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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Ealing London Borough Council v Race Relations Board [1971] UKHL 3 (16 December 1971)
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Cite as: [1971] UKHL 3, [1972] AC 342, [1972] 2 WLR 71

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Die Jovis, 16° Decembris 1971

    Parliamentary Archives,
    HL/PO/JU/4/3/1205


    HOUSE OF LORDS

    THE MAYOR ALDERMEN AND BURGESSES
    OF THE LONDON BOROUGH OF EALING

    -et e contra
    v.

    THE RACE RELATIONS BOARD

    Lord Donovan
    Viscount Dilhorne
    Lord Simon of Glaisdale
    Lord Cross of Chelsea
    Lord Kilbrandon


    Lord Donovan

    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 discrimina-
    tion 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 arid
    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


    2

    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 determina-
    " tion 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 does in later
    provisions to which I shall have to refer. But looking at the matter from
    the point of view of a would-be discriminator on the grounds of " national
    " origins " what sort of matters would he take into account which were not
    simply present nationality?

    One example which readily suggests itself is that of a naturalised person.
    The would-be discriminator may say, "Yes, I know he has become a
    " naturalised British subject, but he was born a German and I bear a grudge
    " against all such persons ". Any consequent discrimination could then be
    said to be on the ground of national origins, i.e., the nationality received at
    birth.

    If this is what " national origins" means, this difficulty arises for the
    Board, namely, that the Council plainly did not reject Mr. Zesko's application
    because he had been born a Pole but because at the moment of his application
    he was not a British subject. Had he been, there is no doubt (in the light
    of subsequent events) that he would have been put on the waiting list, despite
    his Polish origin. I am conscious that it may be said that this is still dis-
    crimination on the grounds of national origins, and that the fact that these
    have remained unchanged makes no difference: but of this I am not con-
    vinced. Four grounds of discrimination only are specified in section 1(1).


    3

    Discrimination on any other ground, e.g., religion or politics is not unlawful
    under the Act. When one finds that the Council was indifferent to Mr.
    Zesko's national origins but concerned only with his present nationality, and
    present nationality is not expressly made a ground of possible discrimination,
    I hesitate to assert that nevertheless it is.

    It is argued alternatively by the Board that the phrase " national origins "
    is wide enough by itself to embrace nationality and in many cases this may
    be so. But the Act of 1968 is dealing with discrimination on grounds existing
    at the time it occurs: and I find " national origins " a very inapt phrase to
    embrace present nationality.

    There are certain provisions in the Act which expressly mention
    "nationality". Thus, section 8(11) preserves the legality of selecting for
    employment a person of a " particular nationality " or descent if the work
    requires attributes especially possessed by such person.

    Section 27(9) preserves the legality of present or future rules restricting
    employment in the service of the Crown or of certain prescribed public
    bodies to persons of particular birth, citizenship, nationality, descent or
    residence.

    Both sides rely upon these provisions. The Board argues that " national
    " origins" is thus shown to include nationality otherwise the provisions
    would, to this extent at least, be otiose. The Council replies that if the true
    construction of " national origins" does not include present nationality,
    saving provisions like section 8(11) and section 27(9) cannot be extended so
    as to achieve that result: it being common for such clauses to err on the
    side of caution. I think there is force in the Council's reply and I do not
    think the provisions in question shed a crucial light upon the interpretation of
    " national origins " in section 1(1).

    If the Council is to be stigmatised as being guilty of an unlawful act under
    the 1968 Act I think that conclusion ought to be reached with reasonable
    confidence. Giving the rival arguments the best consideration I can I must
    say that I do not feel that measure of confidence. Instead, I still feel much
    doubt about it; and in that state of mind I would allow this appeal and
    make the declaration suggested by my noble and learned friend, Viscount
    Dilhorne. It follows from what I have previously said that I would dismiss
    the cross-appeal.

    I should perhaps add that since these proceedings were begun Mr. Zesko
    has become a naturalised British subject and been placed on the housing
    waiting list. This does not render the proceedings academic since he would
    have lost the benefit of a certain amount of waiting time, assuming that the
    contentions advanced on his behalf had been correct.

    Viscount Dilhorne

    My lords,

    On the 15th June, 1965, the Appellants adopted certain "Conditions and
    Rules of Acceptance of Housing Applications ". One of the conditions was
    that to be accepted on the Council's waiting list and to be assessed under
    the points scheme, the applicant " must be a British subject within the mean-
    " ing of the British Nationality Act, 1948". Presumably it was in the
    Council's opinion not right to allot council houses to aliens when so many
    British people were wanting houses.

    On the 30th August, 1966, a Mr. Zesko applied to the Appellants for a
    house. In his application form he stated that he and his wife were Polish
    and had been born in Poland. In fact his nationality was Russian for we
    were told that at the time of his birth Poland formed part of Russia and
    that in fact he was born in Siberia. His application was rejected on the
    ground that he was not a British subject. Mr. Zesko had a fine war record,
    and, when he applied for naturalisation, he was granted it. He then re-
    newed his application for a house and was put on the waiting list. The
    only effect this appeal may have so far as he is concerned is that if it is


    4

    dismissed, the Appellants will have to treat him as if he had been put on
    the waiting list when he first applied, in which event he will gain an advantage
    in the housing queue.

    The Race Relations Act, 1968, came into operation on the 25th November,
    1968 (s.29(3)). S.l(l) is in the following terms: —

    " For the purposes of this Act a person discriminates against another
    " 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, and in this
    " Act references to discrimination are references to discrimination on
    " any of those grounds ".

    Discrimination is made unlawful in respect of the provision of goods, facili-
    ties or services by s.2, in relation to employment by s.3, in relation to
    membership of trade unions, employers' and trade organisations by s.4
    and in relation to housing accommodation by s.5.

    On the 2nd June, 1969, the Respondent's Chief Conciliation Officer wrote
    to the Appellants telling them that the Race Relations Board had considered
    the complaint made by the Anglo-Polish Conservative Society on behalf of
    Mr. Zesko that the Appellants had unlawfully discriminated against him by
    refusing to consider his application for housing as he was not a British
    subject. He said that the Board had formed the opinion that the Council
    had acted unlawfully and contrary to s.5(c) of the Act and he sought in
    accordance with s.15(3)(b) of the Act to seek a settlement of the differences
    between Mr. Zesko and the Council and an " assurance against any repetition
    " of the unlawful act or the doing of further acts of a similar kind ".

    No such assurance was forthcoming, as the Council maintained that they
    had not acted unlawfully as alleged and, on the 14th November, 1969,
    the Chief Conciliation Officer wrote saying that the Board had decided to
    maintain their opinion that unlawful discrimination had occurred. He again
    asked formally whether the Council was prepared to reach such a settlement
    and give such an assurance but he imagined that the answer would be in
    the negative and said that " the Board would then have to determine whether
    " or not to bring proceedings However, they would defer their determina-
    " tion until after the High Court proceedings had been disposed of."

    High Court proceedings were instituted—in the light of the foregoing,
    it would seem with the agreement of the Board—on the 21st November, 1969,
    by Originating Summons claiming five declarations. The action was heard
    by Swanwick. At the hearing Mr. MacCrindle for the Respondents con-
    tended that the court had no jurisdiction to grant the relief claimed, and,
    alternatively, if it had jurisdiction, in the exercise of its discretion it should
    refuse to make any of the declarations claimed. Swanwick J. rejected these
    contentions but held that there had been unlawful discrimination against
    Mr. Zesko and dismissed the Summons.

    From his decision the Appellants have, with leave, appealed direct to
    this House, and the Respondents have again contended that there is no
    jurisdiction to grant the relief claimed, and alternatively, that if there is
    jurisdiction, in the exercise of discretion relief should not be granted.

    It will be convenient to consider these two contentions first.

    S.19 of the Race Relations Act, 1968, provides by subsection (1) that: —
    "Civil proceedings may be brought in England and Wales by the
    " Race Relations Board, in pursuance of a determination of theirs under
    " section 15 of, or Schedule 2 or 3, to this Act and not otherwise, in
    " respect of any act alleged to be unlawful by virtue of any provision
    " of Part 1 of this Act"

    and that in such proceedings an injunction or damages or an injunction and
    damages or " a declaration that that act is unlawful by virtue of that provision
    " or any other provision of the said Part 1 " may be claimed.

    S. 19 (2) provides that proceedings under the section may be brought in a
    county court appointed to have jurisdiction to entertain such proceedings
    in the Lord Chancellor " and shall not be brought in any other court ".


    5


    8.19(10) inter alia provides that:

    "... except as provided by " this Act " no proceedings, whether civil
    " or criminal, shall lie against any person in respect of any act which
    " is unlawful by virtue only of a provision of Part 1 of this Act."

    The proceedings instituted by the Appellants were not brought against
    any person in respect of any act which is unlawful by virtue of Part 1 and
    s.l9(10) therefore does not apply to them. S. 19(2) is expressed to apply to
    " proceedings under this section". Proceedings under the section are
    proceedings by the Race Relations Board and it is those proceedings which
    cannot be brought in any other court than one appointed by the Lord
    Chancellor. S. 19 (2) does not, therefore, prevent the institution of proceedings
    such as those in this case.

    Proceedings brought by the Race Relations Board under the section must
    be in pursuance of a determination of the Board under section 15 or Schedule
    2 or 3 " and not otherwise " and " in respect of any act alleged to be
    unlawful " by virtue of the Act.

    Section 19 and sections 20-24 all deal with the enforcement of the Act by
    the Race Relations Board. I can find nothing in the Act which ousts the
    jurisdiction of the courts to grant a declaration. The Council are not bringing
    any proceedings to which section 19 applies.

    I, therefore, reject this contention of the Respondents. Whether any of the
    declarations sought should be made is a matter of discretion. A Borough
    Council, accused by the Board of having acted unlawfully in the administra-
    tion of its housing scheme, may well seek to have the allegation disposed of
    one way or the other at the earliest possible moment. If they do not do so,
    and have to wait to see whether the Board decides to institute proceedings,
    they may be left in doubt about how to deal with applicants for houses. If
    the Respondent's are right, it is only if the Board starts proceedings that the
    Council can clear itself of the imputation cast upon its conduct.

    Where, as in this case, there is no dispute as to the facts and where the
    legality of the Council's action depends and solely depends on the construction
    of the Act, the issue of an Originating Summons is a convenient procedure
    for determining the question of construction. If the Appellants are entitled
    to any of the declarations they claim, I see no reason to refuse in the exercise
    of discretion to make a declaration.

    I, therefore, reject the Respondents second contention.

    Whether the Council acted lawfully or unlawfully depends on the meaning
    to be given to the words "national origins" in section 1(1). Those words
    appear in section 1(1) (repealed by the 1968 Act), section 5(1) and section 6(1)
    of the Race Relations Act, 1965. Our attention was not drawn to their use
    in any other Act and in neither Race Relations Act is the meaning to be
    given to these words defined. They must have been intended in the 1968 Act
    to have the same meaning as they had in the 1965 Act and I propose first
    to consider whether the 1965 Act throws any light on the meaning to be
    given to them.

    The long title to that Act is in the following terms :-

    " An Act to prohibit discrimination on racial grounds in places of
    " public resort: to prevent the enforcement or imposition on racial
    " grounds of restrictions on the transfer of tenancies: to penalise incite-
    " ment to racial hatred: and to amend section 5 of the Public Order
    " Act."

    Section 1(1) provides that it is unlawful for, inter alia, proprietors of places
    of public resort " to practise discrimination on the ground of colour, race
    " or ethnic or national origins ". Section 5(1) makes it unlawful to withhold
    a licence or consent to the disposal of a tenancy on the same grounds and
    section 6(1) makes it an offence to do certain acts with intent to stir up hatred
    " against any section of the public in Great Britain distinguished by colour,
    " race or ethnic or national origins ".

    The words quoted in these three sections show the meaning to be attached
    to the word " racial " in the long title.


    6

    The question to be decided in this appeal is whether discrimination in
    favour of British subjects within the meaning of the British Nationality Act,
    1948, and against aliens is discrimination on the ground of "national
    origins ".

    " Nationality ", in the sense of citizenship of a certain State, must not be
    confused with " nationality " as meaning membership of a certain nation
    in the sense of race. Thus, according to International Law, Englishmen and
    Scotsmen are, despite their different nationality as regards race, all of British
    nationality as regards citizenship. Thus further, although all Polish individuals
    are of Polish nationality qua race, for many generations there were no Poles
    qua "citizenship." (Oppenheim's Internation Law, 8th Ed: Vol. I, p. 645).

    Just as " nationality " can be used in these two senses, so can the word
    " national". Bearing in mind the racial objects of the 1965 and 1968 Acts,
    and that the words " national origins " with the other words with which it
    appears to explain what is meant by the word " racial" in the long title, I
    think that the word " national " in " national origins " means national in the
    sense of race and not citizenship.

    The long title of the 1968 Act is in the following terms: —

    "An Act to make fresh provision with respect to discrimination on
    " racial grounds, and to make provision with respect to relations between
    " people of different racial origins."

    And again the use of the words " colour, race or ethnic or national origins " in

    section 1(1) show the content of the word " racial ".

    The word " Nationality " does not appear in the 1965 Act. In the 1968
    Act it appears in two places. Section 8(11) of that Act states that: —

    " Section 3 above " (the section dealing with employment) " shall not
    " render unlawful the selection of a person of a particular nationality or
    " particular descent for employment requiring attributes especially
    " possessed by persons of that nationality or descent."

    And section 27(9) is in the following terms: —

    " Nothing in this Act shall—

    " (a) invalidate any rules . . . restricting employment in the service
    " of the Crown or by any public body prescribed for the purposes of
    " this subsection by regulations made by the Treasury to persons of
    " particular birth, citizenship, nationality, descent or residence."

    In both section 8 and section 27 " nationality " is used in the sense of citizen-
    ship of a State. It was argued for the Respondents that these references to
    nationality would not be necessary unless nationality in the sense of citizen-
    ship of a State was comprehended in the words " national origins ", for, it
    was said, if that were not the case there would be no need to refer to it in these
    saving clauses. I am not convinced by this reasoning that one should on this
    account construe the words " national origins " in both Acts, for the meaning
    must be the same in both, as including nationality. I think that it is likely that
    these references to nationality were made ex abundanti cautela, it being
    realised that the interpretation to be given to " national origins " might lead
    to difficulties.

    As a step towards determining whether there has been unlawful dis-
    crimination one has to consider the characteristics of the individual alleged
    to have been discriminated against and then to decide whether he was
    discriminated against on account of his colour, race or ethnic or national
    origins. Consideration of those matters involves consideration of his ante-
    cedents. Mr. Zesko's race was Polish. His national origins were Polish.
    Was he discriminated against on that account? If that was the ground of
    the discrimination it was not removed by his naturalisation, and the fact
    that despite his race and his Polish origin he was after naturalisation
    accepted on the waiting list shows, in my view, that he was not discriminated
    against on account of his national origins. The ground for the discrimination
    was that he was not a British subject. It was his nationality at the time
    he applied, not his national origins, that led to the refusal to put his name
    on the waiting list:

    7


    " The first and chief mode of acquiring nationality is by birth: indeed,
    " the acquisition of nationality by another mode is exceptional, since
    " the vast majority of mankind acquires nationality by birth and does
    " not change it afterwards." (Oppenheim's International Law 8th Ed.:
    Vol 1 p. 651).

    This is, no doubt, true and affords a foundation for the argument that
    discrimination against aliens is in the vast majority of cases discrimination
    consequent upon their national origins. It was not in this case discrimination
    on the ground of national origins but on the ground of the nationality
    possessed at the time of the making of the application to go on the waiting
    list. An applicant's nationality may have been acquired at birth. It may
    be that his nationality is due to his national origins but the Council, as I
    understand the position, concern themselves with what an applicant is and
    not with what his origins were.

    While I recognise that the question for decision is a difficult one, owing
    to the omission in the Acts of any indication of the meaning to be given
    to the words " national origins ", and one on which different views may be
    held, it must I think be recognised that " nationality " and " national origins "
    have not the same meaning, and that if it had been Parliament's intention,
    either in 1965 or in 1968, to make discrimination between British subjects
    and aliens unlawful, that could easily have been achieved by the addition of
    the words " or nationality " after " national origins ".

    The fact that Parliament did not do so and the fact that there is no clear
    indication in either Act that it intended to do so and the other reasons I
    have stated lead me to the conclusion that the Appellants did not act
    unlawfully in breach of section 5 of the 1968 Act in refusing to enter
    Mr. Zesko's name on the waiting list.

    Of the five declarations sought by the Appellants, four do not appear to
    me apposite and the fourth declaration sought requires, in my view, slight
    amendment so that it should be declared that by declining on or about the
    4th February, 1969, to place Mr. Zesko on their housing waiting list on
    account of his not then being a British subject within the meaning of the
    British Nationality Act, 1948, the Council did not commit a breach of
    section 5 of the Race Relations Act, 1968.

    For the reasons I have given, I think that this appeal should be allowed,
    that a declaration in the above terms should be made, that the other
    declarations sought should not be granted, and that the cross-appeal should
    be dismissed.

    Lord Simon of Glaisdale

    my lords,

    Three issues arise on these cross-appeals: first, has the court jurisdiction
    to entertain the application for a declaration by the original Appellants? ;
    secondly, if so, should the court in the exercise of its discretion make a
    declaration? ; thirdly, if so, what should the declaration be—i.e., what is
    the proper construction of section 1(1) of the Race Relations Act, 1968?
    On the first and second issues I have had the advantage of reading the
    speeches prepared by my noble and learned friends, Lord Donovan and
    Viscount Dilhorne, and I agree with what they say. I also agree with their
    observations on the third issue; but, since I understand that your Lordships
    are not unanimous on what is not an easy point of construction, I venture
    to make some observations of my own.

    It is the duty of a court so to interpret an Act of Parliament as to give
    effect to its intention. The court sometimes asks itself what the draftsman
    must have intended. This is reasonable enough: the draftsman knows what
    is the intention of the legislative initiator (nowadays almost always an organ
    of the executive); he knows what canons of construction the courts will
    apply ; and he will express himself in such a way as accordingly to give
    effect to the legislative intention. Parliament, of course, in enacting legisla-
    tion assumes responsibility for the language of the draftsman. But the reality

    8

    is that only a minority of legislators will attend the debates on the legislation.
    Failing special interest in the subject-matter of the legislation, what will
    demand their attention will be something on the face of proposed legislation
    which alerts them to a questionable matter. Accordingly, such canons of
    construction as that words in a non-technical statute, will primarily be inter-
    preted according to their ordinary meaning or that a statute establishing a
    criminal offence will be expected to use plain and unequivocal language
    to delimit the ambit of the offence (i.e., that such a statute will be construed
    restrictively) are not only useful as part of that common code of juristic
    communication by which the draftsman signals legislative intention but are
    also constitutionally salutary in helping to ensure that legislators are not
    left in doubt what they are taking responsibility for.

    In some jurisdictions the courts, in order to ascertain the intention of the
    instrument calling for interpretation, can look at the legislative history or
    the " preparatory works". Though this may sometimes be useful, it is
    open to abuse and waste: an individual legislator may indicate his assent
    on an assumption that the legislation means so-and-so; and the courts may
    have no way of knowing how far his assumption is shared by his colleagues,
    even those present. Moreover, by extending the material of judicial scrutiny,
    the cost of litigation is inevitably increased. Finally, our own constitution
    does not know a pure legislature; the sovereign in the Queen in Parliament;
    and the legislative history of a statute stretches back from the parliamentary
    proceedings—by successive drafts of a bill, heads of instruction to the
    draftsman, departmental papers, and minutes of executive committees—into
    the arcana imperii. (All this is not, of course, to say that an explanatory
    memorandum accompanying a complicated measure, such as accompanies
    almost every statutory instrument, might not often be useful both in apprising
    legislators of the details for which they are assuming responsibility and
    in assisting the courts in their task of interpretation).

    In the absence of such material the courts have five principal avenues of
    approach to the ascertainment of the legislative intention:—(1) examination
    of the social background, as specifically proved if not within common
    knowledge, in order to identify the social or juristic defect which is the
    likely subject of remedy; (2) a conspectus of the entire relevant body of the
    law for the same purpose; (3) particular regard to the long title of the
    statute to be interpreted (and, where available, the preamble), in which the
    general legislative objectives will be stated; (4) scrutiny of the actual words
    to be interpreted in the light of the established canons of interpretation ;
    (5) examination of the other provisions of the statute in question (or of
    other statutes in pari materia) for the light which they throw on the
    particular words which are the subject of interpretation.

    Difficult questions can arise when these various avenues lead in different
    directions. Fortunately in the present case, in my view, they lead to an
    identical conclusion.

    First, then, the social background. There have been periods in our history
    which have been disgraced by acute xenophobia. Lombards, Scots, Irish
    (though sectarian influences were also present here), Eastern Europeans
    (though anti-semitism here played its part), Germans, have all at various
    times been objects of execration. But the nineteen-sixties were not such a
    period. Social strains then were caused by considerable immigration of
    peoples who, though often of British nationality or of citizenship of the
    United Kingdom and Colonies, were of alien culture and of deeper than
    native pigmentation and by a recrudescence of anti-semitism. " Wog",
    "Nig-nog", "Yid". "Dago" were current terms of abuse. "Chink",
    " Hun ", " Russky ", " Portugoose ", even " Jerry ", have a distinctly old-
    fashioned resonance; while " Frog " " Mounseer ", " Polack ", " the Potsdam
    " Dutch and the goddam Dutch ", are of purely historical significance. Uncle
    Tom rather than Uncle Matthew is the relevant literary stereotype.

    Secondly, for the general legal conspectus. The 1965 and 1968 Acts do
    not provide a complete code against discrimination or socially divisive
    propaganda. The Acts do not deal at all with discrimination on the
    grounds of religion or political tenet. It is no offence under the Acts to stir


    9

    up class hatred. It is, therefore, unquestionably with a limited sort of
    socially disruptive conduct that the Acts are concerned ; and it is, on any
    reading, within a limited sphere that Parliament put its ameliorative measures
    into action.

    Thirdly, for the long title. This reads: " An Act to make fresh provision
    " with respect to discrimination on racial grounds, and to make provision
    " with respect to relations between people of different racial origins ", It is
    significant that there is no word here about " nationality ", whether used in
    its popular or in its legal sense. Moreover, " racial" is not a term of art,
    either legal or, I surmise, scientific. I apprehend that anthropologists would
    dispute how far the word " race " is biologically at all relevant to the species
    amusingly called homo sapiens.

    Fourthly, for the words of the subsection itself. The crucial words are
    " For the purposes of this Act 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 . . .".
    This is rubbery and elusive language—understandably when the draftsman
    is dealing with so unprecise a concept as " race " in its popular sense and
    endeavouring to leave no loophole for evasion. But if discrimination on
    the ground of " nationality " were within the intendment of the subsection,
    the draftsman had available a term of legal precision ; it could have been
    used expressly in the list of grounds, leaving no room for doubt; and there
    would be no conceivable reason for hiding the concept obscurely within the
    words " national origins ".

    Fifthly, for the concomitant statutory provisions. The 1968 Act repealed
    sections 1 to 4 of the Race Relations Act, 1965 (and a few other immaterial
    provisions of that Act); but it left the rest of the 1965 Act standing, to be
    cited together with it. Among the sections of the 1965 Act left standing is
    section 6, subsection (1) of which provides that it is a criminal offence to do
    certain acts " with intent to stir up hatred against any section of the public
    " in Great Britain distinguished by colour, race or ethnic or national origins ".
    This is the very same terminology as is used in section 1(1) of the 1968 Act,
    which must bear the same meaning. In other words, it is also used to define
    a criminal offence.

    This, I think, disposes of an argument for the original Respondents to the
    following effect:—"National origins" must include nationality by birth,
    which is indeed the most usual way of acquiring nationality. A person of
    foreign nationality by birth can only acquire British nationality subject to
    residential qualifications and at the discretion of the Secretary of State. A
    person of foreign nationality is therefore treated less favourably than other
    persons (i.e. natives) if he is required to surmount the obstacles to acquiring
    British nationality as a condition of receiving equal treatment with natives.
    Thus, a foreign national who is not accorded equal treatment with the native
    is discriminated against on the ground of his national origins. The short
    answer to this line of argument is that criminal offences are not to be created
    in this oblique, circuitous and obscure way. The use of the words " national
    " origins " in the penal section of the 1965 Act tends to suggest a restricted
    rather than an expansive meaning.

    As for the other provisions of the 1968 Act itself, the very word
    "nationality" appears in section 8(11) and in section 27(9)(a) of the Act.
    Both of these provisions are by way of exception from the generality of
    the Act. It was argued on behalf of the original Respondents that this shows
    the generality (" national origins ") must be wide enough to include what is
    excepted from it (" nationality "). But this would mean extending the ambit
    of the criminal offences created by section 6 of the 1965 Act not only by an
    implication but by an implication dependent on an argument of considerable
    subtlety ; it is not, in my view, the right way to approach the construction of
    a statute involving penal provisions: on the contrary, the courts will look
    for unambiguous expression ; and, in the event of ambiguity, will prefer the
    narrower construction. Moreover, I think that considerable caution is
    needed in construing a general statutory provision by reference to its statutory
    exceptions. " Saving clauses " are often included by way of reassurance, for


    10

    avoidance of doubt or from abundance of caution. Section 27(9)(a) itself
    provides a striking example: it provides that nothing in the Act should
    invalidate certain rules restricting certain classes of employment to " persons
    " of particular birth, citizenship, nationality, descent or residence"; and
    " residence " at least is not conceivably within the ambit of section 1(1). Ones
    the argument on construction of the general provision from a " saving clause "
    fails, the use of the word " nationality " elsewhere in the Act gives added
    significance to its omission from section 1(1).

    In my judgment, therefore, all the five relevant approaches to the con-
    struction of section 1(1) of the 1968 Act tend (some more, some less, strongly,
    but in cumulation decisively) to the conclusion that the subsection was not
    dealing with discrimination on the ground of present nationality. This,
    however, is a negative conclusion ; and the argument is not complete without
    a satisfactory explanation of what Parliament could have had in mind other
    than nationality when enacting the words " national origins ". In addition
    to the probable use of the words to forestall argument based on some alleged
    ambiguity in the word " race ", there are, in my view, at least two such
    specific situations.

    I have already indicated that these words are part of a passage of vague
    terminology in which the words seem to be used in a popular sense. " Origin ",
    in its ordinary sense, signifies a source, someone or something from which
    someone or something else has descended. " Nation " and " national ",
    in their popular in contrast to their legal sense, are also vague terms. They
    do not necessarily imply statehood- For example, there were many submerged
    nations in the former Hapsburg empire. Scotland is not a nation in the eye
    of international law; but Scotsmen constitute a nation by reason of those
    most powerful elements in the creation of national spirit—tradition, folk
    memory, a sentiment of communiy. The Scots are a nation because of
    Bannockburn and Flodden, Culloden and the pipes at Lucknow, because of
    Jenny Geddes and Flora Macdonald, because of frugal living and respect for
    learning, because of Robert Burns and Walter Scott. So, too, the English
    are a nation—because Norman, Angevin and Tudor monarchs forged them
    together, because their land is mostly sea-girt, because of the common law
    and of gifts for poetry and parliamentary government, because (despite the
    Wars of the Roses and Old Trafford and Headingly) Yorkshireman and
    Lancastrian feel more in common than in difference and are even prepared
    at a pinch to extend their sense of community to southron folk. By the
    Act of Union English and Scots lost their separate nationalities, but they
    retained their separate nationhoods; and their descendants have thereby
    retained their separate national origins. So, again, the Welsh are a nation—
    in the popular, though not in the legal sense—by reason of Offa's Dyke, by
    recollection of battles long ago and pride in the present valour of their regi-
    ments, because of musical gifts and religious dissent, because of fortitude in
    the face of economic adversity, because of the satisfaction of all Wales that
    Lloyd George became an architect of the welfare state and prime minister
    of victory. To discriminate against Englishmen, Scots or Welsh, as such,
    would, in my opinion, be to discriminate against them on the ground of
    their " national origins ". To have discriminated against Mr. Zesko on the
    ground of his Polish descent would have been to have discriminated against
    him on the ground of his national origins.

    There is another situation which the phrase is apt to cover—namely, where
    a person of foreign nationality by birth has acquired British nationality or
    where a person of British nationality by birth is descended from someone of
    foreign nationality. There are those who are apt to say " The leopard cannot
    " change his spots; once an Erehwonian always an Erehwonian ". To dis-
    criminate against a British subject on the grounds of his foreign nationality
    by birth or alien lineage would be to discriminate against him on the ground
    of his national origins. To have discriminated against Mr. Zesko on the
    ground of Russian nationality by birth (if such was his case, which is not
    clear) would have been to have discriminated against him on the ground
    of his national origins.

    11

    I would therefore allow the appeal to the extent of making the declaration
    proposed by my noble and learned friend Viscount Dilhorne, and dismiss
    the cross-appeal.

    Lord Cross of Chelsea

    my lords,

    The facts of this case are set out in the speech of my noble and learned
    friend, Lord Donovan, which I have had the advantage of reading and I need
    not repeat them. I agree with him that the cross-appeal on the jurisdiction
    point fails and I cannot usefully add anything to what he has said on that
    topic. I also agree with him that the appeal should be allowed; but as
    your Lordships are not of one mind on the question of construction I will
    give my reasons for thinking that the Appellants are right in my own words.
    The phrase " national origins " appeared in the statute book for the first time
    in sections 1, 5 and 6 of the Race Relations Act, 1965. These sections, so
    far as relevant to this appeal, nm as follows:

    " 1.—(1) It shall be unlawful for any person, being the proprietor or
    " manager of or employed for the purposes of any place of public resort
    " to which this section applies, to practise discrimination on the ground
    " of colour, race, or ethnic or national origins against persons seeking
    " access to or facilities or services at that place."

    "5.—(1) In any case where the licence or consent of the landlord
    " or of any other person is required for the disposal to any person of
    " premises comprised in a tenancy, that licence or consent shall be
    " treated as unreasonably withheld if and so far as it is withheld on the
    " ground of colour, race or ethnic or national origins:

    " 6.—(1) A person shall be guilty of an offence under this section if,
    " with intent to stir up hatred against any section of the public in
    " Great Britain distinguished by colour, race, or ethnic or national
    " origins—

    " (a) he publishes or distributes written matter which is threatening,
    " abusive or insulting ; or

    " (b) he uses in any public place or at any public meeting words
    " which are threatening, abusive or insulting,

    " being matter or words likely to stir up hatred against that section
    " on grounds of colour, race, or ethnic or national origins."

    There is no definition of " national origins " in the act and one must interpret
    the phrase as best one can. To me it suggests a connection subsisting at the
    time of birth between an individual and one or more groups of people who
    can be described as a " nation " —whether or not they also constitute a
    sovereign state. The connection will normally arise because the parents or
    one of the parents of the individual in question are or is identified by descent
    with the nation in question ; but it may also sometimes arise because the
    parents have made their home among the people in question. Suppose, for
    example, that a man of purely French descent marries a woman of purely
    German descent and that the couple have made their home in England for
    many years before the birth of the child in question. It could, I think, fairly
    be said that the child had three " national origins "—French through his
    father ; German through his mother, and English not because he happened
    to have been born here but because his parents had made their home here.
    Of course, in most cases a man has only a single " national origin " which
    coincides with his nationality at birth in the legal sense and again in most
    cases his nationality remains unchanged throughout his life. But " national
    origins " and " nationality " in the legal sense are two quite different con-
    ceptions and they may well not coincide or continue to coincide. That is
    shown by this very case. Mr. Zesco was born in 1913 when Poland-though
    a " nation " —was not a sovereign state but part of the Russian Empire.
    So at birth his " national origins" were Polish but his nationality was
    Russian. When Poland became an independent state after the first war he


    12

    became a Polish citizen but now though his "national origins" have
    remained throughout Polish he has become a citizen of the United Kingdom
    by naturalisation. It is not difficult to see why the legislature in enacting
    the Race Relations Act, 1965, used this new phrase " national origins " and
    not the word " nationality " which had a well established meaning in law.
    It was because " nationality " in the strict sense was quite irrelevant to the
    problem with which they were faced. Most of the people against whom
    discrimination was being practised or hatred stirred up were in fact British
    subjects. The reason why the words "ethnic or national origins" were
    added to the words " racial grounds " which alone appear in the long title
    was, I imagine, to prevent argument over the exact meaning of the word
    " race ". For example, a publican who had no objection to West Indians
    might refuse to serve Pakistanis. He could hardly be said to be discriminating
    against them on grounds of colour and it might well be argued that Pakistanis
    do not constitute a single " race ". On the other hand, it could hardly be
    argued that they did not all have the same " national origin ". Then did
    the Act make it an offence for a publican or hotel keeper to refuse to serve
    a customer or receive a guest on the ground of his " nationality " in the legal
    sense? Of course, in practice no publican or hotel keeper would dream of
    practising discrimination simply on that ground. A hotel keeper, for example,
    might have come to dislike Germans or Japanese—perhaps because of his
    experiences as a prisoner of war—and he might refuse to accept as a guest
    in his hotel someone whom he recognised by his appearance, or speech or
    demeanour as belonging to the obnoxious race. But it is in the highest
    degree unlikely that his feelings would alter in any way if the potential guest
    told him that he had recently been naturalised as a British subject. His
    reaction would probably be " once a Hun always a Hun " or " once a Jap
    " always a Jap ". But in order to test the validity of the Respondent's
    argument it is, I think, useful to imagine an eccentric hotel keeper who
    refused to give a room to anyone who could not show that he was a British
    subject—who, that is to say, would refuse to receive someone who though
    his " national origin " was purely British had renounced his British citizen-
    ship but was ready to receive anyone who though his " national origin " was
    purely foreign was a British subject either because he happened to have
    been born here while his parents were visiting this country or because he
    had become naturalised. I cannot see how it could be said that such a hotel
    keeper was practising discrimination " on the ground of national origins ".
    If one turns to the Race Relations Act, 1968, one finds that the meaning
    given to " discrimination " in section 1 is the same as that given in the 1965
    Act and, again, there is no definition of " national origins ". The Act of 1968
    covers a much wider field than the earlier Act, and it appears to have
    occurred to the draftsman of it that it might be construed as applying to
    to discrimination on ground of nationality in the legal sense save in so far
    as the contrary was expressed. So one finds various saving clauses on which
    Counsel for the Respondent naturally placed considerable reliance. But
    I find it impossible to hold that these saving clauses—inserted as I think ex
    abundanti cautela
    —have the effect of inserting by implication the words " or
    "nationality" after the words "national origins" in s.l(l) of the 1968
    Act—especially as the two Acts must be read together (see s.29 (2)) and the
    earlier Act, for the reasons which I have tried to give, did not, as I see it,
    forbid discrimination on the ground of nationality. The rule in question in
    this case was not a device to evade the Race Relations legislation. It was
    made before the 1965 Act was passed and it is not suggested that the Council
    does not apply it honestly in accordance with its terms. As soon as Mr.
    Zesko became naturalised he was placed on the waiting list. It may well be
    that in fact of those persons of foreign national origins who have resided
    for more than five years in the area as many have become naturalised as
    remain aliens. It is true that one of the effects of the rule is that a foreign
    national who has lived in Ealing for five years but is either unwilling to
    apply to be naturalised or has been refused naturalisation is in a less
    favourable position than persons with the same residence qualification who
    have always been British subjects or have become naturalised. But as I
    see it, the Council is not discriminating against such foreign nationals " on


    13

    "grounds of their national origins". I agree with the form of declaration
    proposed by my noble and learned friend, Viscount Dilhorne.

    Lord Kilbrandon

    my lords.

    The Appellants " discriminated " against Mr. Zesko, as that word is used
    in section 1 (1) of the Race Relations Act, 1968, in as much as they treated
    him, in a situation to which section 5 of the Act applies, less favourably
    than they treated other persons. They refused to transfer his name from
    the housing register, which they keep in pursuance of section 22 of the London
    Government Act, 1963, to the waiting list of those requiring housing in the
    Borough, and this they did because of a rule which they have made that
    such transfers will only be made where the applicant is a British subject,
    which Mr. Zesko was not. Such a transfer is an essential preliminary to the
    allocation of a council house. This was a discrimination, under section 5 of
    the Act, by a person having power to dispose of housing accommodation ;
    whether it was also a discrimination, under section 2, by a person concerned
    with the provision to the public of services of a local authority it is not
    necessary to discuss.

    The short question in the case, which I have found to be very difficult to
    answer, is whether that discrimination was unlawful as having been made
    on the ground of Mr. Zesko's " national origins ". The Appellants say that
    they discriminated on the ground of his nationality, and they say that that is
    not ground struck at by the Act.

    That one should be left groping for, or even speculating about, the meaning
    of a key phrase used in a recent Act of Parliament designed to remedy social
    grievances by assuring large groups of citizens of the protection of the law,
    and at the same time imposing criminal sanctions, is an unhappy feature
    of our present rules for the interpretation of statutes. The discrimination
    complained of has been in operation in Ealing at least since 1965 ; we were
    told that while it is not particularly common, it is by no means unknown
    elsewhere. The existence of it must have been familiar to the framers of
    the 1968 legislation. Yet that legislation is silent on the question. It must
    be perfectly well known, in some quarter or other, whether Parliament in-
    tended that discrimination on the ground of nationality should be distinguished
    from discrimination on the ground of national origins. Yet such sources
    are denied to those charged with the duty of saying what the Act means.
    Apart from the actual words of the statute, we are indeed permitted to
    consider " what was the mischief and defect for which the Common Law
    " (or existing law) did not provide ". But this is at best an unsatisfactorily
    subjective test, since each judge must depend upon his own notion of the
    mischief, derived from his own private interpretation of the social and poli-
    tical scene, whether recent or remote. The instant case provides such an
    unusually apt example of a commonly voiced complaint that a repetition
    may be forgiven.

    The Appellants' argument gains powerful general support from the wording,
    frame-work and limitations of the Act itself. The Long Title speaks
    only of discrimination on racial grounds, and of relations between people
    of different racial origins. These phrases are not particularly apt to include
    concepts of nationality as that word is used in International Law. Turning
    to section 1, we see that no provision is made for the prevention of dis-
    crimination in the extremely sensitive fields of religion and politics; a re-
    fusal (at least by a private landlord) to house Roman Catholics or Commun-
    ists, as classes would not offend against the Act, although a local authority
    landlord might perhaps be under other restraints. The forbidden grounds are
    " colour, race, or ethnic or national origins ". These characteristics seem to
    have something in common: they have not been acquired, and they are not
    held, by people of their own choice. They are in the nature of inherited
    features which cannot be changed, as religion, politics, and nationality can
    be changed, more or less at will, although subject, in the case of the last, to


    14

    fairly strict rules laid down by the receiving State. These considerations
    seem to indicate a deliberate exclusion of nationality from the unlawful
    grounds, apart from the strong argument that so familiar a popular as also
    juridical concept could hardly have been omitted from the area of protection
    by accident.

    On the other hand, the practical consequences of excluding discrimination
    on the ground of nationality from the scope of national origins are striking.
    The phrase " on the grounds of colour, race, or ethnic or national origins "
    first appeared in section 1 (now repealed) of the Race Relations Act, 1965,
    which dealt in section 2 with discrimination against persons seeking access
    to places of public resort such as hotels, public houses, cinemas and public
    transport. If " national origins " is not wide enough to include " nationality "
    then exclusion of persons by a notice which read, for example " No Poles
    admitted " would have been of debatable legality, according as the discrimina-
    tion were interpreted as being against Polish nationals or against persons
    of Polish origin. " No foreigners " would have been safer, since the word
    " foreigner "—properly describes a foreign national rather than a British
    subject of foreign origin ; while, as counsel for the Appellants conceded, a
    notice " British subjects only" outside a public house would have been
    unexceptionable, since it would have admitted persons of foreign national
    origins who had become British subjects by naturalisation, and it would
    be of no consequence that it discriminated against others on the ground of
    nationality.

    While section 2 of the 1965 Act has been repealed, section 6, which deals
    with public order, has not; the results of the interpretation proposed by the
    Appellants would, as the learned judge points out, be no less capricious in
    the realm of the criminal law.

    Whereas by section 3(1) discrimination on the grounds stated against per-
    sons seeking employment is made unlawful, subsection (2) saves the provisions
    of any enactment relating to the employment or qualification for employ-
    ment of persons. Since such enactments refer to nationality, not national
    origins, it was argued that here the legislature was making a special provision
    for nationality, and that this demonstrated that no general provision had
    been made in section 1. In my opinion, however, it is equally probable
    that Parliament, realising that nationality was comprised in the phrase
    " natural origins ", was making certain that existing statutory disqualifications
    on the ground of nationality should not be affected by the prohibition con-
    tained in this Act.

    Similar conclusions may be drawn from the terms of section 6(2), which
    deals with advertisements indicating that Commonwealth citizens are
    required for employment overseas, and section 8(11) which excepts from the
    provisions of section 3 the selection of a person of a particular nationality.
    The question is, whether the word " nationality " is used because it was,
    exceptionally, necessary to reach a class not otherwise included in section
    1(1), or was it used in order to except persons from a class in which they
    would otherwise have been included? On the whole I prefer the latter
    alternative.

    Section 27 deals with, inter alia, Crown employment and in section (9)
    is found the phrase " persons of particular birth, citizenship, nationality,
    " descent or residence ". It appears that in this passage it has been found
    necessary to include charcteristics, i.e., descent and residence, which are
    admittedly outside the section 1 classes. Does this not show that nationality
    is outside them also? While feeling the force of this argument, I think it
    probable that the reason for the use of these words is that the subsection
    is saving " rules (whether made before or after the passing of this Act)",
    relating to employments carefully delimited, and it seems reasonable that
    the subsection is designed to cater for an existing pattern of rule-making,
    and that no firm conclusion can be arrived at from it.

    The arguments in favour of either interpretation are finely balanced
    I would not accept the view that there is some presumption here in favour
    of freedom from liability; the Race Relations Code does, of course, contain


    15

    come criminal sanctions, and it restricts liberty, but, on the other hand, it
    is conceived as a measure of social reform and relief of distress. Not much
    help is to be got from presumptions either for freedom or in favour of
    benevolent interpretation. I have come to the conclusion that on a considera-
    tion of the Acts as a whole the interpretation contended for by the
    Respondents leads to a result less capricious and more consistent with reality
    than that proposed by the Appellants, although, as I have said, the language
    used, and the limitations on the assistance permissible, do not encourage
    confidence in the expressing of an opinion.

    On the procedural point, I agree with your Lordships and have nothing to
    add. Accordingly, I would dismiss this appeal.

    (320897) Dd. 197075 120 12/71 Sl.S.


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