NOTES OF CASES

Date01 September 1973
Published date01 September 1973
DOIhttp://doi.org/10.1111/j.1468-2230.1973.tb01384.x
NOTES
OF
CASES
CAN
CLUBS
DISCRIMINATE
?
SECTION
2
(1)
of the Race Relations Act
1068
provides:
‘‘
It
shall be unlawful for any person concerned with the pro-
vision 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.”
Does
a
club, which provides facilities for members only
or
mem-
bers plus guests, fall within the section? Apart from its legal interest,
this question has considerable significance for the large number of
members’ and working men’s clubs throughout the country.
It
was
directly raised in
Charter
v.
Race Relations Board.
The Court
of
Appeal
1
held that members’ clubs fall within the section, and the
House of Lords (Lord Morris dissenting) held that they do not.
In
1969
Mr.
Shah,
a
Conservative of Indian origin, applied for
membership of East Ham South Conservative Club. This is a
private members’ club, the objects of which are social. Membership
is open to any adult male Conservative, whose nomination is pro-
posed and seconded by existing members and approved by the
committee.
Mr.
Shah’s nomination was rejected by the committee,
and the chairman in exercising his casting vote expressed the view
that colour was relevant. Judge Herbert,
Q.C.
in the Westminster
County Court decided as preliminary issues
(1)
that consideration
by the committee is not
a
situation
to which section
2,
8,
4
or
5
of the Act applies, and
(2)
that the rejection of an application by
the committee on the grounds of colour, race
or
ethnic
or
national
origins is not unlawful by virtue of section
2.
The Court of Appeal reversed this decision on the grounds that
the members
of
the club constituted
a
section of the public.”
Lord Denning reached this conclusion by
a
twofold test:
(1)
‘‘
Make
sure that there are quite
a
number of them.”
(2)
See whether the
quality which they have in common is essentially impersonal. Both
tests were satisfied in his Lordship’s view since conservatism is an
essentially impersonal quality-unlike, say, personal charm which
may cause an individual to be invited to a social function. The
1
[1972] 1
Q.B.
646.
2
[1973]
1
All
E.R.
612.
529
580
THE
MODERN
LAW
REVIEW
VOL.
36
trouble with this approach,
it
is
submitted, is that it only goes half
way. Undoubtedly Conservatives are a section of the public as a
matter of common sense, as well as by Lord Denning’s test. But
East Ham South Conservative Club is not just a citadel of conserva-
tism-it is also
a
members’ club.
If
the committee do their job
properly, they accept
or
reject applications on wider criteria than
the political, and this may involve a scrutiny of personal
characteristics.
Indeed the House of Lords felt Lord Denning’s analysis to be
inadequate. The majority of their Lordships approached the ques-
tion in the following way:
(1)
The phrase in section
2
the public
or
a
section of the public
are words of limitation.
(2)
Their
natural antithesis, which is “private
(and not merely
domestic
”)
is excluded.
(8)
Therefore a genuine private members’ club
is
beyond the ambit of the section. Nevertheless a bogus club, in
which anyone may be enrolled on the doorstep
*
would fall within
the section.
(4)
On the admitted facts East Ham South Conserva-
tive Club is a genuine private members’ club, and therefore
unaffected by section
2.
Now, it may be observed, a club to which
entry is no more than
a
formality is in reality open
to
the public.
If
the words
“or
a section of the public
have any meaning, they
should extend the range of clubs to which the statute applies. This
approach however did not commend itself
to
any of their Lordships
save Lord Morris.
Lord Simon supported his argument by quoting the definition
of
a club from
Halsbury’s
Laws
of
England
4:
A
club may be
defined as a society of persons associated together for social inter-
course, for the promotion of politics
s
ort, art, science
or
literature,
or
for any purpose except the acquisition
of
gain. The association
must be private and have some element of permanence.” From
this his Lordship concluded,
A
bona fide members’ club is, in
other words, in its juristic essence a private association.’’
As
a
matter of juridical analysis this must be correct.
A
private
members’ club is a group of persons with no communal legal identity,
whose relationship and activities are governed by a single multi-
partite contract. Each member agrees to abide by the rules.
In the eyes of the law this is a private
arrangement. Yet in
practice the club may be of considerable size and influence, especially
if
it
is situate near Pall Mall. In fact this
privacy
is as much
a
legal fiction as is the personification of a registered company.
Just
as the courts will lift the veil of corporate personality where it is
inapposite,6
so
they should be prepared
to
discard the notion
of
privacy at least in respect of the larger members’ clubs. In apply-
8
e.g.
Panama
(Piccadilly)
Ltd.
v.
Newberry
[)962]
,!
W.L.R.
610:
in
thia
case
anyone
could become
a
member
of
the
club
by paying twenty-five
shillings
and
filling
in
a
form
at the
door.
4
3rd
ed., Vol.
6,
p.
252,
para.
686.
6
Re
F.
G.
(Films)
Ltd.
[1963] 1
W.L.R.
483.
:
.p.

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