Racial Discrimination

Orders of the Day — Race Relations Bill – in the House of Commons at 12:00 am on 8th July 1976.

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9.0 p.m.

Photo of Sir Patrick Mayhew Sir Patrick Mayhew , Royal Tunbridge Wells

I beg to move Amendment No. 1, in page 2, line 1, leave out 'he cannot show to be' and insert is not'.

In the amendment, we are seeking to put the burden of proof where it always should be, save in the rarest of exceptions: on the person making a complaint. The complaint that we are concerned with in the Bill is that of discrimination on racial grounds. Clause 1(1) sets out to define that, and in paragraph (a) that is easy because it defines "direct discrimination". But paragraph (b) deals with "indirect discrimination". Paragraph (a) is easy, but paragraph (b) give one a headache.

The problem can best be described by the example of an employer who, trying to get round paragraph (a), says "I have nothing against Sikhs as storemen in my factory, but I insist that no one wears anything on his head indoors." Very few Sikhs could abide by that, but it would not cause problems to an Englishman or a West Indian.

If a persons alleges that indirect discrimination has operated against him, he must prove all the ingredients necessary to establish the complaint. There are three of them in sub-paragraphs (i), (ii) and (iii). As drafted, the clause applies the principle of placing the burden of proof on the person making the complaint in sub-paragraphs (i) and (iii), but in sub-paragraph (ii) the burden of proof is reversed and the discriminator must show that his requirement or condition is not justified. We say that there is no good ground for that. We say that a complainant who appears before an industrial tribunal is capable of making out that part of his case just as he is capable of making out the case as provided for in sub-paragraphs (i), (iii). Under sub-paragraph (ii), he has only to show that it is no handicap to the performance of the duties of a storeman to wear a turban, and then the burden shifts to the employer to show that there is a justification for that condition, irrespective of colour, race and so on.

What is wrong with that drafting is that it specifies that the burden of proof from the beginning shall rest on the other party, the respondent to the complaint. The sub-paragraph says: which he cannot show to be justifiable irrespective of the colour". If a complainant has difficulty in establishing what he must establish in the ingredients of sub-paragraph (ii), he can obtain advice and extensive help from the commission, as set out in Clause 66, on whether an infringement is revealed. He can obtain advice from solicitors and counsel. Therefore, there is no hardship.

The House has an important duty to ensure that only in the rarest of cases do we legislate for the burden to be placed on a defendant.

Photo of Sir Ronald Bell Sir Ronald Bell , Beaconsfield

I support the amendment of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew). The grounds he adduced in its support are so obvious and so persuasive that it should hardly need any commendation from anyone else. But I strongly suspect that the Government will not accept it.

One needs only to look at the clause to see the force of my hon. and learned Friend's argument. It relates to what is called indirect discrimination, which I think most people would feel is an extreme doctrine in any case. It relates to circumstances in which one cannot show that someone has discriminated, in the sense of the Bill, against a person or another community in the conditions or requirements which he has imposed in dealing with, say, an application for a job. The Bill speaks of requirements or conditions which he applies or would apply equally to persons not of the same racial group". Therefore, he is merely applying requirements which he would apply to anybody else. Nevertheless, he will be treated as having committed the heinous civil offence of discrimination. The burden is upon him to show that he is innocent.

The nature of the burden is clear from the words which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins". There is no definition of "justifiable". Nothing is said about it. It is simply at large. What does "justifiable" mean here? It is a remarkable burden of proof to have to take upon oneself, an argumentative burden.

It is not a question of facts. One starts with the facts. The person concerned has said that he wants to employ somebody and has imposed a condition which he would impose on anybody, a white man just as much as a coloured man. But he is to be got at because it is a condition with which the coloured man for some reason—we are given no guidance—would find it more difficult to comply.

I thought that the basic concept of the Bill was that everyone should be treated as being interchangeable in this sense, that we should treat everyone exactly the same. But in this instance it is said that we must not treat people exactly the same if that works to the disadvantage of one of the minority communities.

In any event, this is an extraordinary law. It comes close to what in a previous debate we were calling positive discrimination, namely, discrimination in favour of the minority communities and aganst the indigenous inhabitants. We cannot even treat them the same. Apparently that will not do. We cannot treat them the same if that will be disadvantageous to members of the minority community. It is a scandal to have such a measure. It is getting close to the presentment of Englishry after the Norman Conquest. Basically, we must treat people exactly the same, but we may not do so if that turns out to be to the disadvantage of coloured immigrants. That is an extraordinary position in which to put our own people.

All that a complainant has to prove is that he would be at a disadvantage. When that is done the other party is guilty, unless he can prove that his action was justifiable. The meaning of "justifiable" is left at large. I do not know how one goes about proving that it was justifiable. How does one set about proving that?

In special circumstances, but only rarely, as my hon. and learned Friend the Member for Royal Tunbridge Wells has said. the burden of proof is put on the accused person. One sort of case in which that is done is when, from the nature of the case, only the person who is accused would know the truth, when he would get away if he did not have the burden of proof put upon him. However, it is a matter that the House always scrutinises with the utmost care, a jealous care. That is because it is a savage thing to do. It can never be right to do it except upon the clearest necessity. It can never be right to do it unless it is certain that injustice will never flow from it. No one can be certain of that in these circumstances.

Why is it being done? The answer appears to be, I am afraid, that the whole of this procedure is canted in favour of the complainant immigrant. Clause 66, to which my hon. and learned Friend referred, sets out in great elaboration all the services, advice and help that will be available to the complainant. None of that assistance is available to the native respondent. Indeed, we have just been defeated on a new clause that would have allowed the native respondent to have the right of legal advice. It would have extended the legal aid scheme to the native Englishman. The Government would not have that. However, the immigrant will have such assistance all the way through. There will be forms printed for him that will be available in post offices and goodness knows where else.

Experience has shown that those who are accused of infringing the race relations legislation have found it extremely difficult, even when the case goes to the county court, to get legal aid. I do not know why that should be, but that is the position. The complainant receives help but the respondent defends himself at his peril. In this procedure the respondent has the added burden of establishing his innocence in uncharted waters. He has to prove the utterly vague and undefined provision that the requirement is justifiable even though it is accepted in limine that he would apply exactly that requirement to anyone else.

9.15 p.m.

Legislation of this kind is put forward in this House, and is in danger of passing through the House, because we have gone so far along this road that we are beginning to accept things which, at the beginning, we would never have dreamed of accepting. First, we had the Race Relations Act 1965, then in 1968 we had an Act that went much further, and now in 1976 we have one that goes even further than that. We have got so used to the idea of kicking the British around and coddling the immigrant that we do not regard a proposal of this kind, put forward by a British Government to a British Parliament, as at all remarkable. That is the situation we have now reached.

Should we be surprised that there is deep resentment throughout the country at the operation of this legislation? No doubt the Minister of State will say "We are not talking about criminal sanctions. This will be done through the civil procedure." I remember what I said on the Second Reading of the 1968 legislation. I then pointed out that when used in this context the civil procedure is savage and vindictive. Indeed, it is far worse than the criminal procedure. I said in that debate that the British legislation was closely modelled on that in the United States. That legislation, taken under the civil procedure, was oppressive. If the criminal procedure is used one has to prove the accused's guilt beyond all reasonable doubt. Judges are very reluctant to impose a sentence of imprisonment in that class of cause, and certainly the fines are not crushing. But in the civil procedure these matters go with the balance of probability. They almost always end in an injunction, and it is a perpetual injunction. It is similar to being on probation for life. A breach at any time can put a person in prison indefinitely.

We have only to think of all the time we spend in this House trying to set exact adjustments of penalties. We recently spent a good deal of time in considering whether a £50 fine should be reduced to £10. None of that matters in this legislation. These provisions are indefinite. In theory, we can keep a man in prison for the rest of his life because he has fallen foul of the provisions of the Race Relations Act. He defends himself at his financial peril. He must face costs and damages. The American agitators have pointed out that those costs are often crushing. It is a brave man who defends himself against the Race Relations Board. The board is financed by the Crown. If it loses, the Crown pays the costs of both sides. However, if the unfortunate British subject loses the case, he must pay the cost of both sides—in the county court and in the Court of Appeal. Indeed, the board will not hesitate to go to the House of Lords. Think of the peril of the individual and the ultimate sanction of damages, costs and injunctions which can bind him for ever and which can result in a perpetual prison sentence.

It is no good the Minister brushing this all aside and saying "Do not worry; we are not using criminal sanctions but only the civil procedure". This does not involve a claim by one subject against another in the resolution of a civil dispute; in this case the procedure is damnable, oppressive and harsh, and is employed for precisely those reasons. The native British subject has his ears pinned against the wall, and he cannot fight. He is caught up in this provision to prove his innocence in a peculiarly vague and unpromising context.

That is the case against the Government. They will waffle on, because they are not prepared to listen to the case of the British people. People outside this House, up and down the country, care very strongly indeed about the treatment meted out to them by a lot of pressure groups consisting of dedicated cranks who swap abstract phrases with each other and whose whole solicitude is concentrated on what they call the minority communities.

As far as the ordinary British person is concerned there is virtually no presentment of Englishry.

I hope that my hon. Friends will all vote for the amendment and that the Minister of State will be shamed into acquiescence, and accept it. However, I do not expect that he will, because I know that he cares nothing. I can see that from the smirk on his face. If a coloured person were in peril it would be a different matter. As long as it is the native white population the Minister of State does not give a damn. It is an absolute scandal, the public should know about it, and the Government should stand condemned.

Photo of Mr Edward Lyons Mr Edward Lyons , Bradford West

I am looking at the wording of Section 3(1)(b)(ii) of the Sex Discrimination Act 1975, which deals with discrimination against people of either sex who are married. It says: which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied. This is the subject of the amendment —the changing of the words "cannot show to be".

One needs to point this out in view of the racist content of the last speech. This matter is not something devised specially for minority groups. It was used where it was thought there might be discrimination against people because of their marital status. The hon. and learned Member for Beaconsfield (Mr. Bell) talks about race relations and takes us back through the various Acts, but he does not say anything about the Sex Discrimination Act. He should use the same standard, because married people should be given the same protection as is given to minorities.

Photo of Sir Ronald Bell Sir Ronald Bell , Beaconsfield

Of course I did not refer to the Sex Discrimination Act. I said everything I had to say on that when it was passing through the House. I opposed that legislation clause by clause, and it would be an abuse of the procedure for me to talk about it again today.

Photo of Mr Edward Lyons Mr Edward Lyons , Bradford West

I accept that the hon. and learned Member fought rights for women as he fights any sort of rights for minority groups.

Photo of Mr Enoch Powell Mr Enoch Powell , South Down

I support the amendment, which has been commended so eloquently and effectively by my hon. and learned Friend the Member for Beaconsfield (Mr. Bell).

I want to pursue the wording of the clause as raised by the amendment, but in a somewhat lower key. The first question I ask is, to whom is the respondent to show? I am sure that. the Minister of State is ready to answer me by referring to Part VIII, Clause 53, which says that no proceedings shall lie against any person except under "this Act", that it is the procedure under Part VIII and no other which is to be applied.

One therefore arrives at Clause 57(3), which says: As respects an unlawful act of discrimination falling within section 1(1)(b)"— the very subsection with which we are concerned— no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds. I want to know why the words, as regards both the verbs—"show" and "prove"—and the content, are different at what appears to be the business end —the enforcement Clause 57(3)—from those in Clause 1 which defines an unlawful act. It seems to me important that if the offence is not committed, if the person concerned can satisfy what is set out in Section 1(1)(b)(ii), that should also be the precise requirement applied in Clause 57.

I have a further difficulty. Clause 57 deals with the award of damages and not with the finding of an unlawful act. It may be, therefore, that the Minister of State will take us back to our previous debate and say that the person concerned will be found guilty on one ground and fined on another. I therefore invite the Minister of State, who I think understands the question I am asking—it is a genuine one—to explain the relationship between the wording and definition of Clause 1(1)(b)(ii) and the wording of Clause 57(3).

On my second question I have been helped very much by the intervention of the hon. and learned Member for Bradford, West (Mr. Lyons). I think that he put me on the track not of justifying the wording of the paragraph as it stands but of something which should at any rate rejoice the heart of the textual critic—explaining how the nonsense came about. Let us look once again at the words. They concern a requirement or condition which cannot be shown to be justified irrespective of colour, race, nationality and so on. If the person concerned can show that it is justified having regard to colour, race, nationality or ethnic or national origins, there is no offence.

I should like the Minister of State to help us with this and to illustrate some examples not of a concession but of a requirement which is justifiable only in regard to the colour, race, nationality or ethnic or national orgin of the person to whom it is applied. I can see that a concession is justifiable on these grounds —to take time off, if the person can have it off, from 6 o'clock on a Friday. I can understand that, although that is perhaps a question of religion rather than race—and the relationship of religion and race is in some cases a matter to which we have not sufficiently attended.

9.30 p.m.

But are there any requirements which can be justifiable having regard to the ethnic origins of a person? That is what the Bill says. The Bill makes nonsense unless the hon. Gentleman can provide us with a list of requirements or conditions which an employer can impose which are justifiable only having regard to the colour, race, nationality or ethnic or national origins of the person concerned. In other words, it is balderdash. But the fact that it is nonsense is not sufficient satisfaction for our curiosity.

Why do we have this nonsense? The hon. and learned Member for Bradford, West confirmed my suspicions. I had noted the "[S.4.]" in the margin of Clause 1. It is of course, from the Sex Discrimination Act. It is the standard form. The draftsmen said "This is an anti-discrimination Bill. We shall slap in all the regular clauses."

There is no difficulty in instancing requirements which are justifiable having regard to marital status but which would be unjustifiable in any other context. This is an illustration of what is happening in legislation. Words are transferred from one anti-discrimination measure, where they make sense, to another, where they make no sense.

So much for the suggestion that we might be estopped, when we have passed a sufficient number of anti-discrimnation Bills, from ever cavilling at what is put in the next one. It might just be that, apart from general considerations, there are differences between sex and race or religion and sex. Therefore, we are justified in trying to understand the Bill and the hon. and learned Members for Royal Tunbridge Wells (Mr. Mayhew) and Beaconsfield would have been jusfied in moving and supporting this amendment even if there had been a couple of dozen anti-discrimination Bills in the past.

I hope that after refreshment, which other hon. Members will give him the opportunity to digest, the Minister of State will be able to solve my difficulties and questions.

Photo of Mr Ivor Stanbrook Mr Ivor Stanbrook , Bromley Orpington

I assure the hon. and learned Member for Bradford, West (Mr. Lyons) that I was on the Standing Corn-mince that considered the Sex Discrimination Bill. I spoke against it and did all I could to prevent the passage of the clause to which he referred. I cannot see the logic of the hon. and learned Gentleman's objection to our amendment.

It is something of a disgrace to have in our law anything that says that the burden of proof shall be on the defendant. English law knows very few cases in which that burden is placed upon the defendant rather than upon the person bringing the accusation.

Judges tend to apply the law to lean against any interpretation that would result in the burden being placed upon the defendant and, as a result, the courts say that unless the burden is clearly and unambiguously expressed as being on the defendant, no words in any statute shall be construed as placing the burden upon them.

We have certain well-known exceptions to that rule—for instance, where an alleged thief is found in possession of stolen property soon after it has been stolen. No doubt the public would agree with English common law, which is based upon common sense, that the thief shall be required to give an explanation otherwise it shall be presumed that he is the thief, or at least the receiver of stolen goods.

Similarly, in the case of a person found to be carrying an offensive weapon—a weapon that is offensive per se, for instance, a loaded pistol—one takes for granted his carrying it in circumstances in which a policeman is entitled to ask him why he is carrying it. The burden is on him to show that he is carrying it lawfully—that his carrying of the gun is authorised by law. If not, there is a presumption that he is carrying it contrary to law.

However, those are definite exceptions to the general principles of our law that have applied for many years, and with a great deal of common sense, too. They also apply to circumstances in which there is no question of any mature judgment being brought into play, no balancing of interests and working things out in accordance with any rule or in the circumstances of the case. Those are cases that must occur to the average man as being justified when one says that because only the defendant knows the circumstances and because he has been found in circumstances which point in a certain direction, therefore it is up to him to refute the accusation levelled against him.

For that reason, it is an entirely different class of case from that which is referred to in the clause, because the word here is "justifiable". As has been said in the debate, the word "justifiable" is a very vague word. To whom is a thing justifiable? By what standards can a thing be judged justifiable? What sort of considerations come into play? This is not a criminal law, so we do not know precisely what the word "justifiable" means in any event. It is not even related to existing criminal law. It is one of those vague standards that apply to social affairs and which increasingly, and unhappily, have been brought into the realms of human relations.

I entirely support the amendment. It would be quite wrong for us to allow the wording of the clause to stand as it is. We should reverse the wording so as to bring the operation of the clause into line with English common law as we have known it in the past.

Photo of Mr Michael Brotherton Mr Michael Brotherton , Louth Borough

The clause contains the phrase: justifiable irrespective of the colour, race, nationality or ethnic". What is the sort of law that we are to put into operation now that does not discriminate between men who are black, white, brown or any other colour? What is a man's race? Is he African, European, or American? Whatever else he is going to be, that is his race. What is his nationality? Is it English, Irish, Scottish or Welsh?

In our own islands here, we have in Northern Ireland people who discriminate between themselves—Protestants and Catholics. They are people of a white nation themselves who still continue to fight each other. They remain totally and utterly different as people do in Cyprus and many other nations. Yet we are trying tonight to say that we cannot discriminate and that we cannot say that one nation is white, one is black, and one is yellow. Of course we can do that. There is absolutely no question whatever that there is tremendous discrimination between all the peoples of this world.

The late Lord Fisher of Lambeth was cirticised greatly when he said that God believed that all people were equal in his sight but that they were different in His view. That is utterly true. However, we are trying to say to the people of Britain that all who live here are absolutely equal. That is nonsense. The people in my constituency of Louth, and people in Grimsby and Lincolnshire know that any foreign person, whatever his colour may be, is different from the indigenous native population of Britain.

We who are the native, indigenous population of the country have the right to say to the legislators "We shall have no more of this. We are the people of England, we are the people who have lived in this land all our lives. We shall have no more of the nonsense that people are equal with us, because we are the people who live here."

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

It may be for the convenience of the House if I deal with the amendment moved by the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) and answer some of the questions directed to me by the right hon. Member for Down, South (Mr. Powell). In doing so I must, I suppose, make a passing reference to the hon. and learned Member for Beaconsfield (Mr. Bell). He made several points, one of which was taken up in a rather curious fashion by the hon. Member for Louth (Mr. Brotherton).

Reference was made to the phrase "native and indigenous". An increasing number of members of the minority communities in this country are both indigenout and native to the country. It is stretching language beyond credulity to pretend that there are not people among the minority communities who were born in this country.

The hon. and learned Member for Beaconsfield erected a great theory upon the power of the State, as represented by the Race Relations Board, against the individual. The Bill makes a profound change, in that it puts on the individual complainant the onus of bringing his complaint instead of interposing the Race Relations Board. Therefore, that argument is without foundation.

Photo of Sir Ronald Bell Sir Ronald Bell , Beaconsfield

The Minister of State must realise that I described the situation under the 1968 Act still in force. The Race Relations Board disappears under the Bill. What I said was in relation to my speech in the Second Reading debate on the 1968 Act.

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

The hon. and learned Gentleman said that it was a brave man who would take on the Race Relations Board. He was extrapolating the sense of that remark to the future, and it is neither right nor proper that he should do so.

The hon. and learned Gentleman dealt with the civil balance of proof. If the balance of probabilities falls on one side, exactly the same balance of proof is needed as for anyone who is required to discharge any other civil obligation. It is a matter of the balance of probabilities.

Indirect discrimination is a new concept, and for that reason right hon. and hon. Gentlemen who did not serve on the Committee and did not devote many hours to the consideration of this matter find it difficult to understand. The burden of proof is divided. Under Clause 1(1)(b) the complainant has to prove that there is a condition or requirement which operates disproportionately to the disadvantage of members of a particular racial group. Consideration then has to be given to the question whether that condition, which operates disproportionately disadvantageously, is justified.

The condition has to be justifiable not in respect of the racial group or the individual but in respect of the job of work. If in Cardiff there were to be a condition that bus drivers should be Welsh speaking, that would not be justifiable in respect of that job in that part of the country.

9.45 p.m.

The words in sub-paragraph (ii) follow the course they do because it would be possible otherwise to argue that a racial basis for discrimination is sufficient justification. As I have said, what it means is that the condition must be justifiable according to the position or the condition which brings about a disproportionate discrimination.

Photo of Mr Enoch Powell Mr Enoch Powell , South Down

Is the Minister of State therefore saying that the Bill is asserting that it is or can be justifiable to apply a requirement or condition with regard to the colour, race, nationality, and so on, of the person to whom it is applied? How can that be justifiable, and how can we write into an Act of Parliament that it is?

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

We are not writing into an Act of Parliament that a condition on the ground of colour, race, nationality or ethnic origin is justifiable. What we are saying is that the person to whom the onus then shifts, after the complainant has proved that it is disproportionately disadvantageous, must show that the condition that he has imposed, which gives rise to the disadvantage, is justifiable irrespective of colour, race and so on. He must, in other words, show that it is a justifiable condition.

Clearly, there are some quite obvious examples in which certain conditions are imposed before employment is taken up. There are some conditions which are imposed for a job and which are justifiable by reason of that job. A particular condition or attribute may be necessary before the job is undertaken. But some conditions can be imposed on the job in such a way as to appear to be equal when in fact they are unjustifiable by the nature of the job. Such conditions would be unjustifiable under subparagraph (ii).

Photo of Mr Enoch Powell Mr Enoch Powell , South Down

I do not think there is any difference of intention. It is a difficulty of construction. If the paragraph had stopped after "justifiable", or had contained such words as "justifiable having regard to the nature of the employment", I would understand. But it seems to me that by adding the word "irrespective" and the words that follow one is necessarily implying that certain requirements could be justifiable having regard to the colour, race, and so one. I apprehend that that probably was the case in the correponding provision of the Sex Discrimination Bill, where clearly certain requirements are justified having regard to marital condition

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

There is no difference of intent, and I do not see that difficulty to which the right hon. Member refers. The person concerned—shall we say the employer, although it is not exclusively the employer; I merely use him as an example—must show that any condition imposed is justifiable for the post, irrespective of the colour, race, nationality or ethnic or national origins". In other words, if those words were not in the clause, such a condition could be justified upon that basis. That is what the subsection seeks to do.

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

I must make my point. The hon. and learned Gentleman has not been unduly interrupted by me. For the sake of this very complex concept, I really must have continuity. If I give way all the time I shall not be able to obtain it.

The right hon. and learned Gentleman asks to whom it must be justifiable. The answer is, either to the industrial tribunal or to the county court, because those are the forums before which the cases are brought by the complainant.

The hon. and learned Gentleman went on to mention Clause 57(3), and asked how and why it differed in its language and wording from Clause 1, and in particular, subsection (1)(b)(ii). The answer is that if under that subsection the person can show the condition to be justifiable, he has no liability under the legislation, although it is perhaps disproportionately disadvantageous. In other words, he is exculpated from liability completely. If, on the other hand, he cannot show it to be justifiable but nevertheless under Clause 57(3), which is a narrower concept and is intended to be narrower, he can show that he did not intend to treat the claimant unfavourably on racial grounds, although a finding of liability is made against him he is not then condemned to pay damages.

Photo of Mr Hugh Fraser Mr Hugh Fraser , Stafford and Stone

Could the hon. Gentleman put himself into the position of a county court or industrial tribunal and explain what the concept of disproportion means? It is a question which undoubtedly those bodies will have to decide. Frankly, what the hon. Gentleman has so far said makes it totally unclear what the meaning of "disproportionate" is, and yet it is on this that the case will turn.

Photo of Mr Brynmor John Mr Brynmor John , Pontypridd

The hon. and learned Member for Royal Tunbridge Wells used a very obvious example when he opened the debate. I do not think that the right hon. Member for Stafford and Stone (Mr. Fraser) heard him, and I recommend the right hon. Gentleman to read that speech. Clearly, there are some ways in which a racial group could be disproportionately disadvantageously affected. For example, if a person without justification lays down a condition that he will not allow anyone to wear headgear in the performance of a particular job, that would be disadvantageous in a disproportionate fashion to Sikhs. That is only one of a number of examples. I recommend the right hon. Member for Stafford and Stone to read the report of proceedings of the Committee stage of the Bill, when this matter was gone into at very great length and thoroughly analysed. He will find it instructive, and I hope he will find it educative and interesting.

The position is that, once a claimant has proved that there is disproportionate disadvantage, the onus then switches to the employer. I come back again to the employer as an example, although he is not an exclusive category. The onus then switches to the employer to prove that the condition that he instituted was justifiable. The problem is that the hon. and learned Member for Royal Tunbridge Wells, in moving the amendment, said that it was very easy for the burden of proof of a claimant to be discharged. I would doubt whether that was so in all but the most obvious cases. What we are saying, therefore, is that when the claimant has proved disproportionate disadvantage it should be for the person who has imposed the condition to explain why it has no purpose. That follows from one of the points made by the hon. Member for Orpington (Mr. Stanbrook).

We believe that this switching of the onus is necessary in order to give the complainant a reasonable chance of succeeding under the Bill. I do not say that the position is one which should give an automatic right of success. Indeed, the hon. and learned Member for Beaconsfield talked about legislation to protect minority communities. What I pointed out in Committee, and what I have pointed out again, is that this is legislation to protect all communities against whom discrimination is practised. There is nothing in the Bill which limits that protection to minority communities. It would be qute wrong if the impression went out from this House that this was so.

I believe that the Bill, as framed, is necessary. I believe that the clause is necessary and I believe that the amendment, if carried, would place an undue onus upon the claimant. I therefore hope that the House will reject it.

Photo of Sir Patrick Mayhew Sir Patrick Mayhew , Royal Tunbridge Wells

I said that it was only in the rarest cases that we thought it proper to legislate so as to provide that someone at the sharp end of proceedings in any court or tribunal had to show that he was not guilty or was not infringing some legal right or requirement. One had only to listen to examples given by my hon. Friend the Member for Orpington (Mr. Stanbrook) of those rare cases in our law in which the burden is put upon the defendant to see how different from those instances—such as the carrying of a loaded pistol in a public place—is the matter with which we are concerned. It is miles away.

The reason why we should do this so rarely is that it goes against our basic principles of justice to allow a complainant to require that someone should prove that he is not guilty of an infringement. That, in paragraph (b)(ii), is what the clause does.

There are considerable obscurities in the clause. As the Minister said, the concept of indirect discrimination is new. But the very fact that that the drafting can give rise to the difference of opinion which has existed between the Minister of State and someone of the intellectual acuity of the right hon. Member for Down, South (Mr. Powell) shows what we have brought about. As it happens, I think that the Minister's interpretation is right, but the important point remains that without the amendment we are legislating to make a respondent show that he is not guilty.

The Minister's justification came down to shifting the burden of proof so as to give a complainant a reasonable chance of success. That does not wash. As I said, Clause 66 gives substantial rights of access for a complainant to advice from the commission on the nature, the strength or the weakness of his case and on the law. Having regard to the sort of instances which my hon. Friend the Member for Orpington gave of those rare cases in which we shift the burden of proof to a defendant, when one sees how separate they are from this matter and weighs the case against the Minister's justification one

Question accordingly negatived.

It being after Ten o'clock, further consideration of the Bill, as amended, stood adjourned.

sees that it is clear that the amendment should be made. Therefore, I trust that my right hon. and hon. Friends will support this view of the matter in the Lobby.

Quesion put, That the amendment be made: —

The House divided: Ayes 66, Noes 94.

The House divided:Ayes 90,Noes 41.

Division No, 224.]AYES[10.10 p.m.
Anderson, DonaldHay man, Mrs HeleneRadice, Giles
Atkinson, NormanHenderson, DouglasRees, Rt Hon Merlyn (Leeds S)
Bates, AlfHooley, FrankReid, George
Bean, R. E.Hughes, Roy (Newport)Robinson, Geoffrey
Bidwell, SydneyJenkins, Hugh (Putney)Roderick, Caerwyn
Blenkinsop, ArthurJenkins, Rt Hon Roy (Stechford)Rodgers, William (Stockton)
Booth, Rt Hon AlbertJohn, BrynmorRooker, J. W.
Buchan, NormanJohnson, James (Hull West)Ross, Stephen (Isle of Wight)
Callaghan, Jim (Middleton & P)Judd, FrankShort, Mrs Renée (Wolv NE)
Carter-Jones, LewisKerr, RussellSilkin, Rt Hon S. C. (Dulwich)
Cocks, Michael (Bristol S)Kinnock, NeilSkinner, Dennis
Coleman, DonaldLatham, Arthur (Paddington)Spearing, Nigel
Cook, Robin F. (Edin C)Lee, JohnStallard, A. W.
Cox, Thomas (Tooting)Lestor, Miss Joan (Eton & Slough)Stoddart, David
Crowther, Stan (Rotherham)Lyons, Edward (Bradford W)Summerskill, Hon Dr Shirley
Cryer, BobMcElhone, FrankThomas, Ron (Bristol NW)
Davidson, ArthurMacFarquhar, RoderickTinn, James
Davis, Clinton (Hackney C)Mackenzie, GregorTomlinson, John
Dormand, J. D.Madden, MaxWalker, Harold (Doncaster)
Eadie, AlexMarshall, Jim (Leicester S)Walker, Terry (Kingswood)
Edwards. Robert (Wolv SE)Mendelson, JohnWard, Michael
Ellis, John (Brigg & Scun)Miller, Dr M. S. (E Kilbride)Watkinson, John
Faulds, AndrewMiller, Mrs Millie (Ilford N)White, Frank R. (Bury)
Fitt, Gerard (Belfast, W)Morris, Alfred (Wythenshawe)Willey, Rt Hon Frederick
Flannery, MartinNewens, StanleyWise, Mrs Audrey
Foot, Rt Hon MichaelO'Halloran, MichaelWrigglesworth, Ian
George, BrucePalmer, ArthurYoung, David (Bolton E)
Ginsburg, DavidPavitt, Laurie
Grant, John (Islington C)Pendry, TomTELLERS FOR THE AYES:
Grocott, BrucePenhallgon, DavidMr. Peter Snape and
Hamilton, James (Bothwell)Price, C. (Lewisham W)Mr. Ted Graham.
Harrison, Walter (Wakefield)
Bell, RonaldHayhoe, BarneyPowell, Rt Hon J. Enoch
Bennett, Sir Frederic (Torbay)Holland, PhilipSainsbury, Tim
Biggs-Davison, JohnJohnston, Russell (Inverness)Sims, Roger
Boscawen, Hon RobertKnight, Mrs JillSpicer, Michael (S Worcester)
Bowden, A. (Brighton, Kemptown)Langford-Holl, Sir JohnStanbrook, Ivor
Bulmer, EsmondLawrence, IvanStokes, John
Burden, F. A.Lawson, NigelTaylor, R. (Croydon NW)
Cope, JohnLloyd, IanTebbit, Norman
Dean, Paul (N Somerset)Maxwell-Hyslop, RobinViggers, Peter
Fletcher-Cooke, CharlesMoate, RogerWall, Patrick
Fraser, Rt Hon H. (Stafford & St)Molyneaux, JamesWinterton, Nicholas
Goodhew, VictorMorrison, Charles (Devizes)
Gow, Ian (Eastbourne)Neubert, MichaelTELLERS FOR THE NOES:
Hannam, JohnPage, John (Harrow West)Mr. Nick Budgen and
Hawkins, PaulPage, Rt Hon R. Graham (Crosby)Mr. Michael Brotherton.

Question accordingly agreed to.