R v Commission for Racial Equality, ex parte Hillingdon London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GRIFFITHS,MR. JUSTICE WATERHOUSE |
| Judgment Date | 16 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0716-6 |
| Docket Number | 81/0334 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 1981 |
[1981] EWCA Civ J0716-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
Royal Courts of Justice.
The Master of the Rolls
(Lord Denning)
Lord Justice Griffiths and
Mr. Justice Waterhouse
81/0334
MR. MICHAEL BELOFF, Q. C. and MISS JUDITH BEALE (instructed by Messrs. Bindman & Partners) appeared on behalf of the Appellant.
MR. LIONEL READ, Q.C. and MR. DAVID FLETCHER (instructed by Jonathan Kosky, Esq.) appeared on behalf of the Respondent.
Thousands upon thousands of families seek refuge in England. They come from all the world over. They arrive at Heathrow Airport. Some of them go off to stay with relatives or friends. Others have no place to go to. They apply to the local council to house them. It is the London Borough of Hillingdon. I will call it the Hillingdon Council. It is the duty of the council under Act of Parliament to house those who are homeless. The burden on the council is very heavy. The immigrant families pour in. Somehow or other the Hillingdon Council has to find accommodation for them. They have done the best they can. But in 1978 they were faced with serious complaints. They were accused of unlawful discrimination. They were accused of housing white families and turning down coloured families. It was alleged that in so doing they were offending against sections 20 and 21 of the Race Relations Act 1976.
The origin of these complaints was, it seems, the newspapers. Somehow or other they got hold of sensational stories. They drew particular attention to the treatment of an African family. On the 5th November, 1978 a Mr. Janmohamed, a widower, arrived at Heathrow from Kenya. He brought with him a daughter and three sons, aged 21, 20, 15 and 12. They spent the first night in the lounge of the airport. The next night the council found them accommodation in a guesthouse. The housing department made inquiries, and satisfied themselves that the family were intentionally homeless. The family had had accommodation in Kenya, but had deliberately left it in order to come to England. So the Hillingdon Council were only bound to provide temporary accommodation. They were not bound to house them indefinitely.
At that stage the Chairman of the Housing Committee, Councillor Dicks, made a spectacular protest. He felt strongly that the Hillingdon Council ought not to be made to house these immigrants who arrived at Heathrow and claimed to be homeless. He thought that it was the responsibility of the government, and not of Hillingdon. So he arranged for the Janmohamed family to be taken in a taxi to the Foreign Office. They were dumped outside. The Foreign Office got in touch with the Department of the Environment who arranged for a charitable organisation to house them. So that incident was closed.
At about the same time a Mr. Turvey and his wife arrived from Rhodesia. They had with them seven children ranging from eighteen months to thirteen years. He had been a teacher in Rhodesia, but owing to the state of war there, families had left the country. His school had to close. He had no choice but to leave. So he returned to England. The Housing Department at Hillingdon decided that he was unintentionally homeless. They provided him with temporary accommodation while he looked for a job.
The media got hold of those stories and gave them publicity. The Commission for Racial Equality decided to look into the matter. On the 17th November, 1978 they wrote to the Hillingdon Council, saying:
"…They have noted press reports and received allegations about the London Borough of Hillingdon's policies and practices with regard to the treatment of homeless families recently arrived in the United Kingdom…We are considering whether or not to conduct a formal investigation into these aspects of the Council's activities".
1. The statutory provisions
Thereupon the Commission for Racial Equality put into operation the procedures prescribed by the Race Relations Act 1976. They did it on their own without reference to the Secretary of State. But I must say that the statutory provisions are most difficult to interpret. One of the most difficult is section 49(4) of the Act. It only appeared at the Report stage of the Bill in the House of Lords. It was an amendment moved by Lord Hailsham of St. Marylebone at midnight on the 4th October, 1976. Its object was to ensure that—after a formal investigation had started and in the course of it—a person who was accused of unlawful discrimination should have a right to be heard. Lord Hailsham of St. Marylebone moved that it should be inserted after clause 49 as a separate new clause on its own (clause 50). In that position it would have been intelligible. At first the government of the day resisted it. But afterwards the government accepted it and moved it on Third Reading on the 15th October, 1976. But with this difference. It was not inserted as a new clause 50. It was inserted as subsection (4) in clause 49. No one in the House appears to have noticed this change. It was enacted in that position. It is the cause of much of our trouble. Because under section 49(1) the Commission are not to embark on a formal investigation until the provisions of section 49(4) have been complied with. The result is that before the Commission embark on a formal investigation they must hold a preliminary hearing under section 49(4). Both parties before us accepted that there must be such a preliminary hearing. So I proceed on that basis.
2. The Preliminary Hearing
The preliminary hearing must be held before the Commission embark on a formal investigation—see section 49(1). In order to start on it at all, they must believe that a named person may have done an unlawful act or acts, such as unlawfully discriminating by treating a white man more favourably than a coloured man. They must propose to investigate the act or acts. They must draw up "terms of reference for the investigation". These terms must name the person, and specify the acts in question which the Commission believe he may have done: and be confined to his activities. The Commission must then inform him of their belief and of their proposal to investigate the acts in question. They must offer him an opportunity of making representations with regard to the proposal. If he avails himself of that opportunity, they must take account of what he has to say. He may persuade them that it would not be fair for them to go ahead with the proposal, or that some of the acts should not be included in the terms of reference. At the conclusion of this preliminary hearing, the Commission must decide whether there are reasonable grounds for believing that the named person may have done the unlawful acts. If they do so decide—and do so believe—they should go ahead with a formal investigation. They should, if necessary, revise the terms of reference so as to confine the investigation to those acts which they believe the named person may have done or may be doing.
3. The Formal Investigation
Strangely enough, the statute does not contain any provisions as to the procedure on a formal investigation. (This is, no doubt, due to the mistake made in putting section 49(4) in the wrong position. It ought to have been a new clause 50 in which case it would have applied to a formal investigation). In the absence of an express provision, I am quite clear that the rules of natural justice must be observed, just as in an inquiry under the Companies Act, see Re Pergamon Press (1971) Chancery 388. In addition the Commission are given very exceptional powers. They can compel the named person to give discovery of documents and to answer interrogatories. They can compel any other person to disclose his documents and to give them whatever information they require, see section 50(1). These requirements can be enforced by the county court judge—see section 50(4). No doubt witnesses can be examined and cross-examined. At the end of it, the Commission must make a report of their findings. This report is to be made available for inspection by anyone—see section 51(4)(5). It may contain findings which are very damaging to individuals. The Commission may, for instance, say they are satisfied that the named person is committing, or has committed, unlawful acts, see section 58(2). In the circumstances I think the formal investigation is very like a charge against a person accusing him of doing an unlawful act. He is, therefore, entitled to all the safeguards of natural justice.
4. Non-discrimination Notice
If in the course of a formal investigation the Commission are satisfied that a person is committing or has committed unlawful acts, they have to make up their minds whether to serve him with a non-discrimination notice. If they are "minded" to do so, they have to give him a preliminary warning before they serve him with the notice. On this preliminary warning he can be heard and the Commission must take account of any representation that he makes—see section 58(5). But it may not be necessary to hear or to call witnesses—see Reg. v. Commission for Racial Equality, ex parte Cottrell (1980) 1 Weekly Law Reports 1580. If the Commission decide to serve a non-discrimination notice on a person—and it is served on him—he can appeal to the Industrial Tribunal, see section 59. On the appeal the tribunal will go into the matter and decide whether the facts on which the Commission relied were correct or not. It may order particulars. It may hear evidence. It will come to a conclusion whether the non-discrimination notice...
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