Race Relations Act 1976–Complaint by estate agents that in dealing with allegations against them of racial discrimination the Commission for Racial Equality violated the rules of natural justice–On information from an ex-employee of the firm the commission decided to investigate allegations of discrimination based on the use of different-coloured cards for the entry of particulars–The firm was notified of the investigation and given all the opportunities (of which it took full advantage) prescribed by the Act for making oral and written representations at different stages of the investigation–At an oral hearing before the two delegated commissioners counsel appeared on behalf of the firm, but there was no opportunity of cross-examining witnesses upon whose evidence the commissioners had relied–No right to cross-examine witnesses seen by the commission was given by the Act–The firm complained that the denial of this opportunity to cross-examine, the reliance on hearsay evidence, and the delegation by the two commissioners of parts of their investigation to subordinates constituted a breach of the rules of natural justice–Complaints rejected–Commission’s procedure was fair, although not in accordance with the requirements of a judicial proceeding, which it was not–Application for order of certiorari dismissed
This was an
application by Cottrell & Rothon, estate agents, for an order of
certiorari, following leave to apply for judicial review, for the purpose of
quashing proceedings by the Commission for Racial Equality. These proceedings
arose out of alleged infringements of the Race Relations Act 1976, which, as
the court was informed, had not previously been the subject of consideration by
the Queen’s Bench Divisional Court.
Lord Hooson QC
and Miss J Horne (instructed by Mohabir & Co) appeared on behalf of the
applicants; D Browne (instructed by Bindman & Partners) represented the
respondent commission.
Giving
judgment, LORD LANE CJ said: In this case a firm of estate agents called
Cottrell & Rothon applies for judicial review in the shape of an order of
certiorari directed to the Commission for Racial Equality pursuant to leave
given by this court on November 21 1979.
The case
concerns an alleged infringement of the provisions of the Race Relations Act
1976, an Act which, we are told, has not previously been the subject of
consideration by this court. It arises out of a situation in which it was
suggested that the applicants (to whom I shall refer as ‘the firm’ hereafter)
carried out a system of discrimination against coloured people in the course of
their business as estate agents. One of the allegations, if not the primary
allegation, was that vendors of property who were coloured had their names
entered upon cards which were pink, whereas white people had their particulars
entered on white cards; and certain other discriminatory matters, it is said,
were carried on in the way of business by the firm so that, if a coloured
purchaser appeared on the scene, the likelihood would be that he would not receive
the same number, or possibly the same quality, of properties for his
consideration as would a white prospective purchaser.
The chronology
of events is as follows, put as briefly as one may. A Miss Prince was employed
by the firm in some sort of clerical capacity for a short time between December
5 1977 and January 12 1978. She was, it seems, dismissed from her employment,
and at the end of January she was making allegations of racial discrimination
against the firm. She made those allegations to the commission. Certain tests
were carried out by the commission. I think they sent two white people and two
coloured people as pretended prospective clients, and the result of those tests
was that to that extent Miss Prince’s allegations were substantiated. On April
5 1978 the commission, on the strength of those investigations and tests,
agreed the terms of reference for a possible formal investigation into these
complaints made under the 1976 Act.
On April 21,
the firm was informed and decision 49 procedure was instituted. Section 49
reads as follows:
(1) The Commission shall not embark on a formal
investigation unless the requirements of this section have been complied with.
Subsection (2)
provides:
Terms of
reference for the investigation shall be drawn up by the Commission or, if the
Commission were required by the Secretary of State to conduct the
investigation, by the Secretary of State after consulting the Commission.
Subsection (3)
provides:
It shall be
the duty of the Commission to give general notice of the holding of the
investigation unless the terms of reference confine it to activities of persons
named in them, but in such a case the Commission shall in the prescribed manner
give those persons notice of the holding of the investigation.
Subsection (4)
provides:
Where the
terms of reference of the investigation confine it to activities of persons
named in them and the Commission in the course of it propose to investigate any
act made unlawful by this Act which they believe that a person so named may
have done, the Commission shall–(a) inform that person of their belief and of
their proposal to investigate the act in question; and (b) offer him an
opportunity of making oral or written representations with regard to it (or
both oral and written representations if he thinks fit); and a person so named
who avails himself of an opportunity under this section of making oral
representations may be represented–(i) by counsel or a solicitor; or (ii) by
some other person of his choice, not being a person to whom the Commission
object on the ground that he is unsuitable.
This was an
opportunity to make written representations, and those representations were
made. The representations contained an explanation of the pink and white card
system which I have described, the suggestion being by the firm that that
distinction between card colour was not based on any distinction between
customer colour but was based on the accent of the person applying or intending
to become a customer. In other words, the pink cards indicated, accord-
ing to this suggestion, that the person whose particulars were entered on that
pink card spoke with a foreign accent. So much for that explanation.
On May 11
there was a letter from the firm explaining the system. On May 17 the
Commission for Racial Equality altered the charges which had been drafted and
deleted two of them, (c) and (d). It is not necessary to give any details as to
that.
On June 5 1978
the commission decided to proceed with the formal investigation On July 5 1978
they nominated two persons to carry out that investigation–a Mr Maan and a Mr
Campbell-Lee–under the provisions of section 48(3) of the Act.
Section 48 has
the sidenote ‘Power to conduct formal investigations.’ Subsection (3) reads: ‘The Commission may
nominate one or more Commissioners, with or without one or more additional
Commissioners, to conduct a formal investigation on their behalf, and may
delegate any of their functions in relation to the investigation to the persons
so nominated.’ That is what happened in
this case. There were minutes to that effect which are before us, although the
minutes are of a slightly later date owing to an administrative error. The
nominated commissioners are clearly intended to be an extension of the
personality of the whole commission. Their delegated functions are set out in a
minute before us which is PBS2 and which there is no need for me to read.
Then came a
slight hiccup in the proceedings, because on May 18 1979 the firm took steps to
try to spike the guns of the commission. They issued a writ claiming an
injunction to prevent the commission from interviewing clients of the firm on
whose cards were certain apparently discriminatory markings. On May 25 1979, a
week later, that matter was heard and the injunction was refused with costs.
That was the end of that incident.
On July 4 1979
the commission decided that the firm had contravened certain sections of the
1976 Act, to wit, section 20(1), which reads as follows:
It is
unlawful for any person concerned with the provision (for payment or not) of
goods, facilities or services to the public or a section of the public to
discriminate against a person who seeks to obtain or use those goods,
facilities or services–(a) by refusing or deliberately omitting to provide him
with any of them; or (b) by refusing or deliberately omitting to provide him
with goods, facilities or services of the like quality, in the like manner and
on the like terms as are normal in the first-mentioned person’s case in relation
to other members of the public or (where the person so seeking belongs to a
section of the public) to other members of that section.
That has to be
read in conjunction with section 1(1)(a) of the Act. The side-heading is
‘Racial Discrimination’ and it reads as follows:
(1) A person discriminates against another in any
circumstances relevant for the purposes of any provision of this Act if–(a) on
racial grounds he treats that other less favourably than he treats or would
treat other persons.
The second infringement
alleged was an infringement of section 30, which has the side-heading
‘Instructions to Discriminate.’ It reads
as follows:
It is
unlawful for a person–(a) who has authority over another person; or (b) in
accordance with whose wishes that other person is accustomed to act, to
instruct him to do any act which is unlawful by virtue of Part II or III, or
procure or attempt to procure the doing by him of any such act.
That is the
instigation to act. That again has to be read in conjunction with section 1,
the terms of which I have already set out.
Finally, a
breach was alleged of section 33, which is ‘Aiding Unlawful Acts’ and which
reads as follows:
(1) A person who knowingly aids another person to
do an act made unlawful by this Act shall be treated for the purposes of this
Act as himself doing an unlawful act of the like description.
Those
allegations were, as is necessary under the statute, communicated to the firm
and the firm was told that the commission were minded to issue a notice and to
act in accordance with section 58(5). Again it is necessary to read that
provision:
The
Commission shall not serve a non-discrimination notice in respect of any person
unless they have first–(a) given him notice that they are minded to issue a
non-discrimination notice in his case, specifying the grounds on which they
contemplate doing so; and (b) offered him an opportunity of making oral or
written representations in the matter (or both oral and written representations
if he thinks fit) within a period of not less than 28 days specified in the
notice; and (c) taken account of any representations so made by him.
In order to
set the matter in its true light, it is perhaps convenient at this stage to
read the other provisions of section 58, namely, subsections (1) and (2).
Subsection (1) is headed ‘Issue of Non-Discrimination Notice’ and reads:
(1) This section applies to–(a) an unlawful
discriminatory act; and (b) an act contravening section 28; and (c) an act
contravening section 29, 30 or 31, and so applies whether or not proceedings
have been brought in respect of the Act.
Subsection (2)
reads:
If in the
course of a formal investigation the Commission become satisfied that a person
is committing, or has committed, any such acts, the Commission may in the
prescribed manner serve on him a notice in the prescribed form (‘a
non-discrimination notice’) requiring him–(a) not to commit any such acts; and
(b) where compliance with paragraph (a) involves changes in any of his
practices or other arrangements–(i) to inform the Commission that he has
effected those changes and what those changes are; and (ii) to take such steps
as may be reasonably required by the notice for the purpose of affording that
information to other persons concerned.
On July 27
1979 a Mr Graham on behalf of the commission set out the grounds on which the
commission had decided to proceed in a full letter. In that letter he sets out
in minute detail those charges which have been laid, so to speak, against the
firm and the evidence upon which the commission is acting The commission
obviously (and one has only to read the letter to see this) went to great
trouble and great pains in order to set out the basis of their allegations
against the firm. There appears the following paragraph:
In the light
of the above the Commission is minded, subject to any representations the
Agency may make, to issue a non-discrimination notice requiring the Agency, its
servants and agents not to permit any such act as described in paragraphs (a),
(b) and (c) above, or any other act which is an unlawful discriminatory act by
virtue of sections 20, 30 and 33 of the Act.
On the
following page, the firm are reminded of their rights under section 58(5)(b),
which I have already read, and they are by that paragraph offered the opportunity
of making representations, either oral or written or both, to Mr Maan and Mr
Campbell-Lee, the two commissioners who have been designated to carry out the
investigation.
On August 29
1979 came a reply from the firm’s solicitors consisting of eight pages setting
out in detail their answers to some of the allegations which are made against
them. On September 24 1979 oral representations were made to the commissioners,
solicitor and counsel appearing on behalf of the firm before the commissioners
and the commissioners having the advantage of the submissions of Miss Horne of
counsel, who was instructed by the firm to put forward their case. It is plain,
in fairness to her, that no one was au fait with the procedure which was
likely to be adopted, and that, in the circumstances, is not altogether
surprising, because this type of procedure is, at this stage at any rate, by no
means common.
It seems that
she was expecting, or perhaps half-expecting in the back of her mind, that she
might have the opportunity of cross-examining certain of the witnesses on whose
evidence the commission were evidently relying. It seems that some such
suggestion was made by her at the outset, although it is true that no note of
it appears in the very full note which was
Mr Deutsch. But there is no doubt that at paragraph 13 of the note of her
submissions Miss Horne said there was no evidence other than hearsay evidence
and she said that she expected the commission to operate on a judicial
standard. She reminded the commissioners that her clients had received no
signed statement and had had no opportunity to cross-examine. She said that if
the evidence was challenged in a higher court the failure to make witnesses
available was a serious step.
It seems to me
that what she was indicating there was that, although this was at the end of
the day, she was making her submission and she was registering a complaint, and
if the matter went further, she would rely, so far as she was able, upon the
fact that she had not been permitted to cross-examine any of the witnesses, as
I say, on whose evidence the commission were relying.
That brings me
to an examination of the nature of the grounds upon which this application for
judicial review is based. Page 3 of the statement filed pursuant to the orders
of the court reads as follows:
The grounds
on which the said relief is sought are as follows: The conduct of the hearing
before the Commission on which this decision of the Commission of the 11th day
of October 1979 was based did not accord with the rules for a judicial hearing
and the rules of natural justice in that; (1) the applicant was not permitted
to cross-examine witnesses upon whose evidence the Commission relied in reaching
their decision, those witnesses not being produced at the hearing of the case;
(2) evidence was heard and admitted which would not be admissible in a Court of
Law, and upon which the Commission relied in reaching its findings. That such
witness evidence as was relied on was not produced in statement or affidavit
form and that such evidence as was relied on was inadmissible hearsay evidence.
There is a
third ground based upon the identity of the commissioners who carried out the
investigation and the fact that they were part of the full commission which
came to the ultimate determination. That ground was very properly abandoned by
Lord Hooson in the course of argument as being untenable.
But there was
a further ground adumbrated, although not expressly set out, with which it will
in due course be necessary to deal, and that is, if I can paraphrase the more
elegant words which Lord Hooson used, that the two investigators appointed to
determine– Mr Maan and Mr Campbell-Lee–did not themselves carry out the
investigation but left it very largely to employees or servants or
administrators of the commission and they passed on that information to the
board at second hand.
It is
necessary now to deal with each of those three complaints in turn. First of
all, as regards the question that no cross-examination was permitted, it is
dealt with in the affidavit in reply by the respondent by a Dr Sanders in this
form: ‘that as a matter of law those under formal investigation by the
commission have no right to cross-examine the witnesses seen by the commission.
(Furthermore, no application to cross-examine any particular witness was ever
made by Cottrell & Rothon’s legal advisers at or prior to the oral
representation on September 24 1979.)’
As to the
second point, I have said enough already to indicate that Miss Horne could
scarcely have been expected to do more than she did to register her complaint
about the matter. This point comes down to the decision as to whether in these
circumstances the commission were, in the light of the rules of natural
justice, obliged to allow their witnesses to be cross-examined.
Of course
there is a wealth of authority upon what are and what are not the rules of
natural justice. The rules have been described in various ways, as ‘an unruly
horse,’ I think, in one decision, and there is no doubt that what may be the
rules of natural justice in one case may very well not be the rules of natural
justice in another. As has frequently been said, and there is no harm in
repeating it, all that the rules of natural justice mean is that the
proceedings must be conducted in a way which is fair to the firm in this case,
fair in all the circumstances. All the circumstances include a number of
different considerations: first of all, the penalties, if any. There are no
penalties under this Act in the form of fines or imprisonment or anything like
that, but what Lord Hooson has drawn to our attention quite correctly is that
under the terms of the Estate Agents Act 1979 (and no one has been able to
discover whether that has come into operation yet or not) there is no doubt
that a person upon whom a non-discrimination notice has been served may, if he
is an estate agent, suffer, if certain procedural steps are taken, grave
disadvantages because it is open, under a number of safeguards into which I do
not propose to go, for the Director General of Fair Trading to take steps to
see that a person against whom this action has been taken under the Race
Relations Act does not practise in business as an estate agent.
Of course, it
is a very long call from saying that a person who has this non-discrimination
notice served upon him is necessarily going to suffer in his business by the
action of the Director General of Fair Trading. Many procedures have to be gone
through before that can take place, but there is that danger there, and that is
one of the matters which is a circumstance to be taken into account.
The next
matter, and possibly the most important matter, is the nature of the provisions
of the Act itself, that is to say, the Race Relations Act 1976. I have read
sufficient of the contents of section 58 of that Act to indicate that there is
no mention in that section, or indeed in any other section, of any right to
cross-examine any of the witnesses. That perhaps is a surprising omission if it
was the intention of Parliament to allow a person in the position of the firm
in this case the full panoply of legal rights which would take place at a
judicial hearing.
It seems to me
that there are degrees of judicial hearing, and those degrees run from the
borders of pure administration to the borders of the full hearing of a criminal
cause or matter in the crown court. It does not profit one to try to
pigeon-hole the particular set of circumstances either into the administrative
pigeon-hole or into the judicial pigeon-hole. Each case will inevitably differ,
and one must ask oneself what is the basic nature of the proceeding which was
going on here. It seems to me that, basically, this was an investigation being
carried out by the commission. It is true that in the course of the
investigation the commission may form a view, but it does not seem to me that
that is a proceeding which requires in the name of fairness any right in the
firm in this case to be able to cross-examine witnesses whom the commission
have seen and from whom they have taken statements.
I repeat the
wording of section 58(2) in emphasis of that point: ‘If in the course of a
formal investigation the Commission become satisfied that a person is
committing . . .’ and so on. It seems to me that that is so near an
administrative function as to make little difference and is the type of
investigation or proceeding which does not require the formalities of
cross-examination.
We have been
referred to a number of cases, and in particular the case of Selvarajan
v Race Relations Board [1976] 1 All ER 12. This was a decision under the
earlier Race Relations Act 1968, and, as Lord Hooson has rightly pointed out,
there are very sharp and material distinctions between the 1968 Act and the
1976 Act. The 1968 Act required the board to act very largely as a purely
investigating and conciliating body, and any litigation or determination was
left to the county court or the regular courts of the land to determine.
Nevertheless there are passages which do cast some light on the attitude of the
courts to this type of situation. Scarman LJ at p 24 says this:
The Race
Relations Board does not exercise judicial functions. Part II of the Act is
absolutely clear. The Board was created so that in the sensitive field of race
relations compliance with the law and the resolution of differences could first
be sought without
process. The board is an administrative agency charged with a number of
critically important functions in the administration of the law; but it is not
a judicial institution–nor is it the apex of a hierarchy of judicial
institutions. The procedures are not adversarial but conciliatory: settlement,
not litigation, is the business of the board, and it is left to the board to
decide how best to perform the functions which the Act requires it to perform,
namely, investigation, the formation of an opinion conciliation, and, if all else
fails, the taking of legal proceedings in the county court.
The case of R
v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB
456 was cited to us and a passage in the judgment of Diplock LJ seems to be
appropriate (at p 488):
These technical
rules of evidence, however, form no part of the rules of natural justice. The
requirement that a person exercising quasi-judicial functions must base his
decision on evidence means no more than it must be based upon the material
which tends logically to show the existence or non-existence of facts relevant
to the issue to be determined, or to show the likelihood or unlikelihood of the
occurrence of some future event the occurrence of which would be relevant. It
means that he must not spin a coin or consult an astrologer, but he may take
into account any material which, as a matter of reason, has some probative
value in the sense mentioned above. If it is capable of having any probative
value, the weight to be attached to it is a matter for the person to whom
Parliament has entrusted the responsibility of deciding the issue. The
supervisory jurisdiction of the High Court does not entitle it to usurp this
responsibility and to substitute its own view for his.
Lord Hooson
sought to derive assistance from some of the passages of the decision of this
court in R v Hull Prison Visitors ex parte St Germain [1979] 3
All ER 545 but it seems to me that the decision there was based upon facts
widely differing from those in the present case. That was truly a judicial
proceeding carried out by the prison visitors, and the complaint there was that
there had been no opportunity to cross-examine prison officers in hotly
disputed questions of identity. Speaking for myself, I derive little assistance
from any dicta in that case.
We are not
here to substitute our view for the view of the commission. They undoubtedly
went to very great lengths to investigate and examine all the voluminous
evidence which was before them. There is now before us, true at a late stage,
the report of the formal investigation which was carried out and a copy of
which was sent to each member of the commission (60 pages in all). No one can
complain that this matter was not thoroughly investigated. It seems to me, for
the reasons I have endeavoured to set out, that in this case there was no
breach of the rules of fairness in that cross-examination was not permitted and
that the witnesses did not attend.
The next point
is the hearsay point, and that is dealt with succinctly by what Lawton LJ said
in the Selvarajan case. His judgment at p 22 reads as follows:
For my part,
I can see no reason at all why the Board should not delegate to its staff the
function of collecting information. It would be impractical for the members of
the Board themselves to make investigations. How the Board does what Parliament
has entrusted it to do is not a matter for the courts to decide as long as it
acts fairly and in good faith. It is for the Board, not the courts, to decide
how much information each of its members should have when considering a
particular case. As long as the Board, or one of its constituent committees,
has enough information to enable it to make a fair assessment of the case, the
court will not interfere.
Similar
passages are to be found in the other two judgments, and it is plain that that
was the view of the court.
That answers
both questions (2) and (3) posed by Lord Hooson, namely, the hearsay point and
the delegation point, because once one reaches the stage of accepting that the
commission are not only entitled to but as a matter of practical politics are
bound to delegate the investigation to their underlings or servants, it follows
that the reports produced by those servants were necessarily hearsay. But if it
is proper to delegate in that way, then equally it is proper to act upon the
reports which the servants or subordinates produce. I can see nothing wrong in
the commission acting as they did upon the evidence contained in these various
reports. I can see nothing wrong in the fact that they delegated to those
servants the task of the investigation. In short, none of the three grounds
relied upon by the applicants (the firm in this case) succeeds and I would
accordingly dismiss this appeal.
WOOLF J
agreed.
The
application was dismissed with costs.
