Applin (A.P.) v Race Relations Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Wilberforce,Lord Simon of Glaisdale,Lord Salmon,Lord Wilberforee |
| Judgment Date | 27 March 1974 |
| Judgment citation (vLex) | [1974] UKHL J0327-1 |
| Court | House of Lords |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1250 |
| Date | 27 March 1974 |
[1973] UKHL J0413-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Wilberforce
Lord Simon of Glaisdale
Lord Salmon
House of Lords
My Lords,
For many years Mr. and Mrs. Watson, have, without reward and as a public service, taken into their home for a period children in care of local authorities. In January, 1970, they moved to a house in Potters Bar more suitable for the purpose. They asked the Borough of Haringey how best they could help in child care work and it was arranged that the would take in children in emergencies at any hour and give them temporary accommodation. They generally had four or five of these children in their home and the average duration of stay of each child was about three weeks. About 60 per cent. of these children were coloured.
This attracted some notice from neighbours and some publicity. Criticism by neighbours died away but the matter was taken up by the appellant and another man who wished to stop the Watsons from taking in coloured children. This caused the Watsons to get in touch with the Race Relations Board.
The Board took action against the appellant and the other man in Westminster County Court claiming a declaration that these actions were unlawful by virtue of section 12 and section 2 of The Race Relations Act, 1968.
Section 12 provides that any person who deliberately incites another person to do an act made unlawful by the Act shall be treated as doing that act. It is admitted by the appellant that his acts amounted to incitement. The question in the appeal is whether he was inciting the Watsons to do an unlawful act; would it have been unlawful for the Watsons, while being willing to take in white children, to refuse to take in coloured children? If so, the appellant was inciting them to do an unlawful act and this appeal must fail.
This is not an easy question. The Board say that the Act must not be given a narrow interpretation, and that, on a fair reading of its terms, they cover the present case. The appellant denies this and says that the Act was never intended to apply to domestic situations.
So it is necessary to make a careful examination of the terms of the Act. Section 1 defines discrimination. It provides:
"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 discrimination 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."
We have in this case to determine whether the facts constitute a situation to which section 2 applies. It is in these terms:
"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 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."
I see neither need nor justification for reading into this section any implied exclusion of domestic situations. The head of a household is concerned with the provision of goods, facilities and services to members of the household including his family, guests and servants. But no one suggests that that is covered by this section. The reason is that the members of a private household are not a section of the public. Servants are expressly excluded by section 8(6). No doubt it was desirable to make this clear but I do not think it was necessary.
On the other hand, if a household ceases to be a private household then the Act may apply. Section 2(2) expressly mentions a boarding-house. It was said that the Watsons in effect keep a boarding-house. I do not think that that is so. Their establishment falls somewhere between a private household and a boarding-house.
The householder selects his guests. The Watsons do not select the children whom they take in. No doubt they could refuse a child if they considered him obviously unsuitable: but that does not mean that they select the children whom they do take. The importance of selection is explained in Charter v. Race Relations Board.
Before dealing further with the main argument it may be well to dispose of an argument that the phraseology of section 2 will not cover this case. Discrimination must be against the person seeking to obtain goods, facilities or services. The appellant argues that here the only person seeking to obtain the facility is the local authority: the child neither does nor can seek them. Then he argues that there could not be discrimination against the local authority because it is not a member of the public. But there is nothing novel in a person in charge of a child acting on the child's behalf. I do not think that the local authority is seeking any facilities for itself. It is seeking facilities for the child and in doing so acting on behalf of the child.
So it is unnecessary to decide whether there can be discrimination against a local authority. I am inclined to think not. I doubt whether in this context a local authority is a member of the public. If a local authority sought facilities for two children, one white and the other coloured, I do not think that it fits the terms of this section to say that a person who agrees to take in the white child but refused to take in the coloured child thereby discriminates against the local authority.
Returning to the main argument, I think that the proper approach is to see whether, taking the natural meaning of the words of section 2(1), the Watsons do or do not come within the scope of the provision. First, they are concerned with the provision of goods, facilities and services: they make a practice of providing them. It may be doubted whether the section applies to an isolated transaction but here there is a course of conduct. Secondly, the children in care are a section of the public. I do not attach importance to the children being in care of the local authority. If the Watsons made a practice of receiving children without any real selection from parents who wished to have their children cared for for a short period, the case would be exactly the same.
The difficult question is whether the Watson's establishment can be regarded as a private household. I take the words "private household" from section 8(6) which provides that section 2 shall not apply to the employment of any person for the purposes of a private household. It cannot have been intended that discrimination with regard to servants in a private household should be permissible, but that discrimination with regard to other members of a private household should be unlawful. I have already said that in my view an ordinary family is not within the scope of section 2 and I think that the words "private household" in section 8(6) afford a good guide in drawing the line between an ordinary family and an establishment to which section 2 does apply.
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 of 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.
The appellant argues that the Watsons' establishment should be regarded as a private household. The number of children in their care at any one time is small and the Watsons have undertaken to treat them and do in fact treat them as members of their family.
The Watsons take in these children under Regulations ( S.I. 1955 No. 1377) made under the Children Act, 1948. That Act by section 13 provides for the local authority boarding out children in care subject to the provision of Regulations. The Regulations apply to "the boarding of a child … with foster parents to live in their dwelling as a member of their family" (Regulation 1). Regulation 30 deals with a child remaining for more than eight weeks "in the household of which he is already a member" and the Regulations require "foster parents" to give an undertaking to "bring up" the child as they would a child of their own, to consult a doctor when necessary, to permit authorised persons to visit their house, and to allow the council to remove the child.
I do not regard the fact that the Watsons are acting under this Act and these Regulations, or the fact that they have given these undertakings as of primary importance. If they had had a similar practice of receiving unselected...
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