Kith and skin
THE LAW
R. A. CLINE `It won't work' is an objection particularly tiresome to liberals, with either a small or a capital `1.' The Archbishop of Canterbury thought it practicable to carry out complete judicial investigations of every marriage that is the subject of a divorce petition; Mr Thorpe thought it practicable to bomb Rhodesia; the chairman of the Race Relations Board thinks the new race Bill practicable.
However, there are respectable reasons for distrusting any attempt to impose skinship by statute. Lord Mansfield's brief but celebrated judgment in Sommersett's case (1772)—Set the black free'—together with the decision in Constantine v. Imperial Hotels (1944), which, by a side-wind, rendered unlawful colour-bars in 'common inns,' have gone, it may be said, about as far as law can effec- tively go. Advertisements containing the offen- sive phrase `No Irish need apply' were common many years ago, and it did not need an Irish Relations Act to eliminate the, evil. There are, on the other hand, equally respec- table reasons for the opposite view: racial hatred is a degrading thing and may be a public menace, and legislation, one of the potential weapons against it, should at least be given a try. What is not in doubt is the novelty of Mr Secretary Callaghan's proposals, some aspects of which seem to have been over- looked in the present shouting-match.
The Race Relations Board is given an in- quisitorial function to investigate either com- plaints or even mere allegations of racial dis- crimination, presumably in private; if concilia- tion fails, and if—and not unless—the Board has 'determined' that an unlawful act of dis- crimination has been committed which cannot be remedied, the Board itself, a watchdog changing rapidly into wolf's clothing, decides whether to bring legal proceedings against the person it has already decided to be an offender. Such an inquisitorial role, comparable to that of a juge d'instruction on the Continent, is un- heard of in English law and has always, and rightly, been deeply distrusted. It gave rise to the Englishman's assumption that in France a person is regarded as guilty until proved innocent, and would no doubt have a similar effect here, allowing for the Act's providing for civil, not criminal proceedings (a Times leader last . week understandably but in- accurately referred to 'prosecutions).
Moreover, an apparently absolute privilege is granted to any communication, other than an assurance not to discriminate, made to the Board or other investigating body, which may only be waived by the person who made it, so creating what amounts to an informer's charter, to permit or even encourage secret denunciations: This disagreeable provision appeared in the 1965 Act, with its much nar- rower scope, and contrasts strangely with the general legal rule, that in the interests of justice, even Crown privilege is under attack, and even journalists' sources—or priests'— require in a proper case to be disclosed. Other peculiarities are that damages are paid not to the injured party but to the Board, which has to 'account' to him for them—this derives from the Board's odd status as sole possible plaintiff —and that an employer or principal may be stigmatised as a discriminator and made liable as such, even though the act of discrimination was done by an employee without his know- ledge or approval.
Most surprising of all, perhaps; a trade union guilty of racial discrimination may' find itself a defendant in these actions; evidently Section 4 of the Trade Disputes Act, 1906, one of the most sacred of trade union cows, which pre- serves them from liability in tort, i.e. civil wrong, is to this extent repealed; and not even expressly, but by implication only. Particu- larly ironical is it that those on the left who objeot most strongly to Parliament withdraw- ing some of the statutory privileges of workers engaged in trade disputes are likely to be among those most anxious to 'legislate for good relations' between the races in industry.
These and other curiosities are clearly dubious on legal grounds. It can, of course, be replied that the main purpose of the Bill is conciliation, and that the provisions for en- forcement are kept striotly in the background, are weakly drawn and likely to be ineffective. This is true; in that case, why have them? Such bite as the Bill possesses recalls the eighteenth-century advertisement for false teeth : 'may also be used for mastication.' For instance, neither the Board nor any other in- vestigating body has power to production the
attendance of witnesses or the production of documents; they cannot hold up a transaction and the court has no power to reverse one, nor to grant a mandatory injunction for any other purpose, nor to grant general damages. There is even a special provision barring any remedy other than those provided by the Bill itself, e.g. to set aside the sale of a house on the ground that it constituted an unlawful act. This is itself anomalous; indeed its purpose is to stultify what would normally be the effect of unlawfulness; but the calls, already to be heard, for the Bill to be 'strengthened' in this and certain other respects merely em- phasise the still more glaring legal anomalies which would result if this were done and the Bill otherwise left as it stands.
Moreover, not only the Crown, but public bodies, meaning bodies 'carrying on a ser- vice or undertaking of a public nature,' are, inexplicably, exempted from all the concilia- tion and enforcement provisions. Discrimina- tion by them is to be dealt with under 'arrangements' between the Home Secretary and the Race Relations Board.
There are other formidable difficulties - in the way of enforcement, particularly as regards proof (not to mention questions of interfer- ence with freedom of contract): what, for example,. about insurance, which is itself the whole art of discrimination? These and many other questions suggest that, if hard cases make bad law, very hard cases are likely to make really awful law.
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