware that during the Recess there were reports that the Government were planning a substantial reduction in the Civil Service? I was hoping that he might be able to make a Statement about that today. If those reports are correct, can the noble Lord tell us which Departments will be most affected, or whether it is a uniform percentage reduction which is proposed?
My Lords, I think the noble Lord is aware that the Government have identified savings of £95 million in Civil Service manpower—there has been a Statement about this and, indeed, there have been Questions in another place—and other related expenditure in 1978–79 as part of the objectives announced in the White Paper Public Expenditure to 1979–80. The effect of these savings will be a reduction of about 26,000 in the originally planned strength of the civil Departments by 1978–79. To this must be added roughly 20,000 United Kingdom based posts to be given up by 1979 as a result of savings already announced in defence expenditure. I have further detail if the noble Lord would wish me to give it to him later, but I am prepared to answer a further supplementary question on this as well if that would be helpful. Perhaps I could. The planned reductions should result in a Civil Service of some 730,000 to 740,000 by 1978–79. Obviously, however, this figure could change as a result of changes in the level of unemployment and the rate of inflation.
My Lords, while endorsing the issue of being worried about the size of the Civil Service and not wanting to join in a wolf-hunt against the Civil Service or ululate against them, and while appreciating something of what they have done, may I ask my noble friend whether he is aware that, at the height of our imperial power, 120,000 civil servants did the job? Secondly, is he aware that much more important than the size of the Civil Service is for the sovereignty of the British people and Parliament to re-assert itself in altering the Constitution in so far as responsibility and accountability of civil servants to Parliament is concerned?
My Lords, I appreciate the nostalgia of my noble friend Lord Davies of Leek for the Empire—I feel so myself—but he must be aware that a number of changes have taken place. He was a member of an Administration which imposed certain duties on the Civil Service which caused us to have more civil servants. I am not going to go into that. Of course we will watch this; and we always recognise that there must be accountability and that Parliament must be in a position to check any abuses.
My Lords, returning to the original Question, would the noble Lord agree that, in curtailing the Civil Service, percentage cuts across all Ministries are not really the most satisfactory way to deal with this? If that is so, what members of Her Majesty's Government are responsible for deciding priorities in dealing with the size of the Civil Service?
My Lords, I now have a certain responsibility in my new position in charge of Civil Service manpower, but as a former Departmental Minister I understand perfectly well the problems of having an across-the-board solution. In the end, this is a decision which must be taken by Government and by the Cabinet.
My Lords, would the noble Lord—
Several noble Lords: Order! Order!
My Lords, let this side have a chance. Is my noble friend aware that none of these questions was asked at the time when 422,000 people were transferred from the Civil Service to the Post Office when we put through the Post Office Bill? No one complained about the reduction in the Civil Service on that occasion. Why should complaint raise its ugly head at this moment?
My Lords, I do not think there is any question of an ugly head about this. People are naturally interested in this; it is a very important part of our political life. The Civil Service are important to the Government and to everyone in the country. We want good service; but, on the other hand, we have to recognise the importance of public expenditure.
My Lords, without wishing to indulge in a further wolf hunt, may I ask the noble Lord whether he would agree that the answer to the difficulty about an across-the-board percentage cut in the Civil Service is to reduce Government and State intervention in industry, commerce and our private lives?
My Lords, that is another matter. I dealt specifically with the importance of public expenditure, and we must curb this.
My Lords, may I ask my noble friend, in order to ascertain the trend in total employment in the public service, what was the number and extent of the new intakes during this past year?
I am sorry, my Lords, I have not that figure available, but I will make certain that I get it for my noble friend.
My Lords, may I ask the noble Lord how many of these civil servants are industrial civil servants, and can he say from which Departments they come?
My Lords, if I had to give it now I should have to give a very long answer. I will try to get something circulated on this.
My Lords, I am grateful to the noble Lord for the statement which he made in reply to my supplementary question, and for the intention to make a reduction in the Civil Service; but can he tell your Lordships' House whether any discussions have started yet with the Civil Service unions and staff associations in that regard?
My Lords, I intend to meet the staff associations very soon. I believe we must have close consultation with the people concerned.
My Lords, would not the noble Lord agree that there is great scope for reducing the requirements for civil servants by simplifying some of our legislation, particularly in the social field?
My Lords, that is a matter to which noble Lords, in their own way, can make their contribution, and perhaps they can individually take the initiative re discussions in this House. But I myself now have Departmental responsibility, and I believe that what we are doing is right.
Eec: Green And White Papers
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many Green and White Papers about British policy in the EEC will be issued during 1976.
My Lords, in June the Government issued a White Paper reviewing developments in the European Communities for the six months period up to April 1976. A Green Paper dealing with direct elections to the European Assembly was issued in February. A White Paper covering the six-monthly period from April to October 1976 will be issued before the end of this year.
My Lords, is the Minister aware that the six-monthly White Paper, while of mild interest to historians, is virtually useless to those who wish to gain some idea what the Government intend to do inside the EEC in the future? In view of the fact that the British will take the presidency of the Council of Ministers at the beginning of next year, could not the Government give an under-taking that the British Parliament will be given an opportunity before then to discuss the major objectives which they hope to achieve during their presidency—a discussion on the basis of Green and White Papers?
Yes, my Lords, we are constantly looking at this matter to try to ensure that more frequent, more timely and better opportunity is given to Parliament to consider, ahead of decisions, what is Government policy. It is not an easy matter having regard to the structure and the present constitution, if I may call it, of the Community; but I shall very much bear in mind and convey to my right honourable friends what the noble Lord has said.
My Lords, in order to preserve some semblance of Parliamentary sovereignty over European affairs, if not over domestic affairs, would it not be more satisfactory if we were able to discuss the developments in the European Community during the next six months rather than the mistakes which have occurred over the last six months? We should like some firm commitment from the Government that they will enable the Houses of Parliament to discuss the matters which will be coming up at the Council of Ministers in Europe, and not those which have already happened.
Yes, my Lords, we would be most anxious to help to make this possible, and any suggestions beyond the somewhat polemical interjection of the noble Baroness would be most welcome.
My Lords, will the Government issue a White Paper on the Common Market telling us what benefits we have had since we joined, in view of the fact that we now have a massive annual deficiency in the balance of trade?
My Lords, within the limitations of Question Time I am afraid not but no doubt my noble friend, whose Parliamentary expertise is known to all of us, especially those of us who observed him in action in the other place, will find more than one opportunity to raise that question in this House.
My Lords, is it not a custom for Governments about to take up the presidency of the Council of Ministers to make a public Statement about what they want to achieve during their presidency?
I do not know about custom, but I should be very greatly surprised if there were not more than one indication of this country's intentions regarding its period of presidency in the first six months of 1977. Beyond that, I hope the noble Lord will not press me.
The Pound Sterling
My Lords, with the leave of the House, I should like to make a Statement about sterling.The Government have been much concerned at the sharp further depreciation of sterling seen in recent days. This has taken place despite the solid progress being made in tackling our underlying problems. But sterling, in common with all other major currencies, is floating and it is not appropriate or practicable to stand out in all circumstances against strong but temporary market pressure. I am pleased, however, to be able to tell noble Lords that there is a better atmosphere for the pound today. I believe that announcement of the Government's intention to apply for a standby from the International Monetary Fund has contributed to this improvement. That is the conclusion of the Statement, but may I add that the delicacy of all these matters necessarily inhibits me from being much more forthcoming. I trust that noble Lords will bear this in mind in putting questions to me.
My Lords, may I thank the noble Lord for making a Statement as was suggested by my right honourable friend the Leader of the Opposition in another place yesterday. I would say to him that I do not think anyone would underestimate the gravity of the position about which he is speaking. There can be no one in this country from any walk of life, whether workers, house-wives, businessmen, anybody, who does not regard the declining value of the pound with the utmost concern at the present time. I think it takes today the export of 15 cars to buy what the export of 10 cars would have bought in foreign currency three years ago. That is the sort of measure of what is happening to the pound.Having said that, I must say to the noble Lord that I find his Statement against the background of the gravity of the scene that confronts us somewhat below the level of what I think the country would expect. I do not suggest for one moment that the noble Lord is complacent. I know him too well and respect him too well, but I would say that there is perhaps a danger that some people reading this Statement, implying that nothing much was happening to us that does not happen to other major currencies, will feel that it gives a certain air of complacency which is out of place and dangerous for sterling at this moment. I should therefore like to put certain questions to the noble Lord. What we wanted to know was what fundamental policy changes and what actions do the Government intend to put a stop to this steady erosion of the currency? If he cannot say today, would he tell us when he could say? But he must be able to state some change of policy, some action, that is proposed. Could he say when we could expect that; or is it really, as this Statement implies, the intention of the Government to go on with the "mixture as before" and no radical change in policy whatsoever? If that is their intention, I think that the noble Lord should say so, so that we all know where we stand. I note that it is the intention to apply for an additional line of credit with the International Monetary Fund. I note, and I welcome the fact, that the noble Lord says that this may have contributed to a rise in sterling, something we must all welcome. But does the noble Lord recognise that loans, however massive, are a palliative? Would he agree that borrowing money just to buy our own currency is no possible solution to the kind of situation which confronts us at the present time? It would be no solution to any country, perhaps least of all to a country that is borrowing £35 million a day already; and that is distressingly obvious not only to us but, alas! to everybody who looks at what we are doing at the present time. May I ask the noble Lord what other policies he is considering? I note that his Leader was being much pressed at Black-pool to follow policies of a closed economy; that is to say, a wide use of import controls and the rest. I think that this House is entitled to hear from the noble Lord the Lord Privy Seal whether or not that is part of the Government's thinking. I am not expressing a view about it. I do not happen to agree with it much, but I want to know. This is purely interrogatory. I think that the country is entitled to know whether or not that is part of the Government's policy. Finally, my Lords—and this is really the main point I want to make—surely what is required now is a settled, long-term policy of relevant actions which are wholly devoted to the job of getting this country straight again. Central to such a policy must be cuts in spending simply in order that we should borrow less, because we must borrow less. We cannot go, every time there is a crisis, to another line of credit, another loan, another backing, by hard-currency countries. Sooner or later we have got to live within our income. I think that we are entitled to ask—
Several noble Lords: Order, order!
Why so, my Lords?
My Lords, I think it would perhaps be appropriate if I called the attention of the House to what all noble Lords already know: that a Statement should never be allowed to be made the occasion of an immediate debate. I feel—and I think that a great many Members of the House would agree with me—that the noble Lord was over-stepping our normal procedures.
My Lords, may I say to the noble Baroness that I took up this point before I came here with the noble Lord the Lord Privy Seal, for I was under the same illusion as is the noble Baroness. I therefore consulted the noble Lord the Lord Privy Seal, who said that I should not restrict myself entirely to questions though I might include some questions in the statement that I made; that I would be followed by the noble Lord the Leader of the Liberal Party. I am following exactly the advice of the Government Front Bench at the moment. May I be allowed to continue?My Lords, as I say, we must therefore have as central to the policy a cut in spending so that we borrow less. What reference does the noble Lord wish to make to money supplies? It seems odd at a moment when sterling is under the strongest pressure that he should manage to make a Statement without any reference to money supplies whatsoever. What hope does he hold out of how we might at least abandon some of the long list of expensive, divisive and irrelevant measures which are churning through Parliament at the present time? This is my last word. I am bound to say that at the moment it appears to me that the Government are on a disaster course. Unless they can reverse it, they would do better to leave to someone else the duty to take the necessary policies in the future.
My Lords, on a point of order—
My Lords, there are no points of order in this House. The noble Lord ought to know that. My Lords, I certainly would not wish to embarrass the noble Lord the Lord Privy Seal with questions which might make the situation more difficult but I think that Statements are an occasion when comments, short comments, are in order from the Front Benches. I find the present situation, as noble Lords themselves do, extremely worrying and far more so than the Statement which we have heard would indicate. I hope that the application to the IMF for standby credit will help the situation of the pound. Is not the fundamental trouble that we are staggering from short-term measure to short-term measure, and merely putting off the problem for a few weeks? It is time that we faced up to the fact that the value of the pound declines because there is a lack of confidence in our economy, both at home and abroad.At home this is resulting in an unwillingness to increase investment in industry and hence is producing high employment. This lack of confidence arises largely from the belief that Government policy is going to be dominated by the militant Left-Wing of the Labour Party who are hell bent on more and more Socialism and particularly on extensive nationalisation. The sooner we face up to this, no matter how unpalatable it may be, the sooner we shall solve these problems. This is undermining—we have seen it at Blackpool—everything the Prime Minister is trying to do in leading this country. This is no longer a matter of Party politics. It is a matter for the national interest. I believe that the Government have to make it clear that they will not allow this vocal militant minority to determine Government policy. We must once more insist on collective Cabinet responsibility. Above all, we should now recognise the dangers in our own political system where the House of Commons is totally unrepresentative of the voters. We shall not restore confidence until we adopt a system which gives minority groups their proper representation—and that goes for the Left Wing, too—but no more. Today you have a militant Left-Wing section of the Labour Party which is destroying confidence in what the nation ought to be doing.
My Lords, may I say to the noble Lord, Lord Thorneycroft, that yes, he and I met and I was under the impression that of course one could ask questions and then, if necessary, make short statements. I said "short statements", and that has been reiterated by the noble Lord. The noble Lord, Lord Thorneycroft, asked me a lot of questions which I would love to debate. There is no question about that. I do not think there is time to do so at this stage. I believe the Prime Minister, in a very fine speech, deployed the strategy that we require. I agree that there are parts of our economy which need strengthening. There is a need for more purposive investment. As a former Minister responsible for the food industries and for one of our greatest industries I know—and I have always argued this—that investment and confidence are essential to the standing of sterling in the outside world.The pound is up a little—3 cents—today, which is slightly better. I agree that the situation depends so much on our productive capacity and the confidence of industry. I am not doctrinal. I believe in a mixed economy. I believe that private enterprise has to work and profit have to be made. I believe that the nationalised industries, too, can work within this framework. This is a challenge. I thought that the Prime Minister made this abundantly clear in a very fine speech yesterday. Let us not be too pessimistic. In the end the future will depend on ordinary men and women, skilled and professional men, on managers, industry and trade unions. There must be a Social Contract; we believe in this. We are developing an industrial strategy. I say to both noble Lords, let us look at some facts. It would be very wrong of me to debate this and I do not want to do so. The number of days lost through industrial disputes this year was the lowest for any comparable period since 1967. The number of disputes was lower than at any time since 1953. What I am trying to say is that it is not all dark, and the danger is that some people paint too gloomy a picture. Of course, there are abuses on all sides. They have to be rectified. So today in making this short announcement on behalf of the Government, I hope that noble Lords on both sides will respond clearly and constructively.
My Lords, may I ask the noble Lord, Lord Peart, one question? Is he aware that the whole world is now waiting for the Government's announcement of their intentions as to how they are to implement in action the words of the brave and great speech of the Prime Minister yesterday at Blackpool? We are all waiting for that. We have not got it today; perhaps we could not expect it. Can the noble Lord give us some indication of when the Government will be in a position to state practically what they will do? There is no time to lose.
My Lords, I am grateful for the remarks of the noble Lord, Lord Boothby. He has been extremely helpful and constructive. The speech of the Prime Minister, which I also mentioned, outlines the strategy. This is why it will be essential that we should debate these issues in both Houses. But the Statement has been made.
My Lords, is the noble Lord aware that his statement about not being too gloomy is out of keeping with the whole situation? Things could not be gloomier? Is he not aware that the paucity of information in the Statement he made is almost an insult to this House, taking into account the conditions surrounding this country today? Ought he not to think of advising his right honourable friend the Prime Minister to recall the House of Commons so that Parliament as a whole can face up to the problems surrounding us in a way which can be truly effective? In the absence of that, we can only expect the situation to drift to levels for which the nation will not forgive this Government or Parliament if it allows this to happen.
My Lords, the noble Lord, who I know very well, is being too critical. If he feels that the House of Commons should be recalled, then he should give that advice to his own Leader. It is not for me to suggest that. He should do that. The House of Lords is sitting, and I am very honoured—even though I am being thrown in the deep end—to make my humble contribution today. In the circumstances, what I have said in reply to the noble Lord, Lord Thorneycroft, speaking for the Opposition, and the noble Lord, Lord Byers, speaking for the Liberal Party, is something of which they will take note, but I cannot go beyond that.
My Lords, would the noble Lord the Leader of the House take into account that there are a number of external factors over which the Government of this country have little control? First of all, the one over which they have control is the fact that we hold a reserve currency. What happens to the holders of sterling depends upon their views of the future economic situation. But there are other factors. It is the policy of Her Majesty's Government and the Opposition to look in a friendly way towards the Middle East in certain respects. That, not unnaturally, arouses a little hostility among those who hold opposite views.Is it not true that one of the major causes of the weakness of sterling stems not from internal factors but the fact that out money is being moved and continues to move from this country because the policy of Great Britain in relation to the North Sea oil is to carry on an ultra-expensive policy of developing that oil from American resources? Our policy to succeed means ultimately the price of oil may rise and that we ought to be a member of OPEC. OPEC will not even look at us so long as we pursue the policies in the Middle East. Would my noble friend—and he and I have often discussed this in the past—have a look at the Defence White Paper? In table 5 he will find this country is committed, as a result of an undertaking given by a Conservative Government, to maintaining four divisions in the Second Tactical Air Force on the European Land Base. It costs this country across the Exchange a sum of no less than £1,000 million a year. Is it therefore very surprising that the Deutschmark continues to be strong against sterling when we have a charge of this kind? The agreement by which the German Government should make a contribution towards our costs expired on 31st March last and has not been renewed. Is it not a fact that it is about time this country faced up—
Several noble Lords: Order, order!
Is it not a fact that it is time this country faced up to the realities of the world in which we live? If this country undertakes commitments, however pleasant, in relation to the Middle East, in relation to oil, in relation to NATO, somebody has to pay the bill.
My Lords, may I say to the noble Lord that of course we already recognise the problem of sterling and of those who hold sterling in different parts of the world. I do not want to get into an argument about Arab/Israeli relations or even matters concerning defence. I understand what my noble friend is saying about that. I have stated the position for the Government; and there it is.
My Lords, I think the noble Lord the Leader of the House, whom I do not personally blame, will have got the feeling from most Members of your Lordships' House that the House really thought that his Statement was totally perfunctory and quite below the level of what we should expect in a situation like this. We really must not get into a situation when it appears that Parliament is the only forum which is denied the opportunity of discussing the economic situation. I understand the Chancellor of the Exchequer is to broadcast tonight and I have a suspicion he will say more than three sentences about the economy. I must put this to the noble Lord the Leader of the House: will he give an undertaking that first thing next week he will make a proper Statement to the House on the economy?
My Lords, naturally I shall take note of what has been said and shall have consultations with the Prime Minister. If there is the need for a debate on the economy I am sure that, if it is appropriate, it will be a good thing. After all, many of the arguments raised today by your Lordships have been basically on wider economic and political issues than the narrow point of sterling as it is now. I have given to the House what I felt was right. I think the House has been tolerant because views have been expressed quite lengthily, and I have taken note of what has been said.
My Lords, is the noble Lord aware that when the Chancellor borrowed his first £3,000 million the pound stood at 1·77 dollars? There has been no change in policy at all. The Prime Minister said that borrowing should stop; but the pound now stands at 1·65 or 1·66 dollars. If there is no change in policy and borrowing is not going to stop, is the noble Lord aware that the pound will go much further down?
My Lords, I will take note of what the noble Earl has said.
My Lords, I hope there may be time for one more question from the Cross-Benches before we conclude this discussion. May I ask the Government whether they would consider the desirability now of developing the thought of my noble friend Lord Boothby; namely, of setting out in a public form which can be judged, appreciated and understood by everybody the measures it will be necessary to take to carry out the terms of the most courageous and excellent speech made by the Prime Minister yesterday? Is it not true that a great many countries have been in the same difficulty as the United Kingdom, though very few have the enormous financial responsibilities that we have? Is it not true that most of them have found it necessary to adopt a Stabilisation Programme, so that everybody knows and understands what has to be done? Would it not be desirable that some sort of British Stabilisation Programme should now be drawn up and adopted?I should like to put one more question to the Government. Is it not a fact that our common interest in this country in preventing it from falling under the waves of the North Sea is incomparably greater than our interest in seeing one section of the Labour Party down another section of the Party, or in the preservation at all costs of the unity of a Party, or in seeing one Party downing another Party? I believe that many people in this country are absolutely fed up with this situation. Would this situation which we now have, and which is much more serious than people realise, not justify the formation of a National Government to carry out a National Stabilisation Programme? I know this suggestion is not acceptable to a great many politicians, but I believe that our common interests outweigh all such considerations.
My Lords, may I just reply to the noble Lord, Lord Hankey, that I thought I gave a sympathetic reply to the noble Lord, Lord Boothby, on the need to have a document or some publication which would outline the broad strategy laid down by the Prime Minister. I will see whether that can be done.
My Lords, I certainly shall not disobey the counsels of the Chief Whip. I should like to ask one question on the broader issue which has just been raised. Has not the time come when the Government should accept that to carry through the very harsh and severe measures which undoubtedly will be required to deal with this crisis—which is a very real one, as the noble Lord, Lord Thorneycrort, pointed out—the country would welcome something more than a single-Party Government with limited electoral support? Should not the Government look towards calling in the Leaders of the other main Parties to form a Government which would spread the responsibilities of leadership and also would command confidence and electoral support far beyond that which is possible for any single political Party, whichever Party it is? It would be a Government of national recovery. We have had two such Governments—in 1931 and 1940—limited in time and in objective. The sole objective is that of national recovery and it would last only until that recovery had been achieved.
My Lords, in reply to the noble Lord, Lord Balfour of Inchrye, I would only say that he has made a short and cogent argument about Coalition Government. I have noted what he said: these views have been often expressed before.
Sexual Offences (Scotland) Bill Hl
My Lords, it has been decided to take this Bill on Monday next rather than today.
Licensing (Scotland) Bill
My Lords, I beg to move that this Bill be now read a second time. This Bill has two main purposes. The first is that it provides a complete new liquor licensing code for Scotland, replacing completely the Licensing (Scotland) Acts 1959 and 1962. That in itself is a worthwhile purpose since it is always useful to have a new and self-contained code. But in itself it is not a particularly exciting objective for a Bill and the more significant purpose is the second, which is the incorporation in new legislation of many of the recommendations of the Report of the Departmental Committee on Scottish Licensing Law published in August 1973.That Committee was set up by the noble Lord, Lord Campbell of Croy, when Secretary of State for Scotland. Its terms of reference were:
I do not propose to say much directly about the report but in the course of my remarks I shall touch on individual recommendations and our reaction to them. I should record, however, that the Clayson Report provided a suitable basis on which we could frame our proposals for change and that when comments were invited on it from interested bodies it received a general welcome. I should also record that in appropriate cases we also took account of the advice given earlier by a Committee chaired by the noble and learned Lord, Lord Guest, whom we hope will contribute to the debate. I think that it would be right for me at this stage to devote some attention to the first chapter of the Clayson Report, since it is there that the Committee discuss the significance of licensing as a weapon against alcohol misuse. First of all, they review the extent of the problem in Scotland and conclude in paragraph 1.17 that they have no doubt that Scotland suffers from a serious problem of alcohol misuse, both absolutely and in comparison with England and Wales. They emphasise in the same paragraph that the recommendations which follow later in the report were made with full awareness of the extent of the problem. They go on to consider three types of control of alcohol misuse: social controls deriving from the attitudes of a society; fiscal controls, which are taxation, and its effect on consumption; and legislative controls which basically are the liquor licensing laws. The Committee consider the respective roles of these and conclude that, having regard to the evidence of a relationship between total consumption and extent of misuse, the effect of any relaxation resulting in increasing consumption must be considered an argument against such relaxation. Where the increase is likely to be slight, the argument must be weighed in the balance against those which suggest that the relaxation is desirable. The Committee then went on to use this approach of assessing possible relaxations on the basis of judging the risk of increasing the problems of alcohol misuse against the desirability of more flexible arrangements. We, in turn had to exercise a judgment on these matters and consider how far it would be prudent to go in relaxation of the licensing laws. In some cases we did not feel able to accept the recommendations for relaxation made by the Committee. Our response to the report was outlined in the other place in a Statement on 28th October 1975 by the then Secretary of State for Scotland, Mr. William Ross. The Bill as introduced in the other place was very much in line with the Statement and has remained so with one exception. That exception is the Sunday opening of public houses. The Bill I now commend to the House contains provisions which the Government opposed at earlier stages in the other place. The Government make no quarrel with that. Having, I hope, set the scene, I turn to the provisions of the Bill. In doing so I shall concentrate on the new provisions, referring only briefly to what is mainly reenactment. Part I of the Bill provides for the constitution of a new liquor licensing authority, the licensing board, for each local government district and islands area. There is also provision for district and islands area councils to create licensing divisions which would have their own licensing boards. All the members of the licensing boards, whether for licensing divisions or complete districts or islands areas, will be members of the local authority. This is in line with one of the main recommendations of the Clayson Report. The Committee make out a convincing case, which we have accepted, in paragraphs 5.21 to 5.36 of the report for the replacement of the licensing courts which we have at present by licensing boards. Clause 4 provides for quarterly meetings of the boards instead of the twice yearly meetings as at present, and Clause 5 lays down which of the board's functions have to be discharged by full meetings of the board. The more important of the decisions to be made by the boards which will require full meetings are listed in subsection (2) of Clause 5. There are no provisions comparable to those in the 1959 Act creating licensing courts of appeal. Again, this is in line with a key recommendation of the Clayson Committee who favoured an appeal from decisions of the licensing board to the sheriff, a matter dealt with in Part II of this Bill. Part II, as well as catering for the new appeals provisions, deals with various aspects of the general licensing system. Clause 9 and Schedule I cover the types of licence which may be granted. "Licence" is the new title recommended by Clayson to replace the previous title of "certificate". Five types of licence—public house, hotel, restricted hotel, restaurant and off-sale—are retained on the same basis as in existing legislation. But two new types are added—the refreshment licence and entertainment licence. Both of these, again, were recommended by Clayson. The refreshment licence is in the nature of an experiment, since it will be available for premises similar to cafes which provide food and non-alcoholic drinks as well as alcoholic liquor. The main feature of this licence will be that children under 14 accompanied by adults will be able to be present up till 8 p.m. in the evening. It is hoped that such establishments, which can be licensed only when the new system gets under way next year, will be used by parents and children together, the parents having an alcoholic drink and the children soft drinks, with or without food. Such a development could well be of assistance in fostering a change in social habits affecting the social control discussed by Clayson, since children will have an opportunity to observe the use of alcohol as part of family groups, without the attendant mystery sometimes associated with adult-only drinking places. The entertainment licence is less of an innovation since it is primarily intended to provide a licence suitable for the needs of such places of entertainment as cinemas and dance halls, for which hitherto the types of certificate available have not been wholly suitable. Clause 11 is worth mentioning since for the first time in Scottish licensing legislation a procedure is created which will cater specifically for the application for a licence by a company. The application will have to name both the company and the employee with responsibility for the day-to-day running of the premises, and the company and the employee will share jointly the responsibility placed on licence holders by the Bill. Clause 16 adds to those who may competently object to applications a community council under the Local Government (Scotland) Act 1973, and any organised church representative of a significant body of opinion in the neighbourhood of the premises which are the subject of the application. Other procedural improvements are included in this clause as in much of the rest of Part II. Clauses 17, 18 and 19 are all new. Clause 17 sets out the grounds for refusal of applications and this replaces the present absolute discretion of the licensing court. The Government depart from Clayson in subsection (1)(d) of this clause, where we give the board power to turn down an application where in the board's opinion it would result in over-provision. This seems to us a suitable power for the board, although Clayson would have been content to leave market forces to determine whether there was a need for licensed premises in an area. Clause 18 requires for the first time that a licensing authority should give reasons for its main decisions. Clause 19 creates a new offence of attempting to influence a member of a licensing board to support an application. The maximum penalty for such an offence is a fine of £100, but the licensing board could refuse to consider an application from someone convicted of canvassing, and if the offence came to light after a licence was granted the criminal court, under Clause 66(3), could disqualify the licence holder and his premises. Clauses 23 and 24, as recommended by Clayson, help to identify the relative roles of the licensing board and the local authority in respect of licensed premises. Until the applicant produces relevant certificates from the local authority for planning, building control and food hygiene the board cannot entertain an application for a licence. And the fire authority must be consulted about fire safety. These clauses will not substantially affect the requirements already laid upon applicants for licences, but will provide a more systematic procedure with the respective responsibilities of local and licensing authority more clearly defined. Clause 32 makes the currency of a licence three years instead of one. This will avoid unnecessary administrative expense, but as a safeguard Clauses 31 and 32 provide for suspension of licences during the extended period of three years if there is misconduct or structural defect. Clauses 33 and 34 are also new, but can more readily be discussed along with Clause 63 in Part V. Clause 38(1)(f) is a new power for a licensing authority to set out in by-laws conditions for the improvement of standards of, and conduct in, licensed premises. This is part of our attempt to encourage the licensing board to adopt a constructive attitude in assisting licence holders to raise standards within licensed premises. As a safeguard, the by-laws require confirmation by the Secretary of State for Scotland to avoid any risk of arbitrary use of this new power. The last clause in Part II is one of the most significant. Clause 39 provides for the nature of the appeal to the sheriff. Rights of appeal are created by individual clauses, for example Clauses 17 and 31, but this clause contains the general provisions applying to all appeals against decisions by licensing boards. It is not intended that the sheriff should be able to substitute his decision on a licensing matter for that of the authority, given the statutory duty in this field. Thus the grounds of appeal are carefully set out in subsection (3) and the powers of the sheriff on upholding an appeal are set out in subsection (5). Subsection (7) gives a right of appeal on a point of law from the sheriff to the Court of Session. Parts III and IV are substantially reenactment with the necessary modifications to bring them into line with the new system. Part V is probably of most interest to members of the public since it deals with the permitted hours and it is the changes here which will obviously affect the public most. Clause 53 sets out the new permitted hours. The main changes are the addition of one hour to the evening permitted hours, making the closing hour 11 p.m. instead of 10 p.m., and the provision, subject to Schedule 4, for Sunday opening of public houses. As I have already explained, Sunday opening of public houses was added to the Bill in the other place against the Government's advice. There are therefore still some consequential Amendments required to the Bill to make it completely consistent in relation to Sunday opening and I shall put these down for the Committee stage in due course. There will also, again as a consequence, be some Amendments to Schedule 4 which contains the safeguards on Sunday opening. We are not satisfied that the procedure laid down in the Schedule is adequate for all purposes and I shall propose some improvements. The new closing hour of 11 p.m. is in accordance with a Clayson recommendation but we rejected Clayson's view on the afternoon break. He favoured permitted hours of 11 a.m. to 11 p.m. but we have retained the statutory afternoon break. Clauses 57 to 59 deal with related matters. Clauses 57 and 58 are basically re-enactments concerned with drinks with meals. Their effect is to make the afternoon extension for drinks with meals one and a half hours instead of half an hour and the evening extension two hours instead of one hour. I believe that these are significant extensions which should be carefully noted. Clause 59 provides a new type of extension on Sundays which will allow establishments providing high teas—that lovely Scottish phrase—between 5 p.m. and 6.30 p.m. to serve drinks with meals. Clause 63, together with Clauses 33 and 34, replaces what under the existing law is referred to as a special permission authorising the sale of liquor for some event taking place outwith permitted hours. Clause 63 caters for extensions for licensed premises; Clause 33 on the other hand caters for occasional licences for a licence holder for an event taking place outwith the premises in respect of which he holds his licence. Clause 34 is a provision which allows a person representing a voluntary organisation to sell alcoholic liquor in certain limited circumstances. These new arrangements taken together provide a flexible approach which will enable licensing boards to consider arrangements designed to cater for the special needs of individual localities in relation to isolated or regular events. Clause 64 and Clause 65 provide safeguards against undue nuisance or a threat to public order resulting from the sale of alcoholic liquor at certain times. Clause 64 allows a licensing board to restrict the permitted hours after ten o'clock in the evening while Clause 65 allows a temporary restriction of permitted hours of up to three hours in the interests of public order. To give the most obvious example, this power might be used to reduce the risk of disturbance associated with an international or, indeed, a league football match by ensuring the licensed premises nearby remain closed both before and during the game. I turn to Part VI. It is largely re-enactment and does not, I believe, require detailed discussion at this stage. It meets the criticism in the Clayson Report that the present law does not make clear the relative responsibilities of the licence holder and his staff. The responsibilities of the licence holder are, in my view, now clearly set out with vicarious responsibility expressly stated in Clause 66 and Schedule 5. Appropriate defences are contained in Clause 66 (2) and Clause 70. Part VII is also largely re-enactment. One clause in it, Clause 113 on police right of entry to clubs, has caused controversy. It implements a Clayson recommendation that the police should have right of entry to clubs without a warrant. I should make it clear that this clause was strongly opposed on report in another place and in accordance with an undertaking given there I shall put down Amendments which will replace this clause by a re-enactment of Section 179 of the 1959 Act which allows police entry only on a warrant front a justice of the peace. Part VIII deals with miscellaneous transitional and general provisions. Clause 118 is now a re-enactment. We originally intended to make the closing hour for off-sales premises 8 p.m., but in the light of representations made to us this remains at 10 p.m. Off-sales premises are not allowed to open on Sundays. Clause 123 implements a Clayson recommendation that Section 91(6) of the Local Government (Scotland) Act 1973 should be repealed. This repeal will allow a local authority to apply for a licence in respect of facilities provided for social, cultural and recreative facilities. Clause 130 repeals the temperance poll legislation, but there are transitional provisions designed to protect the interests of those in areas subject to resolutions under the existing legislation. I have already referred to those Schedules which seem to me to merit attention at this stage. I have now completed my review of the main provisions of the Bill. I think it is fair to say that in a Bill of this length much has been left undiscussed by me at this stage. Naturally, we shall have a full opportunity for detailed debate at the Committee stage, as determined by your Lordships' House. In my view, the Bill as a whole represents a major advance in a difficult and controversial area and it is with considerable pleasure that I commend it to your Lordships' House."to review the liquor licensing law of Scotland and to make recommendations on what changes, if any, might he made in the public interest; and to report."
Moved, That the Bill be now read 2ª.—( Lord Kirkhill.)
My Lords, we on these Benches thank the noble Lord, Lord Kirkhill, for having given us that clear introduction to a long and somewhat complicated Bill. I personally am glad that a Scottish Licensing Bill is going through Parliament in this Session. The reform is much needed. I welcome most of the changes proposed, but I give the Government notice that some of us intend to take up a number of points at the Committee stage to see whether improvements can be made. As the noble Lord mentioned, I am especially interested in this Bill because I was the Minister who set up the Committee chaired by Dr. Clayson and I received its report shortly before the change of Government in 1974. I believe that we are indebted to Dr. Clayson and his colleagues. They tackled their task with great thoroughness and they have produced a most useful report.I should also like to mention that the noble and learned Lord, Lord Guest, who is, I am glad to hear, intending to speak today in the debate, chaired an earlier Committee which looked into the licensing laws something like 14 years ago now. That was a considerable time ago. However, the recommendations which his Committee also made have been extremely useful, I believe, in the preparation of this legislation. I will say straight away that my principal concern in this field, both as a Minister and later, has been to reduce drunkenness and alcoholism. It is clear, unfortunately, that there is more of both in Scotland than in the rest of the country and the report that has come out within recent weeks has confirmed this. But it is noteworthy that in its report the Clayson Committee concluded that little, if any, of the drink involved in excessive drinking is obtained and consumed on licensed premises. Like the Committee I do not therefore believe that the proposed relaxation of the permitted hours when licensed premises can be open need cause anxiety in your Lordships' House. Indeed, there is an argument in the other direction, that a relaxation could lead to a reduction in the temptation to "beat the clock"; that is to say a reduction in the temptation to drink hard before closing time. I strongly support the Clayson Committee's assessment that taking a drink or two should be regarded as a part of ordinary social activities rather than that drinking should be set aside as a separate and semi-isolated pastime. Unfortunately, I must state that there has been a tradition in certain areas in Scotland for drinking dens which are attended by men only and where there is a time limit, and that has produced some of the troubles which I have mentioned of alcoholism and drunkenness. But the Clayson Committee drew attention to a survey which showed that nearly three-quarters of a sample of Scots would prefer to spend an evening out somewhere where the whole family could be together. I am glad to say that that is an increasing trend in Scotland today. The principle, which is also carried through into this Bill, that conditions should be made easier for children and families on licensed premises is, I believe welcome, but I also favour what the Clayson Committee and the Government have accepted, that the minimum age of 18 for the purchase of liquor should be maintained in Scotland. Those of your Lordships who have studied the report of the Committee which looked into these matters in England and Wales, the Erroll Committee chaired by my noble friend Lord Erroll of Hale, will have noticed that the recommendation there is that the minimum age should he 17; but because of what I believe are particular difficulties in Scotland I accept that a difference is reasonable and that, at any rate for the present we should there stick to 18, until we have made the necessary improvements in the reduction of drunkenness and alcoholism which I believe are coming in Scotland. As regards the controversial question of what the permitted hours should be, the Government are proposing an extension of hours to eleven in the evening. I accept that. There are also relaxations allowing drinks to be served late with a meal. I believe that these changes should greatly help in modernising the licensing law and making Scotland more attractive for visitors. I am not suggesting that people will in future go to Scotland in order to get drinks at times when they will not be able to get them South of the Border, in the way in which in the past people contracted runaway marriages North of the Border. At present, unfortunately, where holidays and leisure pursuits are concerned, in Scotland there is the disincentive that the licensing laws are very strict. But the three week period of the Edinburgh Festival has been assisted in recent years by a special arrangement in that city to extend permitted hours. I think the important conclusion arising from an observation of this is that it has made no difference to the degree of drunkenness in the city during those periods. Of course it has made a great difference to the convenience and pleasure of visitors, especially visitors from abroad, because where one has concerts and plays and other parts of the Festival these produce a requirement for late meals and refreshment. So in a way that has been a small pilot scheme which has shown that extension of hours for a period of that kind has not been accompanied by any observable increase in drunkenness. The tourist industry in Scotland as a whole will certainly welcome this Bill. If it is not to be handicapped then the hours when licensed premises can he open need to be extended. As the noble Lord the Minister has reminded us, when this Bill was in the Commons the decision to open public houses in Scotland on Sundays was inserted in the Bill. That had been a recommendation by the Clayson Committee, but it was one which the Government had not accepted in the original version of the Bill. I am in favour of this Sunday opening, and therefore I am glad to hear that the Minister is not proposing to alter that. But I suggest that we should examine whether the conditions which the Government immediately introduced into the Bill when that change was made in the other place are appropriate or necessary. They are contained in Schedule 4. I was therefore glad to hear the Minister say that he himself is not content with conditions as they stand at present and that he intends to make some changes or will look again at those conditions, so I regard them as still being open to consideration at the Committee stage. I am glad also that the Bill will abolish what is known in Scotland as the veto poll, that is the temperance provision in Scottish legislation which has enabled polls to be taken in certain areas and then that area to become a "dry" area where, for a period of years, no alcoholic liquor can be purchased. I believe that system is out of date and that it has in fact been abused. It has been open to misuse and in its uncertainty it has been unsettling for the hotel and tourist industry when they are considering setting up in different parts of Scotland. Let me explain this. First, in cities where a veto poll has taken place and a district has decided to go "dry", what in fact has happened is that it has not caused any decrease in the number of licensed premises generally; it has merely meant that the people of that district have tramped to an adjacent district to get their drinks. To put it in other words, those who voted in favour of theirs becoming a "dry" district have simply succeeded in exporting their drinkers for the evening to the adjoining district. Then, when we come to the more rural areas in Scotland, there has been an impediment to the setting up of hotels and restaurants, because anybody considering setting up an hotel or restaurant—particularly, shall we say, along the West Coast where a veto poll might be taken at fairly short notice—did not know whether, two or three years after they started in business, there might not be a veto poll, meaning that their bar and the sale of drinks would have to go. Naturally that is a considerable element in their calculations concerning running a business as an hotel or restaurant. So it has been damaging to the expansion of the tourist industry in Scotland, which is exceedingly valuable to our country as a whole, that the veto polls could take place at fairly short notice under previous legislation; and I am glad to know that the Clayson recommendation has been accepted and that these veto polls will no longer exist when this Bill has gone through. The noble Lord spoke about the arrangements for transition. I think these should be the subject of consideration at the Committee stage because I am not certain that they could not be improved. In general, changing the system by legislation can be of great help, and I hope it is clear that I am welcoming the Scottish Licensing Bill because I firmly believe that reform in this area in Scotland is necessary. But I hope it will be clear also from what I have said that I believe it is the attitude to drink in certain quarters which should be brought up to date, for the benefit of everyone in Scotland as a whole. The aim should be first to reduce drunkenness and, secondly, to make Scotland as a whole more attractive as a place to live in, and to improve the quality of life for both residents and visitors. If I may quote from page 227 of the report of the Clayson Committee, the Committee state:
Changes in the rules and changes in ritual which we are able to carry out in this legislation will do little if it will not also make a break in general attitudes in Scotland towards alcohol. I hope that this Bill will be a significant step in the right direction."The weakness lies … in the attitudes in Scotland towards alcohol and drinking practices."
My Lords, at the outset may I assoicate myself with the welcome given by the noble Lord, Lord Campbell of Croy, to this Bill, which constitutes a comprehensive reform of the law of licensing in Scotland. My reason for intervening in this debate after so long an absence from these Benches is twofold. In the first place, I have the honour to be chairman of a Committee which sat between 1959 and 1963 on the question of licensing law, and secondly, because I have during my whole life at the Bar and on the Bench associated myself with this question of licensing. I claim to know perhaps a little about the subject.My Lords, the Committee of which I was chairman made two reports. The first report, which was urgently required and which was expeditiously dealt with in 14 months, had to do with sale, permitted hours, and the question of Sunday opening. The second report proceeded at a more leisurely pace as it was concerned with the procedural aspects of the licensing law, and had to be delayed, rightly, until the passing of the Local Government (Scotland) Act 1973. When we sat as a Committee, we were faced with this ridiculous situation of what was known as the bona fide traveller. I do not know whether any of your Lordships will remember those days—
when, to get a drink, one had to go in and sign a book to certify that one had travelled an unspecified distance from home, wherever that was. It led to uncertainty, to abuse, and was really a crying scandal. We suggested two things. In the first place, we suggested that on Sundays, hotels, and also public houses, should be allowed to have a bar open. Unfortunately, despite my endeavours in this place, the Government did not accept that recommendation as regards the Sunday opening of public houses, although hotels were allowed to keep their bars open on a Sunday.So we now have the ridiculous situation that a hotel which has more than four bedrooms can have the bar open, and during permitted hours, Tom, Dick and Harry can come in and have a drink on a Sunday; but a public house, which has no bedrooms and is not a hotel, has to remain closed. This really is a farcical situation and has led to the abuse of which the noble Lord, Lord Campbell of Croy, spoke, of the trekking from one district to another. There are many parts of cities in Scotland where hotels are few and far between. In the same city there will be districts where there are many hotels. As a result, as can he seen from reading the weekend papers, there is a trek on Sundays from the non-hotel district to the hotel district in order to get a drink. This results in increased transport costs to the consumer, who also has to pay more for his drink when he gets to the hotel. That was the situation, which was unduly anomalous and illogical. Yet that situation has remained to the present day. When introducing this legislation in another place, the Government were prepared to allow that anomalous situation to continue. Sunday opening was not inserted in the Bill until the Scottish Standing Committee inserted it simpliciter. The Clayson Committee recommended Sunday opening as did the Committee over which I presided. The Scottish Standing Committee passed Sunday opening, but the Government could not leave well alone. At Report stage in another place, they introduced restrictions which in my respectful view will go far to render nugatory the whole of the privilege obtained by Sunday opening. My Lords, at this stage I will not go into detail on the provisions, but the unfortunate licensee who has a licence for his premises, has surmounted the test under Clause 17, must then proceed under Schedule 4 to apply for a Sunday licence. He then has to go through the same test, and under Part II he has to be subject to the target of complaint. I am not sure how the situation will stand when the Amendments of the noble Lord, Lord Kirkhill, are put on Schedule 4, but in my respectful view the only proper way of dealing with that Schedule is to delete it altogether from the Bill. It seems to me to be unduly restrictive, unnecessary, and really an insult to Scotland. Scotland is being treated like a child who is given a sweet but is being told, "You cannot eat it unless you behave yourself". I would not put my name to any such restriction. My Lords, there are, however, good parts in the Bill of which I have no criticism to make. I also agree that the extra hour will be a great advantage to the tourist trade. It is hoped that it will reduce the rapid and compulsive drinking which occurs near closing time. The provisions regarding the procedural aspect of the Bill have my wholehearted approval. The licensing board replaces the licensing court. That was a most anomalous situation, where the appeal was from the licensing court to a court of appeal composed partly of the original licensing court and lay members—verily an appeal from Caesar to Caesar! That has been swept away, and the appeal is to the sheriff. The noble Lord who introduced this Bill explained the way in which the sheriff comes into the picture. I should like just to emphasise one particular ground upon which the sheriff can overturn the decision of the licensing board. He can overturn it if their decision was based on inaccurate material facts. No one wants the sheriff to enter into a full-blooded examination of the facts of the case, but it enables the sheriff in a suitable case to correct the position, which may be very rare, where the licensing board has gone plainly wrong and has misinterpreted the facts. My Lords, another matter which I believe is of great benefit to licence holders is the quarterly sitting of licensing courts. At present, owing to the fact that the licensing courts sit only half-yearly, great injustice is done where the licensee, having completed all the other requirements, has had to wait for six months before he could get a licence. In conclusion, I welcome the Bill. It has a nasty sting in its tail in Schedule 4 and if, perhaps at a later stage, that sting is removed, one may be able to give the Bill one's wholehearted blessing.
My Lords, I had the pleasure and happiness to serve on the Committee under the noble Lord, Lord Guest. I should like to start by testifying to the care and the understanding and the patience with which Lord Guest led us through a veritable maze of evidence from all sides and the time that he spent upon getting the right answers. The noble Lord, Lord Guest, has referred to one of the main conclusions of his Committee; namely, the Sunday opening. It was the greatest pity that the action of the Government, to whom that report was made, did not include it. And again it was the greatest pity that it was not included in the Bill in its original submission in the other place. I would, therefore, support most strongly, and will do so in Committee, the suggestion of the noble Lord that we should delete Schedule 4 to the Bill, which puts quite unnecessary restrictions upon the granting of Sunday licences. That is quite unwarranted and is more likely to cause trouble than to do good.My Lords, we owe a very great debt to Dr. Clayson and his Committee for their report. Dr. Clayson had a wider term of remit. His remit was not to any specific side of the licensing law, as was the case with the Committee under Lord Guest; the terms of reference enabled Dr. Clayson to review the whole field. He took advantage of that in that he gives at the beginning of his report what one might term a philosophical and scientific approach to the whole subject of drinking, and I would commend this to anybody anywhere in the world concerned with this problem of alcohol. It is clear, both from the conclusion which he reaches and from other sources, that Scotland suffers from a serious problem of alcohol misuse, both absolutely and in comparison with England and Wales. Therefore, the Clayson Committee addresses itself to the relaxation of the licensing laws, and comes to the conclusion that they probably have little effect upon the total amount consumed. I would like to quote from the report, paragraph 1.36:
It continues:"But we consider that in a society in which alcohol is available on the scale it is today, and in which the financial resources are available, there is little or no chance of preventing those who misuse it from obtaining it; nor would the severe degree of restriction necessary to achieve this be politically acceptable or, in our opinion, justifiable."
That is the spirit of the report on which the rest of the final conclusions are based, and should have been the main motive underlying the Bill. Unfortunately, it was somewhat obscured. I want to go on now to one or two details. The first is the licensing boards. The Committee under the noble Lord, Lord Guest, reported that there was dissatisfaction with the present system; we had no doubt about that whatsoever. Therefore, one welcomes the fact that in the Bill something is going to be done about the old courts; that they are to be boards serviced by the district council and consisting of members of the district council—"…licensing is likely to be most effective if it operates in support of social controls."—[Para. 1.40.]
I am very apprehensive about this proposal. It seems to me that it is going to transgress a legal maxim, because the district councils more and more are desirous themselves of selling liquor and establishing, as it were, public houses on their own premises. That offends the precept of their being a judge in their own cause. I should have preferred to see the boards consist of justices of the peace, selected. Some of those justices might well have been members of local authorities, but they should be there in their position as justices of the peace. I have given one reason, to avoid their being judges in their own cause. I have another. I was for over 16 years in local government in Scotland, and I was not the only person who was well aware and had grave suspicions of illicit dealings in the granting of licences. I endeavoured to try to bring this out into the open in the Guest Committee, but there were no convicted cases to be found in recent times. The noble Lord, Lord Guest, quite rightly—and I willingly submitted to it—ruled that we could not take that matter any further. Only six months after that report was published there was a very bad case of what one might call illicit dealing, bribery and corruption, in connection with the granting of licences, and there have been several more since then. If your Lordships' want to have evidence about these you can consider the number of cases in Scotland quite recently, and especially the number of local authority by-elections that have cropped up in recent months due to prosecution on criminal charges. I own to having some mistrust of the elected representatives to local authorities as such at the present time. Also, I fear to a certain extent that if they are composed solely of members of the district councils there will be very grave danger of Party prejudices coming in and affecting the decisions that they make. May I come to the recommendation of the Clayson Report that police should have a right of entry to registered clubs as to licensed premises. As the noble and learned Lord, Lord Guest, has said, this was a point to which we gave great consideration. There were in existence at that time, and I believe there still are, many clubs which are just, as my noble friend Lord Campbell of Croy described, drinking dens. We discussed in the Guest Committee the question of entry to clubs. I think that we were inclined to agree that there was very little objection to it from the type of club that had nothing to fear, and that the objections to the right of entry by police to clubs came from those clubs which were not being run as they ought to be. I took note of what the Minister told us, that is, that as a result of lobbying by certain organisations the Government have intentions of substantially altering the clause as it stands just now which enables the police to enter clubs. I am sad to hear this, and if this is the case I would hope that we shall be given some details of the clubs that are doing this lobbying."not less than one-quarter of the total number of members of the district or islands council."
My Lords, I hesitate to intervene when the noble Lord seeks to develop the points of interest to him, but to set the record quite straight I am sure that the noble Lord misheard my earlier comments. The position so far as police right of entry to clubs is concerned is that as a result of debate in the other place the Government ceded the position of those who opposed this right to the police, so that I will now at Committee stage lead an Amendment which takes us back to the position of the 1957 Act, at which point the police had right of entry to clubs only upon warrant from the justice of the peace. That is the position.
My Lords, I think that it is a pity that there should be this difference made. It would be a pity not to leave that clause as it stands in the Bill now, and that they should have to make appeal to justices of the peace. With some of these places the sooner it is possible for action to be taken the less will be the harm that is done by them. I feel that it is a corollary of the extra liberalisation of the drink laws that any infraction of them should be speedily and, if necessary, forcibly dealt with. In other words, it should be possible, where there is abuse, that those premises should be speedily closed. If I had had any hand in the drafting of this Bill, I would have wished to put in some clause whereby the chief constable had a right to close any premises immediately without giving the owner of the premises, the licensee, any notice whatsoever, and allowing him then to make appeal to the Licensing Board at the next appropriate time.There is one small point. I think that Clause 53 leaves, in its present form, a vestige of the battle in the other place, and there seems to me to be some unnecessary circumlocution. I would join my noble friend Lord Campbell in welcoming this Bill. It is indeed a step forward, and from any criticisms that I may have expressed it can be in no way taken that I am antagonistic to the Bill as a whole. I hope that it will go through with speed.
My Lords, I echo the general welcome for this Bill and its modernising effects from those noble Lords who have spoken. I object neither to the opening of public houses on a Sunday nor to the extension of evening hours. Both measures seem desired and desirable from the public's point of view, although licensees in some areas who hold current seven day certificates may not look so benevolently on the addition to the working week and operational costs in relation to turnover, turnover probably to be affected, perhaps not unfairly, by more competition on Sunday. I tend to share the view that, while changes in patterns of drinking habit will ensue, it does not follow that consumption of alcohol in total will increase. My grounds for feeling this are that I consider that probably more effect upon total consumption has in recent years derived not from previous extensions of hours, or relaxations in regard to Sunday drinking, but from changes in the off-sale situation; not necessarily increases in numbers of off-sale premises, but rather in the character of such premises and the hours for which they are open, and because of their character, the comparatively lower prices at which they currently offer alcohol than it was previously offered by the older established off-sale premises.Such remarks as I may make do not have the force of the comprehensive knowledge of the noble and learned Lord, Lord Guest, or of the long-term interest in the subject of my noble friends Lord Campbell of Croy and Lord Balerno. The views I express derive from some practical experience, albeit limited in duration and locality, gained in five years as holder of a certificate for an inn and hotel on a main road in Argyll. My premises doubled as hotel and as local pub for a large village and I was, in every respect, a working licensee, as those noble Lords who have chanced to patronise my establishment from time to time will, I am sure, testify. However, I have no interest to declare as I sold the business and premises last May; in other words, I was a publican and sinner but I am no longer a publican. That said—to put my views, such as they are, in perspective—I hasten to add that I do not intend this afternoon to go into any ideas or thoughts that I may have on alcohol and its social uses or abuses or the problems associated therewith but, rather, to content myself with referring briefly to some points regarding areas of the Bill where I hope changes or improvements can be made in Committee. Although these are points which are different from those already touched on, that does not mean to say that I do not concur in the views of the noble and learned Lord, Lord Guest, concerning the complexities of Schedule 4 and the complexities that will arise from its operation. Nor do I dissent from the views of the noble Lord, Lord Balerno, concerning the composition of courts. First, I dislike the provision in the Bill which alters the currency of a licence from one year to three. The Clayson Committee arguments in favour of the three-year life of a licence are the administrative burdens arising from the present annual renewals in March and the virtual automatic renewal where no objection has been lodged. I do not want to go into this in great detail or to make a Committee point of it this afternoon, but it is my view that more rather than less attendance by licensees at board meetings and more rather than less contact between board and licensee is desirable. After all, apart from police responsibility, it is through licensees that the board enforces the law. While on this subject, it strikes me that the three-year currency of a licence will mitigate against advantages to be gained from the requirement in the Bill for one condition of grant of licence to be certification under the food and drugs legislation. My second point relates to Clause 31(3)(b) which provides for the suspension of a licence on receipt of complaint of
This wording has undergone changes at earlier stages of the Bill in another place but in my view the sanction as it stands is too severe. I will not go into the detail of it today, but this is a view borne purely of practical experience. Is it not worth bearing in mind that in some localities the effect of this sanction—I do not say that this would happen, but it could—could result not only in the losing of a licence which would entail the loss of the livelihood of the licensee but also deprivation to the community where there are perhaps no alternative licensed premises? Although I stand to be corrected, I believe that the legislation concerning the pay and conditions of staff in the licensed and hotel trades might also result in the loss of jobs without compensation for any staff involved. I am not arguing that somebody who regularly permits disorderly behaviour should escape the sanctions of the law but simply that, as worded, this provision in referring to "vicinity" puts too heavy a burden on him in the discharge of his duties. My third point concerns the granting of occasional licences in one particular respect. Under Clause 33(10) the ability of a board to grant an occasional licence, or what we in Scotland currently know as a special permission, is extended to it being grantable to holders of off-sale licences. This provision appears to have grown out of the proposals concerning clubs and such in Clayson 15.05. I may be wrong, but do not find therein any specific recommendation from Dr. Clayson's Committee in this regard. I express concern on this issue because experience in dispensing alcohol by the measure and in maintaining order is essential to the proper discharge of the conditions attached to such an occasional licence. In my experience the circumstances and venue of an outside function for which such a licence may be granted tend to create special problems in this latter respect. I am no longer a licensee, but if I were and if I were declaring an interest I might, on a lesser point, say that this amounts to permitting somebody else to detract from the livelihood of a full licensee working in a particular locality and providing a year-round service to those in that locality. There are a number of other points that I will not detail this afternoon. Indeed, the answers to them may be lurking somewhere in the 140 clauses of the Bill. To give, as it were, advance notice however of some matters which I may raise in Committee, concerning what I would describe as small operational difficulties which I have encountered over the years, I would cite the inability of courts (now to be boards) to grant two types of licence in respect of one premises even when that might be desirable. Equally, there is the apparent inability, as I understand it, for a licensing board to grant a licence covering the whole of a licence holder's premises where one part is physically separated from another but when it might be in the public and licensing interests for him to be able to use both parts of those premises for the licensed trade. There are some small points regarding the need for urgent occasional licences for such events as funerals, but they are not matters for this afternoon. I hope that nothing I have said has detracted from the welcome I gave the Bill at the outset. I am sorry for having detained your Lordships for so long but, before resuming my seat, I must add that I wish the Bill a safe and speedy passage, and express my thanks to Dr. Clayson and his Committee for the excellent report which has provided the framework for the Bill."any misconduct occurring in the vicinity of the licensed premises on the part of persons frequenting those premises."
My Lords, let me say first that I was indeed pleased and delighted to hear from all those noble Lords who have spoken that, in general terms, they welcome the Bill and the purpose behind it. I was particularly delighted that the noble Lord, Lord Campbell of Croy, emphasised that which is the reality of the difficulty in Scotland; namely, that the incidence of alcoholism in my native country is at an historically high level. It is against that particular difficulty that a Bill of licensing reform must be seen. In my opinion, it is against that general background on the Scottish scene that one must judge the implications of a Bill such as that which is before your Lordships' House this afternoon.Because of that very real social concern which all who think of the problem consider the Scottish position on alcoholism to be we find that there is a question of judgment and a matter of opinion as to how far a reforming Bill should be totally radical. I must say that, at this point, I would at least take issue with the noble and learned Lord, Lord Guest, when he claims that Schedule 4 is indeed the sting in the tail. I accept that, in times of absolute liberalism and in a spirit of a completely libertarian approach, that would be a valid criticism, but I feel that previous Administrations can be defended for their reluctance to move in the manner which the noble Lord's Commission suggested when they reported as regards Sunday opening. One major difficulty is that in some of the very large Scottish cities public houses are frequently situated in the most undesirable loci. I give the example of the indifferent tenement street and the usual Saturday night fight which obtains in that area. This causes a reluctance to go on and take the extra step which the noble and learned Lord would clearly like. I should be remiss if I did not remark on a comment of the noble Lord, Lord Balerno. While I know lie welcomed the general tenor of the Bill, I should not like the impression to be fully sustained that a number of trials which have recently taken place in Scotland, or which are perhaps pending, necessarily reflect upon local authority representatives in their capacity as licensing authorities. I believe that the noble Lord gave that impression and I feel that, for the record, I must restrain and repulse that suggestion. I of course welcome the generous remarks made by the noble Lord, Lord Gray, about the Bill. I recognise that he has a number of doubts and fears about some clauses and I understand from what he has said that I shall hear in more detail about these points later. I have noted the remarks which he has made this afternoon. It is rather difficult to deal comprehensively with every point that may be raised on a Bill of this kind, but I should like briefly to touch upon two or three of the main points which those noble Lords who have spoken have emphasised. First, the noble and learned Lord, Lord Guest, and the noble Lord, Lord Balerno, mentioned the licensing board and its composition. It was suggested in the other place that it was a mistake to allow district and islands councils to have the sole responsibility for acting as members of the licensing boards. The Clayson Committee considered this very fully, taking account not only of the evidence given to it but also of what had been said earlier to the Committee chaired by the noble and learned Lord. The Clayson Report made it clear that the Committee thought it desirable for the local authority itself to act as the licensing authority but accepted that there were practical difficulties in this course of action. What it recommended, therefore, was a system which was, in the Government's view, workable and which would establish licensing boards to be serviced by district and islands councils and their officials. Part I of the Bill provides for this system and, in this instance, the Government have followed the Clayson Report very closely. The noble Lord, Lord Campbell of Croy, very properly emphasised the points which emerged as they relate to the question of permitted hours because, as I said in my earlier remarks on this point, these will impinge quite readily upon the general public. I feel that it is worth re-emphasising that on weekdays the closing hour will become 11 p.m. instead of 10 p.m. and that on Sundays public houses which satisfy the requirements of Schedule 4—and I must enter that caveat—will have the same permitted hours as hotels, restaurants and registered clubs. I might have said earlier—and I shall repair the omission now—that, during the proceedings in another place, we agreed to make a change in Clause 56 which will give certain athletic clubs the option of having permitted hours on Saturdays during the winter between 1 o'clock in the afternoon and half past ten in the evening. I think that it is important to restrict the departures from permitted hours fairly regularly and I feel that this suggestion strikes about the right sort of balance. To touch on one other point made by the noble Lord, Lord Campbell of Croy, he mentioned the question of the temperance poll legislation. I believe that this is an example of the Government's acceptance of a Clayson Committee recommendation with some modifications. It may be helpful to your Lordships if I reiterate that we agree with the repeal of the legislation, but that we regard it as essential that there should be transitional safeguards. The transitional arrangements are in two parts: the existing position in the areas concerned is frozen for three years and thus no change is possible in that period. After three years a district or islands council could pass a resolution to bring about a change, but even then the normal arrangements would not apply immediately since, for a further period of five years, the licensing board would have an additional ground for refusing applications. This is a power to refuse to grant a licence on the ground that, having regard to the distribution of facilities in the area, it is inexpedient to grant it. We have included this provision to allow the board exceptionally to have regard to distribution since otherwise, particularly in formerly dry areas, there would be a risk that the distribution of facilities would not be entirely suitable. My Lords, I have already indicated that, in my opinion, the Bill is a sensible and much needed step forward in the provision for civilised drinking in the land of Scotland. I have noted with care the points made in the various contributions to the debate this afternoon. On Question, Bill read 2ª, and committed to a Committee of the Whole House.
Race Relations Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do again resolve itself into Committee.—( Lord Harris of Greenwich.)
On Question. Motion agreed to.
House in Committee accordingly.
[The BARONESS WOOTTON OF ABINGER in the Chair.]
Clause 5 [ Exceptions for genuine occupational qualifications]:
moved Amendment No. 22:
Page 4, line 32, leave out paragraph (d).
The noble Baroness said: I beg to move Amendment No. 22. The reason for putting down this Amendment is that, as I understand this Bill, it is intended to do away with race distinctions. Again in this Bill we are allowing the racial differences to be emphasised. In a job of personal services this should start off naturally, if we have individual people for individual races, with certain personal prejudices. I imagine that in this Bill we want to do away with any form of segregation, and I think that it is a good idea to start with the welfare services.
Any personnel officer who is properly trained should be able to deal with any race. He should be able to deal with all the problems, particularly those which arise with people coming freshly to this country. I was told yesterday, in relation to the services and facilities provided, which I presume will be one of the duties which a personnel officer could look into, that nearly half the total number of coloured householders own their own houses. That is almost exactly the same proportion as white householders.
It has always been emphasised that one of the reasons for troubles between races in this country is because of the bad housing. It is also said that in Greater London there has been a concentration of black workers in dirty menial jobs. But according to the White Paper issued by the Government there is evidence that a substantial proportion of West Indians are skilled manual labour, and the proportion of young Asians out of work is lower than that of young people in general.
So this is another reason why I wish to have all-purpose social services provided by a personnel officer. A person who needs advice should be able to obtain it whatever race is involved. I am not saying that any particular race should be involved here, but it should be the race of the person or persons employed who have the ability and the qualifications to undertake the job. There might be a large firm with 20 racial groups. Will it be necessary to employ 20 different officers?
Furthermore, when I was working in Malaya, now Malaysia, I had the experience of dealing with people of different races. There were four different races in that country, and I found invariably that people did not wish to go to somebody of their own race to explain their difficulties. They asked to see somebody else, or invariably they asked to see myself. In that country one very often had to deal with interpreters because there were, for instance, six Chinese dialects. But in most cases the people concerned preferred that situation to going to one of their own race. At that time there were no proper trade unions in the country, and so the Labour department at that time—we would now call it the Department of Employment—often sent difficult cases to the worker department.
All the people in this country needing these special services, as referred to in this clause, have been in Britain for some time, or have been born here. It is essential that they follow the customs in this country and that they are given advice by persons who have the best knowledge of those customs. I should also have thought that this provision which I am trying to remove from the Bill goes against the Sex Discrimination Act, but perhaps the Minister will tell me about that. When a person goes to hospital he does not insist on being operated upon by or seeing a surgeon from a particular race. Therefore, why should a person when at work particularly want to see someone of his own race? I suggest that this is not a good policy and that it will create further segregation and probably further difficulties.
Most Conservatives voted against the Second Reading of the 1968 Act, and it was stated in the debate at that time, on St. George's Day, that the Bill then being considered would not
"in its practical application contribute to the achievement of racial harmony."—[Official Report, Commons, 23/4/68; col. 81.]
This is my great fear on this Bill. We are going through this very long and complicated Bill, and in the end it will not contribute anything to racial harmony. Therefore I suggest that this is one proposal which might be accepted so that at least in work there need be no segregation between individuals working in the same firms. I beg to move.
I rise not so much to support my noble friend, although I have some sympathy with the point she is making, but rather in the hope that the noble Lord in replying can make a little clearer than it is at the moment how paragraph (d) is to operate. The concept of this exception first appears in the White Paper where we read that exceptionally there will be an allowance:
A further explanation appears in the Explanatory Memorandum on the clause in which we read that it is"to enable the special needs of a particular ethnic or national group to be met …".
Neither of those phrases actually appears in the text of the Bill, where the phrase used is,"because certain welfare services can best be provided by a person of the same racial group."
Those are three quite different expressions of what one can discern as the same general intention. But it is not at all clear as to how the Government will draw the line between what is allowed and what is not allowed. There is nothing in the interpretation or definition clauses to say what any of those phrases precisely mean, and in particular there is no place where one can look up the phrase "personal services promoting their welfare" and see what is meant by that. I should like to invite the Committee, and in particular the noble Lord, to consider two cases. Let us consider a county council which is recruiting social workers to work in Powis, rural Wales. A case could be made that it is marginally better to employ a Welsh person for that purpose. But personally I would feel that there is not a justification there to discriminate in favour of a Welsh person against an equally qualified Jamaican, for instance. On the other hand, there may be an agency or an organisation recruiting marriage guidance counsellors to work in the Sikh areas of Bradford. I should have thought that it was absolutely reasonable to discriminate against applicants from all other racial groups apart from that one. Those are just two illustrations to show that in some cases there will be recruitments which fall on one side of the line, while in other cases there will be recruitments which fall on the other side of the line. But there is absolutely no guidance in the Bill as to how one should interpret the law as between examples of that kind. I have used my personal judgment, and so far as I can see that is all that will be done. I do not think that this is a satisfactory way in which to leave the law. Perhaps the noble Lord can say that the Government's overall strategy in this field—which we have yet to see—will make it clear, or that this can be done by guidelines to the Commission; and that might be helpful. But it is not really a satisfactory way in which to leave the law, which is what we are dealing with at the moment."provides persons of that racial group with personal services promoting their welfare …".
The purpose of this paragraph in Clause 5 is to make an exception for the appointment of a social worker when his race would make his work more effective. We have in mind there the needs of local authorities which have a large population of a particular kind, such as a large population of West Indians. They might find it advisable to have a West Indian on their social worker staff for that reason. We also have in mind the needs of the probation service, and it is on this point that I have some personal feeling. After having served for many years in a magistrates' court, I have come very firmly to the conclusion that the effectiveness of the Probation Service depends substantially upon the allocation of the offender to the right kind of probation officer. The whole history of the service shows the value of having the right kind of probation officer for a particular offender. The wise housewife can very often help the shoplifter; the father-like figure can very often help the boy who has for some years been without a father. Similarly, I would say, in an area where there is a substantial population of a certain race, such as West Indians, then it would be to the advantage of the service, if we are to have the right allocation of probation officers, that they should have a West Indian upon their team.
Would the noble Lord allow me to interrupt him? On the basis of the same arguments, would he agree that this would also apply to parts of this country where there are still racial groups of English, or in the North of the Islands, where there are still racial groups of Scottish? Would the same arguments apply?
I would not have thought they would have applied in Scotland. I would not have thought that was necessary at all. I do not think we have anywhere in Scotland large populations of English in the same way as we have large populations of immigrants in England. I think it is an entirely different problem, and I do not think for one moment it would arise. I might say that, as an Englishman, I feel equally as happy in Scotland as I do in England. I do not think that arises at all.Now if the Probation Service is going to allocate the offender to the right kind of probation officer, which I think is essential, then the Probation Service in each area must have a balanced team, and in order to have a balanced team it may, on very rare occasions, have to use this exception. We do not wish the exception to be used unless it is absolutely essential, and it will be noticed that by subsection (4) of the clause the exception cannot be drawn on where the employer already has employees of the appropriate racial group who can reasonably be expected to do those duties and are there in sufficient strength to meet the employer's need. So we have tried to narrow it down as much as we can. We think this exception meets a genuine need. It is drawn sufficiently widely to provide help to those most likely to need it, but sufficiently narrowly to avoid abuse. I hope that, with this explanation, the noble Baroness will not find it necessary to press her Amendment. In reply to the noble Lord on the Opposition Front Bench, I should like to say that, as in the case of the Sex Discrimination Act, there will be literature available, largely for the benefit of employers—guidance in relation to the Act—and that the point that he raised will be one of the points mentioned in that literature. In other words, the literature will state the law and will go on to say what is behind the law. I might also mention the point which the noble Baroness raised in relation to the Sex Discrimination Act. This particular paragraph is in line with the Sex Discrimination Act. In the case of the Sex Discrimination Act the subsection is drawn rather more widely, but this is completely in line with it.
I wonder whether I could comment on that before my noble friend decides what to do in response to it. I am afraid the noble Lord has not really answered my question at all. In fact, his answer has thrown in further illustrations to show that at the moment the matter is entirely one of personal judgment as to which personal services, welfare services or special needs come within this category and which do not. It may well be true that his right honourable friend the Secretary of State will give guidance to the Commission, and I am delighted to hear that there will be further literature provided for the benefit and guidance of employers, but we are concerned with making sure that the law we are putting on the Statute Book is clear in itself, and to that point the noble Lord has not said a word.
I wonder whether I could support what my noble friend has just said from the Front Bench. I think the Committee has a special duty to look at Clause 5 because the proceedings in another place at the Committee stage were perfunctory in the extreme. I think a very real point is being made when it is suggested that it is quite unclear what a personal service is in the context of this particular subsection. The noble Lord who answered for the Government implied that it was mainly, if not solely, connected with the Probation Service and other matters connected with local government. Is it necessarily so limited? And, supporting my noble friend, how can we be sure that people who may feel that this particular subsection might be a good way to make a joke of the whole Act do not choose to interpret paragraph (d) as a way to exclude people from what might or might not be called personal services; for example, in hairdressing or in tailoring, or something like that? What guarantee is there that these could not be personal services under the terms of the Bill as they are drawn at present? Could the noble Lord answer that?Following on the question put by my noble friend Lady Elles, it may be difficult to substantiate that Gaelic speakers in Scotland might not count as a racial group under this particular clause, but surely the Welsh, in the North of Wales, anyway, where some people learn English only when they go to school, could easily qualify. Perhaps the noble Lord could tell is whether it is in the Government's mind that this particular subsection could and should be used in, for example, the primarily Welsh-speaking areas of North Wales.
I think one has to read the paragraph carefully and pick out which of the words are important. Clearly it must be a personal service, it must be promoting the welfare of individuals, and must make the work of the person appointed more effective. These are the essential words. In this case, as in many others, it is quite impossible for Parliament to deal with every detailed case. We have to lay down the law in simple language, and I think we have done that here. Where the line has to be drawn will be a matter for the industrial tribunal. It will draw the line. It would not be for me to draw the line but for the industrial tribunal to do so. I am sure that my right honourable friend in issuing literature will have regard to that when preparing that literature.
May I say that I am not at all satisfied with that reply, because the magistrates can now put anybody to any probation officer they wish. It is up to the magistrates.
I beg to differ. To the best of my knowledge and belief, the allocation of offenders to probation officers is a matter for the chief probation officer. He could take advice from his probation committee and he could take advice from the magistrates who happen to be sitting on that day, but the magistrates sitting on that day have not the power that the noble Baroness implies they have.
I am afraid I did not make myself clear. The chief probation officer can certainly take that action and, as we know, an individual, if he is not satisfied with his own probation officer (or the probation officer may not be satisfied in relation to the offender), has the right of a change. I think that could be done easily. Surely the local authority if they have in their area such people as those mentioned by the Minister can already employ somebody for the race they think necessary. Personally, I think it is a great mistake. We are making race distinction even more distinct. If, on top of all this, we have to go to the industrial tribunal, and if it is necessary to clarify this part of the clause by special instructions or special recommendations or definitions by the Minister, surely it would be better not to have it in this Bill at all. As my noble friend on the Front Bench has said, it is very unclear. I do not know whether the Minister would care to look at it to see whether he can clarify it or whether he will now agree with us that it would be better to delete it.
I hope the noble Lord will respond to that invitation because I think that the debate we have had has shown clearly that there is every sort of ambiguity in all the phrases being used to explain this concept—not least in the ones that appear in the Bill. If the noble Lord will undertake to see whether he can respond to my noble friend between now and the next stage and add more precision, I think it would be helpful. In those circumstances, I would hope that my noble friend would withdraw her Amendment.
We must have a look at the record to see what has been said in this Committee and take it into account. I must say, however, at this stage that we believe the paragraph in question is quite clear and that it is quite impossible for Parliament to draw the line in this particular case. It is for the tribunal to draw the line. We do not think this paragraph could more clearly express our intentions than it now does.
Before the noble Baroness decides what action to take, may I say that I have listened with every care to what has been said but I am still left in doubt whether the Minister has faced up to the real problem that this sub-paragraph presents. As I understand it, the situation is this. To take the example that the noble Baroness, Lady Elles, gave to the Committee, let us suppose that you have the situation where a social welfare worker is being appointed in Glasgow by the local authority or where a probation officer is being appointed in Glasgow by the senior probation officer. Let us suppose that the authority appointing this person says, "We think a Scotsman can best help Scotsmen and so we are going to appoint a Scotsman and to prefer him to the English or Welsh candidates because we think he could give better service to the Scottish people."In those circumstances, the question will inevitably arise whether that authority or chief probation officer who makes the appointment and prefers one individual to another on account of his racial group—because the phrase "racial group" includes "nationality"—has wrongfully discriminated against the Englishman or Welshman or not? That question may come before a tribunal. The tribunal, when they apply their minds to the question, have to decide whether a Scotsman can provide such services more effectively for his fellow Scots than can an Englishman. If I may say so, it is no good the Minister saying that we can leave it to the tribunal, because there will be different decisions from different tribunals. Surely the purpose of an Act of Parliament is to give clear direction to the tribunal as to how they ought to interpret a particular section of an Act. I still think the noble Lord has not applied himself to that question. I would support the plea that he should undertake to look at this again because I think there is genuine substance in the point raised by the noble Baroness.
As I have said, we shall have a look at it again in view of the discussion but we do not think that the intention behind the paragraph can be stated more clearly. There comes a point when you have to be prepared to leave it to the courts or to the tribunal. It is quite impossible for Parliament to deal with every detail of the law.
That is all very well, but I am trying to think of the man who has to make the decision before the courts have come to a conclusion. I wish that the Minister would grapple with this because the man who has to make a decision before the courts come to a conclusion is putting himself at risk if he is wrong. Under Clause 12 he may prevent himself from ever getting a job again. Under a later clause he will be liable to an unlimited sum by way of damages. There are other very harsh clauses against him if he discriminates.A great deal of this would have been avoided if subsection (2) had been left out of the clause altogether and the general statement made as put down in subsection (1). But if you are going to try to draw a clause of this kind, I suggest to the noble Lord—I am not going to ask my noble friends to divide on this and I hope that my noble friend who opposed the Amendment will not do so— that where a public official (say, a senior probation officer, which is the sort of person we are talking about) comes in good faith to a conclusion under this clause, all you have to do is to say that good faith is enough or reasonable grounds is enough or good faith and reasonable grounds are enough, then write it in the clause. But is is not good enough to say that we shall leave it to the courts to find out. I am all for leaving things to the courts to find out, but if you are going to put somebody at risk until they have decided it I do not think it is quite good enough.
I cannot think that many people will be put at risk by this. If they read the paragraph carefully they will soon come to a conclusion. But, as I said earlier, I shall certainly have a look at it to see whether it can be improved in the light of the debate which has taken place.
While thanking the Minister for his reply, I only hope that he will be good enough to look on it with an open mind. From what he has said he seems very content with this clause. I hope lie will do all he can to take in all the views expressed in the debate today and will seek to find a satisfactory solution. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
I do not want to detain the Committee long about this, but I want to say in all good nature to the noble Lord, Lord Jacques, before we part with this clause that he ought to ask those who advise him and indeed his right honourable friend the Minister—I suppose the Minister for Employment in this section, but if it is not then the Home Secretary—whether he is content with these employment provisions. I should like to remind him of what I said before I withdrew the Amendment relating to the size of businesses. Imagine a business such as my own farm was, a team of five; what is an employer to do if he is a shopkeeper or maintainer of a small business and four people out of five say: "I will not work with Mr. Smith?" or, alternatively, "If you engage Mr. Smith we will walk out"? Alternatively, they may simply make Mr. Smith's life a burden to him when he is there. We all know how petty tyranny can take place. Sometimes they will do it for a good reason and sometimes for bad. We know what people are like in human life.What advice do the Government give to the employer in such circumstances? I know what would have happened to me if my farm team had done it—I would have had to comply. I will tell the noble Lord why. I might have protested, argued and tried to talk them out of it. But I would have had to comply because otherwise the cows would not have been milked the next morning and then I should have been prosecuted for cruelty to animals by another of the Government Departments. Have not the Government any advice to give to such a man? I wonder whether the noble Lord knows what the answer is. I know the noble Lord is a humane man, but I really wonder whether the Government care. I would not say to the noble Lord, Lord Brockway, that he does not care, because everybody knows what a humane man he is. He made a striking intervention on my Amendment. But his head is immersed in the cloud layer somewhere above us or perhaps even above the cloud layer where he sees nothing but blue skies and the sun shining. We poor worldlings have to live in the earthy atmosphere of the shop floor and the farm. I do not believe that the noble Lord, Lord Brockway, notices, because he is so much above us. But what are we to do? The Government have not told us. The noble Lord, Lord Brockway, says that it is imperative that we have to legislate and the Government remain discreetly silent reading their Civil Service brief. What is the advice that they give? I will tell you what is going to happen. This clause and Clause 4 are going to be disregarded as they are being disregarded now. I wonder whether the Government are happy about that. Do they think that a law which cannot be enforced is really a good law? What will happen, too, is that whereas the law is being disregarded, in most cases it will occasionally and capriciously be enforced. A number of— I will not say blackmailing—money grubbing, gold digging actions will take place capriciously against some small employers. Are the Government happy with this situation? Have they absolutely lost touch with the reality of the people whom they are supposed to serve in their present positions? What is the answer?
This is a long way from the Amendment and even the clause that we are discussing. We have been discussing something which took place on Monday night; that is, the Amendment whether the small firm should be exempted. The problems which have been raised in relation to the small firm are exactly the same problems which arise in any other firm. In a big factory areas are broken down into separate shops. You can get the same kind of problem in one of the smaller workshops of British Leyland as you get on the noble Lord's farm, so it is not restricted to the small firm.The main argument I used against exempting the small firm was that it would be a retrograde step. Under the 1968 Act, until 1972 they had a temporary exemption. The noble Lord's own Government decided not to carry that on any longer. In 1972, by order, the small firm was put in the same position as the larger firm. If it was good in 1972, I see no reason why it should not be good in 1976. The noble Lord has not mentioned anything which was true in 1972 that is not true today. I believe that so far as this particular clause is concerned it has been very carefully worded, and we have a duty to see that that is so, because of the dangers which the noble and learned Lord spelt out. Here I believe we have been careful, and in the long run there is the tribunal which will decide any disputes which arise. So far as the Amendment is concerned (the main issue which has been raised), I have given an undertaking that we will look at the wording in the light of the debate which has taken place.
I am not altogether satisfied with that. I do not want to prolong this debate. My withers are quite unwrung about 1972. A lot of things go on in Governments and very few people know everything that does go on, especially when it goes on outside their Department. I have asked the noble Lord for the second time a perfectly plain question as to what advice he gives to a small employer, be he a farmer, a shopkeeper or manufacturer. It is apparent now that he has no advice to offer, except to offer himself up like a lamb to the slaughter to sec what the tribunal says when he is faced with an action for damages. I ask the noble Lord whether he is satisfied with that, because I am not. I do not agree, for the reasons I gave the other night and which the noble Lord did not answer, that the big firm and the small firm are in the same position. The big firm has great flexibility as to how to deploy its workforce. A small firm does not. That is why I drew a distinction from it. Suppose for a moment that the noble Lord is right; that only advances the size of the problem and does not reduce it.I ask the noble Lord, instead of putting forward these arguments—which are not based on answers to questions—to search his own conscience and ask himself what he would do in the circumstances that I have described to him. Is it fair for him to put other people into a position when he cannot answer what he would do himself? That seems to me to be a serious criticism of the Government. They have ceased to care what goes on on the shop floor.
May I make a contribution regarding labour relations? This is bound up with labour relations. I am surprised at the noble and learned Lord who, over many years, has been a Minister in successive Governments. He ought to know that in the service industries for which the Government were responsible, certain policies were laid down which became the responsibility of Ministers. The onus of responsibility was placed upon their shoulders regarding the dismissal of employees. I have always held the point of view that the one who ought to do the sacking, as we say in the North, is the one who has been the "starter"—the one who starts someone in employment. He ought to be the finisher for someone who is not carrying out his responsibilities.It so happens—and noble Lords will know this to be correct—that for no less than six years I was responsible for looking after the labour relations side of the Post Office. In the Post Office, every employee has an index card and recommendations for dismissal would be sent from sorting offices all over the country concerning employees who at some time or other had made a mistake. The recommendations would come through the postmaster concerned and go up to the Comptroller at the regional office. The recommendations were dealt with at the regional office and sent back to the Personnel Department and to the Director of Personnel at St. Martins-le-Grand. From there it was placed on my desk and the responsibility for taking a decision in those cases became my responsibility, as the Minister concerned. Whether it was for dismissal, promotion or anything else, it was my responsibility. I had to examine all these cases, which I did meticulously because of my long experience on the industrial front. I had to agree with many of the recommendations that came from the postmasters for dismissal. In other cases, after examination I formed the judgment that the recommendations for dismissal were not adequate, and therefore I used to take the decision that the individual concerned would not be dismissed but that he should continue in his employment. This has existed right from the time when the Post Office was set up in this country, through successive Governments and successive Ministers within the Post Office; and that was my responsibility. Therefore I am rather surprised, as I said at the beginning, that the noble and learned Lord asked a question concerning four or five people working on a farm, where someone commits a misdemeanour or the other four do not like the colour of his skin or they feel that he is not doing his job properly or pulling his weight and they do not want anything to do with him. In such a situation he goes to his employer and the employer sees the disunity that exists among these people. He asks, "What shall he do?" The noble and learned Lord asks my noble friend what he shall do in these circumstances. The responsibility is his; he was the starter and he ought to be the finisher. That is my view in regard to these things, but in my case the responsibility was placed upon me by Government and I had to give the decision. I remember one of my secretaries saying to me on one occasion—his father happened to be Head Postmaster in one of our big cities—as follows: "You and I are not very friendly today." I said, "For what reason?" He said, "Because my father sent up a recommendation for dismissal of one of his employees and you did not accept it, and he has to keep the man on." I saw that case in a different light altogether. I examined the evidence submitted to me. Therefore, from the experience I gained over those six years when I had to deal with thousands of cases, I am surprised at the comments made by the noble and learned Lord. I think he will understand when he examines this and thinks of what I am now saying after dealing with such cases. There was heavy responsibility. It is not that I liked the work I was engaged in, but someone had to do it and, as I say, it was my responsibility to take a decision for dismissal, or even to go against the decision of a promotion panel in respect of people making application for executive posts. They had the right to come to the Minister with an appeal against a decision arrived at by the Department. That is the way it worked, and so I cannot see anything wrong with the attitude of mind and the point of view expressed by my noble friend in endeavouring to deal with this. I should not have got to my feet had it not been for the statement made by the noble and learned Lord, for whom I have a great affection because of his ability in legal matters and so on; but he is talking now about being an employer of labour. That is why I have risen to my feet. He wanted advice on some line of approach as to what to do in circumstances where there is disunity among the employees he is responsible for.
I am sure that every word the noble Lord has said will be read with eager interest by every farmer in the country. They will put their cows on a card index and follow the methods of the Post Office in the future.
Clause 5, as amended, agreed to.
Clause 6 [ Exception for employment intended to provide training in skills to be exercised outside Great Britain.]:
moved Amendment No. 25:
Page 5, line 7, leave out from ("employer") to ("wholly") in line 10 and insert ("for the benefit of a person not ordinarily resident in Great Britain in or in connection with employing him at an establishment in Great Britain, where the purpose of that employment is to provide him with training in skills which he appears to the employer to intend to exercise ").
The noble Lord said: Clause 6 is designed to except from the Bill employment which is intended to provide a person not ordinarily resident in Great Britain with skills to be used outside this country. This clause is necessary to protect training and trade agreements which Government Departments and private companies are increasingly negotiating with overseas Governments. These agreements may, for example, concern the provision of health systems in developing countries and include the building of a hospital and supplying the necessary equipment. As part of the contract there may be an obligation to train the staff who are to run the hospital.
When this clause was considered in the other place, some anxieties were expressed as to the way in which the clause could be open to abuse. Those anxieties were repeated at the Second Reading of the Bill in this House. The Government had already acknowledged the possibilities of abuse and said they would come forward with Amendments at the appropriate time. Accordingly, we bring forward this Amendment. We have carefully considered the criticisms that have been made in regard to this clause and a corresponding clause, Clause 36. We believe that the clause will be improved by these Amendments. They will ensure that the exceptions can be claimed successfully as a defence to a complaint against discrimination only where their use is justified. They will make sure, for example, that an employer who reserves certain training places in his establishment for persons not ordinarily resident in Great Britain will be able to do so only on terms and conditions which will benefit the overseas trainees. He will not, for example, be able to pay them lower wages or give them less favourable benefits than he would provide for other employees in similar circumstances.
The Amendments also make it clear that the onus of showing that the trainee intends to use the skills acquired outside Great Britain will rest with the employer who claims the exception. In the event of complaint, it is likely that the employer would usually be able to show this by reference to either an individual employee's written contract of employment, or a wider training agreement concluded with an overseas company, authority or Government. An educational or training body could, for example, refer to the content of the course, a written agreement concluded with the individuals concerned, or a wiser education or training agreement drawn up with an overseas company, authority or Government. We believe that these Amendments introduce reasonable safeguards into the clause, and we introduce them in response to discussions on the points raised both in this House and in the other place. I commend this Amendment to the House. I beg to move.
We appreciate the Amendment to Clause 6 moved by the Government, the main point of which seems to be a change of emphasis in the role of the employer. The employer is no longer to be responsible for the trainee or other person not ordinarily resident in this country, who is employed by him for any length of time and does not later leave the country, because the words to be inserted are:
But I would ask the Government to indicate how this clause would then operate against an employer who had unknowingly been employing somebody who was an illegal immigrant, and who would not therefore be ordinarily resident in this country. Of course, I know that the term "not ordinarily resident" is not a legal definition of anybody, and is a very loose term which is interpreted in various ways, but I believe that it would normally apply to an illegal immigrant. Therefore, I should be grateful if the noble Lord would comment on the role, duties and obligations of an employer as a result of the Government's amendment of this clause. I am thinking, in particular, of the draft Directive which I understand has been discussed by the European Commission, in relation to very severe penalties for employers in Member States who may employ illegal immigrants and, therefore, encourage traffickers to go on with this absolutely intolerable form of human traffic. Therefore, I should be grateful if the noble Lord would comment on this Amendment in the light of what I have said."…which he appears to the employer to intend to exercise".
I shall not be dragged into the question of illegal immigrants now. That is outside the scope of the clause and of the Amendment. But I would just say that, in the circumstances which the noble Baroness indicated, if the employer could point to a contract for temporary employment for the exercise of the skills overseas, then he would be able to show that, so far as he was concerned, that was the intention. He would need to do no more than that.
The point is that the relationship between an employer and an illegal immigrant, or very often between other persons who are not ordinarily resident in this country, is not based on a contract and there is only a verbal arrangement. It seems to me that the last line of the Amendment is entirely a matter of subjective judgment on the part of the employer.
In order to get himself protected under this clause, the employer should have something in writing. For example, he will be doing this training for some overseas company, authority or Government. He will have a contract for that purpose, and he will be able to show that the training is being done under it.
I am afraid that I do not understand this, but I am prepared to give the Government the benefit of the doubt.
The clause as drafted refers only to persons not ordinarily resident, and the noble Baroness has raised the rather difficult point of the illegal immigrant. But what would be the position of someone who was ordinarily resident? The son of somebody who was previously an immigrant, who was born here, might want to go out and do work in his old home country. This clause would not cover him, because at that moment he would be ordinarily resident in this country. Is that what is intended?
That is what is intended.
On Question, Amendment agreed to.
moved Amendment No. 26:
Page 5, line 11, at end insert—
(" (2) Nothing in section 4 shall render unlawful any act done by an employer in pursuance of a plan to fill vacancies or hire new employees so as to eliminate or reduce imbalance with respect to colour, race, nationality or ethnic or national origins, if the plan has been submitted to the Commission in accordance with the rules of the Commission and the plan has been approved by the Commission subject to any conditions which the Commission may make.")
The noble Baroness said: Your Lordships will recall that in the 1968 Race Relations Act there is a section dealing with racial balance, and for reasons with which I much sympathise that section is greatly disapproved of by many people who are extremely anxious to promote good race relations in this country. I want to make it clear that this Amendment is in sharp distinction to that general section on racial balance which appears in the 1968 Act. The purpose of this Amendment, which is aimed at reducing an imbalance rather than permitting an application on grounds of racial balance, is to deal with a small number of cases and to do so in a very controlled and careful way by means of the Commission. The number, although small, covers cases of considerable importance.
I mentioned on Second Reading that, to my knowledge, there are a small number of companies which have been operating very favourable equal opportunity policies, and which have earned a reputation among immigrant communities as being employers where it is easy for immigrants to get employment. I know of two cases where the result of this policy has been that, over a period of years, these employers have found themselves staffed very largely and increasingly by immigrant workers. Your Lordships may ask at first sight: does this matter? I suggest that it matters in two ways. It leads to the position that those companies are becoming something like ghettoes, in which employment is being increasingly confined to immigrant groups.
In one case, the employer who was concerned about this development commissioned an independent inquiry in the local labour market to find out why they were getting so few applications from native English, and the inquiry discovered that local mothers and fathers were saying that company X was entirely staffed by Africans and Irish. I do not know to which groups the parents took particular exception but, whichever way it was, this is a development of racist attitudes which one wants to discourage, and the formation of ghettoes in such companies cannot be advantageous. Moreover, it is particularly hard on the companies which have adopted these policies, which then find themselves very much limited in their choice of employees. In one particular case, when full employment was as we would all wish it to be, a company was limited to a very restricted number of coloured persons on the local register because they were not getting applicants who were ordinary English school-leavers and would-be employees.
In these circumstances—and they are, of course, very few—it seems to me to be desirable that such a company should be able to ask the Commission for permission to operate a clause of this kind and that it should be operated only if the Commission decided, on investigation, that there was a case for operating it: that the developments which had taken place in this organisation were not in the interests of good race relations and that action such as I have suggested in this clause should take place.
Moreover, in making this kind of investigation and giving permission the Commission could put conditions upon it which would be favourable to the groups already employed by those concerns. For example, it could be made a condition that the organisation should show that they had a far more than ordinary number of immigrant or non-English people in the more senior positions, a situation which all too rarely occurs. By having this right the Commission could lay it down that the position of those already inside the company should be improved, at the same time allowing the company to redress a situation which unwittingly had become seriously unbalanced. I beg to move.
The question of whether or not the racial balance provision should be retained is not easy. The arguments which have been put forward in favour of a racial balance clause concern the difficulties which may arise from the disproportionate representation of particular racial groups in certain firms or sections of those firms. It is suggested that in these circumstances some jobs may become identified with a particular ethnic group and may then attract a disproportionate number of applicants from that group, especially when they are immigrants with their own particular language and customs.
I apologise to the Minister for intervening. It is not just that certain jobs are becoming the reserve of particular people but that certain companies are unable to attract employees except from particular racial groups.
I think that both apply. I do not believe that one can say that it is entirely the one or the other. Those who support this view argue that this may impair good race relations as well as good industrial relations. They suggest that it may also impede the employment prospects of the workers concerned, since they gain no experience of working in an unsegregated industrial situation and so are handicapped in seeking promotion or moving to better jobs elsewhere.The Amendment aims to provide an exception in the Bill to help employers to overcome these difficulties. It seeks to avoid some of the problems of the provisions of the 1968 Act. We acknowledge that immediately. It is confined to acts taken to reduce or lessen an existing imbalance, but we believe that the formulation of "plans" which is embodied in the Amendment, is beset with problems. We believe that the labour market conditions change so rapidly that the employer's plans and proposals would likewise have to change. The Government's main objection to the Amendment, however, is that it conflicts with the principle of nondiscrimination upon which the whole of the Bill is grounded. It would, in fact, permit discrimination on racial grounds. If the Amendment were accepted, there would inevitably be a restriction in the employment prospects of workers from minority racial groups who in many cases would find it difficult to secure alternative employment. Employers would, as part of an approved plan, be able to turn away applicants or deny promotion to existing workers simply because they were not members of a particular racial group. Membership of a particular racial group rather than individual qualifications or merit would then be the deciding factor in providing opportunities for employment. May I sum up our main objection in these words. We are not convinced that a racial balance exception can make a sufficiently positive contribution to justify the discrimination which is inherent in it. We believe that the problem can to some extent be cured by more positive action. Clauses 37 and 38 of the Bill enable training bodies and employers to take steps to increase the range of jobs for which the members of particular racial groups are qualified if, in those jobs, they have previously been under-represented. The Government are convinced that this positive approach, in the context of greater equality of opportunity which the Bill is designed to promote, is the right approach. In the light of this explanation, I hope that the noble Baroness will feel that she can withdraw her Amendment.
May I ask the noble Lord the Minister a question arising out of what he has said about Clause 37? In the kind of firm about which I have been speaking, let us suppose that the head of the firm has been receiving no white applications for apprenticeships. Under Clause 37, would it then be appropriate for the firm to say that for a period of two or three years they would be restricting their apprenticeship applications to whites? That is what the noble Lord is implying. In that case you could use Clause 37, the clause to redress imbalance, by restricting it to white apprentices. Is that what the Minister is saying?
I should say that you could use it in reverse, which is what the noble Baroness is asking for. I see no reason why you should not use Clause 37 in reverse.
As I read Clause 37, it could be used to benefit the members of any ethnic group. Therefore both the Minister and my noble friend are right: that it could be used to benefit members of a particular minority ethnic group or members of the host community. If, however, the noble Lord is suggesting that training provides us with the whole answer to the case put forward by my noble friend, then I must respectfully disagree with him. I must refer him back to the discussion we had on Monday evening when the noble Lord, Lord Brockway, and others made reference to the documents which were sent to some of us by the Wandsworth Council for Community Relations—No Bloody Suntans—in which it was made absolutely clear that, in the experience of the anonymous lady who gave the interview to the representative of the Wandsworth CCR, many people with the highest qualifications are refused employment, even though nobody else with remotely similar qualifications is presented to the potential employer.The noble Lord has probably read the document and will remember the case of an accountant who, according to the lady who interviewed him and who was reporting the facts to the Wandsworth CCR, is a man of considerable experience. There is no doubt whatsoever about the excellence of his qualifications, yet he was turned down by the employer to whom he was sent by the agency in favour of somebody who was white. Therefore you can train people as accountants and in all kinds of skills, but unless you have powerful weapons against discrimination they still will not get the jobs. Black people, members of minority ethnic groups, will, as my noble friend has pointed out, finish up in employment which may not be suitable for the qualifications which they have to offer on the labour market. We all know of cases like this. My noble friend mentioned a company with which she is familiar where, she says, the situation came about because of the liberal policies of the employer. Equally you can point to cases where black workers are in a majority because white workers are not prepared to accept the conditions that are offered. I think both are equally wrong. We do not wish to concentrate the majority of workers of ethnic minorities into different companies and particular occupations and the noble Lord agreed with my noble friend that we are talking about both situations in this Amendment. So I think it would be only right if the noble Lord the Minister would reflect again on what my noble friend has said and at the very least may I request him to take this back to his Department. He did not mention whether there had been any consultations about this clause so I would also ask him to refer the matter to representatives of ethnic minorities and indeed to the Community Relations Commission itself. It would be valuable if he could obtain the advice of the authorities on this subject, and indeed I would suggest that he should talk to the employers' and the trade unions' organisations.
May I intervene to say that the Amendment conflicts with the advice of the Race Relations Board.
I am grateful to the Minister for that information. I mentioned also that I hoped he would consult the Community Relations Commission and I shall be grateful if he will tell us whether that advice has been sought, whether the advice of the trade unions' and the employers' organisations has been sought, and whether in particular it has been put to them that the clause suggested by my noble friend is not the same as was in the 1968 Act. It is of a more limited nature and it provides that such discrimination as my noble friend's subsection permits is hedged about with all sorts of safeguards to prevent it from being used to the detriment of minority group workers. So I humbly request that the noble Lord should take this matter back and at least give us a promise that before Report stage he will have another look at it.
I can sum up the advice we have had. The Race Relations Board recommended the repeal of the provisions in the 1968 Act—just straight forward repeal, not amendment. We have had consultations with the TUC and they also accepted complete repeal rather than modification. They said that there was little evidence that it had any positive effect and it was not consistent with the promotion of equal opportunity. The CBI made representations to the Department for the retention of the 1968 Act and they provided examples showing that some employers relied on the existing provisions and sought to regulate their recruitment accordingly. In some cases where the employers had not used the provision, concentrations of racial minority workers had arisen with unfortunate consequences for good industrial relations and for the minority group workers themselves whose employment prospects were impeded.
At that point I should like to ask the Minister a question, if he will permit me. He keeps referring to the 1968 Act. Has he put the specific Amendment moved by my noble friend to those bodies whom he has consulted or has he only taken the general principle of the 1968 Act, which is not relevant to this argument?
I think the noble Lord could assume the answer to that question without asking it. Has there been time for consultations since this Amendment was tabled?
Then the answer is, No.
The answer is, No. This Amendment is a modification of the 1968 Act. There has been no time for any consultations on this particular Amendment.
May I put it to the Minister that if that is so, would it not he right to have a look at this and to consult on this specific Amendment before the next stage of the Bill? Is that not a reasonable request?
I should like to reinforce this a little. We are not getting on very fast and this is worrying me and I suspect it is worrying the noble Lord, Lord Harris of Greenwich, who seems to have departed in high dudgeon. I do not know whether the noble Lord, Lord Jacques, is seeking to provoke the Liberals into a Division but if he were doing so he could not be setting about it more efficiently. I suggest to him that there should be a little "give" so far as he is concerned. In fact, he really makes no concessions to any kind of criticism at all and he is giving the impression, no doubt unwittingly, that it does not matter what we say to him he will still read the same words out of his departmental brief. This is not what Parliamentary debate is about.I am completely agnostic on this subject because there are some subjects, I am afraid, that I do not know very much about and this is one of them, but what I am not agnostic about is the matter of the tactics of Parliamentary debate. I have been in one House or another for quite a long time and I think the noble Lord, Lord Jacques, ought to be a little more flexible. I am wondering whether we would not get on quicker if he were a little nicer to the people who propose Amendments in good faith and support them with fairly reasonable sounding arguments.
I am sorry if I have not been nice. I did not think that I had been the opposite to anybody. May I say that so far as the CBI are concerned they were received by the Home Secretary, there was a deputation received on the 1968 Act on the imbalance clause and there was a long discussion. The Home Secretary promised to consider it and some good while afterwards, having had the opportunity of discussing it, he wrote to the CBI—I have a copy of the correspondence here—saying why he could not accept any clause for imbalance.
I really must return to the fact that this clause is different from the 1968 clause, and I would also add that this Amendment was tabled in August. There has been time in the Department for consultation on this clause to take place. Usually I know that on Amendments tabled by me the noble Lord would be safe in saying that they had come in within the last 24 hours, but on this occasion in fact they have been in for six weeks.
I will certainly request that we might give consideration to the modifications which the Amendment would make to the 1968 Act and to consider whether these modifications or something like them could not be used. However, I would also add this. It is all very well for the noble and learned Lord to expect me to give way on every Amendment, because on almost every one he thinks I should give some concession, but my experience is that when he is on this side of the House he does not do it himself.
I can assure the noble Lord that when we are on that side we shall be most accommodating, but in the light of what he has said I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6, as amended, agreed to.
Clause 7 [ Discrimination against contract workers]:
moved Amendment No. 27:
Page 5, line 30, at end insert—
("(4) Nothing in this section shall render unlawful any act done by the principal for the benefit of a contract worker not ordinarily resident in Great Britain in or in connection with allowing him to do work to which this section applies, where the purpose of his being allowed to do that work is to provide him with training in skills which he appears to the principal to intend to exercise wholly outside Great Britain.")
The noble Lord said: This is a technical Amendment to ensure that principals of contract workers are in the event of a complaint of unlawful discrimination afforded the same defences as are available to employers under Clause 6 of the Bill. I beg to move.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 agreed to.
Clause 9 [ Exception for seamen recruited abroad]:
On Question, Whether Clause 9 shall stand part of the Bill?
I am strongly in favour of this measure, and therefore do not want to delay its passing. I have refrained from speaking during the debate, although I have sometimes been provoked. This clause provides that:
This provision allows for the continuation of discrimination in the terms of their contract of employment on approximately 19,000 Asians and Africans working on British ships. That is a very high proportion—19,000 compared with 89,000 British seamen. If this clause were deleted, seamen belonging to ethnic minorities would have the same protection as British seamen. I recognise that there will be practical difficulties because these seamen are recruited in India, Pakistan, Bangladesh, China, Nigeria, Sierra Leone and the Seychelles. They are recruited under regulations and by negotiation in these territories. I recognise that the wages paid to them are higher than are normally paid in those territories. I suggest that, instead of this clause, the new Commission should establish a procedure whereby pay should be adjusted by progressive phases after consultation with the Governments concerned, and with the employers and the unions. I am encouraged in urging this by a statement made by Mr. Clinton Davis, the Parliamentary Under-Secretary of State for Trade, at the recently held annual conference of the National Union of Seamen. He said that a working party from both sides of industry would be set up to study the problems involved. He added these words:"Nothing in section 4 shall render unlawful any act done by an employer in or in connection with employment by him on any ship in the case of a person who applied or was engaged for that employment outside Great Britain."
In the Guardian report of his speech, he went much further than that. He stated that the Government are taking powers in the Bill now before us to repeal the exemption order. So far as I am able, I have studied the long Bill and the very complex Amendments to it. In those documents I do not find any observance of what Mr. Clinton Davis said, that these powers should be modified." It is not a question of whether these disgraceful practices are to be eradicated, but of how they are to be eradicated."
I think the noble Lord, Lord Brockway, will find that Clause 73 has got something about it.
I am very glad to have advice and I shall listen with great attention to what the Minister says. Nevertheless, I submit that this Amendment is not only for the sake of the non-white workers, but for the British seamen who are prejudiced by this low-paid competition. Mr. John Slater, the General Secretary of the National Union of Seamen, in welcoming the Amendment, said:
If this is true, then there is no place for this clause in the Bill, and I beg to move that it be left out."We are on the verge of getting rid of 150 years of this deplorable practice."
I hasten straight away to say that I do not rise to support the deletion of this clause, but to ask the Minister four questions related to it which he might be able to cover in his reply, and thus save time. However, if the Minister prefers to deal first with the points raised by the noble Lord, Lord Brockway, and then with mine, that is entirely up to him.My first question is this. Does Clause 9 represent the complete outcome of the consultations referred to in paragraph 64 of the White Paper? That paragraph says that there were to be consultations with both sides of industry to resolve any problems. Are those consultations now complete, or are there still some problems unresolved? Secondly, what is the reason that the exception afforded by Clause 9 to the recruitment of staff for ships does not also cover aircraft? What is the distinction between the two? Thirdly, does the exception afforded by Clause 9 refer to the recruitment of staff for Her Majesty's ships? And my fourth question is this. Does this freedom to discriminate in the recruitment of ships' crews overseas accord with our obligations not to do so under our accession to the European Economic Community?
I raise only one small point, as I do not wish to delay the Bill. It is possible that I may be the only noble Lord present who has served in a lascar ship. That was during the war, when she was trooping. As a lieutenant RNVR I was in charge of the military landing craft and had to work very closely with the lascar crew running the ship. I can assure your Lordships that if there had been any question of introducing into that ship anybody of a different nationality, race or, indeed, caste, the whole situation would have come to a standstill. This was a community; this was a Goanese crew, and there was a tradition of generations in it.The chief petty officer—I am afraid my ageing memory has forgotten his title—was a tremendous chap. The life of the crew was a very special and traditional life which had grown up in the ship. I do not think we would be serving Goa or any of the other ports from where Asiatic crews come, with their traditions and arrangements, strictly carrying out their own jurisdiction in running our ships. By saying they have got to be mixed up with different castes and people, perhaps African seamen, I do not think we should be doing any great service to our Asiatic friends who have served us very well for a number of generations.
So far as aircraft are concerned, I can say that there have been consultations with both sides of the aircraft industry and the exception for them has been excluded by agreement with them. As regards the other questions which the noble Lord, Lord Sandford, raised. I think I will deal with some of them in reply to my noble friend Lord Brockway and in so far as I have not covered them all I will write to the noble Lord.There were in the 1968 Act three exceptions relating to seamen. We have had consultations—and these are the consultations to which the noble Lord referred—and as a result of those consultations with both sides of the industry two of the exceptions in the 1968 Act have not been repeated in the Bill before us. The third one is the exception which is retained, and it is in fact Clause 9 with which we are dealing. The problem presented in this case is very much greater, and mainly concerns seamen from the Indian subcontinent. Some 13,000 seamen from this area are employed by long tradition in some 500 United Kingdom ships at rates of pay which are substantially below United Kingdom rates but are agreed with the local unions. Seafarers employed on local flagships are paid at the same rates and the Indian, Bangladesh and Pakistan Governments have made strong representations to the United Kingdom Government on the damage that could be done to their economies and their own shipping interests if we were to insist upon United Kingdom rates being paid to their seafarers. The General Council of British Shipping also strongly represented that British shipping and the United Kingdom balance of payments would suffer considerably if full United Kingdom rates had to be paid to overseas recruited seamen. Partly, of course, because they could not compete with local flag vessels paying the lower rate, they believe that many of the ships manned by such seafarers would have to be prematurely scrapped and the seafarers made unemployed. The unions, on the other hand, feel that the discrimination is no longer justified. In the light of the consultations which the Government have had with both sides of the industry, they have decided that the exception should continue for a strictly limited period, and, as the noble and learned Lord said, there is provision in Clause 73 for an amendment to the Bill by order subject to Affirmative Resolution. The Government's policy is not to be viewed as a prescription for delay. The Government have, therefore, set up a working group on the employment of non-domiciled seafarers on United Kingdom ships. Both sides of industry are represented on the working group, whose terms of reference are as follows:
The Government's view is not whether or not the practice should be eradicated, but how soon it can be eradicated. I hope with those words that my noble friend will feel that he can now withdraw his Amendment and allow us to proceed to the next clause."To study the problems involved in phasing out the employment of Asians and other non-domiciled seafarers in United Kingdom ships at less than the United Kingdom rates of pay and to seek agreed solutions to these problems, having regard to Her Majesty's Government's declared intention of phasing out this practice and to the economic health of the United Kingdom shipping industry."
I am very grateful to the noble and learned Lord, Lord Hailsham, who drew my attention to Clause 73. Under this clause it would be possible by order to remove the implications of Clause 9. Quite honestly, I do not see the necessity of retaining Clause 9 at this moment, when a Minister from a Government Department has said that there is the intention to eradicate this discrimination in wages. Why, therefore, it should be necessary to retain a clause which maintains it I do not know. But I am encouraged by the fact that the Government themselves have said that they intend to eradicate this disgraceful practice, and therefore I shall look forward to Clause 73 and to an order which will remove it entirely. I think it has been worth while drawing the attention of the Committee to this matter.
Clause 9 agreed to.
Clause 10 [ Partnerships]:
moved Amendment No. 27A:
Page 7, line 14, leave out ("six or more").
The noble Lord said: I put down this Amendment because I am a little worried about the consequences of Clause 10. My attention was first drawn to it by thinking of the situation within my own profession, where partnerships, with very few exceptions, will be fewer than six, and therefore all GPs will have a right to discriminate. Having thought about that, I decided to do a little inquiry, and I find that it is so with most of the learned professions. In fact, in most of the learned professions partnerships will be less than six; therefore, Clause 10 will enable the vast majority of learned professions to discriminate. I do not believe that that is what the Government intend. Hence, I am introducing this Amendment in order to bring this particular point home. I shall wait to hear the Government's reply.
I take it that the whole purpose of having a Race Relations Act is to help to remove discrimination, to remove obstacles to people of different races playing their full part in society, at all levels of society. If, however, as a consequence of the Act, a certain section of society, and a very important section at that, is free to discriminate, I think the Act will of its own volition introduce a coach and horses through its provisions. That is how I see this particular clause, Clause 10. In effect, since it will permit most of the learned professions under the terms of their partnerships to discriminate, a very dangerous road will in fact be built right through the effects of the Act.
It may well be that problems are involved in making all partnerships subject to the effect of the Race Relations Bill, but, frankly, I do not know that I can see them. There are sound arguments for exempting small dwellings. There are sound arguments for exempting dwellings which are furnished, and in which the owners are living, from the effects of this Bill. I do not believe that there are any sound arguments for exempting any form of employment from the consequences of the Bill, because once you exempt certain forms of employment from the consequences of this Bill you are opening a door to some dangerous discrimination. But it is even worse if the exemption is in fact for a section of society which is of extreme importance to the society—and I think that the learned professions are of extreme importance to this society. It is even worse when it is going to affect a profession in which a large percentage of members of that profession are members of minority ethnic groups.
I must confess to be very worried about the consequences of Clause 10, and I would in fact invite the Government to say that no discrimination will be permissible for any partnerships. That would be the effect of my Amendment, which will remove from the Bill the words "six or more". As a consequence, all partnerships will have to conform to the whole tenor, the whole ethos, of the Bill, and there will be no discrimination permissible when partnerships are being formed. I hope your Lordships will agree with me. I hope that the Government on reflection, will, see the point. I beg to move.
I should just like to add one or two words in support of the Amendment.
May I say a few words first? Might I say to the Committee that if we have one debate on partnerships, including the question of whether the clause be left out, it would be to the benefit of the Committee. I would then give one reply.
I will give way to the noble Baroness, Lady Vickers, if she would like to move her Amendment at this stage.
The noble Baroness cannot move it, with great respect. There is a Question before the Committee, and that Question must be adhered to. Whether the debate ranges over both questions is a question of the convenience of the Committee, about which I do not wish to say anything, but under the rules of order we cannot have a second Question before the Committee.
I am quite willing to talk to my Amendment, but as has just been pointed out I cannot move it. If I could move it afterwards, at the end, I should be very pleased to do so. I should like to say first to the noble Lord, Lord Pitt, that I would be perfectly willing to support his Amendment. He has put it very reasonably and I agree with him in regard to the professions. But I do not like this clause at all, because it is entirely unworkable and likely to be ignored. It is a great pity to have something in a Bill which is unworkable, and therefore allows people to ignore it.If you are a partner in a firm you are not going to discriminate against anybody who is going to be beneficial to your firm. You are obviously going to take the best person. Firms are there to do business, and therefore they employ the people who are most beneficial to them. Paragraph (a) says:
They are going to offer the position to the most qualified person, whatever his race. I think this is where we want to get in this country at the present time. The terms they offer is surely a contract between partners, and the person will see, whatever his race, the terms as set down in the contract. Therefore, I cannot see why this is necessary. If one is refused or omitted from the offer of the position deliberately, how is anybody really going to know whether one has been deliberately omitted from it? Who is going to know this? It would be impossible to find out, I should have thought. Subsection (3) states that these provisions"the arrangements they make for the purpose of determining who should be offered that position".
But that is going again to make segregation, which I have been trying to fight against during this Bill. I should have thought that we want everybody to be employed on their merits, and this is the great thing on which I think I can support the noble Lord, Lord Pitt, because he wishes to see that the people employed in these small firms are employed on their merits and for the good of the partnership and not just because of their particular racial group. I should like very briefly to say that I hope we shall not include this clause. If we do include it, obviously it cannot be followed, and if we get to the question of expelling a person from that position, or subjecting him to some other deterrent, then he has the right to go to the tribunal or to the Commission, or to take action, if he wishes, through his own legal advisers. Therefore, I should like to say, if I cannot move my Amendment for the moment, that I am concerned that this is totally unnecessary in the context of this Bill, and will only be another section to be ignored and another one which will just irritate employers and not make partnerships happier in the future."do not apply to a position as partner where, if it were employment, being of a particular racial group would be a genuine occupational qualification for the job."
The noble Baroness, Lady Vickers, says that she agrees with the noble Lord, Lord Pitt, in his Amendment, that she does not want to see discrimination in partnerships of less than six persons; and yet she wants to delete the whole clause, which is quite inconsistent with supporting the noble Lord, Lord Pitt. I am advised that if this clause were deleted then partnerships would be excluded from the Bill altogether, since belonging to a partnership does not constitute employment. Therefore, if the noble Baroness's Amendment were carried anyone who belongs to a partnership, of whatever size, would be permitted to discriminate. I am sure that that is not what the noble Baroness wants to achieve.She mentioned subsection (3) in particular. I think it is fairly clear why that exception is necessary. We spoke on Monday about the genuine occupational qualifications. One of the possibilities that were mentioned was that one might want to employ somebody in an Arab restaurant. The noble and learned Lord, Lord Hailsham, mentioned that. I do not want to go back over that discussion again, but if the Arab restaurant happened to be run by a partnership, then it would be reasonable to suppose that a new partner would also have to be of Arab origin so that he would fit in with the general ambience of the restaurant.
The style and setting.
A position which the Committee very wisely altered, if I may say so, on Monday evening to "the style or setting". I think that is the reason why subsection (3) has been included there.If the noble Baroness has any doubts as to whether discrimination in partnerships does take place, I would recommend her to look at the columns of the British Medical Journal which contain numerous advertisements, as the noble Lord, Lord Pitt, has pointed out, calling for a graduate of a British university required as fourth partner, or whatever the number may be, to join an existing medical partnership. As the noble Lord, Lord Pitt, has said, I think almost all medical partnerships consist of fewer than six persons, and therefore every single general practitioner in the country who belongs to one of these partnerships would be entitled to discriminate if the Bill remains as it stands.
Quite a number of overseas people go to British universities and are fully qualified.
What the noble Baroness says is quite correct. As she knows, a large number of doctors employed in our Health Service are overseas trained, and most of those who are overseas trained are of minority ethnic groups: they are West Indians, or Indians, or Pakistanis, and quite a number are from the United Arab Republic. However, if one looks at our own universities in the United Kingdom, the majority of the graduates from those universities are of the majority ethnic group. Thus, what a person is saying when he puts an advertisement in the British Medical Journal to that effect, is that he wants white applicants joining the partnership.If I were a West Indian or Pakistani-trained doctor and I read an advertisement of that kind I should know perfectly well what was meant. Even if I were a person of, say, Indian ethnic origin who had graduated at Edinburgh University, notwithstanding the fact that I would comply with the terms of the advertisement, I should be very reluctant to come forward and make an application in response to that advertisement and say, "Although you may think that I might have been trained at an overseas university, here are my credentials from Edinburgh ", and expect to be treated on the same footing as any other applicant for the job. Being realistic, one would know that the person placing the advertisement in the publication wanted only white persons to apply.
What strikes me about this is the great difficulty of enforcement. Almost all of these partnerships will include a unanimity clause, which has the effect of saying that nobody can he admitted to the partnership as a new partner unless all the other partners consent. May I ask the noble Lord what would happen if one of the partners did not consent? How would this proposal be enforced?
Thank goodness that is not a question with which I have to deal. If there are problems, as Lord Pitt conceded there might be, with partnerships of six people, then equally there are problems with partnerships of five. If it is possible under the Bill as drafted to say that discrimination is not to be permitted where a partnership consists of six persons or more, then obviously it must be equally feasible to prohibit discrimination in partnerships of five. I hope that the noble Lord, Lord Paget, will not press me to explain precisely how this is accomplished, but I think he would agree that as this must have been achieved for partnerships of six, then equally it must be for partnerships of five.The existence of this provision in the Bill is grossly offensive to persons belonging to minority ethnic groups, and if any noble Lord is in doubt about that I would refer him—I particularly refer the Minister to this—to an editorial in Garavi Gujarat on 14th August which said:
If that is how people feel about it—and I think the Minister will concede that Garavi Gujarat is fairly representative of a particular minority ethnic group—then it is likely that others will feel the same. I hope that the Minister will take note of such views and will agree that Lord Pitt's Amendment should be accepted."One of the biggest defects in the Race Relations Bill is the exception conferred by Clause 10".
Are we not on slightly dangerous ground if we take the line of the noble Lord, Lord Avebury, not only in relation to an ethnic group? The advertisement he cited said that a person would have to be trained at a particular university. If we move into the area where I, if I were in the teaching profession, was unable even to suggest that I should prefer somebody from this as opposed to that college, the whole thing will become totally ridiculous. We are talking about discrimination within the terms of the Bill; but the noble Lord has gone rather wider by talking about partners who state that they prefer somebody from a British university. That may be because they feel that certain qualifications that the candidate brings to the partnership are the qualifications they need, and nothing to do with his ethnic origin.
I hope that the noble Baroness will forgive me if I do not become involved in discussing teachers and teaching; teachers are not members of partnerships and would therefore not be covered by the Amendment.
I suggest that the noble Lord, Lord Avebury, is trying to extricate himself from what is a fundamental argument. The noble Baroness, Lady Phillips, is right in saving that one must follow the logic of what one wants to put on the Statute Book, and the noble Baroness presented that logic by pointing out that if the noble Lord would object to preferring somebody from a British university, lie is well on the road to excluding anybody from naming any item for which he has a preference and which would best suit his profession or business. I intervene only because I thought that the noble Lord was trying to fob off with a shrug of the shoulders something that is fundamental to the argument.
On this question of partnerships we are primarily concerned with the general principle which was laid down in the White Paper, that the Bill should not apply to circumstances in which there were personal and intimate relations. As far as partnerships are concerned, it is inevitable that there will be differences of opinion. I had assumed, for example, that when the noble Baroness, Lady Vickers, tabled her Amendment to delete the clause she wanted no partnership to come within the scope of the Bill. On the other hand, by his Amendment my noble friend Lord Pitt wants all partnerships to come within its scope. In the other House there were similar differences of opinion; one Amendment wanted to increase the number from six to a higher figure while another wanted to reduce it from six to a lower figure. Both, I am pleased to say, were withdrawn after debate and I hope that we may have the same good fortune in this Committee.There is nothing very striking about the use of the figure six here. The only thing we can say about using six is that a figure of about this order is designed to exclude partnerships involving close personal relations. That is our defence of this figure. I might point out that even though discrimination would be allowed in smaller partnerships as the Bill stands, a discriminatory advertisement would not be permissible; even though it was lawful to discriminate, the partnership would not be able to advertise in a discriminatory way because it would be offensive and because it would promote bad race relations. Why do we want the larger partnerships particularly to come within the ambit? First, there is the issue of principle. We do not think that the relations are sufficiently close and personal in the case of the larger partnerships to justify them being an exception. However, in addition it is now common practice, particularly in the professions of accounting, surveying and solicitors, for an offer of a partnership to be made as part of the normal career expectation. It is done in much the same way as in industry; recruits are promised training in management, and ultimately responsibility in management. We feel that it would be wrong not to protect the interests of the minority in these professions. We feel that there should be no discrimination against a particular race in a case where there is a large partnership and it is the normal practice to offer a partnership as a career prospect. We believe, therefore, that although there is obviously scope for a great deal of opinion on this, by limiting the exception to something less than six at this stage we have struck the right balance.
May I ask the Minister to enlighten me on one point? Am I right in my reading of the Bill that, irrespective of the clause under discussion, the Bill applies to partnerships in so far as they are sometimes employers of employees? If that is so, then the majority of the sort of advertisements to which my noble friend Lord Avebury and the noble Lord, Lord Pitt, referred, would in fact be advertisements not so much for partners but for assistants with a view to partnership. That is the position in nine out of ten cases. If that is so, would not an assistant be an employee and, going on from there, would he not already be covered by the Bill?
It goes some way towards it. I would agree, in the case of a partnership, that, in so far as the partners employ labour, they are liable as employers. I would also agree that many advertisements are for employees with a view to partnership, but the clause is concerned not merely with recruitment but with the benefits which the partners get after recruitment. We feel that there should be protection at that point.
I should like to support the noble Lord, Lord Pitt, in the elimination of the exclusion of partnerships numbering five or less, for several reasons. I feel that the arguments put forward by the Minister about the intimate and personal relationships that apply in partnerships are really a little bogus. After all, you cannot be much closer to somebody than you are on the other side of a conveyor belt where you have to look at the person all day long, and if you do not like him you do not like him all day long. Partners are not in fact working in that kind of very close personal proximity all the time. I recognise that they have to have close dealings with each other on business and professional matters, but the argument about it all being so personal and intimate really seems to me to be a false one.I should like to follow up the point made by my noble friend Lord Winstanley when he said that it would go some way towards meeting the problem because so many people in partnerships are taken on as an assistant with a view to partnership. Of course, as we all know, the crucial point is whether the promotion in fact takes place. We know that of people who are taken on as assistants some get promotion very much faster than others. One could in these circumstances easily get the position that one would be taken on as an assistant and would go on as an assistant for a very long time because this limitation to five would make it possible for the partners never to employ one. One could be an extremely useful, extremely experienced and extremely cheap assistant on those terms. My third reason for wishing to support the Amendment is that all of us who have had anything to do with problems of race know that the real, central problem is that of getting people from minority groups into high status occupations. If we could get more people from minority groups into the high status occupations, a great many of our other problems in relation to race would fall to the ground. That is the central reason why we ought to be particularly keen to see that, in professions such as medicine and the law which have a high standing in our society, it should be made as easy as possible for properly qualified—and of course it is essential that they should be so—people from minority groups to he able to make their way.
I entirely disagree with the noble Baroness when she suggests that the relationships between partners in a small partnership are about the same as they are between people sitting on opposite sides of a conveyor belt. I regard that as nonsense. In the case of the partners, they have to consult on the policy of their partnership and on their procedures and they very often have to come to friendly terms on when one will be on duty and another off duty. The relationship is, in my opinion, entirely different and I feel that the noble Baroness is using a bogus argument.
I continue to be unhappy about this whole affair. It is clear that the Minister and I see race relations quite differently. One of the basic points about prejudice is that it is based upon ignorance. The more people get to know each other, the more they mix and the more they do things together, the less likely they are to be prejudiced. More prejudice is broken down by people working together for a common objective than in any other way. Therefore, I do not agree that the fact that people have to work together, discuss matters together and come to certain agreements about the way they work is a reason for agreeing that they should be able to discriminate against each other. I do not agree and I therefore cannot share the Government's approach to this particular point.However, what the noble Baroness, Lady Seear, has said is even more important. One of the things we must aim at—and I cannot believe that the Government do not agree, because I was always led to believe that both Parties have this objective at heart—is to have people of all races functioning together at every level of society. The danger of this clause—and this has not been answered by the Minister—is that, at a very section of society where it is important to encourage the maximum getting together, we are agreeing that people should discriminate. The real danger of the clause is it allows discrimination at a certain point where I should have regarded it as of the utmost importance that discrimination should not be encouraged and where I feel that any obstacle to people being able to play their full part should be removed. It is at that level that we are allowing discrimination. I am rather loath to test the Committee by dividing. However, I shall at least appeal to the Minister to undertake to have further consultations and to look at this clause again, and to think of the consequences of allowing discrimination in all our learned societies to go on unchecked. Of course the noble Lord, Lord Winstanley, is right: if it is an assistant one is employing, one is caught by the Bill, but what happens afterwards? The noble Baroness is also right: many things can happen afterwards, and we should not say, as we are saying in the Bill, that it does not matter.
Perhaps the noble Lord will allow me to make my position clear. I was not suggesting that I disagreed with his Amendment in any way when I made the point I did. What the noble Laid, Lord Jacques, said in reply to my noble friend was not an answer at all. All she said was that there was nothing in the Bill, the Amendment, or anything else, to stop any partnership from taking on not a partner but an employee—an assistant—from an ethnic minority. They can do it if they wish and neither the Bill nor the Amendment will stop them. Many do so. But, if they want a partner—and there are very clear and obvious financial advantages and incentives to partnerships in the National Health Service to take another partner—and if they want to have a look at the person first before they finally make him a partner, then they have to advertise. They are already caught by the kind of advertisements which the noble Lord objects to so strongly—and I agree with him and with the noble Lord, Lord Avebury, on the same point. Those advertisements are already clearly in breach of the law as it will be without the present clause.
I was not touching the question of advertisements. I am talking essentially of the clause as it affects partnerships, and what I was saying before I gave way to the noble Lord was that, in so far as they are employing assistants, they are covered by the Bill as it is because the Bill deals with employment. However, in so far as they are promoting the assistant to become a partner, we are saying in Clause 10 that they are free to discriminate. It is that that I am challenging, that that I am saying is not a good thing. That is what I am appealing to the Government to look at again, because I believe they are mistaken in their attitude to this and that the consequences that could flow from this exemption under Clause 10 could be quite calamitous. I hope that the Minister will undertake to look at this question again and so not force me to divide the Committee.
I should like to put a point to the Minister. He was speaking of the close relationship between the members of a small partnership, which is something I understand; but it is no closer—is it?—than the similar relationship between a group of managers managing a company. Yet I think that if it was a question of appointing a manager that would immediately apply.
I should say that there is a difference between colleagues who are managers and those who are partners. To start with there is a financial difference. I think there are differences. I can give my noble friend one consolation by saying that the number can always be reduced by order without new legislation: provision is made in Clause 73 to change the number. I am also quite willing to say that we will obviously look at what has been said in the debate, in particular what my noble
|Amherst, E.||Hives, L.||Seear, B.|
|Amulree, L.||Janner, L.||Simon, V.|
|Avebury, L.||McNair, L.||Taylor of Mansfield, L.|
|Banks, L.||Maelor, L.||Vickers, B.|
|Barrington, V.||Mais, L.||Wade, L.|
|Brockway, L.[Teller]||Mottistone, L.||Wigoder, L.|
|Crook, L.||Pitt of Hampstead, L.[Teller]||Wilson of Radcliffe, L.|
|Davies of Leek, L.||Platt, L.||Winstanley, L.|
|Foot, L.||Rhodes, L.||Wynne-Jones, L.|
|Gladwyn, L.||Ritchie-Calder, L.|
|Grey, E.||St. Davids, V.|
|Alport, L.||Ellenborough, L.||Hawke, L.|
|Ampthill, L.||Elliot of Harwood, B.||Houghton of Sowerby, L.|
|Auckland, L.||Elwyn-Jones, L.(L. Chancellor.)||Hughes, L.|
|Balerno, L.||Energlyn, L.||Hylton-Foster, B.|
|Belstead, L.||Evans of Hungershall, L.||Jacques, L.|
|Berkeley, B.||Falmouth, V.||Kemsley, V.|
|Birk, B.||Ferrers, E.||Kinloss, Ly.|
|Blyton, L.||Gainford, L.||Kirkhill, L.|
|Boston of Faversham, L.||Garner, L.||Lee of Newton, L.|
|Bridgeman, V.||Gisborough, L.||Lindsey and Abingdon, E.|
|Broadbridge, L.||Glendevon, L.||Long, V.|
|Brougham and Vaux, L.||Goronwy-Roberts, L.||Loudoun, C.|
|Campbell of Croy, L.||Gray, L.||Lovell-Davis, L.|
|Castle, L.||Greenway, L.||Lyell, L.|
|Cathcart, E.||Greenwood of Rossendale, L.||Macleod of Borve, B.|
|Champion, L.||Hailsham of Saint Marylebone, L.||Mancroft, L.|
|Chelwood, L.||Mansfield, E.|
|Clifford of Chudleigh, L.||Hale, L.||Melchett, L.|
|Craigmyle, L.||Harcourt, V.||Monck, V.|
|de Clifford, L.||Harmar-Nicholls, L.||Monson, L.|
|Denham, L.||Harris of Greenwich, L.||Mowbray and Stourton, L.|
|Dundee, E.||Hatherton, L.||Murray of Gravesend, L.|
friend has said, but I cannot offer much hope because this question of partnership and the number has already been the subject of many consultations and long deliberation.
I should like to ask my noble friend to think very hard before starting to quantify prejudice and attach numbers to it.
I should like to suggest that we come to a conclusion on this matter in one way or the other.
On Question, Whether the said Amendment (No. 27A) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 97.
|Newall, L.||Savile, L.||Terrington, L.|
|Northfield, L.||Segal, L.||Teviot, L.|
|Oram, L.||Shepherd, L.||Tranmire, L.|
|Paget of Northampton, L.||Slater, L.||Vernon, L.|
|Peart, L. (L. Privy Seal)||Slim, V.||Vivian, L.|
|Pender, L.||Stedman, B.||Ward of North Tyneside, B.|
|Redesdale, L.||Strabolgi, L.[Teller]||Ward of Witley, V.|
|Robbins, L.||Strathclyde, L.||Wells-Pestell, L.[Teller]|
|Rochdale, V.||Strathspey, L.||White, B.|
|St. Aldwyn, E.||Suffield, L.||Winterbottom, L.|
|Sandys, L.||Swansea, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
Clause 10 agreed to.
Clause 11 [ Trade unions etc.]:
moved Amendment No. 28:
Page 8, line 2, after (" applies ") insert (" or any person concerned with the affairs of such an organisation ").
The noble Baroness said: With the permission of the Committee I should like to move Amendment No. 28 and speak to No. 29 because the arguments are precisely the same in both cases. The purpose is to apply to the Bill requirements which have been inserted in a number of other Acts, particularly the Health and Safety at Work Act, dealing with relationships of people in the place of employment. In the Bill as it stands responsibility for discriminatory action is laid at the door of the organisation but not at the door of individuals employed within the organisation who in fact commit the discriminatory acts.
In my view it is extremely important that in this Bill, as in the other Acts in which this principle has been used, the legal liability should be extended. Of course the organisation should not be excepted, but the legal liability should be extended to cover both the employer and the organisation as well as the agents of the organisation or other persons who are in a position to discriminate or to commit discriminatory acts of any kind inside the place of work.
There are two very important reasons why I believe these provisions should be included. Employers are urged—ever since the 1968 Act they have been urged by the Race Relations Board—to have non-discrimination policies; and, of course, the beginning of a good policy in a place of work is the introduction by the employer of a non-discrimination policy. But that policy is absolutely worthless and meaningless unless in fact everybody in the place of work is imbued with the idea that they themselves have to take part in seeing that this policy is carried out. It is all too easy—and I am sure the Race Relations Board would bear me out by saying that they have found this on a number of occasions—to get employers to say, and to say in all sincerity, that they intend to have a non-discrimination policy, but they do not in fact follow it through in order to get that policy fully implemented inside the place of work.
Now if you ate trying to get implemented a policy coming from the top, it is of the very greatest help, where the managers in the concern are putting this policy over or where the trade unions are saying to their shop stewards inside the place of work that this is the company's policy and it is a policy supported by the trade union—because after all, the trade unions have given, at top level, the greatest support to non-discrimination policies—if they can say that there is a personal responsibility on first-line supervisors or on shop stewards themselves to see that discrimination does not take place and that they have a personal liability in that respect.
This is one of the very important ways in which the policies of companies can be turned into reality at the level of the factory floor; and, of course, any one of us who is familiar with what goes on knows that it is at the level of the factory floor that it is so very easy for discrimination to take place, and to take place by acts of agreement, collusion, between people who wish to avoid trouble—a supervisor and a shop steward who agree between themselves that they will not raise those issues which are inconvenient to be raised. Those of us who are examining what is happening in connection with legislation with regard to non-discrimination against women know that this is going on. A supervisor and a shop steward can very easily come to an understanding that awkward issues about women and, similarly, awkward issues about race just will never surface. But if there is a personal liability on the supervisor and on the shop steward, then it is that much less likely that this will happen.
Moreover, this legislation applies to everybody in this country. Everybody, as individuals and in their office, whatever that may be, in the role that they fulfil, has an obligation to see that this nondiscrimination legislation of the Government is carried out. Why ever should we not include people inside the place of work, putting on them the kind of personal responsibility which in other legislation we have placed on individuals as well as on organisations? I beg to move.
I rise to support the noble Baroness and also to ask one or two questions, some of which I was rather hoping that perhaps the noble and learned Lord the Lord Chancellor, who made such a brief and welcome appearance on the Front Bench a moment or two ago, might be able to answer; but I am quite sure that either the noble Lord, Lord Jacques, or the noble Lord, Lord Harris, will be more than capable of facing the ordeal of answering my rather simple questions. I personally think that, in the field of employment, this Bill would not be worth the paper it is written on if effect was not given to what the noble Baroness has just said. Indeed, however critical I may be of either the Act of 1968 or of this one, I have always said that there is a place for legislation in the field of employment (and, incidentally, in the field of tenancy, but employment is what we are talking about here). One of the reasons why I have always said that is precisely because an employer could say to these workpeople, if they wanted to discriminate, "But what you are suggesting is against the law". I think that is absolutely vital. It is one of the main reasons why there is some good in this legislation. Faced with that, I believe workpeople on the whole would not discriminate, or at any rate would acquiesce in a non-discrimination policy applied by the employer, because the employer could say, "I cannot discriminate because it is against the law". Therefore, I welcome Clause 11.Clause 11 says, in effect—and I hope I am not misleading the Committee, but I shall be contradicted if I am—that trade unions are bound by this nondiscrimination law. I think that is of absolutely vital importance by way of principle if in fact the law is going to be worth the paper it is written on; because by applying discrimination in a union you could indirectly undo the whole benefit of the Act in so far as it affected the field of employment. Such are the facts of factory life. I had assumed in my innocent kind of way that if a trade union was bound by the law a shop steward, let us say, who deliberately broke it would be offending against the provisions of the Act. That was my innocent thought. I was slightly encouraged in that innocent thought by Clause 33, which provides that anybody who knowingly aids another person to do an act made unlawful would himself be committing an act unlawful. That is what I had thought. When this matter was raised in another place, I understood the Government to say that on the whole they agreed with this view and that such persons were, in fact, already within the Bill. Indeed, the reason, I believe, that they objected to this Amendment was that in their view it was unnecessary. I was therefore much disturbed when I read a Press report to the effect that Mr. Len Murray, who is a person of great importance in the trade union world, had said that if this becomes law the whole system of shop stewards could break down. That is very startling. You would think that this might be an overstatement; but this is what he said. In a statement earlier, I went on to read, the TUC had said that the new legislation proposed to make shop stewards personally responsible in law if they refused to take up a member's grievance because of racial discrimination.
their statement went on—"We point out"—
That is a bit "thick", is it not? Here we are enforcing non-discrimination in the courts against small employers in circumstances which I outlined earlier; against partners, against landlords who let tenancies; but one group of persons claim immunity from the law. Why?—because, "Oh dear! We can deal with the matter ourselves." Why cannot partners deal with the matter themselves? Why cannot the small employers or the large employers or the landlords deal with the matter themselves? To claim immunity from the law in these circumstances, that there must be one group of privileged persons above it, seems to me to make a nonsense of the whole principle on which Parliament legislates. The first question that I want to ask of the Government is this. Do they agree with my view that they are within the law even without this Amendment? I venture to say to them that the matter should be put beyond a peradventure if there is any doubt about it. Therefore, I support the noble Baroness. I am glad to say also that I have in this respect the support of the Confederation of British Industry; because they have written to me personally to say:"that if a union member felt a steward has acted in this way, he or she could take up the matter through the normal channels of the union who would investigate it. To make stewards personally responsible would create many industrial relation difficulties without necessarily leading to the grievance being taken up. We are not unwilling to accept our obligations. But we believe we can deal with these problems in the informal way we have done up to now without the introduction of a legal definition that would expose shop stewards to legal action."
in which apparently the General Council issued the statement that I have read. Is that so? Then the letter goes on to say:"In fact we know very little more than what has appeared in the Press … We do, however, know that the matter was mentioned at a Press Conference following a TUC General Council meeting on 25 August …"
I should like to know from the Government what is the position in the Bill as drafted? Will they not accept this so that the position is made plain? I entirely support the noble Baroness."My personal feeling on this matter is that there can be no good reason for shop stewards being exempt from the normal law of the land."
There certainly is room for a great deal of confusion and misunderstanding, perhaps, on the meaning and application of this clause. I was looking to the noble and learned Lord, Lord Hailsham, to clarify the position—
It is not my Bill.
But I am afraid that his speech has made things more difficult. I thought that this clause related to membership of the trade union. Subsection (2) deals with admission and subsection (3) deals with the treatment of the person when he has been admitted. It seems to me that we are dealing here with an entity. We are not dealing with individuals. We are dealing with a union and a union has a legal entity. It can be proceeded against. There may be decisions taken in executive councils or in membership committees on matters which will commit the union when those decisions are taken.It seems to me that it is difficult to proceed against individuals who may be participants in the reaching of those decisions and isolate them for pursuit for a breach of the law on the grounds of race discrimination. This is not a witch hunt. It seems to me that the intention of the Amendment is to pursue individuals to the uttermost, whatever their actions and in whatever connection. But they are acting as officers of a union with a responsibility laid on them by the constitution. If the executive council of a union takes a certain decision, if that is against the law, it is the union that must be proceeded against and not individual members of the executive council on which there might be divided opinion. I think that on the first point, that of discrimination against a person on the grounds of race for admission to a union, the issue is clear. No individual is responsible for the decision or action of a union in that connection. The union through its proper instruments of decision, reaches a conclusion on admission to membership and it is the union who can be proceeded against, and is proceeded against, if they are unlawfully excluding a person from membership. There are many cases where a person has been excluded from membership with grave consequences upon his right to employment. He does not proceed against an individual; he proceeds against the union which has excluded him. We come now to the second point of discrimination against a person who has been admitted. The noble and learned Lord, Lord Hailsham, was referring constantly to shop stewards who have been quoted in various comments made on this clause; but I am not aware that shop stewards are necessarily "any person concerned with the affairs of such an organisation". The shop stewards, generally speaking, are not officers of the union. They are elected by the workers of their particular works or shop; and although they will be union members because in many cases there is a preponderance of union members or it may be a closed shop, the shop stewards are not usually acting on behalf of the union. There are branch officials, regional officials and national officials. They deal with the actions of the union. If a shop steward is discriminating against a person in the respects mentioned in the clause, that might constitute grounds for action against the shop steward, because action might not, in those circumstances, lie against the union. But this clause deals with the union and not with any persons who are not representative of and duly authorised persons of the union. I think that we want to be clear about this. Also, it seems to me that this clause does not at all touch discrimination against a worker who is not a member of a union. If he does not apply for membership, he cannot be discriminated against, and if certain actions are taken to his detriment at his work place, this clause does not cover that, for it is not necessarily the union who will be responsible. I think that there is a certain amount of legal difficulty here, and I think it ought to be cleared up. I speak as a secretary of a registered trade union for very many years and I am very conscious of the position of the union and its officials in these matters. I am anxious that we do not make discrimination a matter of pursuit of individuals beyond their responsibilities. The union has the responsibility. It is a properly constituted body in law; and it is against the union that one proceeds if it is acting contrary to the law. Within that union, within its democratic processes, within the responsibility of those in the union, they are entitled to act as free men and women inside their union. If they contribute to a decision of the union which is unlawful, that is the responsibility of the union. This applies, surely, in many other respects where unions may take action which is actionable in damages or otherwise. The democratic processes must be safeguarded. Let the union take the responsibility; it has the funds. The union is accountable to its membership and not individual members of it. Those of us who were concerned with trade union law many years ago deliberately set out to preserve the individual from being victimised as a person in the union who might be proceeded against separately in tort or otherwise. I beg the Committee to get this matter clear before we introduce words into this clause which I believe go far beyond what is the legitimate responsibility of the unions. I am content with the clause as it stands and I oppose the Amendment.
Is the noble Lord by analogy saying that if a manager who is employed by a limited company discriminates in the field of employment only the limited company should be responsible?
No. What is the status of the person taking a decision? If a person is acting in the name of the union—after all, he cannot act otherwise—he is doing something in the name of the union. He is either admitting a person or refusing to admit a person in the name of the union; he is either dealing with him fairly or unfairly as a person of the union. It is the union which is responsible for that action. There is a difference here. A manager may have personal responsibilities placed upon him and he discharges those under whatever authority he is given. But officers of unions are discharging their responsibilities in the name of a democratic organisation governed by its constitution, the resolutions and the policy of the union. I want to fix the responsibility on the union not on individuals.
May we hear from the Government as to what the real situation is under the clause?
I will try.
Send for the Lord Chancellor!
First of all, I should like to clear up some misunderstandings before coming to the "bones" of my argument. We are here considering two Amendments, Nos. 28 and 29. When the noble and learned Lord said he saw that the Government had said it did not matter about those words being included, he was quite right. That was referring to Amendment No. 28. When he said that Mr. Len Murray had said this and that, that was right. That was referring to Amendment No. 29. The question was also raised as to the effect of Clauses 32(1) and 33(2). The effect of these two clauses is that employees who commit discriminatory acts are liable together with their employers. So, for example, a supervisor or shop steward, as employees of the employer, are liable for their discriminatory acts as employees. But the shop steward is not an employee of the trade union, and therefore in relation to the trade union he is not covered by Clauses 32 and 33 because he is not an employee. I think that clears up a number of the points. It clears up also the point raised by the noble Baroness.
May I intervene? If I have read Clause 33(1) correctly, it says:
it says "a person" not "an employee"—"A person who knowingly aids another person"—
It does not say anything in that subsection about employee, agent or anything else. That is dealt with by Clause 33(2). Subsection (1) says "a person". Will the noble Lord not agree with me that a shop steward is a person?"to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
I agree with the noble and learned Lord that a shop steward is a person; but the more important clause is Clause 33(2) which has to be read in conjunction with Clause 32(1). That is where the employee's liability arises.
But the noble Lord must do himself justice. If he goes on like this we must call for the Lord Chancellor because subsection (2) of Clause 33 clearly says this:
That adds to subsection (1); it does not detract from it. In other words, it adds an additional liability on an employer or principal for the acts of his agent or employee, but it does not in any way diminish the force of the simple words of subsection (1). If the noble Lord is really going to read subsection (1) in the way in which he has, I must ask seriously that he gets the Lord Chancellor here to justify what he is saying."For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable … shall be deemed to aid the doing of the act by the employer or principal."
I am not going to get the Lord Chancellor here; he has other work to do.
This is difficult because we shall have to adjourn this debate if we are going to be treated with this contempt. The Lord Chancellor's duty to this House is paramount over the other work he has to do. I am not asking for him to detach himself from his ordinary work. I asked for a fair answer to a fair question based on the meaning of Clause 33. What the noble Lord, Lord Jacques, has said, with the greatest respect to him, is absolute nonsense. We are entitled when we are passing a Bill to ask the Government to give a proper legal construction. If the noble Lord, Lord Jacques, does not feel himself able to do it, then we must have the Lord Chancellor here. I beg him not to blunder into this field himself and so mislead the Committee, otherwise I shall move that this debate be adjourned until such time as is convenient to the noble and learned Lord to assist the House as he is bound to do.
The noble and learned Lord is being unreasonable. First of all, he did not give me a chance to finish what I was going to say. I said I thought it was unreasonable and I certainly was not going to call the Lord Chancellor. But, so far as I am concerned, I have taken legal advice before speaking. If the noble Lord is not satisfied with my reply, I will certainly give him an undertaking that we will give him a written reply, which I think is the normal practice.
With respect, it is not. We are being asked to pass a clause to a Bill in a Committee stage when there is a serious doubt as to what it means. Speaking for myself, I am not going to treat Parliament with such contempt that we pass a clause on an undertaking that I get a written reply when it is passed. I am entitled to know, and the Committee is entitled to know, and to be treated with respect. We are entitled to know the meaning of Clause 33(1) in connection with this Amendment.
As the mover of this Amendment, a written reply sent to the noble and learned Lord, Lord Hailsham, would not meet my particular problem.
May I ask the noble Lord, Lord Jacques, whether he can answer one simple question: Is an organisation of workers under Clause 11(1) "a person" within the meaning of Clause 33(1)?
May I suggest we adjourn for supper? Perhaps after supper it would be possible for the Lord Chancellor to come to the Committee.
I am advised the answer to Lord Wigoder's question is, "Yes". We have not yet reached Clauses 32 and 33: we are dealing with this particular clause on which we have a reply to the Amendment based upon the legal advice available to us. Perhaps I can reply to the Amendment. I was merely dealing with the incidental points which have been raised. If the noble and learned Lord is not satisfied, he has of course an opportunity of raising these issues when we come to Clauses 32 and 33.We have two Amendments here. The first relates to membership. Any complaint of discrimination which may arise in respect of membership of an organisation covered by Clause 11 can already be resolved within the terms of the Bill as it stands, without amendment. For example, a trade union is responsible only for persons acting with the authority of that union. No shop steward can do this without such authority. The Bill ensures that when anyone acts with the authority of a trade union or other organisation covered by Clause 11, both he and the organisation are liable for any unlawful discriminatory acts which are authorised by the organisation. So a shop steward who is authorised to act for his union is liable for a discriminatory act, and so is his union. Supposing the shop steward has no authority. If a shop steward acts without authority and discriminates on racial grounds by, for example, declining to process an application for trade union membership, the aggrieved person can take his complaint to a full-time union official. That official would be able, on behalf of the union, to ensure that the application was properly dealt with and if, after this had been done, membership was refused and the aggrieved person still believed the refusal was on racial grounds, it would be open to him to make a complaint against the trade union to an industrial tribunal under Clause 11. That covers the position so far as Amendment No. 28 is concerned. We believe that the position is adequately covered in relation to applications for membership through a shop steward. I turn now to the much wider Amendment. It is the kind of situation to which Mr. Len Murray referred—