Ealing London Borough Council v Race Relations Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Donovan,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Cross of Chelsea,Lord Kilbrandon |
| Judgment Date | 16 December 1971 |
| Judgment citation (vLex) | [1971] UKHL J1216-1 |
| Date | 16 December 1971 |
| Court | House of Lords |
[1971] UKHL J1216-1
House of Lords
Lord Donovan
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Cross of Chelsea
Lord Kilbrandon
Upon Report from the Appellate Committee, to whom was referred the Cause Mayor, etc. of London Borough of Ealing against Race Relations Board, et è contra, that the Committee had heard Counsel, as well on Wednesday the 3d as on Thursday the 4th, days of November last, upon the Petition and Appeal of the Mayor, Aldermen and Burgesses of the London Borough of Ealing, of The Town Hall, Ealing, London, W.5, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of the Queen's Bench Division of Her Majesty's High Court of Justice of the 23d of October 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of the Race Relations Board praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of the Queen's Bench Division of Her Majesty's High Court of Justice of the 23d of October 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Cross Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Race Relations Board; and also upon the Case of the Mayor. Aldermen and Burgesses of the London Borough of Ealing, lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 23d day of October 1970, complained of in the said Original and Cross Appeals, be, and the same is hereby, Set Aside: And it is further Ordered, That the Cause be, and the same is hereby, Remitted back to the Queen's Bench Division of the High Court of Justice, with a Declaration, That by declining on or about the 4th of February 1969 to place Mr. Zesko on their housing waiting list by reason of his not then being a British subject within the meaning of the British Nationality Act 1948, the Original Appellants did not commit a breach of section 5 of the Race Relations Act 1968: And it is further Ordered, That the Respondents in the Original Appeal do pay, or cause to be paid, to the Appellants in the Original Appeal the Costs incurred by them in the Court below, and also the Costs incurred by them in respect of the said Original Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the said Cross Appeal be, and the same is hereby, Dismissed this House: And it is also further Ordered, That the Appellants in the Cross Appeal do pay, or cause to be paid, to the Respondents in the Cross Appeal the Costs incurred by them in respect of the said Cross Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant Council ("the Council") is the housing authority for the Borough of Ealing. As such it keeps a register of all applications for housing accommodation within the Borough and a waiting list containing names transferred from that register. A points scheme adopted by the Council, which takes into account among other things the time the applicant has been waiting, governs the allocation of council accommodation to those on the waiting list. Another rule of the Council governing admission to the waiting list reads thus:
"Rule 3 (1) An applicant must be a British Subject within the meaning of the British Nationality Act, 1948."
That Act defines a British subject as including both British subjects and Commonwealth citizens.
In 1966 and again in 1968 a Mr. Zesko, a Polish national of excellent antecedents and character, sent in an application to the Council for housing accommodation describing himself therein as a Polish national. On each occasion because of the rule just quoted the Council declined to put him on the waiting list.
Section 1 (1) of the Race Relations Act, 1968 ("the 1968 Act"), enacts that a person discriminates against another for the purposes of the Act 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… ." Section 5 of the Act deals specifically with discrimination against a person in the matter of the disposal of housing accommodation and makes such discrimination unlawful.
A complaint on behalf of Mr. Zesko was lodged with the Race Relations Board now operating under the 1968 Act ("the Board") that in the foregoing circumstances the Council were in breach of section 5. In accordance with the Act the Board investigated the complaint and formed the opinion that it was well-founded. So it proceeded, as required by the Act, to try and secure a settlement and an assurance against repetition of such alleged discrimination.
Taking the view, however, that it had committed no unlawful Act, the Council on the 21st November, 1969, issued in the High Court an Originating Summons claiming a number of declarations against the Board, of which it is sufficient to quote No. 5, namely:
"That the Council are and were at all material times entitled to decline to place Zesko upon their housing waiting list on the grounds that he was not at the material time a British Subject but was on the contrary a person of foreign or alien nationality."
It is the Board's case that the High Court had no jurisdiction to grant any such declaration or indeed any of the other reliefs asked for in the Originating Summons; and they so contended when the Summons was heard by Swanwick J. in October, 1970. The contention is based primarily on certain of the provisions which govern the right of the Board to bring civil proceedings in England and Wales and which are contained in section 19 of the 1968 Act.
The striking feature of these provisions is that the Board is confined to bringing proceedings in certain nominated County Courts and in those alone. The judge is to be assisted by two assessors having special knowledge and experience of problems connected with race and community relations. The Board may sue for an injunction or for damages or for both: and for a declaration that an act is unlawful under the provisions of the Act. A right of appeal is given to the Court of Appeal on questions of fact or law.
All this, says the Board, amounts to a comprehensive and exclusive code of proceedings for problems of race and community relations. Under it the Board itself cannot go to the High Court and seek a declaration. Why, therefore, should its opponent be allowed to do so? It is to be observed in this connection, however, that the Board's opponent can initiate no action of any kind in the nominated County Court. He must sit down and wait till he is taken there by the Board.
Other arguments were used by the Board in support of its contention which are set out in the judgment of the learned judge. In my opinion, their persuasive force was small and they were adequately disposed of by him in his reserved judgment. He went on to say, quite rightly, that clear words are necessary to oust the jurisdiction of the High Court and there are none in the Act of 1968. Nor can any necessary implication to that effect be drawn from its language. His observations were prompted by Viscount Simonds' remarks in Pyx Granite Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 286 that "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is, as McNair J. called it in Francis v. Yiewsley and West Drayton Urban Council [1957] 2 Q.B. 136, 148, a 'fundamental rule' from which I would not for my part sanction any departure."
I certainly can see no justification for ousting the jurisdiction of the High Court in the manner desired by the Board; and I proceed, therefore, to consider the substance of the Originating Summons.
The question which it raises is one of construction: namely, whether the refusal of the Council to place Mr. Zesko's name on their housing waiting list was discrimination against him on the ground of "national origins" within the meaning of section 1(1) of the 1968 Act. The Council did not use the expression "national origins" in this context. It simply applied its rule that every applicant wishing to be placed on its waiting list for housing accommodation must be a British subject within the meaning of the British Nationality Act, 1942; and at the time Mr. Zesko was a Pole. Had "discrimination" been defined in section 1(1) as including discrimination on the ground of nationality, the Council's rule would clearly have fallen foul of it. So the question comes to this: do the words "national origins" amount for present purposes to the same thing as "nationality"?
The Act itself contains no definition of "national origins". It must, I think, mean something different from mere nationality, otherwise there would be no reason for not using that one word, as indeed the Act...
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