Race Relations Board v Charter
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MEGAW,LORD JUSTICE STEPHENSON |
| Judgment Date | 14 December 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1214-1 |
| Date | 14 December 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1214-1
In The Supreme Court of Judicature
Court of Appeal.
Appeal by plaintiffs from judgment of His Honour Judge Herbert on 6 April, 1971.
The Master of the Rolls (Lord Denning),
Lord Justice Megaw and
Lord Justice Stephenson.
Mr. JAMES COMYN, Q. C., Mr. ANTHONY LESTER and Mr. M. H. MENDELSON (instructed by Messrs. Lawford & Co.) appeared on behalf of the Appellants, The Race Relations Board.
Mr. ANDREW LEGGATT and Mr. N. THOMAS (instructed by Messrs. Vizards & Co.) appeared on behalf of the Respondent Defendants.
1. THE CLUB
In East Ham there is a members' club called the East Ham South Conservative Club. Its premises are at No. 1, Vicarage Lane, East Ham. It is a political club. Its object is to maintain and advance Conservative principles. It is closely associated with similar Conservative clubs all over the country.
Any man of 18 or over is eligible for membership, provided that he is a Conservative. He has to be proposed and seconded by two members able to vouch for his respectability and fitness: and then elected by the Committee. The subscription is 10/- a year. Any woman of 21 or over who is a Conservative is eligible for association membership. Her subscription is 5/- a year. Youngsters of 16 or 17 can be admitted to junior association membership, also at 5/-. Members of other Conservative clubs are admitted as temporary honorary members, provided they produce the appropriate ticket. Members can bring visitors with them to the club.
The club is directly connected with a local political association, called the East Ham Conservative Association. Most, if not all, the members of the club are members of the East Ham Conservative Association. Any member of the Conservative Association who applies for membership of the club is admitted to membership of the club, provided that he complies with the procedure for election.
The club provides the usual amenities of a club. It provides facilities and services (including facilities for entertainment, recreation and refreshment) to members and visitors at the club's premises.
2. THE APPLICATION OF Mr. SHAH.
Mr. Amarjit Singh Shah was born in India. He came to this country about nine years ago. He is employed in the Post Office as a postal and telegraph officer. He is a Conservative, and joined the East Ham Conservative Association five years ago, in 1966.
On 27th April, 1969, Mr. Shah applied to join the club. He was proposed by Mr. Charles Morley and seconded by Mr. Gilbert Crocker.
On 5th November, 1969, the Committee of the club considered Mr. Shah's application. Ten members were present. One of the members of the Committee asked the Chairman: "Is colour relevant?" The Chairman said: "I regard it as relevant." Mr. Shah's application was put to the vote. The votes were equal — 5 for and 5 against. The Chairman gave his casting vote against the application. So, Mr. Shah was rejected. The club say emphatically that this was not because of his colour.
On 7th November, 1969, the Chairman wrote to Mr. Shah, telling him that he would not be eligible for election to membership during the next twelve months, but he would be admitted as a visitor.
On 16th December, 1969, Mr. Shah made a complaint to the Race Relations Board. He said that he had been discriminated against by reason of his colour. The Board used their best endeavours to secure a settlement. Not succeeding, they determined to bring proceedings against the club. They issued a plaint in the Westminster County Court, in which they sought:- (i) Damages for loss of opportunity; (ii) A declaration that the rejection of Mr. Shah was unlawful.
On 24th March, 1971, an order was made for the trial of a preliminary issue of law. The club said firmly that they had not discriminated against Mr. Shah: but, nevertheless, they weredesirous of having this point of law determined. Assuming that the Committee rejected Mr. Shah's application because of his colour, was their action unlawful?
The Judge sat with two assessors. He gave judgment for the club. He held that a refusal on the ground of colour was not unlawful. The Race Relations Board appeal to this Court.
3. THE STATUTORY PROVISIONS
The Race Relations Act, 1968, makes it unlawful to discriminate against a person. The material sections for present purposes are these:-
Section 1(1) defines "Discrimination", It says that:
"…. a person discriminates against another if on the ground of colour, race, or ethnic or national origins, he treats that other less favourably than he treats or would treat other persons."
Section 2(1) is the clause which prohibits discrimination in general. It says that:
"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 and on the like terms in and on which the former normally makes them available to other members of the public."
Section 2(2) gives some examples of the facilities and services mentioned in section 2(1). To some of these I will later refer. But, I must say at once that they include "facilities for entertainment, recreation or refreshment": and "facilities for education, instruction or training."
4. THE INTERPRETATION OF THE STATUTE
Each side says that the statute should be interpreted on the side of freedom. But we are faced here with two conflicting freedoms. The club contend for freedom for the members to elect whomthey please to their own club, Mr. Shah contends for freedom to Join the club without being turned down by reason of the colour of his skin. Between these two freedoms, the Court has to decide. It must take as its guide, and its only guide, the words of the statute, without leaning to one side or to the other.
5. FACILITIES
One thing is quite clear. The Committee of the club provide "facilities". They provide facilities for entertainment, recreation or refreshment. They provide these facilities inside the club. It was suggested before us that "facilities" might include the opportunity of becoming a member. I do not accept this. It is too farfetched.
6. PROVISION TO THE PUBLIC
The next question is: Do the Committee provide those facilities "to the public"? Clearly not. A hotel, a restaurant, or a theatre provide facilities "to the public", because they provide them to anyone who comes in and is ready to pay the price. But this Committee does not do so. They only provide them for a particular category of persons, namely, members of the club and visitors brought in by members. It was suggested that they also provided them for "would-be" members, that is, for persons who wish to apply for membership. But, this again is too farfetched. They only provide them for members and their visitors.
7. A SECTION OF THE PUBLIC
Take next "a section of the public". Are the members and their visitors "a section of the public"? This is the crucial question in the case. Parliament has given us no guide, except indirectly in section 6(2) of the Race Relations Act, 1965, which shows that "members of an association" may be a "section of thepublic": and the word "association" seems to me appropriate to include some clubs, at any rate, just as it did to Lord Parker, Chief Justice, in Regina v. Britton (1967) 2 Q. B. at page 55.
I have looked for help from other branches of the law. The nearest I can find is from the law of charities. In order for a trust to be charitable, the purpose of it must be directed to the benefit "of the public or a section of the public". Such is the way the test is always formulated. It is a useful analogy, because in charities you have to distinguish between a "section of the public" and a private group: and you have also to do so in race relations. But, as with the Legislature in the Race Relations Act, so also with the Courts in charity cases. Everyone has fought shy of defining a "section of the public". In Re Compton (1945) 1 Ch. at page 129, Lord Greene, Master of the Rolls, said: "No definition of what is meant by a 'section of the public' has, so far as I am aware, been laid down: and I certainly do not propose to be the first to attempt to define it". In Oppenheim v. Tobacco Securities Trust Co. (1951) A. C. at page 316, Lord MacDermott said that the usual way of approaching the issue was "to regard the facts of each case and to treat the matter very much as one of degree. No definition of what constituted a sufficient 'section of the public for the purpose was applied, for none existed: and the process seems to have been one of reaching a conclusion on a general survey of the circumstances and considerations regarded as relevant rather than of making a single, conclusive test."
Nevertheless, over the years the Courts have evolved a test for determining what is a "section of the public" as distinct from a private group. It is set out, with illustrations, by Lord Greene, Master of the Rolls, in Re Compton (1945) ch. 123 at pages 129-130: and by Lord Simonds in Oppenheim v. Tobacco Securities Trust Co. (1951) A. C. at pages 206-208.If I may put the test in my own words, it is this: Look at the group of persons concerned. Make sure that there are quite a number of them (they must not be numerically negligible). See what is the quality which they have in common — the quality which...
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