Race Relations Board v Dockers' Labour Club and Institute Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Viscount Dilhorne,Lord Diplock,Lord Simon of Glaisdale,Lord Kilbrandon |
| Judgment Date | 16 October 1974 |
| Judgment citation (vLex) | [1974] UKHL J1016-1 |
| Court | House of Lords |
[1974] UKHL J1016-1
House of Lords
Lord Reid
Viscount Dilhorne
Lord Diplock
Lord Simon of Glaisdale
Lord Kilbrandon
Upon Report from the Appellate Committee, to whom was referred the Cause Dockers' Labour Club and Institute Limited against Race Relations Board, that the Committee had heard Counsel, as well on Monday the 22d, as on Tuesday the 23d, days of July last, upon the Petition and Appeal of Dockers' Labour Club and Institute Limited of 228A West Strand, Preston in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 24th of October 1973, might be reviewed before Her Majesty the Queen in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have 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, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by Her Majesty the Queen under Her Sign Manual, dated the 20th day of September 1974, pursuant to the provisions of the Appellate Jurisdiction Act 1876, That the said Order of Her Majesty's Court of Appeal of the 24th day of October 1973, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the Manchester County Court with a Direction that Judgment be entered for the Appellants: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
The Appellants, whom I shall call the Club, are a working men's Club. The Respondents, whom I shall call the Board, have important statutory duties under the Race Relations Act, 1968. There are about 4,000 working men's clubs in various parts of the country (including this Club) which are members of the Working Men's Club and Institute Union. Each has rules which comply with the rules of the Union. These rules provide for the election of members of the Club: a candidate must first be proposed and seconded, then his name is screened for the information of other members and then the Club Committee decide whether he is to be elected. There is no suggestion that these rules are disregarded in any way: the Union would intervene if they were.
The Union rules provide for members of any club which has not opted out of the scheme becoming associates on payment of small fees. Associates have the right, subject to a possible power of exclusion, which I do not regard as material in this case, to enter any club in the scheme and enjoy substantially all the rights of members of that club. The exact number of Associates is unknown but it may be taken to be in the region of one million.
Some of the clubs in the Union have a colour bar. Others do not. Owing to an unfortunate incident some years ago the Appellant Club decided at a general meeting to enforce a colour bar. A Mr. Sherrington, who is coloured, is a member of another working men's Club which has no colour bar: he became an associate under the Union rules and with some friends on 5th July, 1970, he went to the Appellant Club. He ordered drinks for himself and his friends. But then the Secretary asked him to go to a private room and informed him of the Club's colour bar. Then, on being requested to leave the Club, Mr. Sherrington left.
The matter was reported to the Board and they raised the present action claiming (1) a declaration that the Club acted unlawfully in refusing goods, facilities and services to Mr. Sherrington on the ground of colour, (2) an injunction and (3) damages for Mr. Sherrington. The case was heard in the Manchester County Court before the House had decided the case of Charter v. Race Relations Board [1973] A.C. 808 and judgment was given for the Board. This judgment was affirmed by the Court of Appeal and the Club now appeals to this House.
The question to be decided depends on the proper construction of section 2(1) of the Race Relations Act, 1968, which is in these terms:—
"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."
The only question in dispute is whether Associates are "a section of the public" within the meaning of that subsection. If they are the appeal fails. If they are not the appeal must be allowed.
I think it necessary first to determine what was decided in Charter's case. As I ventured to point out there "the public or a section of the public" must on any view be regarded as words of limitation. It was there admitted by the Board and it has, so far as I am aware, never been in doubt that the Act does not apply to discrimination in the domestic sphere: it is no offence to discriminate between persons in a private household. The reason for that can only be that members of a private household are not, within the meaning of this section, a section of the public. But in Charter's case it was held that the sphere excluded by these words from the operation of the Act was wider than the purely domestic sphere. The true antithesis of public is not domestic but private. Then it had to be determined whether clubs fell within the private or the public sphere.
In Charter's case the House was only concerned with election to membership of a club. It was recognised that some clubs, or so-called clubs, are so conducted that they are not truly within the private sphere. And it was held that an appropriate test was to see whether there was any genuine selection on personal grounds in electing candidates for membership. In that case there was a system of selection so that it was no offence against the Act to discriminate against a candidate on grounds of colour.
The House did not consider the position of guests, temporary members under reciprocal arrangements with other clubs, or Associates of this Union—persons selected by some person or body other than the club or its committee.
Here I think it best to go back to the central and most obvious exclusion from the operation of the Act—the private household—because it shews that selection is not the only basis for holding that one is in the private and not the public sphere. A father does not select his children. He selects his own guests and may select his servants. But he need not select his children's guests whom they bring to his house. Yet I do not think that it could possibly be argued that he commits an offence if he discriminates against a guest brought to his house by his child on the ground of colour, race or ethnic or national origin. Or suppose that a friend asks him to give hospitality to someone whom he recommends and when that person arrives the householder refused to receive him on one of these grounds. That would be utterly deplorable but it would not be an offence against the Act. There is express provision in section 8(6) that this section does not apply to servants in a private household. It cannot possibly apply to guests. Yet some guests are only selected by someone other than the head of the household. Selection at secondhand is sufficient.
On the other hand, the head of the household can go outside the private sphere. If he opens his house to the public on certain occasions I have no doubt that he would commit an offence if he refused admission to anyone on any of the grounds stated in the Act. And I think the same would apply if he opened his house to a section of the public, e.g., members of a particular profession.
Similar considerations must I think apply to a club. Discrimination against or between guests of a member of the club would no more be struck at by the Act than discrimination by the father against guests of his children.
Coming nearer to the present case it is common for clubs which exercise a rigorous choice in electing their members to have reciprocal arrangements with other clubs in this country or abroad whereby each will offer hospitality or temporary membership to members of the other club. If either attempted to discriminate against visitors from the other that might have serious consequences but I find it impossible to hold that there could be an offence against the Act. It would indeed seem very strange if discrimination were lawful as regards the club's own membership but unlawful with regard to such temporary members.
But again a club can go outside the private sphere. Reference was made to a golf club which might admit members of the public or of some section of the public at particular times in payment of a green fee. There too I would have no doubt that they would commit an offence if they discriminated against anyone wishing to play on any of the grounds stated in the Act.
So I think that the question here is whether a working men's club which belongs to the Union goes out of the private into the public sphere in offering admission...
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