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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Applin v Race Relations Board [1974] UKHL 3 (27 March 1974)
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Cite as: [1974] UKHL 3, [1975] AC 259, [1974] 2 All ER 73
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Die Mercurii, 27° Martii 1974
Parliamentary
Archives,
HL/PO/JU/4/3/1250
Lord Reid
Lord Morris of
Borth-y-Gest
Lord
Wilberforce
Lord
Simon of Glaisdale
Lord
Salmon
HOUSE OF LORDS
APPLIN (A.P.)
Lord Reid,
MY LORDS,
" 1.—(1) For the
purposes of this Act a person discriminates against
" another
if on the ground of colour, race or ethnic or national origins
"
he treats that other, in any situation to which section 2, 3, 4 or 5
below
" applies, less favourably than he treats or would
treat other persons,
" and in this Act references to
discrimination are references to dis-
" crimination on any of
those grounds.
" (2) It is hereby declared
that for those purposes segregating a person
" from other
persons on any of those grounds is treating him less
"
favourably than they are treated."
" 2.—(1) It shall be
unlawful for any person concerned with the
" provision to the
public or a section of the public (whether on payment
" or
otherwise) of any goods, facilities or services to discriminate
against
" any person seeking to obtain or use those goods,
facilities or services
" by refusing or deliberately omitting
to provide him with any of them
" or to provide him with
goods, services or facilities of the like quality,
" in the
like manner and on the like terms in and on which the former
"
normally makes them available to other members of the public.
2
" (2) The following are
examples of the facilities and services men-
"tioned in
subsection (1) above, that is to say—
" access to and use of any
place which members of the public
" are permitted to enter ;
" accommodation in a hotel,
boarding house or other similar
" establishment;
" facilities by way of
banking or insurance or for grants, loans,
" credit or
finance ;
" facilities for education,
instruction or training ;
" facilities for entertainment,
recreation or refreshment;
" facilities for transport or
travel;
" the services of any
business profession or trade or local or other
" public
authority."
3
A private household includes
parents, their children, guests and it may be
servants. It must
also include children such as adopted children, illegitimate
children
of one parent who have been taken into the family and other
children
who, though not legally adopted, have been made at least
semi-
permanent members ot the family. And guests will include
children whom
the parents have selected and chosen to invite to
stay with them for a time.
But there must come a stage when the
household has been so expanded
that it can no longer be regarded
as a private household.
I would therefore dismiss the
Appeal.
4
Lord Morris of Borth-y-Gest
MY LORDS,
It is the duty of a local authority to receive certain
children into their
care. Some children have neither parent nor
guardian and some children
have been or continue to be abandoned
by parents or guardian. In some
cases the parents or guardian of a
child are either temporarily or permanently
prevented from
providing for a child's accommodation, maintenance and
upbringing.
This may result from ill-health or from infirmity. It may
result
from a variety of other circumstances. The intervention of the
local
authority may, therefore, in all such cases be necessary in
the interests of
the welfare of the child. The local authority
have a statutory duty to act.
They must when necessary take
children into their care. They clearly must
not discriminate on
the ground of colour or race or ethnic or national origins.
At any given time there are probably many tens of
thousands of such
children in care. Particulars as to their number
and as to the manner
of their accommodation are presented to
Parliament and are published in
a Command Paper. Local authorities
have statutory authority enabling
them to discharge in various
ways their duty to provide accommodation
and maintenance for a
child. One way which is widely adopted is to
board children out.
Another way is to maintain children in local authority
children's
homes.
Among those with whom the local authorities for
Haringey, Barnet and
Hertfordshire have for many years boarded out
children have been a Mr. and
Mrs. Watson. Since the year 1970 this
has been at the house in Oakroyd
Avenue, Potters Bar, to which in
that year Mr. and Mrs. Watson moved.
The boarding out was not for
long periods. Usually the length of stay
of a child accepted by
Mr. and Mrs. Watson was two to three weeks.
About four or five
were taken at a time, but exceptionally the number
could be seven.
Some 60 per cent, of the children accepted by Mr. and Mrs.
Watson
were coloured children.
The appellant was in 1971 the Branch Organiser of the
South Hertford-
shire Branch of an organisation called the
National Front. He was the
signatory of a circular letter dated
the 5th August, 1971, which was distri-
buted to those, including
Mr. and Mrs. Watson, who resided in Oakroyd
Avenue. For present
purposes it suffices to say that it is not now in contest
that the
appellant " incited" Mr. and Mrs. Watson to refuse to
include
coloured children amongst those whom they took as
boarders. Though
the efforts of the appellant were not only
unwelcome to and were spurned
by Mr. and Mrs. Watson the question
which is raised is whether the incite-
ment was to do an unlawful
act (see section 12 of the Race Relations
Act, 1968). If Mr. and
Mrs. Watson had refused to accept coloured
children, would they
have been guilty of unlawful discrimination contrary
to section 2
of the Act?
.
To deal with this question it is necessary to consider
firstly whether Mr.
and Mrs. Watson were " concerned with the
provision to the public or a
" section of the public (whether
on payment or otherwise) of any goods,
" facilities or
services " and if so, secondly, whether if they had refused
to
accept a child on the ground of colour or race or ethnic or
national origins
they would have been discriminating "
against any person seeking to obtain
" or use those goods,
facilities or services by refusing or deliberately
" omitting
to provide him with any of them or to provide him with goods,
"
services or facilities of the like quality, in the like manner and on
the like
" terms in and on which the former normally makes
them available to other
" members of the public."
As to the first of these my firm conclusion is that Mr.
& Mrs. Watson were
concerned with the provision of facilities
or services to a section of the
public. I regard children in the
care of local authorities as a section of
the public . In the
present case the section comprised the children in the
care of
three particular local authorities. Mr. & Mrs. Watson were
concerned
5
to provide facilities or services to such children.
Subsection (2) of section 2
gives examples of the kinds of
facilities and services which are denoted in
the section. The
range and sweep of them is very wide. Included within
the many
varieties of examples there are set out: accommodation in a
boarding
house or other similar establishment: facilities for
education,
instruction or training: and facilities for
entertainment, recreation or
refreshment.
The exercise by local authorities of their statutory
power of boarding
out children in their care is, as would be
expected, carefully regulated.
Elaborate provisions are contained
in "The Boarding-Out of Children
Regulations 1955 S.I. 1955
No. 1377 ". The persons with whom children
may be boarded out
are prescribed. It is essential that those to whom a
public
authority is by statute entitled to delegate its public duty of
looking
after children in care should be persons who can be
trusted to discharge so
important a duty. There are (inter
alia) provisions relating to medical
examinations of children
before and during boarding out and provisions
relating to reports
by visitors and provisions relating to registers kept by
local
authorities. The persons with whom a child is for the time being
"
boarded out" (who in the Regulations are by definition called "
foster
parents " even in cases where the boarding out is for
a period expected not
to exceed eight weeks in all) are required
to sign an undertaking. By the
first of seven clauses in the
undertaking the " foster parents " undertake
to care for
a child and bring him up as they would a child of their own.
A
child is boarded with " foster parents" to live in their
dwelling as a
member of their family.
The facility or service provided by Mr. & Mrs.
Watson was that of
receiving young boarders for short periods and
of looking after them with
the same tender care as they (Mr. &
Mrs. Watson) would have bestowed upon
children of their own. Mr. &
Mrs. Watson were in fact content only to
receive reimbursement of
what it cost them to look after the children
without asking for
payment as such. They undertook their responsibilities
from the
most commendable of motives.
On behalf of the appellant much reliance was placed on
the fact that the
above-mentioned undertaking had to be given. It
was contended that in
the context of section 2 the otherwise wide
and indeterminate meaning of
the words " facilities or
services " must be restricted. The words should
be read as
applying to facilities and services which have an impersonal
quality
but not as applying to a facility such as " fostering"
which
necessarily involves the creation of a personal bond or
relationship. In
line with this submission it was said that the
facilities and services denoted
by section 2 exclude those which
depend upon a family relationship or
those which bring people into
a domestic relationship. So it was said
that section 2 does not
cover facilities or services which are rendered within
a family
circle and that the children received by Mr. & Mrs. Watson
became
and should be regarded as having been within their family
circle.
Reference was made to certain exceptions laid down in the
Act, (e.g. in
section 7, section 8(b) and section 8(10))
and it was submitted that
Parliament could not have intended to
permit discrimination in regard to
shared residential
accommodation but to prohibit it in the case of child
fostering
where the relationship is very close.
Persuasively as these submissions were developed and
amplified I am not
persuaded that the facilities and services
provided by Mr. and Mrs. Watson
were outside those designated by
section 2. Very many of those which are
indicated by subsection
(2) of section 2 are far from being impersonal.
Many of them
involve the creation of bonds and relationships which are
essentially
personal. Many of them involve relationships which have
"
domestic " features—though it is to be noted that the Act
does not intro-
duce the word " domestic " as a
description or as a criterion.
Within schools which provide "facilities for
education, instruction or
" training " there are
essentially personal relationships. Within schools large
or small
where children board there are relationships marked by "
domestic "
6
features. Those in charge may be
" in loco parentis ". So also " a boarding
"
house or other similar establishment" may pride itself on having
created
and maintained such personal relationships with and
between guests that the
recurrent visits of returning guests have
many of the features of a family
reunion or of re-entry to a
domestic hearth.
Lord Wilberforee
My lords,
The proceedings in this appeal have become largely
academic, but they
raise an issue of general importance. That is
whether the Race Relations
Act, 1968, enables proceedings to be
brought against a married couple who
express unwillingness to
receive into their home a child in the care of a local
authority
on grounds of colour, race, ethnic or national origin. The
actual
question in the case is whether the appellant, Peter W.
Applin, was guilty of
unlawful action in inciting Mr. and Mrs.
Watson to discriminate, as regards
acceptance into their home,
against coloured children. The test of illegality
under section 12
is whether the incited act is unlawful by virtue of any
provision
in Part I of the Act. Mr. and Mrs. Watson did not in fact yield
to
the incitement and had no intention of doing so. There is no
question
of their having clone, or doing, any act of
discrimination on racial grounds.
For years, from the best of
motives, they have received into their home
children in care, the
majority of whom have been coloured children. So the
question
becomes the hypothetical one: whether, if Mr. and Mrs. Watson
were
to refuse to accept coloured children, they would be guilty of an
act
of discrimination within the meaning of the Act—and so
liable to proceed-
ings under the Act.
The Race Relations Act, 1968, is an Act of very wide and
general
scope; its policy is to prevent discrimination on grounds
of colour, race or
ethnic or national origin (which I shall refer
to as " colour etc."), over as
wide a field as
possible. But, as the Act itself shows, Parliament was
conscious
that this is a difficult area in which to legislate: there are
limits
to the possibility of changing people's conduct and
prejudices by statute.
So it was recognised that there were
certain areas which it would be wise to
leave out of the general
prohibition. Broadly speaking, the separation is
between acts in
the public sphere, to which the statute is to apply, and acts
in
the private sphere, which are to be exempted.
The Act does not lay down any very definite line of
separation. It gives
some indications. In section 2(1) it refers
to provision to the public or
a section of the public: in section
2(2) it gives an illustrative list of the kind
of facilities and
services which are to be within the Act. Moreover there
are to be
found in other sections exceptions from the general application
of
the Act, the common character of which is that they relate to
situations of
a private, or household, or intimate character.
There are evidently a number of situations which are not
explicitly
dealt with: one such is that of clubs, an important
social area in which
discrimination on one of the stated grounds
is quite likely to be found.
Another situation is that of
relations of a familial or quasi-familial character.
Both of these
are common enough, and likely enough to be exposed to
possible
discrimination. Absence of specific mention of these leads one
to
suppose that Parliament intended to leave it to the courts to
apply the Act,
in the light of its general policy. This House had
to do this, in relation to
clubs, in Charter's case. In my
opinion, it has to do the same in the
present situation.
I look first, then, for such indication as can be found
of the Act's general
scope. The "public" character of
the situation with which the Act is
concerned is emphasised in
section 2(1) first by the words " the public or a
' section
of the public ". I understand these words as referring to what
is
often called the public at large, or the general public. The
phrase " section
" of the public " has been much
debated and one view is that it covers any
members, however few,
so long as they are not selected for personal reasons.
It has been
argued that a local authority is a section of the public. But I
do
not think that the phrase does more than to include cases where
less than
the whole of the public may seek the goods, facilities
or services, for
example, a public library which caters for
residents: the public, of which a
section is involved, is still
the public at large. This is confirmed by the
rest of the section.
Though the words used are very general, so general
8
indeed, that they can be made to
cover operations of almost any scale, they
do suggest, to my mind,
something which is generally available to whoever
wants it, a
suggestion strengthened by "normally makes them available to
"
other members of the public." And this impression is greatly
strengthened
by subsection (2) which I quote for convenience.
" 2.—(2) The
following are examples of the facilities and services
"
mentioned in subsection (1) above, that is to say—
" access to and use of any
place which members of the public
" are permitted to enter ;
" accommodation in a hotel,
boarding house or other similar
" establishment;
" facilities by way of
banking or insurance or for grants, loans,
" credit or
finance ;
" facilities for education, instruction or training;
" facilities for entertainment, recreation or refreshment;
" facilities for transport or travel;
" the services of any
business, profession or trade or local or
" other public
authority."
Section 7(7)—dealing
with private disposals of owner occupied
premises not
through an estate agent.
Section 8(6)—dealing with
the employment of any person for the pur-
poses of a private
household.
Section 8(10)—dealing with
the sharing of accommodation on a ship
by employed persons.
9
The basic provision, relevant
here, is section 1 of the Act. I quote sub-
sections (1) and (2).
" 1.—(1) Where it
appears to a local authority with respect to a
" child in
their area appearing to them to be under the age of seventeen—
" (a) that he has
neither parent nor guardian or has been and
" remains
abandoned by his parents or guardian or is lost; or
" (b) that his
parents or guardian are, for the time being or per-
"
manently, prevented by reason of mental or bodily disease
"
or infirmity or other incapacity or any other circumstances
"
from providing for his proper accommodation, maintenance
"
and upbringing ; and
" (c) in either
case, that the intervention of the local authority
" under
this section is necessary in the interests of the welfare
"
of the child,
" it shall be the duty of
the local authority to receive the child into their
" care
under this section.
" (2) Where a local
authority have received a child into their care
" under this
section, it shall, subject to the provisions of this Part of
"
this Act, be their duty to keep the child in their care so long as
the
" welfare of the child appears to them to require it and
the child has
" not attained the age of eighteen."
Then follow sections 12 and 13.
" 12.—(1) Where a
child is in the care of a local authority, it shall
" be the
duty of that authority to exercise their powers with respect
"
to him so as to further his best interests, and to afford him
opportunity
" for the proper development of his character and
abilities.
"
(2) In providing for a child in their care, a local authority shall
"
make such use of facilities and services available for children in
the
" care of their own parents as appears to the local
authority reasonable
" in his case."
10
" 13.—(1) A local
authority shall discharge their duty to provide
"
accommodation and maintenance for a child in their care in such
"
one of the following ways as they think fit, namely,—
" (a) by boarding
him out on such terms as to payment by the
" authority and
otherwise as the authority may, subject to the
" provisions
of this Act and regulations thereunder, determine ;
"or
" (b) by maintaining
him in a community home or in any such
" home as is referred
to in section 64 of the Children and
" Young Persons Act 1969
; or
" (c) by maintaining
him in a voluntary home (other than a com-
" munity home) the
managers of which are willing to receive
" him ;
" or by making such other arrangements as seem appropriate to the
" local authority."
(as amended by the Children and Young Persons Act, 1969, section 49).
" 1.—(1) Subject to
the provisions of paragraphs (2) and (3) of this
"
Regulation, these Regulations shall apply to the boarding of a child—
" (a) by a local authority in whose care the child is, or
" (b) by a voluntary
organisation in whose charge the child is
" otherwise than
under an approved school order,
" with foster parents to
live in their dwelling as a member of their
" family, and the
boarding of a child to which these Regulations apply
" 'out'
and ' boarded out' shall be construed accordingly."
" Witness: Yes. We try and
take them into our family as such, so
" that from whatever
disturbed circumstances they have come, they
" come into an
immediate family atmosphere and become one of the
" family.
We try and provide play facilities, toys, for them and interests
11
" for them and my wife is
keen on this, an established routine which
" they can enter
and forget their immediate worries and troubles in the
" joy
of playing with other children and having facilities for playing
"
in both the nursery and our garden."
" Defendant: Would it be
right to say that in relation to these children
" you quite
simply take them into your family to live as your own child
"
for the period for which you have them?
" Witness: I would hope it
was rather more than that because we
" seek to take a child
in a disturbed state and bring it into an environ-
" ment
that will assist it at a particular crisis in his life.
" Defendant: You certainly
agree that you give it the care and atten-
" tion that you
would your own child and because it is often in a
" disturbed
state, often more than you would your own child?
" Witness: Yes.
" Defendant: You may think
these are silly questions but they have
" a purpose. You
certainly do not consider yourself in the nature of an
"
hotel or boarding house keeper in relation to them?
" Witness: No, I do not.
"Defendant: You certainly
do not consider yourself simply to be a
" schoolmaster or an
instructor for the period?
" Witness: No, I do not.
" Defendant: The point
being that you and your wife give, or your
" wife when you
are not there, endeavour to give them your whole time
" and
care in every aspect of their life as a child, and you regard your-
"
self, I am sure you do it anyway, you regard yourself as under an
"
obligation to the Council to do that so far as the children are
"
concerned.
"Witness: Yes I do."
There
are two answers to this. First, the " incitement " was
quite general:
it was not against taking children for 2-3 weeks,
but against taking them at
all. The actual period hitherto taken
is irrelevant. Secondly, I cannot accept
that, in the case of a
child, possibly itself disturbed and of an impressionable
age,
whose parents have suddenly become unable to act, the need
for
immediate substitute parenthood, and appropriate care and
affection, Is
not real and significant. Even three weeks in such
conditions may be
critical. I add that I can see no relevance in
the total number of children
in care. The nature of Mr. and Mrs.
Watson's relationship to the children
cannot depend on how many
other people act as they do.
12
Lord Simon of Glaisdale
MY LORDS,
I
1..—(1) Where it appears
to a local authority with respect to a child
" in their area
appearing to them to be under the age of seventeen—
" (a) that he has
neither parent nor guardian or has been and
" remains
abandoned by his parents or guardian or is lost; or
" (b) that his
parents or guardian are, for the time being or
" permanently,
prevented by reason of mental or bodily disease
" or
infirmity or other incapacity or any other circumstances
"
from providing for his proper accommodation, maintenance
"
and upbringing ; and
" (c) in either
case, that the intervention of the local authority
" under
this section is necessary in the interests of the welfare
"
of the child,
" it shall be the duty of
the local authority to receive the child into
" their care
under this section.
" (2) Where a local
authority have received a child into their care
" under this
section, it shall, subject to the provisions of this Part of
"
this Act, be their duty to keep the child in their care so long as
the
" welfare of the child appears to them to require it and
the child has
" not attained the age of eighteen
" (3) Nothing in this
section shall authorise a local authority to keep
" a child
in their care under this section if any parent or guardian
"
desires to take over the care of the child, . . ."
" 12.—(1) Where a
child is in the care of a local authority, it shall
" be the
duty of that authority to exercise their powers with respect to
"
him so as to further his best interests, and to afford him
opportunity
" for the proper development of his character and
abilities.
" (2) In providing for a
child in their care, a local authority shall
" make such use
of facilities and services available for children in the
"
care of their own parents as appears to the local authority
reasonable
" in his case.
13
" 13.—(1) Subject to the provisions of this
section, a local authority
" shall discharge their duty to
provide accommodation and maintenance
" for a child in their
care—
" (a) by boarding him out on such terms as
to payment by the
" authority and otherwise as the authority
may, subject to the
" provisions of this Act and regulations
thereunder, determine ;
"or
" (b) where it is not practicable or
desirable for the time being
" to make arrangements for
boarding-out, by maintaining the
" child in a home provided
under this Part of this Act or by
" placing him in a
voluntary home the managers of which
" are willing to receive
him.
" (5) Nothing in this section shall be construed as
preventing a local
" authority from making use, in the case
of any child, of any such
" facilities and services as are
referred to in subsection (2) of the last
" foregoing
section, and for that purpose arranging for his accommoda-
"
tion and maintenance in any suitable manner not specified in the
"
foregoing provisions of this section."
It will be noted that the statute does not refer to "
fostering " (with its
concomitant " foster-parent "
and " foster-child "), but to " boarding-out ".
The
former terms do, however, appear in the Regulations which the
Secretary
of State may. by section 14, make for the provision of
children boarded-out
by local authorities under section 13(1); and
I shall for convenience some-
times here use the word "
foster " etc. The Regulations are the Boarding-
Out of
Children Regulations, 1955 (S.I. 1955 No. 1377). Regulation 2
imposes
limitations on the status of persons with whom children may
be
boarded out (e.g., a husband and wife jointly). Regulation 4
imposes a
duty on the placing authority to terminate the
boarding-out if it appears
the boarding-out is no longer in the
child's best interests. Regulation 5
gives power to a Supervising
Visitor under the Regulations to remove a
child forthwith from the
foster-parents if that Visitor considers that the
conditions in
which the child is boarded out endanger his health, safety or
morals.
Regulation 7 provides for medical examination of the child
during
boarding out; Regulation 9 for reports by Visitors on the
child ; Regulation
10 for case records to be kept; and Regulation
11 for registers to be kept
by local authorities, in which must be
entered in respect of every boarded
out child various personal
details of the child and of each foster-parent. (In
addition, your
Lordships were told, the local authorities keep a
non-statutory
register of persons who are willing to accept for
fostering children in local
authority care.) Scheduled to the
Regulations is a Form of Undertaking to
be signed by the
foster-parents. The relevant part is as follows:
" We, A.B. and B.B. . . . having . . . received
from the Council of the
" County/County Borough
of (hereinafter called 'the
"' Council') C.D. . . . into our home as a member
of our family under-
" take that—
"1. We will care for C.D. and bring him/her up as
we would
" a child of our own."
Then follow a number of undertakings relating to the
religious upbringing
of the child, to medical consultation and
examination " at such times and
" places as the Council
may require ". to informing the Council immediately
of any
serious occurrence affecting the child, to permitting any
authorised
Visitor to see the child and visit the house, to
allowing the child to be
removed when so requested by a person
authorised by the Council, and to
prior notification to the
Council of any change of address.
It appears from Command Paper 5434 of 1973 ("Children
in Care in
England and Wales, March 1972 "), Table I, that
the total number of children
in care of local authorities in
March, 1972, in England and Wales was
90.5,86, of whom 29,901,
(about one-third), were boarded out and 1,860 were
in lodgings (by
virtue of an amendment to the 1948 Act. which it is
unnecessary to
set out). Table I also tabulates the circumstances in which
children
came into care during the twelve months to 31st March, 1972:
14
by far the most frequent
circumstances was the short-term illness of the
parent or
guardian. Table II gives the breakdown by local authorities.
Of
the three with which your Lordships are concerned in the instant"
appeal,
Hertfordshire had 1,309 children in care, constituting 4-5
per 1,000 of its
estimated population under the age of 18; Barnet
had 274 children in
care (3-8 per 1,000); Haringey 856 (12-6 per
1,000).
" When we moved to Potters
Bar we approached the Borough of
" Haringey, with whom we had
had dealings before, and from whom
" most of our children had
come, to ask what was the way in which
" we could most help
them in their child care work. They said that
" the most
helpful thing we could do, if we were prepared to do it, was
"
to be willing to take children in emergency at any hour of the
night
" or day and give them temporary accommodation in our
home and
" in our family, until they were able to sort out
their immediate
" problems."
The following are the key provisions of the Race Relations Act, 1968:
" 1.—(1) For the purposes of this Act a person discriminates against
" another if on the ground of colour, race or ethnic or national origins
15
" he treats that other, in
any situation to which section 2, 3, 4 or 5 below
" applies,
less favourably than he treats or would treat other persons,
"
and in this Act references to discrimination are references to dis-
"
crimination on any of those grounds.
“ . . .
" 2.—(1) It shall be
unlawful for any person concerned with the
" provision to the
public or a section of the public (whether on payment
" or
otherwise) of any goods, facilities or services to discriminate
against
" any person seeking to obtain or use those goods,
facilities or services
" by refusing or deliberately omitting
to provide him with any of them
" or to provide him with
goods, services or facilities of the like quality,
" in the
like manner and on the like terms in and on which the former
"
normally makes them available to other members of the public.
" (2) The following are
examples of the facilities and services men-
" tioned in
subsection (1) above, that is to say—
" access to and use of any
place which members of the public
" are permitted to enter ;
" accommodation in a hotel,
boarding house or other similar
" establishment;
" facilities by way of
banking or insurance or for grants, loans,
" credit or
finance ;
" facilities for education,
instruction or training ;
" facilities for entertainment,
recreation or refreshment;
" facilities for transport or
travel;
" the services of any
business, profession or trade or local or
" other public
authority."
II
In Heydon's Case (1584) 3
Co.R. 7a it was resolved by the Barons of the
Exchequer (p. 7b):
" For the sure and true
interpretation of all statutes in general (be
" they penal or
beneficial, restrictive or enlarging of the common law,)
"
four things are to be discerned and considered: (1st). What was the
"
common law before the making of the Act. (2nd). What was the
"
mischief and defect for which the common law did not provide.
"
(3rd). What remedy the Parliament hath resolved and appointed to
"
cure the disease of the commonwealth. And, (4th). The true reason
"
of the remedy ; and then the office of all the Judges is always to
"
make such construction as shall suppress the mischief, and advance
"
the remedy, and to suppress subtle inventions and evasions for con-
"
tinuance of the mischief, and pro privato commado, and to add
force
" and life to the cure and remedy, according to the
true intent of the
" makers of the Act. pro bono
puhlico."
16
and against coloured. The
difficulty arises by reason of the fact that Parlia-
ment did not
make discrimination on the ground of colour universally
unlawful.
In Race Relations Board v. Charter [1973] A.C. 868 at
p. 900, 1
gratefully adopted the language used by my noble and
learned friend, Lord
Reid, for the final impression which the 1968
Act made.
" I would infer from the
Act as a whole that the legislature thought
" all
discrimination on racial grounds to be deplorable but thought it
"
unwise or impracticable to attempt to apply legal sanctions in
situations
" of a purely private character."
17
situation would be entirely in
the public domain and plainly be within the
mischief of the
statute. This, too, calls for a close examination of the
language
of the statute.
A linguistic examination is in
any event called for as a check against
interpretation in the
light of statutory purpose.
III
In examining the language of a
statute which affects people in their
ordinary, unspecialised
lives, there is a " golden " rule that the words
are
presumptively intended in their natural, ordinary and
grammatical meaning.
This canon of construction, always potent, is
particularly so if there are
forensic situations which Parliament
seemingly either did not envisage or
preferred not to deal with
(rather leaving them to the courts): see Reg. v.
Governor
of Pentonville Prison, ex pane Cheng [1973] AC 931,
950-951.
This "golden" rule has, however, a rider: the
Interpretation Act, 1889, is
a code assisting the draftsman to
signal the legislative intention to the courts ;
so that the
natural, ordinary and grammatical language may be extended by
the
provisions of the Interpretation Act. With these aids I turn to
analyse
section 2(1) of the Act.
It shall be unlawful for any person . . .
"... concerned with the
provision . . . of any goods, facilities or
" services . .
.".
18
their entry into the Watsons'
home. The opening words of the Form of
Undertaking must be read
together with the Regulations and the remaining
provisions of the
Undertaking, which differentiate these children significantly
from
normal members of a family. Moreover, there were over 300 of them
in
25 years. They only stayed for short periods. Though I am
not
convinced that a process of screening or selection which was
held in
Charter's case to be the criterion differentiating
the members of a club from
a section of the public is a touchstone
in all circumstances, for what it is
worth the Watsons did not
pick and choose among the children they were
asked to take—it
was the children's need alone which was their
recommendation. Most
important of all, the children did not, on being
boarded out,
cease to be in the care of the local authority. If I may
again
venture to apply a test which I proposed in Charter's
case (p. 901 B/C) the
provision was made by the Watsons to
persons aggregated in a public role.
Or, to apply the words of my
noble and learned friend, Lord Reid, which
I have already cited,
this was not a situation " of a purely private character ".
In
any cases, the incited action was to prevent the coloured children's
very
entry into the Watson's household so that they would remain
outside, in
the public domain.
"... to discriminate. . ."
". . . against any
person seeking to obtain or use those facilities
(etc.). . ."
19
natural and quite neutral for
him to use the pronoun " him " (rather than
" him
or them "). I therefore think that " any person seeking to
obtain "
includes the local authorities.
" ... by refusing. ..to provide him with any of them... ".
I turn finally, to consider
other matters that were canvassed during the
argument.
The examples in section 2(2).
Anomalies.
20
within
section 7). Then, on the appellant's argument a corporation sole
(e.g.
a bishop) can be a " person seeking . . ." within
section 2(1), but not a
corporation aggregate (e.g. a dean and
chapter). Since anomalies are
inherent in an Act of this sort, and
since even the appellant's construction
(in derogation of the
paramount parliamentary purpose) would not avoid
them, I do not
think that the presumption against anomaly operates to
prevent
your Lordships from applying the major canons of construction.
The children when in the Watson's household.
It
follows from the view I have already expressed that the children
did
not, on entering the Watson's household, cease to be a section
of the public,
so that it would have been unlawful to have
discriminated amongst the
children within the household on the
ground of colour—though what Mr.
Applin and Mr. Taylor were
inciting was a discrimination prior thereto,
namely, at the entry
of the children to the house: nor would the Watsons
themselves
have considered for a moment discriminating in this way amongst
the
children boarded out with them.
Adoption and Private Fostering.
It
was conceded on behalf of the Board that discrimination in
adoption
would not be unlawful under the Race Relations Act. This
seems to me to
be unquestionable; an adoptive parent is, no more
than a natural parent, as
such concerned with the provision of
goods, facilities or services to a section
of the public, but
rather to members of his legal family (i.e., to persons
aggregated
in their private roles: see Charter's case at p. 901 B/C).
It
was conceded on behalf of the Board that the Race Relations Act
did
not apply to children privately fostered under the Children
Act, 1958.
Counsel for the appellant seized on the concession to
emphasise the common
features between 1948 Act children and 1958
Act children—in particular
in relation to local authority
responsibility and control. But your Lordships
are not called on
to say whether the Board's concession was rightly made
—some
private fostering, e.g., with a view to adoption, is obviously
outside
the Race Relations Act; and the Board has in any event a
wide discretion
under section 15(4) of the 1968 Act. But no
concession in point of law,
especially on a point not directly in
question, could constrain your Lordships
in the proper
interpretation of the Race Relations Act with regard to 1948
Act
children.
Lord Salmon
MY LORDS,
I
have come to the conclusion, not without considerable doubt, that
this
appeal should be dismissed. All the relevant arguments have
been so fully
canvassed by your Lordships that I need add only a
few observations of my
own.
The
appeal seems to me to turn upon whether or not Mr. and Mrs.
Watson
were concerned with the provision to the " public or a section
of
" the public ... of any ... facilities or services "
within the meaning of those
words in section 2 (1) of the Race
Relations Act, 1968. The difficulty lies
in deciding whether that
section excludes the provision of facilities or
services to a
section of the public within the private or domestic sphere,
for
example in a private household. As a rule no doubt it does,
but after some
hesitation I have come to the conclusion that it
does not always do so; not,
for example, in the special
circumstances of the present case.
21
of
their own family. This, of course, does not mean that the children
in
reality became members of the Watsons' family. A stay of three
or four
weeks is too transient to establish a relationship which
is essentially of a
much more permanent character. As a general
rule a householder is not
concerned in providing any facilities or
services to the public, or to a section
of the public, in his own
home. I cannot, however, accept that he may never
be concerned in
doing so. I recognise that it would be absurd to consider
that the
members of his family or his guests or servants are, in their
respec-
tive capacities, " the public or a section of the
public " for the purposes of
the Act. Section 2 does not
touch the employment of any person for the
purposes of a private
household. Discrimination against such persons could,
however, be
prohibited by section 3 were it not for the express
exception
contained in section 8(6) of the Act. A householder is
entitled to choose
which members of his family he will allow to
live with him, whom he will
adopt as a member of his family, whom
he will employ and who he will
invite as a guest in his own home.
There is nothing in the Act to prevent
him discriminating between
any of these on any ground he pleases. The
Act, clearly, does not
interfere with freedom of choice in these spheres.
Were it to do
so, it would not help, but might well hinder race relations.
Suppose
A has a large number of acquaintances, black and white, and he
gives
a private party to which he invites only those who are white, or,
for
that matter, only those who are black, he would not be
infringing the Act.
He would be concerned in providing facilities
only to his invited guests
who cannot, in my view, sensibly be
regarded as " a section of the public ".
Suppose,
however, that A throws his stately home open to the public
and
excludes those who are black, he would clearly be infringing
the Act for,
in such a case, he would be concerned with the
provision of facilities or
services to the public.
Children
in care are undoubtedly a section of the public, unfortunately
quite
a large section, in dire need of special facilities and services
which
the Watsons are and have for so long been conscientiously
concerned ro
provide. It is, I think, important to remember that
this is not a case
of foster parents who are prepared to foster
only such children as they
may select; still less is it as case of
fostering with a view to adoption.
Such fostering would not, in my
view, constitute the provision of facilities
or services to any
section of the public, but only to personally selected
individuals.
The Watsons, on the other hand, have for upwards of 20 years
let
it be known to the three local authorities concerned that, subject
only
to a limitation of numbers imposed by their available
accommodation, their
home is open to all comers amongst children
in care. They have in a very
real sense been concerned with the
provision of facilities and services to
a section of the public in
their own private household. This no doubt is
an unusual
situation. It may seem strange that any prospective foster
parents,
more selective, less humane, charitable and public spirited than
the
Watsons, might be entitled to say " No black children",
but that the
Watsons, because of their past generosity, would be
precluded from saying
so. This, however, would impose no hardship
on the Watsons. They have
courageously resisted the highly
improper pressure and incitement to
discriminate which they have
suffered at the hands of the appellant. The
last thing that the
Watsons would willingly do is to discriminate against
any child on
the ground of his colour, race or ethnic or national origins ;
nor
do I believe that it is in the least likely that anyone else who has
acted
as the Watsons have done would feel otherwise. There could,
however,
be nothing to prevent them from deciding to discontinue
or curtail the
provision of the facilities and services which they
have been concerned to
provide
in the past. They could not, however, lawfully discriminate
between
black and white children in taking such a decision. This
is because they
are and have for long past been concerned with the
provision of facilities and
services to a section of the public in
their own private household. They
therefore come within the sphere
of section 2(1) and not, to my mind,
within any of the express or
implied exceptions to that section contained
in any of the other
provisions of the Act.
22
I
entertain no doubt at all but that the children sent by the local
authorities
to the Watsons were persons seeking, through the local
authorities, to obtain
or use facilities or services. Had the
Watsons, on account of the
appellant's behaviour, turned them away
because of their colour, they would
have been refusing to provide
facilities and services to a section of the
public for whom they
were concerned to supply such facilities and services.
I
am by no means sure that local authorities are a section of the
public.
No doubt the members of any local authority are a section
of the public
but each local authority has a separate identity
just as a company is a
different entity from its corporators. Even
if local authorities may be
regarded as a section of the public
and as seeking to obtain facilities or
services for themselves, I
doubt whether the Watsons, if they refused to
foster coloured
children in the care of those local authorities would
be
discriminating against them unless it could be shown that they
were willing
to foster coloured children in the care of other
local authorities. It is,
however, unnecessary to express a
concluded view on this point because
I am satisfied that the local
authorities were seeking facilities and services
on behalf of the
children in their care. Accordingly, the appellant was
inciting
the Watsons to refuse facilities or services to any coloured
child
seeking such facilities or services through the local
authority which had him
in care. And this, in the special
circumstances of this case, is something
which, in my view, the
Watsons could not lawfully have done.
My Lords, for these reasons, I would dismiss the appeal.
312061 Dd 876211 120 3/74 St S