I beg to move Amendment No. 4, in page 8, line 18, leave out 'or facilitates'.
The purpose and purport of this amendment is to narrow the effect of a particularly vocious and evil clause in the Bill, namely, that which applies its restrictive processes to what are called qualifying bodies. That means bodies which qualify for the oppressive treatment which the Government have decided to mete out to those who do not accord with their views on this controversial matter.
Clause 12(1) states:
It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person
in the three ways then set out. They relate to the terms on which it—"it" being the body or authority—is prepared to confer on him that authorisation or qualification, that in turn being one which is needed for, or facilitates, engagement. Secondly, it talks of refusing or deliberately omitting to grant the application. Thirdly, it speaks of withdrawing from him or varying the terms on which he holds that authorisation or qualification.
My amendment seeks to ensure that this restriction applies only to bodies or authorities which can confer authorisation or qualifications needed for engagement in a particular profession or trade and does not apply to qualifications which merely facilitate engagement in a particular profession or trade.
The effect of excluding the words "or facilitates" is to extend the application of the clause outside the ordinary professional or qualifying bodies, which in some cases have statutory existence and in other cases offer qualifications which may be necessary by law for the practice of particular occupations, to bodies which may be purely private bodies with no official status at all and which do not grant qualifications needed for any occupation but grant merely qualifications which are useful or helpful.
The words "authorisation or qualifications" are defined in subsection (3) and are given wide meaning. We are told that those words include "recognition", which is very different from giving a formal qualification, "registration, enrolment"—a very odd kind of authorisation or qualification, because mere enrolment is usually the beginning of a qualification or something of the kind—and then "approval and certification". The word "approval" is like the word "recognition". It is a very wide word and would cover a whole range of bodies and activities.
The sort of bodies which would be covered by "or facilitates" include the Marylebone Cricket Club, the Pony Club, the Jockey Club and the St. Andrew's Golf Club, the Royal and Ancient. All these bodies are in the field of sport, and have no authority at all and no official standing or status. But they all enjoy very considerable prestige and reputation and have established for themselves a position in the life of the country which is most honourable and highly recognised. But they are totally unofficial. They are private clubs, and up to now they have proceeded in an entirely informal way.
I believe that my right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw) was captain of the Royal and Ancient at one time, and he will know what one has to do to get into that club. For all I know, playing golf may have something to do with it, but there may be other factors which enter into it as well.
All these bodies are in the penumbra of qualifying bodies, but they are private societies. One may pay as much or as little attention as one wants to their requirements or qualifications. They are not compulsory in any way. One can play a good game of golf without caring a row of pins about the Royal and Ancient. Some people ride horses. I do not; I regard them as most dangerous animals. One can be bitten at the front, kicked at the back and fall off the middle. However, some people ride them, backwards or forwards, but that does not mean that they have to be members of either the Pony Club, the Jockey Club or the National Hunt Club.
I want to leave out the words "or facilitate" because they bring in all those bodies and force them to operate in accordance with the views of the Labour Party at its last seaside conference—views which it now proposes to impose on everyone.
What relationship does being a member of the Pony Club or the Jockey Club have to the requirement in the clause for the body or authority to confer authorisation or qualification for engagement in a particular profession or trade? Surely, membership of the Pony Club or Jockey Club, however laudable, is neither a profession or a trade.
That is a very interesting question, but if I tried to answer it fully I would take up more time than I wish. The answer is that professionalism has penetrated far into all sports. I do not know whether pot-hunting is a profession, but it is deeply established in the riding of ponies, and as far as the Jockey Club is concerned it gives a certification to jockeys. [Hon. Members: "Turn round."] I am addressing my remarks to Mr. Deputy Speaker. In times past, disciplinary proceedings were taken against an hon. Member for glaring at hon. Members opposite instead of glaring at the Chair.
My hon. Friend asked to what extent the granting of recognition and qualifications affected a profession or trade. A jockey does not need certification by the Jockey Club, but it certainly facilitates his employment in horse racing. I could organise a horse race and anyone who wanted to do so could ride in it. The Jockey Club would not recognise him as a jockey and might even refuse to allow him to take part in recognised races. Because the recognised races would have far greater esteem than mine, the jockeys would find that membership of the Jockey Club facilitated their advancement in that profession.
Before my hon. and learned Friend leaves that point, may I ask whether he is aware that a profession is defined in Clause 78 as including "any vocation or occupation"? But it does not say any occupation for profit or benefit. I take that to mean that an occupation in something which occupies one's time.
I apologise, Mr. Deputy Speaker. I turned to my hon. Friend who raised the point with me. He is quite right. There is a definition, which I had originally noticed but had forgotten to mention, which widens the meaning of "profession" very greatly by saying that it includes "any vocation or occupation".
Does my hon. and learned Friend accept that being a member of the Pony Club, and obtaining the qualifications which it gives in horsemanship, facilitates a member later in life becoming an instructor or instructress in horsemanship? My hon. and learned Friend's point is therefore very apt.
The words that I am proposing to leave out are "or facilities". I have to prove that membership is not necessary but that it facilitates, which is the point my hon. Friends were helping me to make. My instances tended to concentrate on the world of horses and golf because these are examples which spring fairly easily to mind. I am sure that there are many other private societies in all areas of human activity that provide something which can be a certificate, recognition, enrichment or approval which would facilitate the person concerned in some occupation or venture. These words hinge on to that nexus of the consequences of the penal provisions of the Bill.
I was going to say that I did not think my hon. Friend the Member for Chingford (Mr. Tebbit) was right, but I appreciate his anxiety to help me.
We are dealing with occupations, vocations and professions. Retention of the words I seek to omit would mean that private bodies will be subject to all the coercive provisions of the Bill. The Minister of State did not give way to me when he was replying to the last amendment. He said that the civil procedure which looks into these private bodies was not something to which my remarks would apply. But the coercive elements of the Bill apply to these bodies, and it is necessary to understand the nature of these procedures. They are penal and civil. If they were criminal, it would be a relatively minor matter. If they were civil and related to disputes between people, they would be relatively innocuous. But the fact that they are penal in nature and civil form means that they are intensely oppressive. That is the point the Minister of State did not answer. Neither will he answer it when he replies to this debate. He has no answer.
Clause 12(4) states:
'Subsection (1) does not appy to discrimination which is rendered unlawful by section 17 or 18.
Those sections refer to educational qualifications. The mischief of the clause does not extend to education.
My amendment is not directed at some minor point which is of no great importance. A very fierce provision procedure is brought in, by the words I seek to omit, against bodies which ought not to be subject to this kind of prescription by the State. It is a gross encroachment on the private arrangements of the people.
Clubs like the Marylebone Cricket Club have become so well known that they have a sort of status, but the MCC is one of a number of private clubs dealing with matters which are peripheral to the main business of life—even though cricket has become very professional—where the widest degree of freedom ought to be taken for granted. Yet all the paraphernalia of the Equal Opportunities Commission, proceedings in the county court and inquiries under section 68—all those kinds of things with their oppressive accompaniments such as the printed form and the outrageous interrogation—is applied to bodies of that sort.
I am trying to be extremely serious about this matter, though it is pretty hopeless because the Minister of State is not really listening. In any case, he has shown himself insusceptible of persuasion. That is the trouble. Unless the Secretary of State is present personally on the Front Bench, one may advance the most alluring arguments and marshal all kinds of considerations but to no avail. The Minister of State has no authority to be persuaded. He cannot say "Yes, I think that this goes a little far. I shall accept the amendment". Suppose that I persuaded him with my argument. It would not help me, because he has not the authority from the Secretary of State to be persuaded. This gives our proceedings an unreality which is most unfortunate in a matter of this kind.
This 1976 Bill carries the whole process of application—I shall not say enforcement—very much further in most directions than either of the previous Acts. I accept that the enforcement in one sense is toned down because it is no longer a public board that initiates proceedings. To that extent there is a mitigation. However, the boundary of application of the Bill when it is enacted will be very greatly widened. What I have picked on and subsection (2), to which we come next, are the extreme points of extension of encroachment of this form of prescription in to the institutions of the national life.
There has been some litigation about this. I think that it was in relation to sex discrimination and the Jockey Club. Lord Denning gave some views in the Court of Appeal. Normally I admire him very greatly, but I had reservations about those views. However, there never was a formal decision because the whole thing was settled by agreement.
It is very dangerous to start on the road on which I fear that case would have started us if it had really gone to judgment and which the Bill institutionalises—the road of bringing all these private bodies into a sort of public responsibility because they have been outstanding and successful in their own spheres. If one starts something and does it well and it gets established and highly esteemed, someone wants to come along and lay down one's public duties in an Act of Parliament. The Minister will say "Why not? Once people become good and have reached the point at which what they decide, say and think affects a considerable number of other people, they ought to be subject to the law and to exercise their discretion as a legal discretion." That is an outrageous argument.
I am anticipating what the Minister will say, but that is almost inevitably what he will say. He will say that no one can say that Parliament is not entitled to tell people who have the required certifications in what manner they should administer them. I do not agree because like some of my hon. Friends, I disagree with the Bill wholly. That is one argument.
However, when one leaves the compulsory sphere altogether and comes into what I call the penumbra, it is said that these are esteemed bodies and that their approval is something to which we should pay a great deal of attention, and that, therefore, we shall lay down the rules according to which they shall administer themselves. But no, it is not quite that. They may lay down rules only in one respect. They may be as capricious as they like in all other respects, but in one respect alone they shall be prescribed—that is, in relation to race, nationality or ethnic group.
There the dogmatism of the embattled Left comes in. The Left is badly bitten by this colour obsession. The Left does not want to apply the rules to anything other than discrimination on grounds of colour, race or sex. These bodies may go their own way, they may develop in the directions which appeal to them. They may be capricious or unreasonable. There is nothing against that. In these respects only, the whole weight of the processes of Parliament is brought to bear upon them.
The Labour Party is obsessed with these matters. It may be said that that obsession is shared by some Opposition Members. It is. I cannot help that, although I would if I could. I have always taken a libertarian line on sex, colour and race. I have applied that line even to realms where some people might not follow me—for example, abortion and buggery. I take the view that the State should intervene in this dominating and overriding way with the greatest reluctance and the greatest hesitation and should never interfere with the operations of the private individual, private societies and private clubs unless the case is so strong that the stability of society is threatened if it does not do so. Unless we take that line, we are lost.
We cannot say that we shall prescribe in relation to colour, race and sex and that everything else shall be at large, because something else always comes along. At the time of the 1968 Act I said that the next thing would be a Sex Discrimination Act, and it was. Last Session an hon. Member introduced a Bill which provided that it should be a civil offence to discriminate on the ground of age.
What is laughed at as preposterous by precedent becomes accepted. It is not accepted by us, but is is accepted by all too many people who are conned by phrases, cliches and shallow generalisations. That is the way in which, step by step, freedom is eroded and we are all put into guiding reins. The Minister referred to what I said as "racist gobbledegook", but "racist" is not a legitimate expression. If the Bill goes through as it stands, the speech I am making is not one that I shall be able to make outside the House. That, however, is not the point at issue.
While Parliament has the Bill in its custody it should put this matter right before it goes to the other place. It has no authority because it is not an elected body, but it is where wiser counsels may prevail.
I am a member of an elected House. We all are. I know what my constituents think about the Bill. We all know what our constituents think about it. Does that not matter? Labour Members know what their constituents think about it. What are we here for but to reflect the opinion of the Commons of England? As Burke said, we represent not our own interests but those of the Commons of England. I know what my Commons think about the Bill.
But Labour Members are entrenched in office and reckon that they will get away with it. Governments are organised; they have their apparatus and their whipping. They talk of consequences, and General Elections are threatened. They reckon that they can ride roughshod over public opinion, but they know that what I have been saying represents the majority view of the people. They know what would happen if the issue were put directly to the people.
I am not sure that hon. Members opposite are not in such a stunned state that they are incapable of standing up and saying anything at the moment. But I am not interested in them. I am proposing to sit down. I have made my points. I know that some of my hon. Friends, and possibly some hon. Members opposite, want to say something about the amendment and that my hon. Friends will possibly say more or less what I have said. In doing so, they will be speaking not only from their own judgment but for their constituents. Again as Burke pointed out, we are free to exercise our own judgment, but in this case hon. Members who support the amendment will also be speaking for the majority of their constituents in their interpretation and understanding of the views of those they represent.
I rise with alacrity to support my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) on this most important amendment, which I treat with the utmost seriousness. As the House knows, I have spent my career since the war in personnel management and dealing with people's lives and careers, including their qualifications and the essential standards they have to have before they go on into further stages of life.
The amendment at least seeks to limit the overwhelming power and dangerous force of the clause, which will profoundly affect all the professions and similar bodies to an extent which I do not believe either my hon. Friends or the Government appreciate. It is vital to someone starting on his career that he should have a fair chance of passing the requisite qualifications or examinations and proceed to receive the appropriate degree, diploma or whatever it may be.
But there is a new trap, a new trick, in the clause. Those who have not read the Bill very carefully may have missed it. Approval can be withheld from people who in all other respects qualify perfectly in terms of service, study, passing the necessary examinations and so on if it can be found that at some time in the past, either with or without their knowledge, they discriminated against somebody and practised something which is now becoming an unlawful discrimination.
This is very near to Communist doctrine. It is certainly the doctrine of the absolute State. This guilt by association reminds one of certain very unpleasant regimes in the world which we fought and conquered in the last war. One might wonder, particularly with a Government who are supposed to be modern, up to date and progressive, if not trendy, how this vindictive concentration on something perhaps quite trivial and harmless which happened years ago can become part of the principles underlying the recent Rehabilitation of Offenders Act.
To be more specific, one might find a young man or woman, perhaps in the middle twenties or older, who has had an exemplary record at school, training college or university and later in a business or profession and who, eventually obtaining qualifications, thinks that that is the last hurdle. But it is not. There is a trick, there is a catch, here. Some one can inform. Someone can dig out the past of a young person of that sort and say, for instance "You were a member of the Monday Club" or "You were associated with the Tribune Group" in which somebody has at one time or another practised—or appeared to practise—racial discrimination.
It is a monstrous thing that we are about. Do we really appreciate it? All that we are doing in this quite small amendment is at least to ensure that those awful provisions remain only with the great and well-known established professions, which, one hopes, will be able to look after themselves. Certainly the lawyers have been more successful in looking after themselves than, for instance, the doctors.
The Bill appears to want to cover the whole of public and private life, from the cradle to the grave. "Big Brother" is watching us, not only in our jobs but, if this Government last, in our homes as well. There will be those who want to extend the clause. The Minister laughs. No doubt he thinks it is very funny. But the people of England will not laugh. I have noticed in recent weeks that there has been very little laughter on this subject. We have all had hundreds of letters from people all over England protesting against this monstrous and unfair legislation.
The amendment at least tries to do something for the voluntary bodies, which are the glory of England. The Government are envious of them and would like to abolish them. I refer to the Red Cross Society and to bodies of that kind. There are people in the Red Cross who have qualified and are proud to have their star. Under this clause they too can be stopped in their tracks, stopped dead, because some informer, without necessarily having very much evidence, can say, "Ho, ho, Miss Snooks, 15 years ago you were associated with a body which had something to do with racial discrimination."
This is the nonsense that we are dealing with in our Parliament in this ancient country. What has happened to us? Have we taken collective leave of our senses? I sometimes wonder. I look now at the Ministers on the Government Front Bench. I look also where I should not look—at their advisers. I wonder whether those people ever ask ordinary men or women their views on these matters. Or do they simply ask each other and go round in circles, or possibly go just as far—if the Minister concerned is the Home Secretary—as the Athenaeum?
The hon. and learned Gentleman is wrong again. That has been retracted. It was a mistake. I am afraid that, on the whole, the hon. and learned Gentleman's interruptions have not been very helpful to his own side.
I am trying to bring the House back to the realities of life. Like most people, tomorrow I shall be going to my constituency and to factories, pubs, clubs, churches and schools. I shall meet a great many people, a large cross-section of the English working people. They will ask "What have you been about? What were you doing late last night in Parliament? Were you helping us, your constituents, with our many worries and anxieties on the economy, the lack of finance, inflation, rising prices and all the problems we have under this present Government?" What shall I say? Do I tell them "I have been engaged in trying to resist your being done down. I have been trying to stand up for your fundamental rights." Because this clause and the Bill are spy's and an informer's charter? It is absolutely disgraceful that it should be put forward by a Government who pretend to be progressive.
To return again to the main purpose of the amendment, I hope that the big professions will wake up in time. I believe that the Minister belongs to one himself, one which has looked after itself. I think that the big professions can probably look after themselves. One certainly hopes that they will. We shall support them all we can. We believe that the voluntary spirit is the absolute backbone of England. They are other less-well-known, less-famous clubs and societies, and it is at those that the giant arm of the State will strike. It is they who will find their futures and their lives interfered with and spied upon. They will be tripped up where they have no redress, no money and, unlike the trade unions, no power.
Surely in this House we must represent individual people. Surely we still believe in freedom in this place. Surely that is the birthright of this country. Having sat here for six hours, I have been appalled at this third Race Relations Bill, or what I would call the Immigrants' Charter and Unfair Benefits Bill. It is simply a disgrace against the House and this Parliament. It brings us into disrepute and it widens still more the gap between what we do and what the public are thinking and feeling. I am appalled and disgusted by what I have heard from the Government side. I know that the Minister himself has no power to alter in any way even a comma in the Bill, but surely he can send for the Home Secretary, who has hardly appeared at all during all these hours. [HON. MEMBERS: "Where is he?"] No doubt he is on important business. No doubt he is thinking of his new job in Europe. But he is Home Secretary, and "home" is supposed to mean here in this country. Many ordinary, simple people think that the Home Office is looking after them. In fact, the Home Office is the greatest enemy of the people of England.
I have been compelled to intervene in support of the amendment because, although I listened carefully to my hon. and learned Friend the Member for Beaconsfield (Mr. Bell), I am by no means certain that the clause does not refer to the conferring of educational qualifications by educational bodies.
The clause says:
It is unlawful for an authority or body"—
which surely could be an educational body—
which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate".
Could anything speak more clearly of education?
Subsection (4) says that that does not apply to discrimination rendered unlawful by Clauses 17 and 18. But the discrimination referred to in those clauses is not the conferring of any educational qualification. Clause 17 says that it is unlawful to discriminate against a person by refusing to admit him to an establishment as a pupil
by refusing or deliberately omitting to afford him access
to any benefits, facilities or services or by excluding him from the establishment. Clause 18 is slightly wider, referring to a local education authority doing
any act which constitutes racial discrimination".
Surely none of those things actually relates to the conferring of educational benefit. It seems clear, however, that education could creep into Clause 12 and facilitating a person's gaining entry to a profession or trade. Would that not mean that any education authority which failed to confer this authorisation might be acting against the Bill, should it ever —perish the thought—reach the statute book?
My hon. Friend suggested during my speech that this provision might apply to education. I answered her too broadly and said that it did not apply to education because of Clauses 17 and 18. I went too wide. I think that my hon. Friend is right to point out that the disapplication in subsection (4) applies only to discrimination which is rendered unlawful by Clauses 17 and 18 and that, therefore, the kind of educational discrimination which is not rendered unlawful by those clauses will still be covered by Clause 12. Clause 18 is wider than Clause 17. It applies only to a local education authority and is, therefore, limited in its application quoad the person concerned.
I am tempted, but I shall not give way to the temptation because of the lateness of the hour and the number of my hon. Friends who still wish to speak, to ally myself with the strong and forceful remarks made about the clause and particularly the use of the word "facilitates" and the general absurdity which the clause arouses in our law. I should be most usefully disposes to assist my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) by drawing his attention to one specific absurdity of the use of that word.
As I understand it, the tenor of this legislation—an aspect of it is encapsulated in the clause—is to try to be of assistance to minority groups such as coloured immigrants who might otherwise be disadvantaged by the existing laws of this country. It is directed to try to help coloured people who come to this country and want to be absorbed in our processes. That is a worthwhile and desirable end to be attained if it were possible. What happens under the clause will achieve precisely the opposite result.
Let me say why I believe that.
I am concerned to try to get as much sense into this legislation as is possible, bearing in mind the attitude of Labour Members. They are ready to support their Government even without perhaps giving adequate thought to the details of the legislation. I am grateful to the hon. Member for listening to what I am saying.
When I first began to practise at the Bar, as everybody knows times were comparatively hard. As a pupil, I was apprenticed to a qualified and senior practitioner.
I had the honour to be apprenticed to a very senior, honourable and distinguished junior. It might embarrass the company if I named him, but there was no greater practitioner at the criminal Bar at the time I had the honour to be accepted as his pupil. As a pupil I did not earn very much money. I used to supplement my income by teaching for a number of evenings a week at a college of commerce. I lectured in commercial law. Even in 1964 a large body of persons came to this country to learn the best that we could provide by way of education.
I taught at a college in West London. There was a large number of Commonwealth students, coloured boys and girls, who intended to become company secretaries, accountants and so on. I taught them commercial law. I shall say nothing of the degree of excellence they attained. I forbear from speaking about the pass and failure rates. The significant point was that many of them came to this country to study our system and ultimately to take examinations which would enable them to qualify for a number of professions and occupations. They would then return to their own country with the cachet of having been educated or qualified in Great Britain according to the traditions of our English law.
At the beginning of each session in September I frequently had to say to the 30 or 40 students who sat in their serried ranks before me "Hands up those of you who have any difficulty in comprehending the English language". To begin with, they would all be unhappy about saying that they were not completely cognisant of the English language. Then I would go on to explain to them that three years' study of the law would be a complete and utter waste of time—such was the use of words, the importance of the application of the spoken and written word and a thorough understanding of it—if at the end of their study, when they came to answer the examination question, they could not use with the facility of an Englishman precise words and phrases and spell and write so that an examiner could read their answers.
I used to spend the whole of the first lesson trying to explain to a class of 40 that they would not only be wasting my time—though that did not matter, because I was being paid—but would be wasting their own and their colleagues' time. I explained that they would be distressing their wives, children and dependants by leading them to believe that at the end of three years they would be qualified. I told them that at the end they would still not be able to pass the examination because they could not sufficiently master the English language.
I was doing an act of kindness to Commonwealth students who thought that it was easy to walk into a class, study law for three years, become qualified and go home with a qualification. It is an easy matter for those who are brought up to speak the English language, but it is not easy for students from parts of the Commonwealth where English is not commonly spoken. I always managed to thin out my class to about half at the first or second session although it sometimes took longer. In the end there were about 20 students who knew the English language and were able to master the subject in the course of three years to facilitate their entry into a profession or trade.
Let us examine how the clause would apply to that situation. It states:
It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person—
(a) in the terms on which it is prepared to confer on him that authorisation or qualification.
I said to my students "Do not waste your time, do not waste anybody else's time. The hard, horrible truth is that you may not be accepted for qualification or authorisation in the course that you are following if you have not mastered the English language sufficiently to understand what a lawyer is teaching you". That would be an unlawful way for me to behave according to the clause. It is unlawful to discriminate or to say anything which is in effect discrimination. I would be doing a strictly unlawful act, and I would perhaps be deterred from doing it.
If I had not warned those students, there would have been a large number of Commonwealth immigrants learning law going on week after week, month after month, year after year, believing that it would be easy to study and pass an examination even though they had not mastered the English language. Would that be an act of kindness to Commonwealth students or to their wives, who live more or less estranged from their husbands in the belief that they will gain a qualification to make them wealthier, more successful citizens in their own country? It is kinder to be able to tell such people at the start "Please go away, perfect your English and return next September, March or May, when you will find the course much easier".
Did my hon. Friend ever have the opportunity to correct examination papers? Would it surprise him to know that a friend of mine who has a chair at an English university, the name of which I shall not disclose, has been under great pressure to mark more favourably papers by foreign and immigrant students?
I did not mark examination papers, but I constantly marked test papers.
There is another aspect of my experience which bears directly on the point made so forcefully by my hon. Friend. At the Bar we help those who follow us. My Inn set up a sponsorship scheme whereby the more experienced barristers had pupils or beginners and generally looked after their welfare for their early years. Not infrequently, Commonwealth students said to me "I have taken the Bar examination several times. I know my subject, yet I keep being failed. Is this because I am being discriminated against?" They always think that they are being discriminated against.
I do not believe that the hon. Gentleman meant that. There has never been a hint or suggestion that the governing body of the Bar has ever sought to discriminate against Commonwealth students, if for no other reason than that once they have learnt the British legal system they go back to their own countries to spread it, and that is a source of great pride to us all.
Commonwealth students who thought that they had the answers but failed and failed again used to ask me "Can you do something? Something is going wrong. They are discriminating against me because I am coloured." The answer was almost invariably that the examiner could not understand a word they wrote, either because they could not write legible English or because, if they could, they did not understand it. Nobody had the heart to tell them "Please go away for six months and perfect your English, because you will not pass the examination unless your English is better and you understand the obscure legal phrases which we use".
Under the clause, people may believe that they cannot say "Because you are less able to understand and speak English, you will almost certainly fail your examination", because that would be discrimination. The examination for which I taught at the college of commerce was not specifically needed for the students to qualify as company secretaries or whatever else it was in some other part of the globe. It enabled them on return to their countries to say "I studied this course and took this examination in Britain. This has enabled me to tell you that I have this Qualification and, therefore, I need not take your examination". Therefore, the examination "facilitates".
The clause is bizarre because it does not help those whom the Bill is directed to try to assist. Indeed, it hinders and hurts them. That is because it will stop lecturers saying "You are different from him because you do not understand the English language so well and you may well fail your examination".
Let us remember the years of misery that are undergone by some Commonwealth students. They have to study day in and day out because it is not always so easy for them to study in the English language, which may be a foreign language, as in their native tongue. Let us bear in mind the deprivation of wives and families. Sometimes it is necessary for the wife of a Commonwealth student who is studying in this country to go out to work and not to care for the family in order to maintain the husband as a student. The students have to pay ever-increasing fees.
If it is thought by the Government that that is a desirable end for the clause, I cannot agree. I ask the Government to reconsider the clause and the amendment which was so powerfully presented by my hon. and learned Friend the Member for Beaconsfield. There is one word that broadens the scope of the clause far wider than is necessary. If that word—or the whole clause—was deleted. a far greater kindness would be done to Commonwealth students in the situation I have described than is done by practically anything else in the Bill.
The speech of the hon. Member for Burton (Mr. Lawrence) was pernicious and inaccurate in description. There is nothing in the clause that has the meaning that the hon. Gentleman attaches to it. It does not do what he suggests. His description bore no relationship to the clause. The clause is to protect students, not the examiner. It is not to advise the student that his language is not good enough. It is not racial in any way. There is no merit in the hon. Gentleman's speech. I speak about it only because it contained the sort of remarks that are so damaging in the country.
I am not sure that I should take up the comments of the hon. and learned Member for Bradford, West (Mr. Lyons). I feel that they added very little to the debate. If I had been called before the hon. and learned Gentleman, I should have asked the forgiveness of my hon. Friend the Member for Burton (Mr. Lawrence) for not taking up his argument. However, I believe that he has done the country a service by demonstrating some of the appalling consequences of this legislation.
I shall be brief in supporting the excellent case that has been presented by my hon. and learned Friend the Member for Beaconsfield (Mr. Bell), which was so ably supported by my hon. Friend the Member for Halesowen and Stourbridge (Mr. Stokes). We often hear from Labour Members that they represent the working people and that we on this side represent merely sectional minorities. I ask the Secretary of State for the Home Department—I am delighted that he is with us—and his right hon. and hon. Friends to put the race relations issue to the people by way of a referendum, or perhaps by way of a major piece of policy at a General Election. I can assure the right hon. Gentleman that the legislation that he is putting forward on behalf of the Government would be thrown out lock stock and barrel.
I shall heed your warning, Mr. Deputy Speaker, and I shall come to the amendment. It seeks to delete the two words "or facilitates". I fully support the amendment because it reduces the scope of this legislation and, therefore, is indeed a useful amendment.
My hon. and learned Friend the Member for Beaconsfield mentioned two organisations that would be affected by the provision—namely, the Pony Club and the Jockey Club. Indeed, it is true that other sporting clubs will be affected. It is appalling to think that such organisations will be subject to this oppressive legislation. I believe that these provisions are irrelevant and unnecessary.
If my understanding of the clause is correct, it means that any authority or body which confers an authorisation or qualification in certain respects will be discriminating against a person if it jeopardises his livelihood. This will happen when there is evidence that tends to show that he or she, or any employee or agent, has practised unlawful discrimination. What a hotch-potch it all is. In my view, this provision will be an informer's charter. Indeed, the clause contains the ingredients of "1984". It could so easily turn friend against friend and citizen against citizen. In the end, nobody will trust his neighbour. For that reason, the amendment is of considerable benefit to the country in trying to improve what is an outrageous Bill.
I have no time for race relations legislation, but I appreciate that in this debate we are trying to improve the Bill. I do not believe that the purpose for which the Government are promoting the Bill would be in any way damaged by omitting these two words. I hope that the Home Secretary, who is now present, will comment on the situation. Indeed, I hope that the Government will agree to accept the amendment.
I begin by asking the hon. and learned Member for Beaconsfield (Mr. Bell) to examine the wording of Clause 12, which says:
It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person".
The hon. Member for Burton (Mr. Lawrence), in relating to us his experiences in lecturing, sought to suggest that even to discriminate against a person on grounds of kindness would come within the clause. If he refers back to Clause 1, he will see that "discriminate" means to discriminate on racial grounds and to treat a person less favourably. The example that the hon. Member gave would not constitute less favourable treatment on racial grounds. It was concerned with welfare on educational grounds. Nothing that the hon. Member said would contravene the clause or anything else in the Bill.
The Minister misunderstands my point, perhaps because of the way in which I explained it. It is not that a lecturer, in telling a student he should go away and learn English better, discriminates on racial grounds. It is the fact that the lecturer might think, justifiably, that the student would think he was being discriminated against on racial grounds and, therefore, the lecturer would not do what he should do. Sensitivity to criticism of this kind is a very substantial factor with Commonwealth students and immigrants.
I disagree profoundly. I have pointed out that nothing in the clause or in the definition of discrimination has that effect. That sort of groundless fear should not go out from this House.
The hon. and learned Member for Beaconsfield has moved an amendment which would not alter the clause as far as it is related to qualifications needed for engagement in a particular profession. There are two kinds of qualification which assist in a profession—those which are necessary before one enters, and those which influence the prospects of success once one is in. We are trying to ensure that not only the qualifications necessary for entry but those which influence prospects are not denied to a person purely on the ground of race. Hon. Members opposite should be very clear about this. We are preventing racial discrimination in the award of licences, certificates, diplomas and so on.
The hon. and learned Member for Beaconsfield says that these bodies are private and that it is a disgrace that they should be subjected to the law. But they are not private bodies regulating their own affairs; they are organised bodies which are conferring qualifications on people for a profession or trade. In this sense, they impinge upon the public in a very real manner.
If the Jockey Club, for example, is involved—there has been considerable disquiet about its affairs in the past—and if it withholds, on racial grounds, the granting of a qualification needed for or to facilitate engagement in that profession, that will be a breach of the Act and it should be treated as such.
The Minister is glossing rather too quickly over the two points about the width of definition of "authorisation" and "qualification". He has been talking about the granting of qualifications as if they were normal certificates. They include recognition, approval and very vague expressions. He is also ignoring the very wide definition given to "profession" in the definition clause of the Bill, which makes it clear that this applies to any occupation at all.
If it relates to an occupation, I do not dissent from that, nor do I seek to evade it. I have dealt with the substance behind the amendment. I do not intend to follow the hon. and learned Gentleman and his hon. Friends down every labyrinth along which they have sought to go in the debate.
I was unable to make a short intervention before the Minister of State replied to the debate, and I wish to raise a specific point of some importance. I should like to address myself to a remark by the hon. and learned Member for Bradford, West (Mr. Lyons), because I believe that the Clause has been based very much on the sex relations Act—I mean the Sex Discrimination Act. After 10 o'clock at night my mind tends to turn to other matters.
My question concerns the position of a local health authority which could confer authorisation on a medical practitioner in its area. Would it be legitimate for the General Medical Council to carry out examinations in the use of English on medical practitioners from abroad whose qualifications would normally entitle them to practise in this country?
Secondly, consider the position of a local health authority which might have difficulty in manning an emergency service. Suppose that two out of three doctors in an emergency night duty team were already foreign or Commonwealth doctors, would it be discriminating if it refused to authorise a third? Would it not be discriminating against a doctor on a racial basis? Bearing in mind the tragedy which occurred at a certain Middlesex hospital about a year ago, and the lack of understanding of a doctor in carrying out an operation, it is important to know whether the local authority would be entitled to discriminate on grounds of race.
I had not intended to speak on this amendment or on the Report stage at all at this hour until the Minister of State refused to give way when I sought to make an intervention a moment ago. It was clear from his brief and inadequate reply to the debate that he either did not understand what the Bill was about or—and perhaps this is more likely—he did not wish to inform the House exactly what the Bill meant.
Although the Minister sought to give the contrary impression, the words "authorisation or qualification" in Clause 12 include, inter alia, enrolment.
The intervention which I sought to make but which the Minister refused to entertain was to ask whether, for example, enrolment into freemasonry and membership of that order, which is not a qualification but is held by many people to facilitate engagement in certain professions, would be caught by these provisions.
This is a serious point which concerns very many people in this country. I should have thought it was a reasonable question to ask the Minister. I have listened to the debate with a completely open mind. I am here to be persuaded one way or the other by the Minister's answers.
The hon. Gentleman might have permitted me to make my very brief intervention and gone on—as we are discussing an amendment that the words "or facilitates" should be removed—to give examples of the bodies and authorisations and qualifications, as defined in subsection (3), which would be without the ambit of the Bill if the amendment were accepted. This is something we must bear in mind in judging this matter and deciding how to vote. We want to know which authorisations and qualifications and which bodies would be taken out of the ambit of the Bill if the amendment were accepted and which bodies would not be caught if the Bill were confined to authorisations and qualifications needed for engagement in particular professions.
We have had no guidance and no list of examples of the likely consequences of the amendment, yet this is what the whole debate has been about. The Minister has told us nothing. His arrogance in refusing to accept any interventions, the contempt with which he treats the House and his Fascist attitude to the Bill raise suspicions in my mind that I have not had hitherto. I harbour the suspicion
However, I am afraid that, in the light of the contempt and arrogance that the Minister of State has shown in his reply, I am beginning to believe that those of my constituents who write to me are right and that I have been wrong in trying to disarm them and persuade them that that is not the Government's intention. I do not believe that it is the Secretary of State's intention. I know him, and I do not believe it. The Minister of State does his cause no good whatsoever by the arrogance and contempt with which he attempts to deal with the honest doubts of Opposition Members.
It is subsection (2) of Clause 12 that has attracted so much criticism in the speeches of so many of my hon. Friends. It is no disrespect to the adroit arguments they have advanced to say that they could hardly miss. It is logical, given the general intention of the Bill, to apply it to qualifying bodies. That is what subsection (1) does. But subsection (2) goes very much further, and we think that it should come out.
Subsection (2) is concerned with qualifying bodies which have a duty in law to satisfy themselves as to the good character of candidates for the qualifications they control. These qualifying bodies range over a wide spectrum of our public, professional and commercial life. The qualifications, which may extend to admission to a faculty or to a profession, confer upon the recipient a very valuable advantage. Subsection (2) seeks to tell these qualifying bodies, many of them established by statute, what shall and shall not be taken into consideration by them when exercising their duty to decide whether a candidate is of good character.
The effect of the subsection is to declare that evidence of unlawful discrimination on racial grounds in the past is capable of being evidence of bad character. That, taken by itself, seems to us to constitute legislative nonsense. It is objectionable enough taken by itself, but the clause does not end there because the unlawful discrimination may, by virtue of the subsection, have been the discrimination of the candidate's employee or of his agent, whether past or present.
If that were not enough, the clause goes on to say that the discrimination need not have been in the same profession or trade as that in which the candidate is seeking his qualification. It can have been in any profession or any trade at any time in the past, and it is enough even if it were in connection with a profession or trade.
I dare say we shall hear from the Minister of State whether there has ever been a precedent for telling a qualifying body —or indeed, come to that, anybody else —what can and cannot be evidence of bad character. In fact, I very much hope we shall hear it from the Home Secretary, whom we are glad to see here. Legislation must have some regard for the ordinary meaning of the words that it employs.
Has there ever been a precedent in which this House or Parliament has said, for example, to the Royal College of Surgeons, to the Law Society, to the Bar Council or to any other qualifying body, as defined in the Bill, what it shall or shall not take into account as evidence of bad character? If there is a precedent—and I strongly suspect there is not —it ought not to be followed today.
Character must mean the estimation in which a man is held by those who are acquainted with him. That seems to me to be a thoroughly sensible and commonsense definition of what we mean by character. The clause seeks to change that meaning into something else: the estimation in which Parliament thinks a man ought to be held by those acquainted with him.
We ought first to assume—why on earth should we not, sitting here in this House?—that any qualifying bodywith a duty to satisfy itself as to the good character of an applicant for a qualification will be diligent in discharging that task. Why should we assume to the contrary? Secondly, if evidence of discrimination is capable of being evidence of bad character in a candidate, it will be taken into account. We should assume that it will be taken into account if it is capable of it. It is only if it is not capable—using the ordinary commonsense English language meaning of the words—of constituting bad character, as properly understood, that the subsection becomes necessary at all.
That is why we believe—in fact, we are certain—that the effect of the subsection is to turn the ordinary meaning of character into the estimation in which Parliament thinks a man ought to be held by those acquainted with him. We think that to make a law in those terms would be wrong in principle, and we think it would be absurd in application. It would be wrong in principle because it constitutes an absolutely unwarranted intrusion upon the discretion of independent qualifying bodies to decide what is good character and what is not. After all, we are concerned in the clause only with those qualifying bodies which have a duty in law to satisfy themselves of the good character of those who seek qualification. That means, of course, those qualifying bodies upon which Parliament has conferred the discretion to decide whether people are of good character.
What possible warrant can there be for intervening in the exercise of that discretion by these highly respectable bodies, presumably at the summit of their profession, trade, association or whatever it may be and vested with the control of admission to that calling? What warrant can there be for us, here in this House, seeking to substitute our opinion as to what shall or shall not be regarded by them, in the exercise of the discretion which our predecessors have conferred upon them, as what is, or is not good character?
It is wrong in principle and absurd in application. It is absurd in application because by no squeezing of the English language can the words "not of good character" be made to apply to a candidate of whom there is evidence tending to show—not showing or proving, but in this case simply tending to show—that his agent years ago, and in connection with a different profession from the one which he himself is seeking admission, practised unlawful discrimination within the meaning the Bill.
If any hon. Member from the Government side of the House can satisfy me that the ordinary English meaning of the words "not of good character" can conceivably be extended to a person in that category or situation, I shall take my hat off to him. I believe it to be a total absurdity to say that such a person is, by reason of that factor, of bad character.
But the matter does not end there, because we must consider Clause 32(1). Clause 32 is the clause which provides the principles of vicarious liability. Subsection (1) states:
Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
It is true that there is something of a defence in subsection (3), into which it is
not necessary, for the purposes of my argument, to enter at present. The important words, for the purposes of this clause and this argument, are the first words in subsection (1):
Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him,".
The purposes of the Bill embrace the purposes of Clause12. Therefore, any qualifying body—this is where Amendment No. 10 comes in—will be obliged, by virture of the provisions of Clause 32 (1), to treat anything done in the course of his employment by an agent of a candidate for qualification as having been done by that candidate for qualification. Unless Amendment No. 10 is carried, a further absurdity in the application of Clause 12(2) will be carried into law.
Where will it end when we in this House arrogate to ourselves the right to lay down criteria for good character or bad character, as we are proposing to do here for the first time? If, for the purposes of admission to a profession, trade or other association, we say "You shall take into account, in the discharge of your duty, whether everybody is of good character or not, and you shall take into account any evidence tending to show that in the past a candidate's agent has been guilty of discrimination", I think that we shall be opening a door which leads to a very dark and dangerous corridor. The clause does not say that it shall, by definition, amount to evidence of bad character. What it says is that it is capable of being evidence of bad character and that that shall be taken into consideration. That is bad enough. If we once say that certain conduct should be taken as evidence of bad character—committed not only by the candidate but by his servant or agent—where will it all end?
We are governed to an excessive extent by the doctrine of precedent. If this precedent is established, or if there is one already and it is to be reinforced by the clause, where will it end? In the not-too-distant future I can visualise a Minister saying that it is capable of being evidence of bad character that a candidate sang a political song in the House of Commons or that he voted or otherwise behaved in a way of which the Government disapproved. That is the door we are opening.
This is thoroughly bad legislation. It makes no sensible contribution to the broad thrust of the Bill, which many of us wish to see carried through. The Bill can well be supported on sensible grounds, but this clause has nothing to do with that. The Government say that the objective of the Bill is to secure fair and equal treatment for everyone in the country. That objective is acknowledged by most people to be sensible, but it will not be advanced by a clause which is blemished by so manifest and unwarranted an absurdity.
The excellent speech of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) must make it clear to the Home Secretary that the subsection could well be removed, for the simple reason that it is against the ordinary sense of justice of the people of this country. It means, in the parlance of the Civil Service, that everyone will have to be positively vetted before he can get a recommendation. People will have to be investigated to ensure that neither they nor their servants at any time were believed to have done anything tending to contribute to discrimination. This opens enormous fields for almost Gestapo-like work by enemies of the person concerned. They could give bogus evidence before the honourable groups of men who will have to decide whether someone is of good character.
In conection with Clause 32, it makes people of moderate view wonder whether the Bill is worth passing at all. Full of such palpable nonsense as this, it does great damage to the cause of race relations. It makes people indignant that they should be submitted to such absurd humiliation. The Home Secretary should seriously consider withdrawal of the subsection, otherwise many hon. Members will find it difficult to vote for the Third Reading. If the Bill seems so obviously foolish to ordinary people, they will regard it as a piece of arrant and foolish nonsense which should be withdrawn.
I hope that the right hon. Gentleman will weigh these matters seriously. To impose on a distinguished body of men such absurd conditions, to impose on people the problem of being had up for the actions of their servants and employees—not necessarily any longer employed by them—and in perpetuity being condemned for some action taken in the past by them or their employees puts them in a ridiculous position.
I do not know who drafted the Bill. It must have been some lunatic in the Race Relations Board. Certainly it was not done by a serious lawyer or politician. Whoever drafted it has caused more problems than are currently facing up in other areas. I hope that the Home Secretary, when he replies—and we are pleased to see that he is present and considers the issue to be one of importance—will deal with the idea of the positive vetting of candidates—a process which does not seem to have been carried out sufficiently well by the Government in relation to secrets of State, which are rather more important than questions such as whether one's cook did something 30 years ago. This is a matter which requires serious consideration. I hope that the clause will be withdrawn as speedily as possible.
If I am fortunate enough to catch your eye later, Mr. Deputy Speaker, I shall seek to argue that before Parliament engages in legislation it should be satisfied that there is widespread consent for such proposed legislation. I shall argue that there is no such widespread consent for this legislation.
When I argue that there is common consent to legislation, it is inevitably a subjective judgment. Inevitably I draw upon my own reactions to legislation and not upon a wide corpus of evidence. I draw upon conversations I have had with people. When my eye lit upon this subsection I realised that at last there was some objective evidence to support my proposition. If an offence has been created and if something which is obviously anti-social has been done by a person wishing to join one of our professions, we would expect that profession to take account of it without being ordered to do so by law.
The professions are, after all, composed of people who have a vested interest in orderly government and in the observance of the rule of law. One would expect that they, above all, would consent to legislation which had the widespread support of the British people. One would not expect, if we were passing legislation dealing with offences of murder or manslaughter, to find a subsection at the end of the legislation saying that where a qualifying body was considering the application of a candidate who had committed an offence of murder it should take into account the fact that he had been convicted of murder before deciding whether he was of good character, whether he was a suitable person to become a barrister, a lawyer, a dentist or a member of any of the other learned professions. It is precisely because the Home Secretary knows that there is no widespread consent to this sort of legislation that he has to order the most law-abiding, respectable people in society to take account of infringements of this legislation, which seeks to make discrimination unlawful.
Can my hon. Friend explain how, in his opinion, this legislation might tie in with other legislation passed not long ago dealing with spent offences? If the discrimination had been practised, presumably at some later stage it would become spent.
I was asking my hon. Friend, who is a lawyer, I believe, whether he could explain what happened in the case of offences of discrimination in the light of legislation not long ago passed by the House dealing with the rehabilitation of offenders, which provided that offences became spent. I wondered how evidence might be adduced which tended to show this.
It is not for me to try to assist the Government in presenting their legislation. As I understand it, the practice of unlawful discrimination is not a criminal offence that will give rise to certain obligations upon the prosecution to prove the offence against the defendant, or give to the defendant the ancient rights of any person charged with a criminal offence in the courts of this country. It is a new, strange situation. It is something half-way between a criminal offence and a civil matter. It involves a situation in which the defendant or respondent is given all the disadvantages of criminal proceedings but none of the advantages. It would not be a fair challenge to bring in the matter of the spent conviction.
Only because the Home Secretary knows that he has no consent for the legislation does he seek to impose upon the professions, above all, the obligation to have regard to the practice of unlawful discrimination. If he knew that every solicitor regarded it as a heinous offence to practise unlawful discrimination, or that every dentist felt in his heart that it was a disagreeable thing, the subsection would be unnecessary. The right hon. Gentleman is introducing the legislation because he knows that he is forcing his own prejudices down the throats of the British people.
It is worse than that. When one seeks to impose legislation, one does not merely damage the legislation that one thrusts upon the people but one damages the rule of law. As the Home Secretary has so often courageously expounded to his hon. Friends below the Gangway, the rule of law is a single indivisible garment.
The rule of law can be damaged by progressive liberals like the Home Secretary by such legislation. As much damage can be done as would be by those who wish the Shrewsbury pickets to be released for political reasons. Although the Home Secretary believes himself to be the most fervent upholder of the rule of law, by mistake he does as much damage to it by this legislation as he would have done had he let out the Shrewsbury pickets.
The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew), in his eloquent, indeed fulminating, speech in moving the amendment, inquired rather speculatively whether there could possibly be any precedent for the extraordinary deformation of our law represented by this subsection. The answer to his question is "Yes". He seemed to fear that the answer might be "Yes".
I cannot praise too highly the decision whereby, to facilitate the study of this piece of anti-discriminatory legislation, we are given the reference in the margin "s" for "sugar"—as it used to be in the signals alphabet—referring us back to the Sex Discrimination Act. Sure enough, there it is—Section 13 of the Sex Discrimination Act of last Session, against which I am glad to think I voted on Second Reading and was only prevented by illness from voting on Third Reading
A cursory examination of that statute confirms that the present statute is based upon it. I do not know what fees the draftsmen received for drafting the Bill, but most of it was common form. The clauses were simply copied into the Bill with the word "race" replacing "sex". It was said "Just use the same clauses." The clause titled "Qualifying bodies" is the same as in the Sex Discrimination Act.
I was curious to examine the proceedings on that precedent. I find no trace that there was any Division in the Committee. No one who scrutinised the Sex Discrimination Bill on behalf of a jealous Opposition in the last Session thought fit to divide the Committee.
I have also consulted the proceedings on consideration on 18th June. Although, faithful and vigilant as always, as reported at column 1531 of Hansard for that date, my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) had something to say on some aspects of the similar clause, there was no evidence of any disposition to divide the House on that subject, nor did anyone but my hon. and learned Friend speak at all on it.
It is wonderful, and much to be commended, that at the second time of hearing the House has taken offence which it did not take on the first occasion. Or should one perhaps conclude that hon. Members were even more cowed by the idea of interfering with a Bill directed against sex discrimination than by the terrors of being accused of interfering with a Bill dealing with racial discrimination? However, it is gratifying to note that a little courage has trickled into the veins of the House, even on the subject of race, so that we are daring tonight not merely to read what is presented to us but actually to take objection to it and go so far, I apprehend, as to carry our objection into the Lobby.
What a dangerous thing precedent is, and how easily we slip into precedent, blown by the irresistible wind of fashion! How many people dared at any stage to raise their voices against the nonsense of a statute against sex discrimination, proposed by a White Paper issued by the Conservative Party in September 1973 and presented by Lord Carr, as he now is? There was hardly a voice raised against it. There were just one or two voices—one that I remember. How many voted against the Bill? Not more than a handful.
There is the precedent. We are told "You did it before. What is all this about the law of England and interfering with these venerable corporations? We have done it before." Now the argument runs that what was thought right for those who had been guilty, even if unwittingly and by association, of the ghastly crime of sex discrimination must be almost too good for anybody who has been guilty of race discrimination.
It is much to be welcomed that a more robust spirit seems to be abroad. I do not know what accounts for it, but at any rate let us not allow ourselves at this second time of asking to be cowed or dominated by the ground of precedent.
I am coming to that. That was a mere abbreviation in order that I might deal with this section of my remarks before passing on to dilate upon the second section. I was saying—I make no complaint of my successor in the representation of that noble town in Staffordshire for interrupting me in my flow—
Have they moved it out of Staffordshire? There is no such place as West Midlands. It is unnatural and impossible that there should be such a nonsensical division of the country. I am happy that at any rate I now represent a part of the United Kingdom in which the ancient counties are allowed to exist. Of course, everything possible is done to deprive them of any significance, but exist they still do. I owe an apology for being swept away by old attachments into what I fear must be only just within the bounds of order. I hasten to retire much further within those outer limits.
Let us break with precedent in so evil a matter, even though it be not merely the second time but the dozenth time that such a proposition has been made to the House. When legislation is put before us, we have a right to consider what is proposed de novo.
I was intending to emphasise as perhaps the most objectionable of all the objectionable features of this impossible Bill the words in the subsection that state
to have regard to any evidence tending to show".
That means that a person is to be put on unofficial trial years after the event with no provision for dealing with any irregularity or any possibility of examining the evidence, nor any right to challenge the evidence on the ground that it does not show that he committed the offence. It is sufficient that the evidence should tend to show that he committed the offence. What protection can there be five, 10 or 15 years afterwards against an allegation which, if true—this cannot be denied—tends to show that a person has been guilty, if only by association, of discrimination?
Here we are framing and moving towards the statute book a Bill in which an unsatisfactory provision, but still a provision, is made whereby under Parts VII and VIII those who are alleged to be guilty of racial discrimination have the opportunity to have that allegation examined by the commission, and then in consequence, if they are to be damnified thereby, established by one or another regular tribunal.
But all that disappears in Clause 12. In Clause 12 there is no need for the commission to have examined the matter. It does not say that the commission must have found that a person has practised unlawful discrimination. Still less does it say that the unlawful discrimination has been made the subject of a proceed- ing and that civil action has been taken against him and that he has lost it. There is none of that. He is to be put on what is, in effect, a trial in private without knowledge of the evidence and without the ability to consider the evidence, in circumstances in which the ability to practise his profession or his trade may be taken away from him. After all, that is sufficient to remove his good character.
What sort of insanity is this, borne by the virus of the word "discrimination" and the notion of discrimination, that banishes from our minds all ideas of natural justice and fairness once the allegation of discrimination is made? My right hon. Friend the Member for Stafford and Stone (Mr. Fraser) was unjust in his suspicion that it was race that was here the sufficient cause. The answer is that it was not race, because in the earlier measure sex was quite sufficient. It was discrimination—and if we are legislating against discrimination nothing is too bad. No punishment, no injustice, is too severe or too intolerable for those even accused of it.
I do not think that on this occasion, the second time round, we can allow the statute book to be defiled by a provision of this sort.
The right hon. Member for Down, South (Mr. Powell) described the speech of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) as eloquent as opposed to cogent, which was the word used by the right hon. Member for Stafford and Stone (Mr. Fraser). Eloquent it may have been, but it could not have been cogent within the terms of argument deployed by the right hon. Member for Down, South.
The hon. and learned Member for Royal Tunbridge Wells rested himself on precedent, saying with eloquence "What precedent is there for this provision?" The right hon. Member for Down, South, who is always very good at sticking knives into the backs of Opposition Front Bench Members, brought forward the precedent extremely clearly.
I must point out that Clause 13 of the Sex Discrimination Bill was not voted against by the Opposition. But the right
hon. Member is mistaken in thinking that that was the only precedent. There was at least one earlier precedent, the Consumer Credit Bill, introduced by the right hon. and learned Member for Surrey, East (Sir G. Howe), on 14th November 1973. He then said:
the basic criterion provided in Clause 24 for the issue of a licence is that the applicant should be able to satisfy the commissioner that he is a fit person to engage in the business to be covered by the licence. The commissioner will have to take account of any history of fraud, any contravention of a provision of this or other consumer protection legislation, and any discrimination on the grounds of sex, colour, race or origin."—[Official Report, 14th November 1973; Vol. 864, c. 513.]
At that time the right hon. Member for Down, South was still a Member of this House, still a member of the Conservative Party. Assiduous attender as he then was, he did not divide the House. The Second Reading of that Bill went through without a Division.
The importance of this amendment has been greatly exaggerated. I believe that the rules of natural justice are of great importance. It seems to me that the provisions of this Bill, as the provisions of the Sex Discrimination Bill and the Consumer Credit Bill, are matters to be taken into account. There is no provision that forces any professional body to act against what it believes to be right.
The hon. Member for Wolverhampton, South-West (Mr. Budgen) placed great weight on the instinctive sense of justice and absolute rightness of any professional body. In fact, he went so far as to say that no legislation could be passed in this House which did not command an instantaneous echo in the heart of every dentist in the country. I thought that that was going a little far, despite the fact that I have great respect for dentists, as for other professions.
This legislation allows great discretion to remain with the professional bodies in adjudicating on these matters. What weight they give to racial discrimination and whether it is relevant to a person's character in the context are matters for the professional body to determine. If it is thought to be relevant, and if weight is attached to it, it should be taken into account.
The hon. Member also ignored subsection (3) of the clause to which
Amendment No. 10 relates—Clause 32—which states:
In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
I do not think that this is oppressive legislation. There is nothing here which fetters the right of the professional body to make its own decision about the relevance of this consideration or the weight which should be attached to it. There is nothing in it to exclude any defence that individual concerned may bring forward. It says effectively, as do the Consumer Credit Act and the Sex Discrimination Act, that a history of discrimination is something which can be taken into account in order to judge whether a person is a fit and proper person to uphold the high considerations involved in carrying out professional duties.
I do not think it is reasonable to say that, if we were to strike this out of the Bill, a persistent history of discrimination should be something that a body should not take into account.
The right hon. Gentleman argues that merely having to have regard to the evidence is relatively unimportant. What about the analogy of criminal law and asking the jury to have regard to previous convictions? This is very important. No one knows what weight a professional body would give to the practice of unlawful discrimination.
The hon. Member really cannot stand on his head completely within the space of 20 minutes or so. He addressed a most powerful appeal to me earlier about the infinite wisdom and great intelligence of professional bodies. He is now saying that they cannot be trusted to apply any sense of balance at all. The two points are contradictory. I am confident that individual professional bodies will do as we hope.
It should be noted that Clause 11 (2) is concerned not with isolated acts of discrimination but with a course of discrimination which has been practicsed, and it is totally unreasonable to say that this is something which should not be taken into account together with other character considerations.
It is astonishing how Labour Members, who were recently heard repeating time and again their concern for liberties, react when a matter is pointed out which blatantly undermines the liberties of people. They carry on assuring us, as the Home Secretary has just done, that natural justice is of importance to them.
One of the fundamental rules of our legal system is that a person should be responsible for his own wrongs. An exception is made in certain cases where a person is held to be responsible for the wrongs of others who are working as an arm of the principal person, as an employee under his authority and command or as an agent who is taken to have the authority and command of the principal. Occasionally the law bends itself to a situation where responsibility is attributed to a person who did not know about the wrong-doing, where it is in the interests of public policy that it should happen, as, for example, in the case of a publican who is held responsible when an employee serves a customer who is under age. Another example is in the food and drugs legislation, where a milk-producing company is held responsible for the wrongs of someone way down the chain for producing in a bottle some article which is offensive. It is decided in such cases that, as a matter of public policy and on a matter of public health and safety, an exception should be made.
But until the Sex Discrimination Act—and I am bound to admit to my shame that until the right hon. Member for Down, South (Mr. Powell) drew my attention to it I was not aware of the fact—no man was held liable for the faults of any other person at a time when he did not even know that person, and when he did not have any responsibility for those faults. He is held responsible, perhaps without time limit, and perhaps from a time when he was involved in some other trade or occupation. Why has the law reached out its tentacles to cast blame and attribute wrong to someone of whom common sense cries out that not only is there no responsibility but that in all good sense no responsibility can be laid at that person's door? This measure is to that extent truly grotesque.
The Home Secretary has drawn attention to another item of legislation which he claims to be another precedent. In this regard, however, it is no precedent. The legislation to which he referred attributes wrong to a wrong-doer, not casting blame for faults done by others at a time when he did not know or ought not to have known of them or for whom there was no responsibility. The necessary proof of this offence is not merely evidence which is admissible in a court of law or tribunal, subject to proof and to the calling of witnesses to cross-examination—
I have listened to many of the hon. Member's speeches over the last few months. Is he a lawyer? I understood that he was. If so, has he heard of the law of master and servant and of vicarious liability?
I always find the Home Secretary's observations somewhat objectionable. I find that one even more objectionable and offensive than usual. He knows full well that I am a lawyer, and he shows by his observation that he knows far less about the law of master and servant than I do.
I shall not be provoked by observations of that sort. I am endeavouring to be constructive. [Interruption.] It ill befits Labour Members, who do not care whether the liberty of the subject is infringed or not, to mutter "Dear, oh dear" and complain about our considering the Bill at 1 o'clock in the morning when they want to go home.
To put a more favourable gloss on the Home Secretary's intervention, does it not demonstrate that we have got into a frightfully dangerous muddle between civil and criminal law? Was not my hon. Friend saying that in criminal law it is almost unknown for a defendant to be vicariously liable for the acts of another? Here we have an extraordinary hybrid situation between civil liability and criminal liability. The unhappy defendant will find himself, in effect, charged with a criminal offence and vicariously liable for the wrongs of others.
I am grateful to my hon. Friend for adding his weight to the point I am making.
The clause does not refer to things done in the course of employment—which is a requirement of the master and servant legislation. The clause says:
any of his employees or agents (whether past or present), has practised unlawful discrimination
and so on. There is no requirement that the offensive act should have been in the course of employment under the authority of the employer who is to be subject to the allegation. I strongly advise the Home Secretary to take instructions before he makes interventions on matters about which he knows nothing and cares little.
In our courts, whether civil, criminal or hybrid tribunals, evidence normally means admissable evidence which can be cross-examined to. Evidence is a term of art in our law. The rules of evidence are meant to protect the individual who is at risk from rumour, hearsay or evidence which is not admissible.
Looking at the subsection to see what evidence is required, whether it is evidence admissible in the courts or evidence acted upon in our courts after the due processes of protection of the individual have been gone through, we see that the opposite is the case—that any evidence, rumour, hearsay or malice will do. We have a truly fantastic situation. It would be laughable to have legislation of this kind considered in the Chamber, at whatever hour, were its likely effect not disastrous.
There will be those who will want to use the easy opportunity provided by this legislation to drag those whom they wish to discredit through the courts and the tribunal system for which this legislation provides. There will be those who, out of malice or spite or for the advancement of a cause which they believe to be right even though everyone else may not, and those who, because the rules do not exist, because the burdens of proof are easy because any evidence will suffice, any rumour, hearsay or malice will do, will drag other people through the miserable experience of challenge and having to justify themselves.
What the Government are doing is providing an instrument for the malevolent to advance their mischief. How can that conceivably be right? How can it be right in terms of financial cost? How can it be termed right in terms of good and decent relations?
As my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) has said, ultimately the greatest evil is the indignation that all this will cause, the anger, the irritation and even the hatred that will be engendered by sweeping away all the time-honoured rules in order to make it easy for those who are malevolent to pick bones unjustifiably. In the cause of good race relations, I beg the Home Secretary to drop the subsection and to let us get on with some more important parts of the Bill.
I have listened to the debate while mainly waiting to hear a later debate on the effect of the Bill on clubs. Having listened to what has been said, I ask the Home Secretary to consider whether this subsection is not wildly and unnecessarily wide in its terms.
I was not very impressed by the Home Secretary's justification—the fact that a similar section appears in an Act passed by his own Government, from the same Department and the same Home Secretary, last year. It does not seem necessarily correct to say that because this provision was in the Sex Discrimination Act which he introduced and which was not opposed at the time it is therefore wrong that it should be opposed on this occasion.
As I understand it, the Bill is concerned with attempting to deal with discrimination against minority groups. In principle, unlike some of those who have spoken in the debate, I tend to support the aim behind the Bill—the need to prevent discrimination so as to ensure that there is equality of opportunity for all people in this country irrespective of the colour of their skins.
However, surely the Home Secretary would agree that this subsection has nothing to do with avoiding discrimination against coloured minorities. It is a means of adding an additional form of penalty upon anyone who, at any stage and at any time, apparently, appears to have been involved, innocently or otherwise, in any form of discrimination.
I would not go as far as my hon. Friend the Member for Burton (Mr. Lawrence) in my main objection. However, it seems to me that the subsection is totally otiose, unnecessary and in principle somewhat unattractive. As I understand it, what it says is that any professional body, when required to look at a person's character, shall be required to take note of or to have regard to anything in his past, or the pasts of those who have been his agent or his employee, involved with the practice of discrimination.
This provision goes extremely wide. The Home Secretary said that it was right that a body should take note of a persistent history of discrimination. He may be right. A persistent history of discrimination practised by an individual might be suitable matter on which a professional body could decide that the person in question was not of good character and was unsuitable for membership of that body. But, surely, that is a matter for that body.
The Bill does not say that a persistent history of discrimination by an individual may make him unsuitable for membership of some other body. It says that that body shall be required to have regard to any evidence tending to show that not necessarily that individual but his agents or employees have at some stage been involved in the practice of discrimination. The phrase "shall have regard to" may give undue prominence to that evidence when the tribunal is assessing the character of the individual. It would be far better to leave it to the good sense of the tribunal.
The tribunal or body required by law to consider a person's good character is bound to take account of evidence of past discrimination by his employees or agents, even if the person resented the discrimination and his decision to leave his employment and join another body may have been caused by his revulsion against that discrimination. A person's employees may insist on practising discrimination in deciding whom to accept as fellow members of a work force. If he resented it, left his job and applied to join a body or authority for which his character had to be assessed, the evidence of his previous job would have to be taken into consideration against him.
It is extraordinary that the Bill refers to the need to have regard to any evidence tending to show that a person committed any act of discrimination, whether past or present, at a time when, with the blessing of the Home Secretary, the House recently passed the Rehabilitation of Offenders Act, which specifically provides that a man applying for a job need not disclose that he has had a criminal conviction provided that it was more than two years ago.
If I am convicted of fraud and serve a sentence of up to two years' imprisonment, there will come a time when I shall be able to apply to become a member of a body which requires an assessment of my character, and I shall not have to disclose or answer any questions about the fraud for which I served a term of imprisonment. If I did not go to prison, I should not have to admit the offence three years after I committed it. That same body will be required to take note of evidence from perhaps 20 years ago of the commission of an act which can be said to be an act of discrimination.
That is wildly out of proportion. An act of discrimination is to last for the rest of a person's life, whereas a criminal offence is to be forgiven if he has been of good character for two, five or 10 years. If I am right in my understanding of the Rehabilitation of Offenders Act, that is another argument why the right hon. Gentleman may feel that the clause is unduly wide in its interpretation.
I think that the points which the hon. and learned Member for Runcorn (Mr. Carlisle) has made clearly merit careful consideration. I am at present persuaded that the subsection is right and that the fears he has expressed, which I cannot dismiss out of hand, are misplaced, but I should like to consider his arguments carefully to see whether there is any contradiction between the Bill and the Rehabilitation of Offenders Act, which was not a Government Act but which we facilitated through the House.
Without any promise as to our attitude, because I am at present persuaded that the provision is right, I should like to take into account what the hon. and learned Gentleman has said. I could not accept an amendment at this stage, but I shall consider before the Bill reaches another place whether his arguments are as forceful as some of them sounded when he spoke.
The amendment has commanded a great deal of support on this side of the House, and were there not a Trappist vow in operation on the Government Benches I feel that it would have attracted a great deal of support there as well. No one can be happy about subsection (2).
The Home Secretary has just said that he will give consideration to one of the arguments put by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle)—that is, the contrast between the provisions of the Bill and those of the Rehabilitation of Offenders Act—but I find it surprising that it is that inconsistency which has alerted the right hon. Gentleman to the fact that the provisions of the clause are so unreasonable. It would appear as though all the arguments deployed before had no effect on him, but that when he sees an inconsistency between the clause and the Rehabilitation of Offenders Act he begins to move.
But the thing goes further and deeper than that. My hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) laid great emphasis on the question of precedent, and he has been attacked for it, notably by the Secretary of State. He was right to lay emphasis upon that question. We have had with us, although he is not present now, the hon. and learned Member for Bradford, West (Mr. Lyons), who has interrupted speeches or made short speeches time and again saying "What are you fussing about? All this was done in the Sex Discrimination Act. There is no ado about it. Why should we not do it again?"
That is a dangerous argument. Having said that, however, and to some extent agreed with my hon. and learned Friend about the validity of his argument on ground of precedent, I would go further, or perhaps in a slightly different direction, and say that I am not so much troubled about where it leads as to where it has led. This is not the thin end of the wedge; it is the thick end. There may be worse to come, but this is bad enough. We lay down in an Act of Parliament in a peremptory manner that these bodies shall have regard to gossip or suspicion. It is evidence which tends to show—not evidence which shows, but evidence which tends to show. That is what it comes to.
The Home Secretary says that these are very reputable and respectable bodies. Some of my hon. Friends have emphasised the weightiness of these bodies. It is said that they will use their discretion. They can always use their discretion. They can do that now without any Bill or Act. The purpose of the subsection which we are seeking to delete is to tell them at least in some degree how they are to use their discretion. It has no other purpose. If they would do this anyway, we would not have the subsection. It is to persuade them to do something that they would not do but for the subsection. That is the whole purpose of it.
I think that it goes further than that. This is the around of objection on which again my hon. and learned Friend the Member for Royal Tunbridge Wells laid a good deal of emphasis. He referred to the presumptuous nature of a prescription of this kind. I think one can go further than that, because, when we reflect upon it, this is a proposed law to define what is permissible in the realm of thought and conduct.
The Home Secretary may say that the whole Bill is about that. It tells people how they are to behave in the matter of race relations. I and some others present here now object to the whole principle of this kind of law anyway—what has been called over and over again the educated use of the law. It is political law, but there are also political laws which do not have this particular character of seeking to be educative and to mould men's minds. That is what this is seeking to do.
But while it is true that the whole Bill is a Bill to put a procrustean clamp on men's minds, this particular subsection is more than that, because it purports to define good character and to that extent to define the boundaries within which a difference of opinion may be exercised without being outlawed by the State. This is a particularly pernicious element in this kind of legislation. As has been pointed out, in a sense it is very extreme in that direction because it also embodies guilt by association. That is bad enough. We can strike anyone dead through guilt by association.
I remember speaking once at Leeds University. I found leaflets distributed saying that I was a dreadful person. I may be, but the reasons given were not very convincing. I was a member of the Monday Club, and also in the club were so-and-so, who were also members of some other organisation, of which so-and-so were members, and those people on some occasions had said this or that. It was all set out. Therefore, it was said that I was an awful rogue. That was guilt by association at two or three removes. Here, all that I have been describing—the pernicious character of the Bill—is attached to anything done by servants or agents, or which has at some time been done by them. It is guilt by suspicion and on association.
To return to my theme of the definition of the permissible in the realm of thought, this is peculiar to subsection (2), because this is a clause defining good character and saying what shall be taken into account as evidence of bad character.
It seems to me, as it has to at least one of my hon. Friends, that when we reach an area where hysterial takes over in the thinking of the Home Secretary and those who advise him. I should not say "those who advise him" because I do not know. Perhaps they wring their hands and weep bitter tears and cannot do anything about it. The Home Secretary must carry responsibility for those things which are done, never mind his advisers and, I suppose, never mind the ambience of junior Ministers who surround him. This attack on discrimination, which is now a phobia, a neurosis, a hysteria, is something which ought not go unchallenged. Subsection (2), which carries that attack into the definition of "good character", is the occasion to challenge it.
I have always attacked this criticism of discrimination. I have never hesitated to defend discrimination in this House or in any public place. I have said, and it is obviously true—I cannot think how it is not recognised by the Home Secretary—that discrimination is the essential human character, the very principle of progress, the observation of differences and the evolution of differences on which all progress depends. The Home Secretary is exercising that func- tion of discrimination at this moment as he looks at his piece of paper. That is what this argument is all about.
When we come to the question of race, ethnic origins and all these things, who is the Home Secretary, and who is Parliament, to say that there should be one view about these things? How do they know how much differences of race matter? I would have thought that the science of genetics is one of the youngsters of science. It has made tremendous strides over the last few years, but it got started only about 10 years ago. The Home Secretary does not know whether race matters. No one knows and no one will know for quite a while.
Great strides have taken place, but whether the inferiorities that one observes are inherent and predominant, in the sense of being things to be estimated in millennia, or things which can be dealt with by environmental treatment, by priming the pump, I do not know, the Home Secretary does not know and the Under-Secretary of State for the Home Department, sitting next to him, does not know either. No one knows.
What on earth are we doing having a law about it? It is the Lysenkoism of Western democracy, and the Home Secretary, who is a person of education, culture and perspective, is lending his authority, and his name, to statutory Lysenkoism by the banning of certain views of essentially scientific matters which probably runs against the evidence. In any case, whether the evidence is totally inconclusive or not, the Home Secretary is quite incompetent to prescribe for others what they shall think about the significance of race.
The right hon. Gentleman is proposing in his legislation that anyone who thinks that race matters a great deal shall be subject to the sanction of indefinite imprisonment. In subsection (2) he is proposing that anyone who takes a different view from him and his political associates about the importance of race, and the differences between different races, shall be treated as a person of bad character.
I have a certain amount of understanding, I hope sympathy, of why people adopt this rabid view. They are, of course, people whose own racial connections have been bitterly bruised in recent times. I blame Adolf Hitler more than I blame the Home- Secretary, because it has been almost impossible for a long time—
It is a correct comment, because Hitler set standards of brutality and viciousness which have obscured the whole subject, which ought to be one of calm and scientific appraisal, because it is an area in which human knowledge has not yet attained certainty by a very long way. Because of those terrible things which happened, I think that there has been an emotional background out of which legislation and law has emerged.
The subject has also been influenced by the civil rights movement in the United States of America, where the question was totally different and where the issue was whether people, who were not of the dominant European race, have the kind of civil legal rights which we take for granted in this country.
It cannot be sufficiently emphasised that no question of that kind has ever arisen in relation to this kind of legislation in this country. This legislation, and particularly subsection (2) is aimed at rewarding by law the social status of particular communities, the esteem in which they are held in the minds of the native inhabitants of this country, and that is not a legitimate use of the law.
But if it be said to me that the House of Commons has given a Second Reading to the Bill, it has gone through its Committee stage, it comes back to us now on Report and it is not competent for me to take the broad sweep of the argument that this is an abuse of the law-making process, I say, until we reach Third Reading, so be it, but that it is legitimate to say on this amendment that this is the ultimate in this use of the law—the destruction or the impairment of men's characters because they have held and shown views about the significance of racial differences which are not acceptable to the political establishment in Britain.
This is neither the occasion nor the time of the morning to go into these matters deeply—
I do not need the encouragement of the hon. Member for Ealing, Southall (Mr. Bidwell) to approach these matters in a serious way. If I am doing anything I am attacking the political, rabid approach to matters which should not be approached in this rabid, political way at all.
These are tremendous questions, which underlie the problems of our civilisation. I do not suppose that there is an hon. Member in the House who does not believe in the evolutionary theories, basically of Darwin—the survival of the fittest, the elimination of the unfit—or who does not recognise the extreme problems, morally and emotionally, which the ruthlessness of that doctrine raises for all of us, and the unresolved difficulties of applying that undoubted underlying truth to the structure of an organised human community, and the reinterpretations which are necessary of what is fitness and which should survive.
These are great problems. This is not the moment for me to go into them, but only to point to their existence and how one adapts the theory of evolution to the frame structure of a society and applies it not entirely to the individual as such but to the individual as an element in the community.
I am doing precisely that, Mr. Deputy Speaker. The amendment would leave out subsection (2), which says—I exaggerate for the sake of clarity—that a man is a man of bad character if he is attracted to any of these theories that I am describing. Unless he is prepared to accept, in all his conduct, past and present, that any such deviant view from the view of the Government Front Bench is a form of evil, he is stamped as a man of bad character. As I said, it is this subsection, because it represents this use of a law right into the realm of character, which makes it an appropriate place in the Bill to mention these considerations.
What I was about to say was that these mysteries underlying the processes of life are not fit subjects for propaganda or legislation. I do not believe that that point could have been made any more shortly than I have made it. It is because I think that, and because I think that my hon. Friends very largely—I hope I am not presumptuous—share that view, that I am totally opposed to the subsection. I venture to hope that there are some Labour Members who are not unsympathetic to what I have been saying, even at 25 minutes to 2 o'clock in the morning when they would rather not be here.
These are big subjects. I hope that the Home Secretary will perhaps give some thought to this and realise that this debate is not merely about the inconsistency between the Rehabilitation of Offenders Act and subsection (2). That was the starting point. I was outraged almost by the superficiality of that reaction. There is a political hysteria neurosis about discrimination—that word which is used rather like a rotten tomato in political controversy. It is regarded as an undoubted evil.
It was not so many years ago, before this American disease spread over us, that discrimination was always in a good sense. It never had a bad sense at all. Now, a person can go to prison for it. The same is true of the Sex Discrimination Act. A person can go to prison for discriminating on the grounds of sex. When I was young a person could go to prison for not discriminating on the grounds of sex. It is a most extraordinary turn of events.
I ask the Home Secretary, who is no punch-drunk politician, who is not averse to directing his intellect to the problems thrown up by a free society, to question most fundamentally whether he is not perpetrating the Lysenkoism of which I accused him—the canonisation of particular scientific views, which in the case of Lysenko were totally invalid anyway. Magna est veritas et praevalebit. Truth is indeed great and it will prevail.
The right hon. Gentleman bears a heavy responsibility when he uses the coercive machinery of the law in the manner in which he is using it to suppress that feeling which is the deepest and most precious heritage of the British people, which ought to be exercised in the widest and most generous spirit and should never be circumscribed, except in cases of clear necessity, by that Parliament which is supposed to protect the British people against the arbitrary exercise of power.
The hon. and learned Member for Beaconsfield (Mr. Bell) has reached a point in his argument which, though dealing with the context of the amendment, has provided some of the reasons why he believes that hon. Members, particularly supporters of the Government, are sensitive on this subject. The hon. and learned Member introduced the name of Hitler. That perhaps ought to make some of his hon. Friends cautious in judging how far they can follow him.
I did not interrupt the hon. and learned Member. I hope that I shall have the opportunity of addressing myself to the amendment and making some comments on his speech. I said that that argument might make some hon. Members on the Opposition side more cautious about following the hon. and learned Member for Beaconsfield, who said that there might be motives among those who were sensitive about the subject.
It is possible for the drafting of the clause or the amendment to be objectively discussed. But it is not pure accident that there was no such objection to the words when they applied to equality between the sexes. Neither blindness nor absentmindedness made people forget about the significance of the phrasing then. Now, however, we are dealing with coloured people. As hon. Members of the oldest democratic Parliament, we should be frank and acknowledge that many people find the text difficult because we are discussing coloured people.
I accept that the hon. and learned Member for Beaconsfield referred to the matter, but I am speaking of other hon. Members who did not object at the time.
We know what we are talking about. Because coloured immigrants—not other immigrants—are involved, many people find it objectionable. The hon. and learned Gentleman referred to people who have views about these matters. I want to introduce the view of Rousseau, the well-known French philosopher who has written a short book on the subject. He does not fit into any of the categories to which the hon. and learned Gentleman referred. He belongs to the French nation, which has not been written down racially. He is not black or yellow or a member of one of the religious communities which have been persecuted. He says in his book that we must be particularly sensitive about race relations and the equality of the races, for one reason—because when we attack people of a different race we attack them on an issue which is not subject to change.
When an hon. Member of one party attacks an hon. Member of another party, when an adherent of one philosophical school attacks a member of another philosopical school, when a member of the trade union movement attacks a member of the CBI or when a member of a trade organisation attacks a trade unionist, in all those cases redemption is possible. When Englishmen fought each other in the religious wars it was possible to hope for redemption, but for Sartre an attack on race leaves no road open for redemption. If one dies for a race, one dies as a member of that race. That is why, says Jean-Paul Sartre, the attack on race by Hitler and his supporters meant that they had murder in their hearts. That is why the attack on coloured people today by members of the National Front and those who echo their propaganda is of the same character. We have not only a right but a duty to be equally sensitive to those attacks.
The other day one of the leaders of the National Front was interviewed on London Weekend Television and was asked, with reference to some of the recent agitation, "What is your view now on coloured immigrants?" He replied "There must be no further immigration of any kind." The reporter asked "What then?" and the National Front leader replied "And then those immigrants who are here must leave." Taken aback, the reporter said "But what if they do not want to leave?" The National Front leader laughed and said "They will be leaving." That is the tendency of the propaganda that is going on today. The people concerned have a policy of enforced repatriation in their minds.
I listened carefully, as did the House, to the hon. and learned Member for Beaconsfield enlarging for 18 minutes upon the philosophical importance of the amendment. I intend towards the end of my remarks to deal exclusively, and much more briefly than did the hon. and learned Member, with the amendment. I claim, however, the same right to discuss the philosophical background of the clause and the amendment.
I can well understand that this is regarded as uncomfortable by some hon. Members who do not wish to face the problems I am putting, but they must be faced. In recent months too many statements and speeches have been made that were too close to the remarks by the leader of the National Front in that television interview. Unless we face these matters, we are not doing our job.
The hon. and learned Member is prepared to face the problems. However much I may disagree with all his views and philosophy, I know that he will not evade them. He argued that there is no knowledge that the Home Secretary might have about the position on race. The hon. Gentleman is wrong. It is not the Home Secretary's prerogative to demand that in our legislation we should simply embody the philosophy of the leaders of the Labour Party. That is a propagandist view. Legislation is not the hand-maiden of the philosophical view of any one party. The hon. and learned Gentleman knows full well that no such attempt is being made. What is happening is much more modest and limited. There can be argument about how much can be achieved with legislation, but the whole aim is to see that legal equality is enforced—no more and no less.
I am amazed that we should not have the right hon. Member for Down, South (Mr. Powell) on our side in this argument. This is the first time that I have had an opportunity in one of these debates to say to him—
I have no intention of discussing the Common Market, Mr. Deputy Speaker, as you well know. I say to the right hon. Member for Down, South in a passing reference that throughout the debates on the Common Market he used to appeal to us, with the approval of many hon. Members on both sides of the House, that Parliament ensured the liberty of all subjects. For the right hon. Gentleman not to be in the forefront in defending the rights of coloured subjects and immigrants like all other British subjects is a great disappointment to me and many other hon. Members.
At this stage it is of crucial significance that this legislation should be supported by a large majority. It cannot be ignored by those who happen to be in the Chamber tonight that the official leadership of the Conservative Party is not opposing the legislation on principle. There is room for honourable disagreement on some of the details, but I regard it as a positive fact that on principle the legislation is not opposed officially. Those who are opposed on principle can only help those who wish for an unhappy conclusion to the policies we are trying to put forward for all people, whatever their colour.
My right hon. Friend the Home Secretary has reasonably said that he will consider the point made by the hon. and learned Member for Runcorn (Mr. Carlisle), who was a Home Office Minister. However, but for the fact that the underlying factor of race is involved—and there are many hon. Members involved in these debates whose attitude on race is not democratic and not what it should be—there could be much more agreement. [Interruption.] Let the hon. Member for Chingford (Mr. Tebbit) laugh as much as he likes. He will be ashamed in years to come at the attitude he took tonight, and so will the hon. Member for Burton (Mr. Lawrence). I name the hon. Gentleman deliberately. He will be ashamed of the attitude he has taken today. In a shameful story, he has told us about teaching other people our language—as if we did not know what he meant. He wants to appear as a racialist, which he is indeed.
When considering the amendment there may be room to look at the text, but let there be no pretence that those who want to create an atmosphere of bitterness against overseas immigrants are using semantics for purposes that they will not admit to themselves or to the House.
First, I say a few words to the hon. Member for Penistone (Mr. Mendelson), to whom the House listened with attention. I share with him, as do all my hon. Friends, a detestation of policies which discriminate unfairly and deprive citizens who are not of the same colour as we are of equality of opportunity and equality before the law, but I think he will recognise that it is possible for those of us who share that view to believe that it is necessary to examine legislation carefully. Surely it is possible to have the same objectives as the hon. Gentleman and at the same time to support the amendment and have reservations about legislation of this sort being the best way of improving race relations.
The House has a clear duty, sharing as I believe we all do a common objective—namely, to scrutinise this legislation. There are those of us on this side of the House who feel as sincerely as does the hon. Gentleman about this legislation, but there are hon. Members on the Opposition Benches who have doubts about it and who support the amendment.
I turn to the intervention made by the Home Secretary earlier in the debate. In answer to an intervention by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle), the right hon. Gentleman said that he would look again at Clause 12(2). I wish to put two further points to the Home Secretary, and I am sorry that he is not present.
One point relates to Clause 32(3). My hon. and learned Friend the Member for Beaconsfield (Mr. Bell), in moving the amendment, pointed out that Clause 32(3) had no relevance to Clause 12(2). When the Home Secretary made his intervention, however, he said that Clause 32(3) applied to Clause 12(2). I do not believe that the protection provided in Clause 32(3) can apply to Clause 12 because that subsection can take effect only when proceedings are brought under the Act. There is no reference in Clause 12 to proceedings. I shall be grateful if the Home Secretary will fulfil his undertaking to my hon. and learned Friend the Member for Runcorn to look at that matter and discover whether he inadvertently misled the House in saying that Clause 32(3) could apply to Clause 12.
There is another point on which the Home Secretary may unwittingly have misled the House. In his intervention he referred to a "history of discrimination". Those were his words, and I quote them carefully. The right hon. Gentleman appeared to believe that cognisance could be taken by that authority or body referred to in Clause 12 only where there had been a history of discrimination. Here again, there is nothing in the wording of Clause 12 which refers to a history of discrimination, yet those were the precise words used by the Home Secretary when he intervened in the debate.
I suggest that it was possibly to avoid a clash in the legislation that the extraordinary wording "evidence tending to show" rather than any words relating to a conviction or finding were introduced into this Bill and into the 1975 Act.
I am grateful to the right hon. Gentleman.
I turn now to consider more widely the effect of Clause 12(2). After a galaxy of counsel, I hesitate, as a member of the more lowly branch of the legal profession, to address the House on this subject. I talk about the solicitors' profession and the responsibilities which will now fall on the Law Society and the Master of the Rolls because that is a pro- fessional body of which I have a little knowledge. Before a person can be admitted as a solicitor of the Supreme Court, he or she must satisfy the Master of the Rolls that he or she is a fit and proper person to act as a solicitor. It may surprise the House to learn that I passed the test.
Will there be a duty laid upon professional bodies, and notably on the Law Society and the Master of the Rolls, actually to make inquiries to see whether there is, in the words of the Bill,
evidence tending to show that he, or any of his employees or agents, whether past or present, has practised unlawful discrimination"?
Will there be a duty on the Master of the Rolls to make inquiries of employees, past and present, of the person about to to be admitted? What is meant by this requirement to impose on the authority or body a duty to have regard?
Even if I were the most enthusiastic supporter of the principles behind Clause 12, I would find it extremely difficult to justify the wording of subsection (2). It is a very imprecise duty on the Law Society and the Master of the Rolls. The reference to "evidence tending to show" and the duty to seek out that evidence is really legal phaseology for which there is no precedent, apart from the Act that we passed last year. This seems to me to be making a law which it is impossible to follow.
The actual wording of subsection (2) is very difficult to interpret. It is immensely difficult even for lawyers. We bring this House into disrepute and we lower the respect in which it is held when we pass legislation which is extremely difficult to interpret or which is, frankly, ludicrous, as the provisions of this subsection are. To impose a duty on bodies or authorities about the conferring of distinction or privilege on those who are otherwise suitable to carry out office is to seek to impose on them a duty which, with the best will in the world, they will find impossible.
To pass legislation of that kind when the laws we are passing do not commend themselves or command universal assent anyway, and to heap this absurdity on the mass of other absurdities, not only does great damage to the cause of race relations but serves to increase the sense of frustration, irritation, and incomprehensibility which our legislation too often causes in the minds of the people we are trying to serve.
I am glad, Mr. Deputy Speaker, that you were so indulgent towards the hon. Member for Penistone (Mr. Mendelson). That allowed us a sight of his mind which is helpful in considering the amendment. He referred to myself and some of my hon. Friends concerning what he described as our undemocratic views on racial matters. But he did not mean "undemocratic". He ment that they were objectionable to him.
It is no evidence to suggest that the views which might be held, for example, by the right hon. Member for Down, South (Mr. Powell) are not the views of the majority of the people of this country. If they are the views of the majority they are very democratic views, however objectionable they may seem to the hon. Member for Penistone. That is what "democratic" means—the voice of the people, not the voice of a small group which has decided that it knows better than the people.
The whole problem which undermines this legislation is that in the name of democracy the views of a tiny minority are being foisted upon all the people of the country. I will not submit to being referred to as having undemocratic views by someone whose views are a minority cult. The whole of this wretched legislation is a minority cult, and I hope that like many other cults it will go out of fashion and be dropped before many years are out.
Will my hon. Friend think for a moment on what is or is not a democratic view? Surely any view is democratic, because the essence of democracy is that all views shall be expressed in a democratic forum, and it is after the clash of those views that the decision is taken. It is only those with authoritarian tendencies who seek to exclude the views they do not like, describing them as undemocratic.
I do not differ from my hon. Friend.
The hon. Member for Penistone also implied that there was something very sinister about the way in which my hon. Friends and I were expressing our concern over the Bill after the way in which
we let the Sex Discrimination Bill slip through. His attitude was that there was something distinctly nasty about this matter and that, whereas we did not mind the sex discrimination legislation, we objected to racial discrimination legislation. How did he account for the fact that we also allowed to slip through quietly and easily the Consumer Credit Act 1974, which in Section 25(2)(c) refers to the sanctions to be taken against those who have
practised discrimination on grounds of sex, colour, race or ethnic or national origins"?
The hon. Member for Penistone cannot have it both ways. Those references to racial discrimination also slipped through.
The hon. Gentleman cannot say that we suddenly object to this legislation because we are racialists when we did not object to the Sex Discrimination Act and let it through.
Two things have happened. We have become a little more vigilant and we are beginning to learn fro mexperience that this type of legislation is not merely ineffective but is positively harmful in our society. The Home Secretary should not be allowed to get away with his view that once we have passed one silly piece of legislation we ought to allow lots of other silly pieces of legislation to go through. "One bitten, twice shy" is a good motto. The Home Secretary seems to think that, having been bitten once, every time we see the wretched dog again we should stick our hand in its mouth to get another bite. I hope we can learn from experience instead of merely repeat experiences, however distasteful.
The Home Secretary conceded that my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) had raised an important point and agreed to look at it again. Not for the first time, I do not take him too seriously.
Earlier, the right hon. Gentleman leant heavily on the precedents of the Consumer Credit and Sex Discrimination Acts. The clause we are discussing is taken directly from Section 13 of the latter Act. If the Home Secretary was serious in what he said to my hon. and learned Friend the Member for Runcorn, he would have to consider not only an amendment to this Bill but a change in the Sex Discrimination Act. It would be illogical to have different provisions in two measures dealing with the same sort of matter.
Considering the state of the Government's legislative time table, I am not sure how the Government Chief Whip or the Leader of the House would react if the Home Secretary said that he wanted an amending Bill on a major piece of legislation. It may happen. We shall wait and see.
The easiest way for the Home Secretary to give an earnest of his intentions would be for him to come back and say that he is impressed with the arguments and takes them seriously. The proper way forward to avoid any muddle would be to adjourn now, before the conclusion of the debate, and resume on Tuesday—which would be much more convenient than taking the Finance Bill on that day. The Home Secretary could then tell us what he intends to do instead of trying to get away with half an undertaking that he might look at this matter and then sneaking out of the Chamber.
The Long Title of the Rehabilitation of Offenders Act, which seems to have influenced the Home Secretary, reads:
An Act to rehabilitate offenders who have not been recnvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions,".
It is interesting to note that, if a man were convicted under the Public Order Act for an offence of a racial nature, it would not be possible for anyone to refer to his conviction once it had been spent. It would not be possible for the most learned body, when he applied for admission to its membership, to have any note of the fact that he had actually been convicted of a criminal offence relating to the sort of matters to which the Bill refers.
My hon. Friend is right. He says that the matter is worse than that. I usually find that when one consults a lawyer one finds that the matter is much worse than one expected it to be. My hon. Friend confirms my usual feelings.
We have this quite ludicrous situation that if there is some tittle-tattle, some gossip or some evidence that tends to suggest that a man might be a racialist, that can for ever be brought against him.
Indeed. If it was his chauffeur who had these undesirable traits, even that must be brought against the man. However, if the man had gone out on a National Front punch-up with the International Socialists or Tribunites and got himself into a terrible tangle and attacked a man because he happened to be black—or, indeed, white—and had been convicted of the offence, if after the conviction had become spent anyone mentioned it to the wretched board which it is proposed to create he would be guilty of an offence. Whatever the good intent of the Bill—if its intent be good—surely legislation which is as much of a muddle as this should have no place on the statute book.
I am glad that the Home Secretary has returned to his place. The Under-Secretary may already have told him of the way out of this muddle that we could find, giving him time to consider, so that before we come to a conclusion he could say what he proposes to do.
Is my hon. Friend aware that an assurance given by the Home Secretary is likely in the event to be worthless, if only because when they are drafting legislation of this kind parliamentary counsel have to take account of recent legislation, which may in some way or other affect the legislation they are drafting? It is inconceivable that the parliamentary draftsmen would have forgotten the implications of the Rehabilitation of Offenders Act when drafting the legislation currently before the House.
My hon. Friend says that it is inconceivable that the parliamentary draftsmen could have made a mistake of that sort. I yield to no one in my admiration of parliamentary draftsmen. However, I seem to remember that we recently had a procedural muddle, which resulted in a hold-up and an embarrassment to the Government's legislation, when the draftsmen apparently got themselves into a slight tangle about whether a ship was an oil rig or whether it was not a ship. That rather shook my faith in parliamentary draftsmen. When I consider the number of times that the Government bring in technical amendments to Bills that have been drafted months previously, sometimes I think that parliamentary draftsmen—just sometimes—are a little careless.
Perhaps on this occasion the parliamentary draftsmen were no more careless than was the House. They picked up Section 13 of the Sex Discrimination Act and said "We have used it before. No one noticed anything wrong with it. We shall use it again." Who can blame them? It was our fault that we did not notice what was wrong with it before. When that wretched Act was going through Parliament, we should have tumbled to its relationship to the Rehabilitatioin of Offenders Act. All that we have said tonight about this Bill is as much a condemnation of its unfortunate sibling, the Sex Discrimination Act, as well.
My hon. Friends demonstrated the interaction between Clauses 12 and 13. It is necessary to have evidence which tends to show not that a man has been convicted but that he has practised racial discrimination. The Home Secretary threw in an additional complication by saying that a man has to have a history of practising racial discrimination. While the Home Secretary has been out of the Chamber. I have looked all through the Bill but I am darned if I can find any reference to the requirement to show a history of discrimination.
I am grateful to my hon. and learned Friend. I can hardly believe it. The Home Secretary gets good reports in The Guardian, he lives in Holland Park or a similar sort of place and he has all the marks of a man who can discriminate between good and bad claret. Perhaps we shall have before long a Bill on that subject, from which the Home Secretary will be safe because he is shortly to go to Europe.
I cannot believe that a man of the right hon. Gentlemen's reputation would invent a phrase and pray it in aid when it was not even in the Bill. That is fundamentally a dirty sort of trick, and I am unable to believe it of him. I hope that he has had time to find in his legislation the reference to a history of discrimination. If he cannot, I shall begin to lose faith in him and in The Guardian, Holland Park, the Fabian Society and all those other marks of British society that made Britain great. [Interruption.] There is nothing permissive in our society now. We are not permitted to decide whom we want to work with and whom we want in our own clubs.
Before long, the House of Commons will be the only decent club in London. It will be the only place where people are not foisted on us on the most remarkable grounds. [Interruption.] I hear a note of warning from the right hon. Member for Down, South (Mr. Powell). He has already tumbled to another Bill which may come before us—the House of Commons (Racial Balance) Bill, or even the House of Commons (Sexual Balance) Bill. We may find that we have a quota of black women who have to be accommodated. However, I do not want to go too far down that road. The Home Secretary will no doubt assure us that it is not in this Bill. I thought it might be because when I could not find the reference to a "history of discrimination" I thought I might have missed something else too.
When we discussed New Clause 3—
Before my hon. Friend moves on from Holland Park, I draw his attention to Clause 28, which reads:
In this section 'discriminatory practice' means the application of a requirement or condition which results in an act of discrimination.
It is clear that the word "act" there is used in relation to an act of discrimination. So I think that the Home Secretary must be nodding.
I am grateful to my hon. and learned Friend. No doubt the Home Secretary will sooner or later seek to speak again for himself on the matter. Perhaps he was having a quiet nod.
On New Clause 3 we attempted to ensure that an investigation under Clauses 48 to 52 would be fair to what I broadly call the defendant. That was rejected. We know that there is no guarantee that the investigation will be fair to the man who is accused. Where might events carry us? Suppose that next year a man is alleged to have carried out an act of racial discrimination. An investigation might or might not be held. What we know is that if it is held he will have no right to cross-examine the witnesses, no right to legal representation, no right to appear—it seems a general consensus that he will have no right to appear. It might even be that the offence will not be worth investigating at all. Perhaps soon afterwards he will lose the job he was doing. In 10 years' time, however, his employer at the time when the act was committed might find himself banned under this law from membership of a professional body.
Perhaps I can help my hon. Friend the Member for Chingford (Mr. Tebbit). I am happy to do so. He has raised the question of the man not knowing. The Home Secretary, in his interesting but misleading speech, directed our attention to Clause 32(3), which says:
In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps.
and so on. Of course, that is in proceedings brought under the Bill against any person. It has nothing to do with subsection (2), which is what we are dealing with, which has imputations on a man's character. In relation to what we are talking about on this amendment, the man is damaged by things, of which he did not know, done by an employee or agent.
I am grateful for the assistance I am getting from the lawyers. I have never had so much assistance from lawyers before, and it is free. That must be an almost unique experience. I am driven to the conclusion, however, that there is probably some evidence which would, as the Bill puts it, "tend to show" that the Home Secretary was not being entirely honest with us. He was perhaps, as someone suggested, passing a fast ball now and again.
The right hon. Gentleman tried to get out of it with three defences. The first was that of precedent, but I think I have dealt with my reasons for believing that that defence was pretty poor. Secondly, he had the defence that it applied only to cases in which there was a history of discrimination, and I have also dealt with that matter. But a third defence has been raised. It is that we should rely upon the sound, good sense, decency and balance of these professional bodies—it is implied that we are talking of professional bodies—which would be instructed under the Bill to consider these matters before they admitted somebody to membership.
I do not think that the Home Secretary can quite get away with that either, because there is an interesting aspect to this part of the Bill. The wording here is
Where an authority or body is required by law to satisfy itself as to his"—
that is, the applicant's—
good character before conferring on a person an authorisation or qualification which is needed for, or facilitates, his engagement in any profession or trade".
Let us turn our attention to the undoubted trade of driving a taxi. Let us consider the London taxi driver. Before one can become a London taxicab driver, one has to have a certificate or licence. One has to be a member of the club, whatever it is called. That certificate or licence is issued by the Metropolitan Police. Who is the authority over the Metropolitan Police? It is the Home Secretary, the very man who is not sure whether his legislation refers to an isolated act or to a history of such acts.
The hon. Member says that the Home Secretary is sure. What we have established is that, if he is sure, he is surely wrong. We can give him the benefit of the doubt by suggesting that he is in doubt.
We are not relying at the end of the day on the good sense of a professional body or on its bad sense. We are relying, in at least one case, on the Home Secretary. What is the Home Secretary's understanding of how the legislation will be applied? What does he think would disqualify a man from driving a taxicab in London? Would it be that at some time in the past—perhaps if he was an owner of several cabs, as a good many cab drivers are—he employed a man who had indulged in some racial discrimination, or about whom there was a story that he had indulged in some racial discrimination, and that there was evidence some years earlier which tended to show this?
It is no good the Home Secretary trying to shuffle off the responsibility on to someone else. At the end of the day he will not get away with saying that this is a matter for the Royal College of Surgeons or a body such as that. In the case of the taxi driver, at the end of the day it is a matter for the Home Secretary. If I were a taxi driver and I had heard this debate this evening, I would not be very happy that the Home Secretary knew what his own legislation even meant.
This is a very serious matter indeed. I do not propose to go into the philosophical aspects of the problem but would like to point out some practical reasons why we should look at the clause very closely indeed. It can and no doubt will be applied, if it is passed, so as to deprive a man of his livelihood.
Let us consider, for example, the meaning of the words "good character". Traditionally—and, indeed, in all other references to the words—what that means is simply that there are no convictions recorded against a person. Conversely, we say that bad character or character must be considered. Have there been any convictions recorded against him? In other words, when we talk of crime we mean offences of which the person has been convicted and which are recorded. In all recorded instances that I know of in statutes, where we speak of crime we mean that the offences which a man has committed and his record must be taken into consideration.
In this legislation, however, and in particular in subsection (2) the Government are going much further than that because they are proposing sanctions on behaviour which have the effect of being sanctions of criminality—which are offences, with all the consequences that flow from that—without at the same time coming out in the open and saying that it will be a crime.
Racial discrimination, unlawful discrimination, is not a crime as such and therefore, in the ordinary standards of crime, is not something to be taken into account. But in subsection (2) unlawful discrimination has been elevated from the rather innocuous, nebulous civil concept to one which will have the effect of a crime, and it will have devastating effects upon any individual caught by it.
It is even worse than that, because at least a criminal before he is convicted, is entitled to the benefit of certain rules of law, such as that the case must be proved against him. There is the presumption that he is innocent until proved guilty. There are rules of evidence and the law of evidence. There is a procedure which is designed to give the man the fairest possible trial. All of us in this House know how that as the law develops there is great anxiety to ensure that it is the right of every defendant to have the fairest possible trial and that no new development should be unfavourable towards him.
Here, however, we have a dilution of that standard, because it is necessary only to produce evidence tending to show that a man has practised unlawful discrimination. In other words, only half a case is required, only some of the prosecution case and not all of it. Worse still—one never gets this in the case of a crime—the man might not be personally responsible in any way whatever, because the concept here of employees and agents fixing responsibility upon an individual comes straight from the civil law of master and servant, principal and agent.
Whereas the civil law accurately allows that connection, for the purposes of the law within the profession we are simply saying here that any evidence must be considered even if it comes from a person for whom the man is not responsible, even if it is something that only tends to show he is a certain type of person, even if it relates to only one instance and, worst of all, even if it were many years ago.
It is quite clear from the enthusiasm of Labour Members that in respect of this clause they have no interest in maintaining the rule of law, the presumption of innocence or that great distinction, in relation to crime in this country, of the necessity to prove it before any penal consequences arise. That is what is happening. The Home Secretary is directly responsible for this fudging of responsibility and for criminality being introduced under the guise of some civil concept. Yet this is the sort of criminality which, while not designated as such, has far weaker rules and far direr consequences for some people than any criminal law would have if dealt with in the proper way. The Home Secretary should consider this problem.
I am glad that the Home Secretary is here to listen to my speech, because he makes a practice of leaving the Chamber when I get up. That is a great shame, because I am sure he misses many useful points that I wish to make.
I had the good fortune to serve on the Committee which considered the Rehabilitation of Offenders Bill. That Bill was something I disapproved of.
On a point of order, Mr. Deputy Speaker. When you were not in the Chair, I think, the question of the Rehabilitation of Offenders Act and its consistency with this provision was raised and the Home Secretary expressed himself so much influenced by it that he would have to consider the interrelation of the two. I mention that because it is not perhaps immediately obvious.
Further to the point of order, if I may put it that way. If you will be patient with me, Mr. Deputy Speaker, I think that I shall be able to explain why it is important to consider that Act in relation to this clause.
The subsection is a retrograde step when we are discussing the treatment of offenders. There has been a trend for some time towards raising the burden of the guilt of the past from the backs of people who have incurred the censure of society. Equally, we have raised the standards of judgment and the standards for admission to certain societies. For example, where as the original Solicitors Act provided that the Law Society had to take into account the moral character and fitness of a person to be a solicitor, in the latest Solicitors Act a few years ago we dropped the words "moral character".
My hon. Friend got through—under the higher standard, I hasten to say.
But as long as the provision about moral character applied, the Law Society had to consider something besides convictions for criminal offences. The trend in that direction might be appropriate. In the same way, we no longer speak of conduct unbecoming to "officers and gentlemen". The argument is that if a man is fit to do the job we should not apply any distinctions to the standards he must reach. The Rehabilitation of Offenders Act 1973 was originally a Private Member's Bill, but it was given great encouragement by the Government.
Ultimately, what happens is that anyone who has been convicted and fined, provided he can stay out of trouble for five years—my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) got his dates and figures wrong—is said to be rehabilitated. Anyone who serves a sentence of imprisonment of up to six months has to stay out of trouble for seven years and is then rehabilitated, and anyone who serves a sentence of imprisonment of up to two and a half years has to stay out of trouble for 10 years before he can be rehabilitated. Lots of people believe that this is humanitarian and in accordance with the spirit of the age. It is felt right that the burden of guilt and punishment and the slur on a person's -character should be lifted and that he should be given a chance of living down his past.
It was said in that Act that anyone who published the fact of a conviction when it was spent—when the person concerned was rehabilitated—would be subject to penalties provided for in the legislation. It is now almost criminal to mention the fact that someone has committed an offence, provided that that person is rehabilitated. There again, we have followed the same sort of trend. What are we doing in this part of the Bill? The provision is a criminal provision. It does not apply the high standard of proof needed for a criminal offence and it is vague about what should happen. Worst of all, there is no time limit. It applies to anything, past or present. That could go back many years.
There could be a perfectly proper case of a solicitor in Brixton who perhaps discriminated in favour of a West Indian solicitor rather than a white-skinned Englishman because he thought that the West Indian would be better for dealing with his coloured clients. It might be said that that was a perfectly proper type of discrimination. But it is not allowed under the race relations legislation. The incident might have taken place years ago, but under the terms of the subsection it would have to be taken into consideration when that solicitor was being considered for any appointment. It is clear that the whole subsection is not just a nonsense. It is a dangerous nonsense in the way it is bound to be applied. There will clearly be a lot of trouble.
My hon. Friend the Member for Chingford (Mr. Tebbit) was being rather kind to the Home Secretary when he referred only to the fact that the Home Secretary had spoken of the history of discrimination. I thought I also heard the right hon. Gentleman talk of the body concerned having some sort of discretion as to whether it should take these things into account. That is not so at all. It is mandatory. There is no question but that it is obligatory upon any body to take these matters into account.
On the whole, I am glad that the subsection is restricted to bodies which are required by law to satisfy themselves as to good character. I am surprised, considering the happy-go-lucky way in which these penal laws are enacted, with the connivance of the Government, that it has been so restricted and not extended to everyone who takes into account character before making appointments.
Taking up my hon. Friend's example of the black solicitor who might think it best to have a fellow black solicitor working for him and who refused to employ white solicitors, that would presumably mean that a charge of discrimination could be brought against him. If every time a white solicitor came and asked him for a job the black solicitor assaulted him, he would be prosecuted. After a while the conviction would become spent and it would not be possible to refer to the fact that it had happened.
That is true. It shows how crazy the whole thing is.
If the Home Secretary is not impressed by my arguments, I suggest one other aspect—the provision in the Universal Declaration of Human Rights condemning the punishment of a man for doing something which was not a crime when he did it. That is a fundamental concept which we all accept, as we glibly accept so much of that declaration. The subsection offends against that concept because it goes back so far. It will go back far beyond any time when the Bill could come into operation. Clause 12 may provide a defence, but only for proceedings under the Act.
The Home Secretary dislikes retrospective legislation and he also dislikes any action which has the effect of lifting a previous immunity, with the result that there is now an amnesty for certain classes of illegal immigrants. The Home Secretary did that at his own discretion. In order not to introduce retrospective legislation and not to penalise someone who imagines himself to be free of penalties, he lifted the penalties. And yet here he is proposing a new section of the law whereby a man will never be free of possible penalties as a result of something he did which was not a crime, which was not intended as a crime and which need not be proved. The Home Secretary should withdraw the provision.
In debating a subject such as this, it is somewhat distasteful to have the kind of knockabout, facile, rumbustious arguments that we have had from the hon. Member for Chingford (Mr. Tebbit). The subject is extremely serious, and the Bill is meant to be of benefit to all sections of the community who have been discriminated against in the past. I find it reprehensible to say the least that hon. Members opposite should come here and make such facile, tortuous and fanciful interruptions. Their contributions have ranged from the knock-about by the hon. Member for Chingford to the trip into the past by the hon. and learned Member for Beaconsfield (Mr. Bell).
In a pseudo-scientific way, the hon. and learned Member began to tell us about Darwin and his theories and even skirted the dangerous ground of Hitler, who, he indicated, had very interesting theories.
I said nothing of the kind. I did not intervene in the speech by the hon. Member for Penistone (Mr. Mendelson) because I thought it wise not to do so. I said that I understand the emotions and strong feelings that a number of people hold on the subject. I said that I believed Hitler was to blame for that. That was my only reference to him, and I do not see why I should have that gentleman's opinions attributed to me.
I accept that, but the fact that it was mentioned is enough to arouse considerable feelings in many people outside the House. The hon. and learned Gentleman cannot get away with that quite so easily. He talked about the survival of the fittest, which is something Hitler talked about—[HON. MEMBERS: "Darwin did it first."]—and indicated that it was a theory which had to be accepted in spite of the stark problems which it raised.
I should accept that if I thought that the hon. and learned Gentleman was trying to make a contribution to race relations, but he deliberately makes matters worse by what he says. I cannot accept the way in which he tries to wriggle out of the legalese which he talks.
I find no great difficulty in accepting the interpretation given by my right hon.
Friend the Home Secretary of the provision in subsection (2) that the authority shall
have regard to any evidence".
That is clear enough. It means that the authority takes the evidence into account. It imposes no other obligation on the authority.
The hon. Member for Chingford made a great deal of play with the word "practise" in relation to unlawful discrimination. If I, as a medical practitioner, practise medicine, it does not mean that I have done it only once. It means that I have a history of practising my profession, that I have been doing it for quite a long time.
The hon. Gentleman has not read the Bill. "Practise" in this sense is defined and relates to an isolated act. The hon. Gentleman had better describe himself as a medical historian, because I referred to the phrase the Home Secretary used, which was "the history of discrimination". The hon. Gentleman had better deal with the word "history".
I intervene only briefly, because I am sure that the House is anxious to continue the good progress we have made so far.
The House is indebted to the hon. Member for Penistone (Mr. Mendelson) for revealing in his intervention the thinking behind the Bill, which shows a real gulf between the two sides of the House.
I must ask the hon. Member for Tottenham (Mr. Atkinson) to cease reading his newspaper. My attention has been drawn to the fact that he is reading it, and he is not permitted to do so. The reading of a newspaper in the Chamber is not permitted.
I understand the purpose of the Standing Order, Mr. Deputy Speaker, but allow me to read from the journal. An article states:
With the TUC condemning Enoch Powell's most recent inflammatory statements in the House of Commons, and the Labour Party nationally deciding to launch a campaign against racialism"—
I am even more grateful to you, Mr. Deputy Speaker, for the consideration you have shown me.
I was saying that we owe the hon. Member for Penistone a considerable debt for having shown the thinking that lies behind the clause and, indeed, the Bill. He sounded—this was no coincidence or accident—the only note of naked intolerance that has been heard in the Chamber tonight. The hon. Gentleman accused those of my hon. Friends who have been speaking in this part of the debate—he did so on a number of occasions—of being racialists. I am sure that the Home Secretary does not feel that anybody who speaks against the Bill is a racialist. Therefore, I hope that he will take the opportunity to disown himself from that section of his hon. Friends. They certainly add nothing of merit to these proceedings.
I have heard nothing tonight to support that contention.
The hon. Member for Penistone drew attention to the discrepancy between the relatively cursory examination of the Sex Discrimination Bill and the rather more detailed scrutiny of this Bill. I think that was a fair point, but the way in which he dealt with his argument was somewhat puzzling. He became confused between that distinguished eighteenth-century philosopher, Jean Jacques Rousseau—who, incidentally, invented the social contract, a phrase borrowed but so often distorted in its use by the Labour Party—and that third-rate Marxist existentialist, Jean-Paul Sartre. That did not help the course of our deliberations. One of the dicta of Sartre was that hell is other people. That may be what the Home Secretary is thinking tonight. Indeed, it may be what some of us think when confronted with the hon. Member for Penistone.
The dictum to which the hon. Gentleman alluded was a different one. Sartre said that to attack somebody on the grounds of race was particularly wicked because, unlike political affiliation, it could not be changed. But Clause 12 has nothing to do with attacking anybody at all.
On a point of order, Mr. Deputy Speaker. The proceedings this morning have been somewhat farcical. Will you call the attention of Mr. Speaker to the fact that this is the Report stage of the Bill, in which Opposition Members have been called to order because they have been roaming all over the show? The Committee stage of the Bill sat for many weeks on Tuesday and Thursday mornings, but little reference has been made to those discussions. Indeed, this debate has been a complete farce. There have been no references to the Hansard report of proceedings in Committee, and most of the participants in today's debates have paid no regard whatever to the work of their colleagues in Committee on the Bill. Will you please call Mr. Speaker's attention to the farcical nature of these proceedings?
Order. Do not let us play around with points of order. We have enough amendments to consider without going into points of order. I remind the hon. Member that Mr. Speaker is the person responsible for the selection of the amendments now under discussion, and there are a number that still remain to be discussed. It is within the ambit of hon. Members to discuss the amendments that have been selected. As long as their remarks are relevant, they are strictly in order. It may be an uncomfortable and inconvenient way to go on at this late hour, but there has been no breach of Standing Orders or of the practice of the House. The hon. Member for Blaby (Mr. Lawson) said that he wanted to deal with the subsection that is under consideration. He appreciates how narrow is the subject covered by the amendment, and I am sure he will respect that fact.
I readily concede that, although I am applying myself to Clause 12, I am doing so in a rather wide fashion, because I am addressing myself directly to the points raised by the hon. Member for Penistone. If he can make those points, I must be able to reply to them, otherwise that would be an act of discrimination, Mr. Deputy Speaker, and you would not want that, least of all on this Bill.
The hon. Member drew attention to the distinction in the equivalent clause of the Sex Discrimination Act. He quoted Jean-Paul Sartre, who said that to attack someone on grounds of race was wrong because, unlike political affiliation or religion, race cannot be changed. But in this Bill race embraces nationality, and nationality embraces citizenship. It is relatively easy to change one's citizenship, and relatively hard to change one's sex.
The hon. Member for Penistone should have said—and he would have been right—that race is perhaps a more explosive subject than sex. It is certainly more uncomfortable.
I prefer to address my remarks to you, Mr. Deputy Speaker. Race is a difficult and uncomfortable subject, and this is one of the reasons why we do not accept the Home Secretary's view that because a precedent has been set in the Sex Discrimination Act we must accept this willy-nilly. The Home Secretary speaks as if the precedent was an ancient and hallowed one, stretching back to Magna Carta, but it is of relatively recent origin. We were a bit slow in seeing the implications of the precedent, but we are getting around to it now. The courts and the people will see the problems involved later on.
The difference between the two sides of the House is this. We question, first of all, whether legislation is the appropriate way to deal with a subject such as race relations or racial discrimination.
It is interesting that Labour Members are quick to say that it is wrong to legislate on industrial relations, which is an important subject, because we all want good industrial relations. We ask, therefore, whether legislation is appropriate on race relations and, secondly, even if it is, whether this legislation is right for that purpose. For the hon. Members for Penistone and for East Kilbride (Dr. Miller), that consideration does not enter into their thinking. For them the end justifies the means. They could not care two hoots about the wording of the Bill. They say only that it is against discrimination and that therefore they support it, regardless of the wording, the side effects or anything else. We are addressing ourselves to the Bill. The Home Secretary has sought to do so as well. But his hon. Friends have at no time done so. This is an infallible way of getting bad legislation on the statute book.
I come now to the amendment—
I am glad that the hon. Lady is following my speech with such interest. There are two points I should like to put to the Home Secretary. Under subsection (2), regard must be had to evidence tending to show whether a suspected person, or any of his employees or agents, past or present, has practised unlawful discrimination. An employer may have made certain that while in his employment his employees did not practise unlawful discrimination. But what happens when the employees subsequently leave that employment and then practise unlawful discrimination? They practise it as former employees, and the employer will therefore be held to be guilty for something that happened long after he had any control over those employees or agents. That seems wholly contrary to natural justice. The point could be met by a relatively small amendment, but that amendment has not been forthcoming from the Government, even at this late stage. That is an alarming state of affairs.
My hon. Friend the Member for Chingford (Mr. Tebbit) spoke about the possibility of the authority or body concerned—and the Home Secretary seemed to imply that it need not be just a professional body—being the Home Secretary himself or the Home Office. I was concerned about immigration and naturalisation. It seems perfectly conceivable that under subsection (2) the authority or body may be the Home Office. It has to satisfy itself that a person is of good character before it grants him naturalisation. It will not grant it to a notoriously bad character.
According to the Bill, authorisation or qualification also includes
recognition, registration, enrolment, approval and certification".
Naturalisation certainly involves approval, and British nationality may be gained by registration. This takes us back to the earlier amendment about what is needed and what facilitates. British nationality can be a qualification which is needed for certain employments. For example, one has to be a British national if one wishes to work in the security services.
The Home Secretary may be required, before granting anybody British nationality by naturalisation, to satisfy himself that at no time in the past has that person ever practised a single act of unlawful discrimination—we have established that it does not have to be a long history—In the carrying out of or in connection with his business and trade and that no former employee or agent of that person has ever practised such an act. Is the Home Secretary satisfied that this interpretation is possible? I am not a lawyer, but it seems to be a possibility. If it is, does the right hon. Gentleman think it right, proper or workable?
Workability and enforceability lie at the heart of a great deal of the Bill. One of our reasons for doubt, which is shared by many Labour Members in regard to industrial relations, is that such legislation, even if it were right—and I do not believe that it is right in any sense —is unenforceable. Passing such legislation brings the law into contempt and disrepute.
Anybody who read Clause 12(2) would not have been surprised at the length of the debate on the amendment. I was stunned to hear the hon. Member for Ealing, Southall (Mr. Bidwell) claim that tonight's debate was irrelevant to what was discussed in Committee on this clause. At the sixth sitting of the Committee, I said that qualifying bodies
will be charged with a specific duty of investigating any evidence relating to a specific field of conduct which is here singled out. It is a field of conduct of which the Government today disapprove and of which Parliament may well disapprove, but it will oblige a body caught by this subsection to deem evidence of such conduct as evidence of bad character. It therefore follows that such evidence is to be taken into consideration and, if found to be of sufficient weight, it shall be deemed sufficient to deprive a candidate of a right to earn his living in the way he wishes. It shuts him out from the calling, profession or trade which is controlled by the qualifying body in question. A disqualification which leads somebody to be deprived of his right to earn his living is a very serious matter. Parliament has always regarded it, and so have the courts."— [Official Report, Standing Committee A, 13th May, 1976; c. 271–72.]
I quote my own speech to show that this subject was put at the forefront of the debate on this clause in Committee.
Tonight's debate has included two speeches from the Home Secretary—one wholly disappointing and the other fairly disapponting. The first was wholly disappointing because it failed to pay regard to any of the points which I set out in justifying our grounds for the amendment. First and foremost among those was that the clause relates to qualifying bodies which have a duty imposed upon them by law to satisfy themselves that candidates are of good character.
As I have tried to indicate, there can be only one point in subsection (2). That is to recognise that no conceivable interpretation of the words "good character" could lead to an inquiry into whether a candidate had been guilty through his employee or agent in the past of racial discrimination. The Home Secretary said that it was necessary that the clause should say this. However, as it can only be necessary that the clause should say this for qualified, distinguished bodies, it can only be necessary that the clause should stipulate this if those distinguished bodies would not take account of it if left to themselves.
Why should we suppose that qualifying bodies vested with this jurisdiction either by practice or by Act of Parliament should neglect to take any account of racial discrimination if they thought that it was capable of amounting to evidence of bad character? It is only because the Government wish to change what in ordinary English everyone understands by the expression "good character" or "bad character" that the clause is necessary. When the Home Secretary said that it was necessary that the clause should say this, he was guilty of a circular argument. The only reason why it is necessary for the clause to say it is that the Government want it said.
The Home Secretary then said that there were precedents. I realised at once that I ought to have said what has become second nature, when discussing the Bill, for everyone who served on the Standing Committee: that no doubt the provision complained of is to be found in the Sex Discrimination Act. That is the progenitor, as the right hon. Member for Down, South (Mr. Powell) has often pointed out, of practically everything in the Bill. That almost goes without saying. Time and again we have said that the fact that it is to be found in one Act is no reason for reproducing it in another.
However, the Home Secretary seemed to take the view that the fact that a similar, though far from identical, provision is to be found in the Consumer Credit Act 1974 in some way shot the bottom out of my argument. I cannot see that it does that. I was not conscious of knives being planted in my back by the right hon. Member for Down, South. I dare say that if I had half of the experience of the Home Secretary, or by the time that I have had that experience, I should be more sensitive about the area between my shoulders. But it does not worry me in the slightest, speaking from the Dispatch Box, to learn that a Tory Government were responsible for a similar section in the Consumer Credit Act 1974—save to engender in my breast feelings of mild regret.
However, as the Home Secretary seems to think that this is a bull point, I would draw attention to quite marked distinctions or differences in that Act. After all, the duty to which the Home Secretary drew attention in Section 25 is a duty imposed upon the Director General of Fair Trading. He is a gentleman who was created by that Act, created by the Government for the purpose, as the very first section says, of administering the licensing system set up by that Act. That is a far cry from, for example, the Royal College of Surgeons, the Bar Council or any other of the great professional bodies which over many centuries have experience in dealing with the affairs of their profession.
That was an Act the purpose of which was to set up a system of licensing, for which purpose it created and appointed the Director General of Fair Trading. Certain duties were imposed upon him, on which the Home Secretary relied. But the Director General is required to be satisfied that a candidate is a fit person to engage in activities covered by the licence. It is true that that provision, on which the Home Secreetary relies, goes further in that section and the Director General has to take account of the fact that such a person has practised discrimination on grounds of sex, colour and so on in connection with the carrying on of a business. That is a much narrower provision than the one with which we are concerned. There is no reference there to bad character, and it is bad character that is the key to the clause. Time and again hon. Members have said that a condidate has no means of meeting a case, answering an allegation or coping with an allegation that the evidence tends to show that he or his employee or agent in the past was guilty of discrimination.
What happens if a qualifying body says that it is specifically set out in an Act of Parliament that it must have regard to any "evidence tending to show", and it decides tht there is evidence of bad character? A candidate who has passed examinations and is perfectly acceptable in every other way is denied the opportunity to earn his living, because it is known to all and sundry thereafter that he has been found to be of bad character. That is the injustice of it.
When we see the extent to which vicarious liability is extended, when we see the inability of the wretched individual to do anything to meet the evidence which tends to show that he was guilty by virtue of something which his agent did 15 years ago, we recognise the evil which has led to the debate taking the length of time that it has.
My hon. Friend the Member for Eastbourne (Mr. Gow) drew attention to a further consequence of the drafting of the clause. He said that the qualifying bodies have a duty to satisfy themselves that a candidate is of good character. He asked whether that meant that they had a duty to seek out evidence of discrimination in the past and satisfy themselves that none exists. If so, that imposes a new facet upon the obligations that these bodies have had to discharge in the past. If that is not a true interpretation of the subsection, the obscurity of its drafting is reason enough for its deletion.
My hon. Friend the Member for Blaby (Mr. Lawson) said that the subsection might affect the Home Office in its jurisdiction on naturalisation. If that is right, and I see no reason why not—the Home Secretary declined when invited to throw light on the problem—that reinforces my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) in his reference to the purpose of the Bill being to impose a separate and further penalty upon someone who has already in all probability suffered a penalty for an act of racial discrimination at some time in the past.
It is a great disappointment that the Home Secretary did not deal with those points in the course of his two contributions. In his second speech—the one which was only fairly disappointing—he said, without giving any commitment, that he would consider whether the subsection was in conflict with the Rehabilitation of Offenders Act. I hope that my right hon. and hon. Friends will not be unduly swayed by that non-commitment.
It is inconceivable that that the draftsmen could have been responsible for the 1974 Act, the 1975 Act and the Bill in ignorance or forgetfulness of the provisions of the Rehabilitation of Offenders Act. Even if that is proved to be the case, it is only part of the argument we bring against the clause. We are concerned primarily not with whether there is consistency between the Rehabilitation of Offenders Act and the provisions of the subsection but that the Government are seeking to change the ordinary meaning of "good character", which was defined 100 years ago as being the estimation in which a man was held by those acquainted with him. The Government are turning that into the estimation in which a man ought to be held, according to the Government's books, by those who are acquainted with him. That is the evil of the Bill.
|Division No. 226.]||AYES||[3.36 a.m.|
|Alison, Michael||Lane, David||Stokes, John|
|Atkins, Rt Hon H. (Spelthorne)||Lawrence, Ivan||Tebbit, Norman|
|Bell, Ronald||Lawson, Nigel||Wall, Patrick|
|Bennett, Sir Frederic (Torbay)||Lester, Jim (Beeston)||Whitelaw, Rt Hon William|
|Boscawen, Hon Robert||Mayhew, Patrick||Winterton, Nicholas|
|Budgen, Nick||Page, John (Harrow West)|
|Fraser, Rt Hon H. (Stafford & St)||Parkinson, Cecil||TELLERS FOR THE AYES:|
|Goodhew, Victor||Powell, Rt Hon J. Enoch||Mr Spencer Le Marchant and|
|Gow, Ian (Eastbourne)||Silvester, Fred||Mr W. Benyon|
|Hall-Davis, A. G. F.||Stanbrook, Ivor|
|Anderson, Donald||Harrison, Walter (Wakefield)||Robinson, Geoffrey|
|Atkinson, Norman||Hayman, Mrs Helene||Roderick, Caerwyn|
|Bean, R. E.||Hooley, Frank||Rodgers, William (Stockton)|
|Bidwell, Sydney||Jenkins, Rt Hon Roy (Stechford)||Rooker, J. W.|
|Blenkinsop, Arthur||John, Brynmor||Ross, Stephen (Isle of Wight)|
|Booth, Rt Hon Albert||Johnson, James (Hull West)||Short, Mrs Renée (Wolv NE)|
|Callaghan, Jim (Middleton & P)||Judd, Frank||Silkin, Rt Hon S. C. (Dulwich)|
|Cocks, Michael (Bristol S)||Kerr, Russell||Skinner, Dennis|
|Coleman, Donald||Latham, Arthur (Paddington)||Snape, Peter|
|Cook, Robin F. (Edin C)||Lestor, Miss Joan (Eton & Slough)||Spearing, Nigel|
|Corbett, Robin||Lipton, Marcus||Stoddart, David|
|Cox, Thomas (Tooting)||Lyons, Edward (Bradford W)||Summerskill, Hon Dr Shirley|
|Crowther, Stan (Rotherham)||McElhone, Frank||Thomas, Ron (Bristol NW)|
|Cryer, Bob||MacFarquhar, Roderick||Tinn, James|
|Davidson, Arthur||Mackenzie, Gregor||Tomlinson, John|
|Davis, Clinton (Hackney C)||Madden, Max||Walker, Harold (Doncaster)|
|Dormand, J. D.||Marshall, Jim (Leicester S)||Walker, Terry (Kingswood)|
|Eadie, Alex||Mendelson, John||Watkinson, John|
|Ellis, John (Brigg & Scun)||Miller, Dr M. S. (E Kilbride)||White, Frank R. (Bury)|
|Faulds, Andrew||Miller, Mrs Millie (Ilford N)||Willey, Rt Hon Frederick|
|Flannery, Martin||Morris, Alfred (Wythenshawe)||Wise, Mrs Audrey|
|Foot, Rt Hon Michael||Newens, Stanley||Wrigglesworth, Ian|
|Freud, Clement||O'Halloran, Michael||Young, David (Bolton E)|
|George, Bruce||Palmer, Arthur|
|Graham, Ted||Pavitt, Laurie||TELLERS FOR THE NOS:|
|Grant, John (Islington C)||Pendry, Tom||Mr Alf Bates and|
|Grocott, Bruce||Radice, Giles||Mr A. W. Stallard|
|Hamilton, James (Bothwell)||Rees, Rt Hon Merlyn (Leeds S)|
I beg to move, That further consideration of the Bill, as amended, be now adjourned.
I move this motion in order that we may discover the intentions of the Government. We have had a satisfactory evening and progress has been thorough and steady. The debate has been well balanced and I think we all feel that good progress has been made. We on this side of the House are fresh, but there
My right hon. and hon. Friends will show by voting what they think about the Bill, nothwithstanding the Home Secretary's intervention. If we carry the amendment to a vote, the Home Secretary should not be deterred from re-examining the Bill. By carrying it to a vote we shall be drawing attention in the only way open to an Opposition to a provision which we regard as wholly wrong.
There are still 14 debates to come. The next one is, of course, an important subject, but after that comes an even more important subject—Amendment No. 7—which raises the whole question of the application of the Bill to clubs. Although I know that my hon. Friends will wish to say a great deal, Labour Members may wish to take a more constructive part than they have done hitherto and it would be desirable for the House that as many hon. Members as possible should express their opinion on the two important amendments that will be taken together—[Interruption.] I do not think hon. Gentlemen opposite in any way inspire the proceedings by their interruptions. They really cannot think that I would stop because of them.
The eighteenth debate in our series, the twelfth from now, will be raising the very important question of the provisions of the Bill relating to freedom of speech. That debate will take place on Clause 70. It will raise great issues of constitutional principle upon which all hon. Members present will wish to express their opinion. There is no doubt about that. I think it would be undesirable if that debate were to commence at about 11 o'clock when the Government are having to consider whether to lose Friday's business. We might be psychologically distracted and we may not give the best that is in us to debate that vital matter.
After all that, the hon. Member for Isle of Ely (Mr. Freud) wishes to address us all on the Adjournment. He, too, would welcome news from the Home Secretary. I shall therefore give the right hon. Gentleman the opportunity of telling us what is in his mind about the Bill.
I can immediately tell the House my intentions in regard to the motion of the hon. and learned Member for Beaconsfield (Mr. Bell). It is to ask the House to reject it. I cannot agree with him that we have made good progress or that most of those who have been speaking are anxious to subject the Bill to constructive scrutiny. They seek to prevent it from going through, and we are determined to get it through. I understand also that it is the view of the Opposition Front Bench that, although they have certain criticisms of the Bill, they also wish to see it go through. But we are not making progress in that direction.
We spent three and three-quarter hours on the last amendment. I heard what I thought was a serious argument deployed by the hon. and learned Member for Runcorn (Mr. Carlisle) about two and three-quarter hours ago, to which I responded immediately by saying that I would consider it. Clearly, the hon. and learned Member took the view that none of his hon. Friends who would speak after him would have anything constructtive to say, and he left the Chamber immediately after having made the one constructive point that I have heard in the debate.
I cannot accept the view of the hon. and learned Member for Beaconsfield of the progress made. I never want to stay later than one has to. Important Bills have to be subjected to proper scrutiny, but when hon. Members are trying to hold up a Bill for the sake of holding it up and not for the sake of scrutinising or improving it the Government have to go on.
If the Home Secretary has decided that he wishes to go on with the Bill, we are ready to do so. I accept that some of my hon. Friends do not wish the Bill to go through at all. That is not my position. However, all my right hon. and hon. Friends on the Front Bench and all those on the Back Benches who take the same view as I do wish to put some strong points on the matters still to come, like the clubs and free speech—
I have sat here without saying a word—a very surprising thing for me at any time—for three or four hours, and I am entitled to say a word now. I intend to say it and I hope that the hon. Gentleman will allow me to do so.
What I resent is the argument that there is something wrong with those who wish to pursue their arguments against the Bill. I do not agree with all the points they are making, but I stand up for their absolute right to make them. Everyone in the Chamber has an absolute right to put his point of view, whether or not others agree with it.
Some of the things that have been said to my hon. Friends following propositions that they have put forward are unfair, and unreasonable. I say that particularly to the hon. Member for Penistone (Mr. Mendelson). They are extremely unfair and quite wrong. The right thing to do, if the Home Secretary wishes to carry on with the Bill is for us to argue the points on the amendments that will come forward. That we are prepared to do.
I wish to support the motion moved by my hon. and learned Friend the Member for Beaconsfield (Mr. Bell). It is unreasonable for the Home Secretary to have said in his reply that we have not been making progress. We have been making progress. The quality of the debate on the whole has been high. If any destructive comment has been made, it has come from the Government Benches. We have been endeavouring to draw to the Government's attention some of the evil and pernicious consequences of this legislation.
There are many important debates still to come. My right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw) has clearly indicated that the debate which will, perhaps, take place in an hour or two relating to clubs is of tremendous importance to all hon. Members. Is it right that such an important debate should take place at 3 o'clock, 4 o'clock or 5 o'clock in the morning? I do not think so. I do not think that it improves the image of this House in the eyes of the people of the country.
We are here representing the interests of the people and of our country. The attitude of the Government is not at all helpful. We shall be coming later to the amendment relating to free speech. It would seem, from what some Labour Members have said earlier, that they want to deny free speech to Opposition Members. We have responsibilities to our constituents and nationally. It is only right that we should be putting forward our arguments. There are consequences to this legislation of which I do not believe the Government are aware. The Bill inevitably further restricts the free- dam of the individual and, as a result, will diminish respect for the rule of law. If that is what the Home Secretary and the Labour Party are seeking to do, it is not what I want.
I will readily declare, for the benefit of the hon. Member for Penistone (Mr. Mendelson), that I am one of those who does not wish to see this legislation reach the statute book. I would like to see all race relations legislation removed from the statute book. Race relations can be improved only by education and evolution. [Interruption.] It cannot be improved by Government interference and legislation.
This is an important debate and I do not believe that we should continue it into the early hours of the morning. There is no doubt that if the Government continue they will lose tomorrow's business. I am prepared to sit here all night to argue the important issues that are of the utmost importance not only to Parliament and its image but to the people of the country. I therefore make a plea to the Home Secretary—who is respected by both sides of the House and by people outside—to think again about the progress we have made. Some of the hold-ups have occurred because of interventions from his own side, and that has stimulated reaction from this side. I fully support my right hon. and learned Friend the Member for Beaconsfield and I hope that others of my hon. Friends will do the same.
I do not want to break the historically friendly relations between myself and my Member of Parliament, my hon. and learned Friend the Member for Beaconsfield (Mr. Bell), but I disagree with his motion. The debate should go on. I say that for a number of reasons. The first is that I see so many of the important Bills before the House in the shadow of the guillotine. If we continue the debate throughout tonight and tomorrow, we shall give the country an opportunity of hearing the arguments which have been put so persuasively and sensibly by my hon. Friends and which have been listened to so courteously by the Home Secretary—in contrast to our previous debate.
Secondly, I am making two speeches tonight in my constituency, where race relations and immigration are regarded as important. I shall be careful not to emulate the hon. Member for Tottenham (Mr. Atkinson), but a most interesting letter from the Vicar of Neasden appeared in last Friday's issue of the well-read Harrow Observer and Gazette. I feel it is significant and important that we should engage in a discussion on race relations because—
Order. I do not think that what the vicar has been saying is relevant to the motion before the House. We are concerned with the motion that further consideration should be adjourned.
If I could read just one paragraph of the vicar's letter, its relevance would become apparent. But shall not do that but will keep it until Third Reading, because it criticises the Race Relations Board. I hope that the motion will not be passed and that there will be continuing full discussion. A number of hon. Members opposite have only just entered the Chamber for the procedural motion—
I am grateful for that confirmation, but it would have done the hon. Member for Feltham and Heston (Mr. Kerr) more good to have heard my earlier speech because it was more relevant to this important debate. The hon. Member for Penistone (Mr. Mendelson) gave the dynamic vue générale, the modern philosophy of the Tribune approach to some matters.
I hope that Labour Members will remain here for the rest of the debate and will take part. It is a pity that the running on their side of the House is left entirely to the Front Bench and a handful of hon. Members whose views we already know.
It is gratifying that Labour Members recognise true virtue, and even perhaps a hint of saintliness. Perhaps their welcome marks a little jollity, which usually happens when people are somewhat over-tired. Like little children, they become a little fractious and over-excited. Therefore, perhaps we should be wise to do as my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) has suggested, take a break and return to the discussion later.
In the debate on the proposal that we should leave out Clause 12(2), we had no answer from Ministers to the points we raised. Once the Home Secretary had referred to the Rehabilitation of Offenders Act he seemed to think that he need reply to no more of the points made. Admittedly he would have had difficulty in speaking for a third time. Perhaps it would have been better if he had asked the Under-Secretary to reply to that debate. A number of interesting points had emerged, casting some doubt upon the drafting of the Bill, some of them technical matters, let alone matters of policy. If Ministers cannot be persuaded to answer a debate, it may be better that we should all go home until they are refreshed, and continue on Monday or Tuesday.
An even more powerful reason for ending the debate now can be seen if we look around the House. A few minutes ago I saw lurking behind your Chair, Mr. Deputy Speaker, the Government Chief Whip. The difficulties he faces are such that we should all consider how best we can help him. The Home Secretary has said that he does not like the nature of these debates and that it is rather impertinent of hon. Members to question the Bill at any length. Earlier he made a great case that the Bill must be right because it reproduced the provisions of the Sex Discrimination Act, which were not debated at any great length. We have a little difficulty there which we might solve by having a series of debates of reasonable length. Unfortunately, such are the problems of debating late at night or early in the morning that it is difficult for hon Members to make their points as concisely as they otherwise would.
At this time of night the Government, who started off with a near-record attendance for a recent late-night sitting with 97 of their Members present, and therefore only three short of the number required—
The hon. Gentleman must not except the Opposition to be here to carry procedural motions for the Government to get their business. Earlier on, they were only three short of having enough Members present to support a closure. At that stage, given the limits of tolerance that have built up and the way in which votes are conducted by the Government, they might even have managed to get 100 Members through the Government Lobby although only 97 were present. We must not be too prissy about such things these days. However, there has unfortunately been a progressive falling away of Labour Members. There were only 79 in the House for the last Division, 21 short of supporting a closure.
If we all knew that even at this pretty late hour the Government had enough of their supporters present to move a closure, it is possible that everyone's mind might be concentrated by the thought that if speeches were over-prolonged we could cut out some of our hon. Friends. That might encourage us to see how concisely we could put our arguments, even at the risk of Ministers not quite getting the points we were making. I say that because they have been a little—
As my hon. and learned Friend says, it is probably the better word.
Until the Government can get enough of their supporters here to move a closure or to move the debate along, and as the Home Secretary wishes to have his Bill without undue debate, it would be kinder to the Government, and especially the Government Chief Whip, if we took a break from now until however long it might be before they can get enough supporters to enable them to get through their business rather more expeditiously.
We have to consider the health of the occupants of the Chair under these cir- cumstances. As you have said, Mr. Deputy Speaker, it was rather unfair that those to whom you referred as the 25 of us should pit ourselves against the two occupants of the Chair. There are now many more of us in the Chamber—perhaps about 75. That is clearly three times as bad for the Chair. If we are to give these matters proper consideration and care, and at the same time have regard for the health of those who occupy the Chair—it is a difficult and onerous task, especially at a moment like this—there is good reason for our accepting the proposition of my hon. and learned Friend the Member for Beaconsfield, thereby allowing you, Mr. Deputy Speaker, and your co-occupant of the Chair to have a break from your onerous duties.
Considerable concern was recently expressed in the House about the lack of medical facilities in the event of an hon. Member being taken ill. The Lord President was sufficiently kind, after some pressure, to say that he had been able to make temporary arrangements for first-aid provision within the precincts of the Palace. However, I am not quite certain whether those provisions are available to us at this time of night or morning. This is just the very time, Mr. Deputy Speaker, if you examine the statistics, when people are most liable to be taken ill. There are two lows in the body's natural rhythm through 24 hours. They occur at 3 o'clock in the morning and 3 o'clock in the afternoon.
The hon. Gentleman is a little too quick. He forgets that we are not on Greenwich Meantime, but are on British Summer Time. In fact, the time is only a quarter past 3 o'clock. We are at the most critical phase. The hon. Member for East Kilbride (Dr. Miller) has reminded us that he is a doctor of medicine. No doubt he would like to take up—[Interruption.] The hon. Gentleman cannot make an exception. By the terms of his oath, he has to be a doctor of medicine to everybody.
Order. We have had enough. First of all, the hon. Gentleman expresses concern for the Chair, and he then makes it feel ill because of what he is saying. Will he please try to remain in order?
This is the sort of thing that happens at this time of the day. It is now a quarter-past three in body-clock time, a quarter-past four by statutory time, which is Greenwich Mean Time plus an hour. As we are on the Greenwich meridian, and as our bodies are acclimatized—
The motion before us is that we should adourn the debate. I am trying to put forward some of the reasons why we should do so. I am concerned with the health of my hon. Friends, of hon. Gentlemen opposite and particularly of you, Mr. Deputy Speaker, as the occupant of the Chair.
I am glad to hear it. I am not a medical man, but I have a nagging feeling that if an hon. Member should be taken ill suddenly here and now we should feel responsible for having overtaxed his strength.
From where I stand, it is the hon. Member for Chingford (Mr. Tebbit) who is looking a little queer. Since there are doctors in the House, we can arrange for his pulse to be taken.
I hope that, even in these days of the Sex Discrimination Act, that was not meant to be unduly insulting. But I take it in the spirit in which it was probably meant, in which case it was pretty insulting. If we should now fail to accept the motion so cogently moved by my hon. and learned Friend the Member for Beaconsfield and if a Member of the House, or indeed a member of staff of the House, under strain from working at this hour and staying up all night long, were taken ill, we would all have that on our consciences. Therefore, I hope that the House will agree the motion so that it may speedily conclude its deliberations
I should like to support the motion moved by the hon. and learned Member for Beaconsfield (Mr. Bell). This is not in any way because my politics have moved to the right but is simply because, if the motion were carried, I should be able to take up my Adjournment debate.
I was fortunate enough to have my name selected in the Ballot, and the subject of my Adjournment debate is the plight of handicapped children. I am delighted to see so many Ministers present on the Front Bench. The plight of the handicapped is not simply a subject for the Minister who has responsibilities in regard to the disabled but is equally a matter for the Treasury, the Home Office and the Department of Employment. The situation at the moment is that there are more handi-capped children—
Order. I again remind the hon. Gentleman that we have not yet reached the stage of the Adjournment. The hon. Gentleman may have misunderstood me. He must deal with the motion that is before the House, not with his Adournment motion.
|Lane, David||Stokes, John||TELLERS FOR THE NOES:|
|Lawrence, Ivan||Tebbit, Norman||Mr Ronald Bell and|
|Powell, Rt Hon J. Enoch||Winterton, Nicholas||Mr Nick Budgen.|
|Anderson, Donald||Hayman, Mrs Helene||Robinson, Geoffrey|
|Atkinson, Norman||Hooley, Frank||Roderick, Caerwyn|
|Bates, Alf||Jenkins, Rt Hon Roy (Stechford)||Rodgers, William (Stockton)|
|Bean, R. E.||John, Brynmor||Rooker, J. W.|
|Bidwell, Sydney||Johnson, James (Hull West)||Short, Mrs Renée (Wolv NE)|
|Blenkinsop, Arthur||Judd, Frank||Silkin, Rt Hon S. C. (Dulwich)|
|Booth, Rt Hon Albert||Kaufman, Gerald||Skinner, Dennis|
|Callaghan, Jim (Middleton & P)||Kerr, Russell||Snape, Peter|
|Cocks, Michael (Bristol S)||Latham, Arthur (Paddington)||Spearing, Nigel|
|Coleman, Donald||Lestor, Miss Joan (Eton & Slough)||Stallard, A. W.|
|Cook, Robin F. (Edin C)||Lipton, Marcus||Summerskill, Hon Dr Shirley|
|Corbett, Robin||Lyons, Edward (Bradford W)||Thomas, Ron (Bristol NW)|
|Cox, Thomas (Tooting)||McElhone, Frank||Tinn, James|
|Crowther, Stan (Rotherham)||MacFarquhar, Roderick||Tomlinson, John|
|Cryer, Bob||Mackenzie, Gregor||Walker, Harold (Doncaster)|
|Davidson, Arthur||Madden, Max||Walker, Terry (Kingswood)|
|Davis, Clinton (Hackney C)||Mendelson, John||Watkinson, John|
|Dormand, J. D.||Miller, Dr M. S. (E Kilbride)||White, Frank R. (Bury)|
|Eadie, Alex||Miller, Mrs Millie (Ilford N)||Whitehead, Phillip|
|Ellis, John (Brigg & Scun)||Morris, Alfred (Wythenshawe)||Willey, Rt Hon Frederick|
|Faulds, Andrew||Newens, Stanley||Wise, Mrs Audrey|
|Flannery, Martin||O'Halloran, Michael||Wrigglesworth, Ian|
|Foot, Rt Hon Michael||Palmer, Arthur||Young, David (Bolton E)|
|George, Bruce||Pavitt, Laurie|
|Grant, John (Islington C)||Pendry, Tom||TELLERS FOR THE AYES:|
|Grocott, Bruce||Radice, Giles||Mr Ted Graham and|
|Hamilton, James (Bothwell)||Rees, Rt Hon Merlyn (Leeds S)||Mr David Stoddart.|
|Harrison, Walter (Wakefield)|