United Kingdom House of Lords Decisions

" 1.—(1) 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 dis-
" crimination on any of those grounds.

" (2) It is hereby declared that for those purposes segregating a person
" from other persons on any of those grounds is treating him less
" favourably than they are treated."

" 2.—(1) It shall be unlawful for any person concerned with the
" provision to the public or a section of the public (whether on payment
" or otherwise) of any goods, facilities or services to discriminate against
" any person seeking to obtain or use those goods, facilities or services
" by refusing or deliberately omitting to provide him with any of them
" or to provide him with goods, services or facilities of the like quality,
" in the like manner and on the like terms in and on which the former
" normally makes them available to other members of the public.

2

" (2) The following are examples of the facilities and services men-
"tioned in subsection (1) above, that is to say—

" access to and use of any place which members of the public
" are permitted to enter ;

" accommodation in a hotel, boarding house or other similar
" establishment;

" facilities by way of banking or insurance or for grants, loans,
" credit or finance ;

" facilities for education, instruction or training ;
" facilities for entertainment, recreation or refreshment;
" facilities for transport or travel;

" the services of any business profession or trade or local or other
" public authority."

3

A private household includes parents, their children, guests and it may be
servants. It must also include children such as adopted children, illegitimate
children of one parent who have been taken into the family and other
children who, though not legally adopted, have been made at least semi-
permanent members ot the family. And guests will include children whom
the parents have selected and chosen to invite to stay with them for a time.
But there must come a stage when the household has been so expanded
that it can no longer be regarded as a private household.

4

Lord Morris of Borth-y-Gest

MY LORDS,

It is the duty of a local authority to receive certain children into their
care. Some children have neither parent nor guardian and some children
have been or continue to be abandoned by parents or guardian. In some
cases the parents or guardian of a child are either temporarily or permanently
prevented from providing for a child's accommodation, maintenance and
upbringing. This may result from ill-health or from infirmity. It may
result from a variety of other circumstances. The intervention of the local
authority may, therefore, in all such cases be necessary in the interests of
the welfare of the child. The local authority have a statutory duty to act.
They must when necessary take children into their care. They clearly must
not discriminate on the ground of colour or race or ethnic or national origins.

At any given time there are probably many tens of thousands of such
children in care. Particulars as to their number and as to the manner
of their accommodation are presented to Parliament and are published in
a Command Paper. Local authorities have statutory authority enabling
them to discharge in various ways their duty to provide accommodation
and maintenance for a child. One way which is widely adopted is to
board children out. Another way is to maintain children in local authority
children's homes.

Among those with whom the local authorities for Haringey, Barnet and
Hertfordshire have for many years boarded out children have been a Mr. and
Mrs. Watson. Since the year 1970 this has been at the house in Oakroyd
Avenue, Potters Bar, to which in that year Mr. and Mrs. Watson moved.
The boarding out was not for long periods. Usually the length of stay
of a child accepted by Mr. and Mrs. Watson was two to three weeks.
About four or five were taken at a time, but exceptionally the number
could be seven. Some 60 per cent, of the children accepted by Mr. and Mrs.
Watson were coloured children.

The appellant was in 1971 the Branch Organiser of the South Hertford-
shire Branch of an organisation called the National Front. He was the
signatory of a circular letter dated the 5th August, 1971, which was distri-
buted to those, including Mr. and Mrs. Watson, who resided in Oakroyd
Avenue. For present purposes it suffices to say that it is not now in contest
that the appellant " incited" Mr. and Mrs. Watson to refuse to include
coloured children amongst those whom they took as boarders. Though
the efforts of the appellant were not only unwelcome to and were spurned
by Mr. and Mrs. Watson the question which is raised is whether the incite-
ment was to do an unlawful act (see section 12 of the Race Relations
Act, 1968). If Mr. and Mrs. Watson had refused to accept coloured
children, would they have been guilty of unlawful discrimination contrary
to section 2 of the Act?

.

To deal with this question it is necessary to consider firstly whether Mr.
and Mrs. Watson were " concerned with the provision to the public or a
" section of the public (whether on payment or otherwise) of any goods,
" facilities or services " and if so, secondly, whether if they had refused to
accept a child on the ground of colour or race or ethnic or national origins
they would have been discriminating " against any person seeking to obtain
" or use those goods, facilities or services by refusing or deliberately
" omitting to provide him with any of them or to provide him with goods,
" services or facilities of the like quality, in the like manner and on the like
" terms in and on which the former normally makes them available to other
" members of the public."

As to the first of these my firm conclusion is that Mr. & Mrs. Watson were
concerned with the provision of facilities or services to a section of the
public. I regard children in the care of local authorities as a section of
the public . In the present case the section comprised the children in the
care of three particular local authorities. Mr. & Mrs. Watson were concerned

5

to provide facilities or services to such children. Subsection (2) of section 2
gives examples of the kinds of facilities and services which are denoted in
the section. The range and sweep of them is very wide. Included within
the many varieties of examples there are set out: accommodation in a
boarding house or other similar establishment: facilities for education,
instruction or training: and facilities for entertainment, recreation or
refreshment.

The exercise by local authorities of their statutory power of boarding
out children in their care is, as would be expected, carefully regulated.
Elaborate provisions are contained in "The Boarding-Out of Children
Regulations 1955 S.I. 1955 No. 1377 ". The persons with whom children
may be boarded out are prescribed. It is essential that those to whom a
public authority is by statute entitled to delegate its public duty of looking
after children in care should be persons who can be trusted to discharge so
important a duty. There are (inter alia) provisions relating to medical
examinations of children before and during boarding out and provisions
relating to reports by visitors and provisions relating to registers kept by
local authorities. The persons with whom a child is for the time being
" boarded out" (who in the Regulations are by definition called " foster
parents " even in cases where the boarding out is for a period expected not
to exceed eight weeks in all) are required to sign an undertaking. By the
first of seven clauses in the undertaking the " foster parents " undertake
to care for a child and bring him up as they would a child of their own.
A child is boarded with " foster parents" to live in their dwelling as a
member of their family.

The facility or service provided by Mr. & Mrs. Watson was that of
receiving young boarders for short periods and of looking after them with
the same tender care as they (Mr. & Mrs. Watson) would have bestowed upon
children of their own. Mr. & Mrs. Watson were in fact content only to
receive reimbursement of what it cost them to look after the children
without asking for payment as such. They undertook their responsibilities
from the most commendable of motives.

On behalf of the appellant much reliance was placed on the fact that the
above-mentioned undertaking had to be given. It was contended that in
the context of section 2 the otherwise wide and indeterminate meaning of
the words " facilities or services " must be restricted. The words should
be read as applying to facilities and services which have an impersonal
quality but not as applying to a facility such as " fostering" which
necessarily involves the creation of a personal bond or relationship. In
line with this submission it was said that the facilities and services denoted
by section 2 exclude those which depend upon a family relationship or
those which bring people into a domestic relationship. So it was said
that section 2 does not cover facilities or services which are rendered within
a family circle and that the children received by Mr. & Mrs. Watson
became and should be regarded as having been within their family circle.
Reference was made to certain exceptions laid down in the Act, (e.g. in
section 7, section 8(b) and section 8(10)) and it was submitted that
Parliament could not have intended to permit discrimination in regard to
shared residential accommodation but to prohibit it in the case of child
fostering where the relationship is very close.

Persuasively as these submissions were developed and amplified I am not
persuaded that the facilities and services provided by Mr. and Mrs. Watson
were outside those designated by section 2. Very many of those which are
indicated by subsection (2) of section 2 are far from being impersonal.
Many of them involve the creation of bonds and relationships which are
essentially personal. Many of them involve relationships which have
" domestic " features—though it is to be noted that the Act does not intro-
duce the word " domestic " as a description or as a criterion.

Within schools which provide "facilities for education, instruction or
" training " there are essentially personal relationships. Within schools large
or small where children board there are relationships marked by " domestic "

6

features. Those in charge may be " in loco parentis ". So also " a boarding
" house or other similar establishment" may pride itself on having created
and maintained such personal relationships with and between guests that the
recurrent visits of returning guests have many of the features of a family
reunion or of re-entry to a domestic hearth.

Lord Wilberforee

My lords,

The proceedings in this appeal have become largely academic, but they
raise an issue of general importance. That is whether the Race Relations
Act, 1968, enables proceedings to be brought against a married couple who
express unwillingness to receive into their home a child in the care of a local
authority on grounds of colour, race, ethnic or national origin. The actual
question in the case is whether the appellant, Peter W. Applin, was guilty of
unlawful action in inciting Mr. and Mrs. Watson to discriminate, as regards
acceptance into their home, against coloured children. The test of illegality
under section 12 is whether the incited act is unlawful by virtue of any
provision in Part I of the Act. Mr. and Mrs. Watson did not in fact yield
to the incitement and had no intention of doing so. There is no question
of their having clone, or doing, any act of discrimination on racial grounds.
For years, from the best of motives, they have received into their home
children in care, the majority of whom have been coloured children. So the
question becomes the hypothetical one: whether, if Mr. and Mrs. Watson
were to refuse to accept coloured children, they would be guilty of an act
of discrimination within the meaning of the Act—and so liable to proceed-
ings under the Act.

The Race Relations Act, 1968, is an Act of very wide and general
scope; its policy is to prevent discrimination on grounds of colour, race or
ethnic or national origin (which I shall refer to as " colour etc."), over as
wide a field as possible. But, as the Act itself shows, Parliament was
conscious that this is a difficult area in which to legislate: there are limits
to the possibility of changing people's conduct and prejudices by statute.
So it was recognised that there were certain areas which it would be wise to
leave out of the general prohibition. Broadly speaking, the separation is
between acts in the public sphere, to which the statute is to apply, and acts
in the private sphere, which are to be exempted.

The Act does not lay down any very definite line of separation. It gives
some indications. In section 2(1) it refers to provision to the public or
a section of the public: in section 2(2) it gives an illustrative list of the kind
of facilities and services which are to be within the Act. Moreover there
are to be found in other sections exceptions from the general application of
the Act, the common character of which is that they relate to situations of
a private, or household, or intimate character.

There are evidently a number of situations which are not explicitly
dealt with: one such is that of clubs, an important social area in which
discrimination on one of the stated grounds is quite likely to be found.
Another situation is that of relations of a familial or quasi-familial character.
Both of these are common enough, and likely enough to be exposed to
possible discrimination. Absence of specific mention of these leads one to
suppose that Parliament intended to leave it to the courts to apply the Act,
in the light of its general policy. This House had to do this, in relation to
clubs, in Charter's case. In my opinion, it has to do the same in the
present situation.

I look first, then, for such indication as can be found of the Act's general
scope. The "public" character of the situation with which the Act is
concerned is emphasised in section 2(1) first by the words " the public or a
' section of the public ". I understand these words as referring to what is
often called the public at large, or the general public. The phrase " section
" of the public " has been much debated and one view is that it covers any
members, however few, so long as they are not selected for personal reasons.
It has been argued that a local authority is a section of the public. But I do
not think that the phrase does more than to include cases where less than
the whole of the public may seek the goods, facilities or services, for
example, a public library which caters for residents: the public, of which a
section is involved, is still the public at large. This is confirmed by the
rest of the section. Though the words used are very general, so general

8

indeed, that they can be made to cover operations of almost any scale, they
do suggest, to my mind, something which is generally available to whoever
wants it, a suggestion strengthened by "normally makes them available to
" other members of the public." And this impression is greatly strengthened
by subsection (2) which I quote for convenience.

" 2.—(2) The following are examples of the facilities and services
" mentioned in subsection (1) above, that is to say—

" access to and use of any place which members of the public
" are permitted to enter ;

" accommodation in a hotel, boarding house or other similar
" establishment;

" facilities by way of banking or insurance or for grants, loans,
" credit or finance ;

" facilities for education, instruction or training;

" facilities for entertainment, recreation or refreshment;

" facilities for transport or travel;

" the services of any business, profession or trade or local or
" other public authority."

9

" 1.—(1) Where it appears to a local authority with respect to a
" child in their area appearing to them to be under the age of seventeen—

" (a) that he has neither parent nor guardian or has been and
" remains abandoned by his parents or guardian or is lost; or

" (b) that his parents or guardian are, for the time being or per-
" manently, prevented by reason of mental or bodily disease
" or infirmity or other incapacity or any other circumstances
" from providing for his proper accommodation, maintenance
" and upbringing ; and

" (c) in either case, that the intervention of the local authority
" under this section is necessary in the interests of the welfare
" of the child,

" it shall be the duty of the local authority to receive the child into their
" care under this section.

" (2) Where a local authority have received a child into their care
" under this section, it shall, subject to the provisions of this Part of
" this Act, be their duty to keep the child in their care so long as the
" welfare of the child appears to them to require it and the child has
" not attained the age of eighteen."

" 12.—(1) Where a child is in the care of a local authority, it shall
" be the duty of that authority to exercise their powers with respect
" to him so as to further his best interests, and to afford him opportunity
" for the proper development of his character and abilities.

" (2) In providing for a child in their care, a local authority shall
" make such use of facilities and services available for children in the
" care of their own parents as appears to the local authority reasonable
" in his case."

10

" 13.—(1) A local authority shall discharge their duty to provide
" accommodation and maintenance for a child in their care in such
" one of the following ways as they think fit, namely,—

" (a) by boarding him out on such terms as to payment by the
" authority and otherwise as the authority may, subject to the
" provisions of this Act and regulations thereunder, determine ;
"or

" (b) by maintaining him in a community home or in any such
" home as is referred to in section 64 of the Children and
" Young Persons Act 1969 ; or

" (c) by maintaining him in a voluntary home (other than a com-
" munity home) the managers of which are willing to receive
" him ;

" or by making such other arrangements as seem appropriate to the

" local authority."

(as amended by the Children and Young Persons Act, 1969, section 49).

" 1.—(1) Subject to the provisions of paragraphs (2) and (3) of this
" Regulation, these Regulations shall apply to the boarding of a child—

" (a) by a local authority in whose care the child is, or

" (b) by a voluntary organisation in whose charge the child is
" otherwise than under an approved school order,

" with foster parents to live in their dwelling as a member of their
" family, and the boarding of a child to which these Regulations apply
" 'out' and ' boarded out' shall be construed accordingly."

" Witness: Yes. We try and take them into our family as such, so
" that from whatever disturbed circumstances they have come, they
" come into an immediate family atmosphere and become one of the
" family. We try and provide play facilities, toys, for them and interests

11

" for them and my wife is keen on this, an established routine which
" they can enter and forget their immediate worries and troubles in the
" joy of playing with other children and having facilities for playing
" in both the nursery and our garden."

" Defendant: Would it be right to say that in relation to these children
" you quite simply take them into your family to live as your own child
" for the period for which you have them?

" Witness: I would hope it was rather more than that because we
" seek to take a child in a disturbed state and bring it into an environ-
" ment that will assist it at a particular crisis in his life.

" Defendant: You certainly agree that you give it the care and atten-
" tion that you would your own child and because it is often in a
" disturbed state, often more than you would your own child?

" Witness: Yes.

" Defendant: You may think these are silly questions but they have
" a purpose. You certainly do not consider yourself in the nature of an
" hotel or boarding house keeper in relation to them?

" Witness: No, I do not.

"Defendant: You certainly do not consider yourself simply to be a
" schoolmaster or an instructor for the period?

" Witness: No, I do not.

" Defendant: The point being that you and your wife give, or your
" wife when you are not there, endeavour to give them your whole time
" and care in every aspect of their life as a child, and you regard your-
" self, I am sure you do it anyway, you regard yourself as under an
" obligation to the Council to do that so far as the children are
" concerned.

"Witness: Yes I do."

There are two answers to this. First, the " incitement " was quite general:
it was not against taking children for 2-3 weeks, but against taking them at
all. The actual period hitherto taken is irrelevant. Secondly, I cannot accept
that, in the case of a child, possibly itself disturbed and of an impressionable
age, whose parents have suddenly become unable to act, the need for
immediate substitute parenthood, and appropriate care and affection, Is
not real and significant. Even three weeks in such conditions may be
critical. I add that I can see no relevance in the total number of children
in care. The nature of Mr. and Mrs. Watson's relationship to the children
cannot depend on how many other people act as they do.

12

Lord Simon of Glaisdale

MY LORDS,

I

1..—(1) Where it appears to a local authority with respect to a child
" in their area appearing to them to be under the age of seventeen—

" (a) that he has neither parent nor guardian or has been and
" remains abandoned by his parents or guardian or is lost; or

" (b) that his parents or guardian are, for the time being or
" permanently, prevented by reason of mental or bodily disease
" or infirmity or other incapacity or any other circumstances
" from providing for his proper accommodation, maintenance
" and upbringing ; and

" (c) in either case, that the intervention of the local authority
" under this section is necessary in the interests of the welfare
" of the child,

" it shall be the duty of the local authority to receive the child into
" their care under this section.

" (2) Where a local authority have received a child into their care
" under this section, it shall, subject to the provisions of this Part of
" this Act, be their duty to keep the child in their care so long as the
" welfare of the child appears to them to require it and the child has
" not attained the age of eighteen

" (3) Nothing in this section shall authorise a local authority to keep
" a child in their care under this section if any parent or guardian
" desires to take over the care of the child, . . ."

" 12.—(1) Where a child is in the care of a local authority, it shall
" be the duty of that authority to exercise their powers with respect to
" him so as to further his best interests, and to afford him opportunity
" for the proper development of his character and abilities.

" (2) In providing for a child in their care, a local authority shall
" make such use of facilities and services available for children in the
" care of their own parents as appears to the local authority reasonable
" in his case.

13

" 13.—(1) Subject to the provisions of this section, a local authority
" shall discharge their duty to provide accommodation and maintenance
" for a child in their care—

" (a) by boarding him out on such terms as to payment by the
" authority and otherwise as the authority may, subject to the
" provisions of this Act and regulations thereunder, determine ;
"or

" (b) where it is not practicable or desirable for the time being
" to make arrangements for boarding-out, by maintaining the
" child in a home provided under this Part of this Act or by
" placing him in a voluntary home the managers of which
" are willing to receive him.

" (5) Nothing in this section shall be construed as preventing a local
" authority from making use, in the case of any child, of any such
" facilities and services as are referred to in subsection (2) of the last
" foregoing section, and for that purpose arranging for his accommoda-
" tion and maintenance in any suitable manner not specified in the
" foregoing provisions of this section."

It will be noted that the statute does not refer to " fostering " (with its
concomitant " foster-parent " and " foster-child "), but to " boarding-out ".
The former terms do, however, appear in the Regulations which the Secretary
of State may. by section 14, make for the provision of children boarded-out
by local authorities under section 13(1); and I shall for convenience some-
times here use the word " foster " etc. The Regulations are the Boarding-
Out of Children Regulations, 1955 (S.I. 1955 No. 1377). Regulation 2
imposes limitations on the status of persons with whom children may be
boarded out (e.g., a husband and wife jointly). Regulation 4 imposes a
duty on the placing authority to terminate the boarding-out if it appears
the boarding-out is no longer in the child's best interests. Regulation 5
gives power to a Supervising Visitor under the Regulations to remove a
child forthwith from the foster-parents if that Visitor considers that the
conditions in which the child is boarded out endanger his health, safety or
morals. Regulation 7 provides for medical examination of the child during
boarding out; Regulation 9 for reports by Visitors on the child ; Regulation
10 for case records to be kept; and Regulation 11 for registers to be kept
by local authorities, in which must be entered in respect of every boarded
out child various personal details of the child and of each foster-parent. (In
addition, your Lordships were told, the local authorities keep a non-statutory
register of persons who are willing to accept for fostering children in local
authority care.) Scheduled to the Regulations is a Form of Undertaking to
be signed by the foster-parents. The relevant part is as follows:

" We, A.B. and B.B. . . . having . . . received from the Council of the
" County/County Borough of (hereinafter called 'the

"' Council') C.D. . . . into our home as a member of our family under-
" take that—

"1. We will care for C.D. and bring him/her up as we would
" a child of our own."

Then follow a number of undertakings relating to the religious upbringing
of the child, to medical consultation and examination " at such times and
" places as the Council may require ". to informing the Council immediately
of any serious occurrence affecting the child, to permitting any authorised
Visitor to see the child and visit the house, to allowing the child to be
removed when so requested by a person authorised by the Council, and to
prior notification to the Council of any change of address.

It appears from Command Paper 5434 of 1973 ("Children in Care in
England and Wales, March 1972 "), Table I, that the total number of children
in care of local authorities in March, 1972, in England and Wales was
90.5,86, of whom 29,901, (about one-third), were boarded out and 1,860 were
in lodgings (by virtue of an amendment to the 1948 Act. which it is
unnecessary to set out). Table I also tabulates the circumstances in which
children came into care during the twelve months to 31st March, 1972:

14

by far the most frequent circumstances was the short-term illness of the
parent or guardian. Table II gives the breakdown by local authorities.
Of the three with which your Lordships are concerned in the instant" appeal,
Hertfordshire had 1,309 children in care, constituting 4-5 per 1,000 of its
estimated population under the age of 18; Barnet had 274 children in
care (3-8 per 1,000); Haringey 856 (12-6 per 1,000).

" When we moved to Potters Bar we approached the Borough of
" Haringey, with whom we had had dealings before, and from whom
" most of our children had come, to ask what was the way in which
" we could most help them in their child care work. They said that
" the most helpful thing we could do, if we were prepared to do it, was
" to be willing to take children in emergency at any hour of the night
" or day and give them temporary accommodation in our home and
" in our family, until they were able to sort out their immediate
" problems."

" 1.—(1) For the purposes of this Act a person discriminates against

" another if on the ground of colour, race or ethnic or national origins

15

" 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 dis-
" crimination on any of those grounds.

“ . . .

" 2.—(1) It shall be unlawful for any person concerned with the
" provision to the public or a section of the public (whether on payment
" or otherwise) of any goods, facilities or services to discriminate against
" any person seeking to obtain or use those goods, facilities or services
" by refusing or deliberately omitting to provide him with any of them
" or to provide him with goods, services or facilities of the like quality,
" in the like manner and on the like terms in and on which the former
" normally makes them available to other members of the public.

" (2) The following are examples of the facilities and services men-
" tioned in subsection (1) above, that is to say—

" access to and use of any place which members of the public
" are permitted to enter ;

" accommodation in a hotel, boarding house or other similar
" establishment;

" facilities by way of banking or insurance or for grants, loans,
" credit or finance ;

" facilities for education, instruction or training ;
" facilities for entertainment, recreation or refreshment;
" facilities for transport or travel;

" the services of any business, profession or trade or local or
" other public authority."

II

" For the sure and true interpretation of all statutes in general (be
" they penal or beneficial, restrictive or enlarging of the common law,)
" four things are to be discerned and considered: (1st). What was the
" common law before the making of the Act. (2nd). What was the
" mischief and defect for which the common law did not provide.
" (3rd). What remedy the Parliament hath resolved and appointed to
" cure the disease of the commonwealth. And, (4th). The true reason
" of the remedy ; and then the office of all the Judges is always to
" make such construction as shall suppress the mischief, and advance
" the remedy, and to suppress subtle inventions and evasions for con-
" tinuance of the mischief, and pro privato commado, and to add force
" and life to the cure and remedy, according to the true intent of the
" makers of the Act. pro bono puhlico."

16

and against coloured. The difficulty arises by reason of the fact that Parlia-
ment did not make discrimination on the ground of colour universally
unlawful. In Race Relations Board v. Charter [1973] A.C. 868 at p. 900, 1
gratefully adopted the language used by my noble and learned friend, Lord
Reid, for the final impression which the 1968 Act made.

" I would infer from the Act as a whole that the legislature thought
" all discrimination on racial grounds to be deplorable but thought it
" unwise or impracticable to attempt to apply legal sanctions in situations
" of a purely private character."

17

situation would be entirely in the public domain and plainly be within the
mischief of the statute. This, too, calls for a close examination of the
language of the statute.

A linguistic examination is in any event called for as a check against
interpretation in the light of statutory purpose.

III

"... concerned with the provision . . . of any goods, facilities or
" services . . .".

18

their entry into the Watsons' home. The opening words of the Form of
Undertaking must be read together with the Regulations and the remaining
provisions of the Undertaking, which differentiate these children significantly
from normal members of a family. Moreover, there were over 300 of them
in 25 years. They only stayed for short periods. Though I am not
convinced that a process of screening or selection which was held in
Charter's case to be the criterion differentiating the members of a club from
a section of the public is a touchstone in all circumstances, for what it is
worth the Watsons did not pick and choose among the children they were
asked to take—it was the children's need alone which was their
recommendation. Most important of all, the children did not, on being
boarded out, cease to be in the care of the local authority. If I may again
venture to apply a test which I proposed in Charter's case (p. 901 B/C) the
provision was made by the Watsons to persons aggregated in a public role.
Or, to apply the words of my noble and learned friend, Lord Reid, which
I have already cited, this was not a situation " of a purely private character ".
In any cases, the incited action was to prevent the coloured children's very
entry into the Watson's household so that they would remain outside, in
the public domain.

"... to discriminate. . ."

". . . against any person seeking to obtain or use those facilities
(etc.). . ."

19

natural and quite neutral for him to use the pronoun " him " (rather than
" him or them "). I therefore think that " any person seeking to obtain "
includes the local authorities.

" ... by refusing. ..to provide him with any of them... ".

The examples in section 2(2).

Anomalies.

20

within section 7). Then, on the appellant's argument a corporation sole (e.g.
a bishop) can be a " person seeking . . ." within section 2(1), but not a
corporation aggregate (e.g. a dean and chapter). Since anomalies are
inherent in an Act of this sort, and since even the appellant's construction
(in derogation of the paramount parliamentary purpose) would not avoid
them, I do not think that the presumption against anomaly operates to
prevent your Lordships from applying the major canons of construction.

The children when in the Watson's household.

It follows from the view I have already expressed that the children did
not, on entering the Watson's household, cease to be a section of the public,
so that it would have been unlawful to have discriminated amongst the
children within the household on the ground of colour—though what Mr.
Applin and Mr. Taylor were inciting was a discrimination prior thereto,
namely, at the entry of the children to the house: nor would the Watsons
themselves have considered for a moment discriminating in this way amongst
the children boarded out with them.

Adoption and Private Fostering.

It was conceded on behalf of the Board that discrimination in adoption
would not be unlawful under the Race Relations Act. This seems to me to
be unquestionable; an adoptive parent is, no more than a natural parent, as
such concerned with the provision of goods, facilities or services to a section
of the public, but rather to members of his legal family (i.e., to persons
aggregated in their private roles: see Charter's case at p. 901 B/C).

It was conceded on behalf of the Board that the Race Relations Act did
not apply to children privately fostered under the Children Act, 1958.
Counsel for the appellant seized on the concession to emphasise the common
features between 1948 Act children and 1958 Act children—in particular
in relation to local authority responsibility and control. But your Lordships
are not called on to say whether the Board's concession was rightly made
—some private fostering, e.g., with a view to adoption, is obviously outside
the Race Relations Act; and the Board has in any event a wide discretion
under section 15(4) of the 1968 Act. But no concession in point of law,
especially on a point not directly in question, could constrain your Lordships
in the proper interpretation of the Race Relations Act with regard to 1948
Act children.

Lord Salmon

MY LORDS,

I have come to the conclusion, not without considerable doubt, that this
appeal should be dismissed. All the relevant arguments have been so fully
canvassed by your Lordships that I need add only a few observations of my
own.

The appeal seems to me to turn upon whether or not Mr. and Mrs.
Watson were concerned with the provision to the " public or a section of
" the public ... of any ... facilities or services " within the meaning of those
words in section 2 (1) of the Race Relations Act, 1968. The difficulty lies
in deciding whether that section excludes the provision of facilities or
services to a section of the public within the private or domestic sphere, for
example in a private household. As a rule no doubt it does, but after some
hesitation I have come to the conclusion that it does not always do so; not,
for example, in the special circumstances of the present case.

21

of their own family. This, of course, does not mean that the children in
reality became members of the Watsons' family. A stay of three or four
weeks is too transient to establish a relationship which is essentially of a
much more permanent character. As a general rule a householder is not
concerned in providing any facilities or services to the public, or to a section
of the public, in his own home. I cannot, however, accept that he may never
be concerned in doing so. I recognise that it would be absurd to consider
that the members of his family or his guests or servants are, in their respec-
tive capacities, " the public or a section of the public " for the purposes of
the Act. Section 2 does not touch the employment of any person for the
purposes of a private household. Discrimination against such persons could,
however, be prohibited by section 3 were it not for the express exception
contained in section 8(6) of the Act. A householder is entitled to choose
which members of his family he will allow to live with him, whom he will
adopt as a member of his family, whom he will employ and who he will
invite as a guest in his own home. There is nothing in the Act to prevent
him discriminating between any of these on any ground he pleases. The
Act, clearly, does not interfere with freedom of choice in these spheres.
Were it to do so, it would not help, but might well hinder race relations.
Suppose A has a large number of acquaintances, black and white, and he
gives a private party to which he invites only those who are white, or, for
that matter, only those who are black, he would not be infringing the Act.
He would be concerned in providing facilities only to his invited guests
who cannot, in my view, sensibly be regarded as " a section of the public ".
Suppose, however, that A throws his stately home open to the public and
excludes those who are black, he would clearly be infringing the Act for,
in such a case, he would be concerned with the provision of facilities or
services to the public.

Children in care are undoubtedly a section of the public, unfortunately
quite a large section, in dire need of special facilities and services which
the Watsons are and have for so long been conscientiously concerned ro
provide. It is, I think, important to remember that this is not a case
of foster parents who are prepared to foster only such children as they
may select; still less is it as case of fostering with a view to adoption.
Such fostering would not, in my view, constitute the provision of facilities
or services to any section of the public, but only to personally selected
individuals. The Watsons, on the other hand, have for upwards of 20 years
let it be known to the three local authorities concerned that, subject only
to a limitation of numbers imposed by their available accommodation, their
home is open to all comers amongst children in care. They have in a very
real sense been concerned with the provision of facilities and services to
a section of the public in their own private household. This no doubt is
an unusual situation. It may seem strange that any prospective foster
parents, more selective, less humane, charitable and public spirited than the
Watsons, might be entitled to say " No black children", but that the
Watsons, because of their past generosity, would be precluded from saying
so. This, however, would impose no hardship on the Watsons. They have
courageously resisted the highly improper pressure and incitement to
discriminate which they have suffered at the hands of the appellant. The
last thing that the Watsons would willingly do is to discriminate against
any child on the ground of his colour, race or ethnic or national origins ;
nor do I believe that it is in the least likely that anyone else who has acted
as the Watsons have done would feel otherwise. There could, however,
be nothing to prevent them from deciding to discontinue or curtail the
provision of the facilities and services which they have been concerned to

provide in the past. They could not, however, lawfully discriminate between
black and white children in taking such a decision. This is because they
are and have for long past been concerned with the provision of facilities and
services to a section of the public in their own private household. They
therefore come within the sphere of section 2(1) and not, to my mind,
within any of the express or implied exceptions to that section contained
in any of the other provisions of the Act.

22

I entertain no doubt at all but that the children sent by the local authorities
to the Watsons were persons seeking, through the local authorities, to obtain
or use facilities or services. Had the Watsons, on account of the
appellant's behaviour, turned them away because of their colour, they would
have been refusing to provide facilities and services to a section of the
public for whom they were concerned to supply such facilities and services.

I am by no means sure that local authorities are a section of the public.
No doubt the members of any local authority are a section of the public
but each local authority has a separate identity just as a company is a
different entity from its corporators. Even if local authorities may be
regarded as a section of the public and as seeking to obtain facilities or
services for themselves, I doubt whether the Watsons, if they refused to
foster coloured children in the care of those local authorities would be
discriminating against them unless it could be shown that they were willing
to foster coloured children in the care of other local authorities. It is,
however, unnecessary to express a concluded view on this point because
I am satisfied that the local authorities were seeking facilities and services
on behalf of the children in their care. Accordingly, the appellant was
inciting the Watsons to refuse facilities or services to any coloured child
seeking such facilities or services through the local authority which had him
in care. And this, in the special circumstances of this case, is something
which, in my view, the Watsons could not lawfully have done.

312061 Dd 876211 120 3/74 St S