Applin v Race Relations Board [1974] UKHL 3 (27 March 1974)

APPLIN (A.P.)

v.
RACE RELATIONS BOARD

Lord Reid,

MY LORDS,

For many years Mr. and Mrs. Watson, have, without reward and as a
public service, taken into their home for a period children in care of local
authorities. In January, 1970, they moved to a house in Potters Bar more
suitable for the purpose. They asked the Borough of Haringey how best
they could help in child care work and it was arranged that the would take
in children in emergencies at any hour and give them temporary accom-
modation. They generally had four or five of these children in their home
and the average duration of stay of each child was about three weeks. About
60 per cent, of these children were coloured.

This attracted some notice from neighbours and some publicity. Criticism
by neighbours died away but the matter was taken up by the appellant and
another man who wished to stop the Watsons from taking in coloured
children. This caused the Watsons to get in touch with the Race Relations
Board.

The Board took action against the appellant and the other man in West-
minster County Court claiming a declaration that these actions were unlawful
by virtue of section 12 and section 2 of The Race Relations Act, 1968.

Section 12 provides that any person who deliberately incites another
person to do an act made unlawful by the Act shall be treated as doing that
act. It is admitted by the appellant that his acts amounted to incitement.
The question in the appeal is whether he was inciting the Watsons to do
an unlawful act; would it have been unlawful for the Watsons, while being
willing to take in white children, to refuse to take in coloured children?
If so, the appellant was inciting them to do an unlawful act and this appeal
must fail.

This is not an easy question. The Board say that the Act must not be
given a narrow interpretation, and that, on a fair reading of its terms, they
cover the present case. The appellant denies this and says that the Act was
never intended to apply to domestic situations.

So it is necessary to make a careful examination of the terms of the Act.
Section 1 defines discrimination. It provides:

” 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.”

We have in this case to determine whether the facts constitute a situation
to which section 2 applies. It is in these terms:

” 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.”

I see neither need nor justification for reading into this section any implied
exclusion of domestic situations. The head of a household is concerned
with the provision of goods, facilities and services to members of the house-
hold including his family, guests and servants. But no one suggests that that
is covered by this section. The reason is that the members of a private
household are not a section of the public. Servants are expressly excluded
by section 8(6). No doubt it was desirable to make this clear but I do not
think it was necessary.

On the other hand, if a household ceases to be a private household then
the Act may apply. Section 2(2) expressly mentions a boarding-house. It
was said that the Watsons in effect keep a boarding-house. I do not think
that that is so. Their establishment falls somewhere between a private
household and a boarding-house.

The householder selects his guests. The Watsons do not select the
children whom they take in. No doubt they could refuse a child if they
considered him obviously unsuitable: but that does not mean that they select
the children whom they do take. The importance of selection is explained
in Charter v. Race Relations Board.

Before dealing further with the main argument it may be well to dispose
of an argument that the phraseology of section 2 will not cover this case.
Discrimination must be against the person seeking to obtain goods, facilities
or services. The appellant argues that here the only person seeking to obtain
the facility is the local authority: the child neither does nor can seek them.
Then he argues that there could not be discrimination against the local
authority because it is not a member of the public. But there is nothing
novel in a person in charge of a child acting on the child’s behalf. I do not
think that the local authority is seeking any facilities for itself. It is seeking
facilities for the child and in doing so acting on behalf of the child.

So it is unnecessary to decide whether there can be discrimination against
a local authority. I am inclined to think not. I doubt whether in this
context a local authority is a member of the public. If a local authority
sought facilities for two children, one white and the other coloured, I do not
think that it fits the terms of this section to say that a person who agrees to
take in the white child but refused to take in the coloured child thereby
discriminates against the local authority.

Returning to the main argument, I think that the proper approach is to
see whether, taking the natural meaning of the words of section 2(1), the
Watsons do or do not come within the scope of the provision. First, they
are concerned with the provision of goods, facilities and services: they make
a practice of providing them. It may be doubted whether the section
applies to an isolated transaction but here there is a course of conduct.
Secondly, the children in care are a section of the public. I do not attach
importance to the children being in care of the local authority. If the
Watsons made a practice of receiving children without any real selection
from parents who wished to have their children cared for for a short period,
the case would be exactly the same.

The difficult question is whether the Watson’s establishment can be
regarded as a private household. I take the words ” private household ”
from section 8(6) which provides that section 2 shall not apply to the
employment of any person for the purposes of a private household. It
cannot have been intended that discrimination with regard to servants in a
private household should be permissible, but that discrimination with regard
to other members of a private household should be unlawful. I have already
said that in my view an ordinary family is not within the scope of section 2
and I think that the words ” private household ” in section 8(6) afford a
good guide in drawing the line between an ordinary family and an estab-
lishment to which section 2 does apply.

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.

The appellant argues that the Watsons’ establishment should be regarded
as a private household. The number of children in their care at any one
time is small and the Watsons have undertaken to treat them and do in fact
treat them as members of their family.

The Watsons take in these children under Regulations (S.I. 1955 No. 1377)
made under the Children Act, 1948. That Act by section 13 provides for
the local authority boarding out children in care subject to the provision of
Regulations. The Regulations apply to ” the boarding of a child . . . with
” foster parents to live in their dwelling as a member of their family ”
(Regulation 1). Regulation 30 deals with a child remaining for more than
eight weeks ” in the household of which he is already a member ” and the
Regulations require ” foster parents” to give an undertaking to ” bring up ”
the child as they would a child of their own, to consult a doctor when
necessary, to permit authorised persons to visit their house, and to allow the
council to remove the child.

I do not regard the fact that the Watsons are acting under this Act and
these Regulations, or the fact that they have given these undertakings as of
primary importance. If they had had a similar practice of receiving
unselected children for short periods from some other source and had given
somewhat similar undertakings I think that that case would have been
indistinguishable from the present case.

Nor do I regard it as of primary importance that the Watsons treat the
children while they are with them as members of their family. People who
invite the children of friends to stay with them will generally treat them as
members of their family. But that does not mean that for their short stay
such children become members of the host’s family; they are guests. There
is a world of difference between treating a child as if he were a member
of the family and in fact making him a member of the family.

If the Watsons generally have four or five children with them for periods
of about three weeks each, they must take in more than 50 children each
year, and we know that in all they have taken in over 300 children over a
long period. I regard it as quite unreal to suppose that each of these
children became in any true sense part of the Watsons’ family. In my view,
in their laudable desire to be of service to a section of the public, children
in care, they have expanded their establishment well beyond anything that
could properly be called a private household. It is clear that they would
never discriminate on the ground of colour. But they were being incited
to do so and we must consider what the position would have been if they
had given way to the incitement. In my judgment if they had either refused
to take in coloured children while accepting others or had discriminated
against coloured children while under their care they would have come
well within the scope of section 2 of the Act.

I would therefore dismiss the Appeal.

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

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 ”

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.

It is further to be noted that the early sections of the Act which begin
with the words ” it shall be unlawful” are followed by sections beginning
with the words ” it shall not be unlawful”. It has not been suggested that
anywhere within those latter sections is there a provision which would make
discrimination (as defined in the Act) not unlawful on the part of those
with whom children under care are boarded out.

The provision of facilities or services within a home to the members of a
family does not fall within section 2. For one thing such facilities or services
are only available to and for the members of the family or for those who
may be voluntarily invited to share in them. It may be otherwise if the
facilities or services of a home are thrown open and are made available so
that others outside the family may seek to obtain or use them. In the
present case Mr. and Mrs. Watson decided to open their home and to make
its facilities and services available—and available under specially favourable
conditions—to children in the care of certain local authorities.

I consider therefore that Mr. and Mrs. Watson were concerned with the
provision of facilities and services to a section of the public. The second
question which arises is whether if they had refused to accept a child on the
ground of colour (or race or ethnic or national origins) they would have
discriminated ” against any person seeking to obtain or use ” the facilities
or services. In my view, they clearly would. Mr. and Mrs. Watson were
not under any obligation to receive children in care as boarders at all and
they could at any time have said that they would discontinue receiving them.
But they could not say that they were willing to accept children and then
discriminate on the ground of colour.

After they had intimated to three local authorities that they were willing
to open their home to receive children, the procedure was that the three
local authorities would from time to time ask if certain children could be
accepted. There might have been reasons why Mr. and Mrs. Watson did
not wish to receive certain children, though in fact there was no occasion
when they were in fact unwilling to receive a child for whom they had room.
A refusal to accept some children would have been fully open to them
always provided that it was not ” on the ground of colour, race or ethnic
” or national origins “. So also if they received children some of whom
were coloured, the coloured children could not be segregated nor in any
of the ways referred to in the Act be treated differently from the others.

When the local authorities requested Mr. and Mrs. Watson to receive
the children, they did so, in my view, on behalf of the children and in the
interests of the children so that it could fairly and properly be said that the
children were seeking to obtain and use the facilities and services which
Mr. and Mrs. Watson were concerned to provide. If there had been a
refusal on the ground of colour to take a child, that would have been, within
section 2 of the Act, an unlawful discrimination against a coloured child
seeking to obtain or use the facilities or services. The circumstance that
children in care do not in the nature of things personally order their affairs
is immaterial. It is because they are in care that others must make arrange-
ments on their behalf.

I would dismiss the appeal.

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

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.”

Now I am aware, that these are stated as examples, non-exhaustive no
doubt. But they are very comprehensive examples ; and I regard it as
both legitimate and necessary to use a list such as this for the purpose of
gathering the general philosophy and flavour of the Act. It is difficult,
indeed, to see for what other purpose the list could have been given, for most
of the examples are quite obviously within any normal meaning of facilities
and services. It may help to eliminate some doubts, but it must also have
been intended as a guide as to the character of facilities and services in mind.
What it suggests, in combination with section 2(1), is that the area in which
discrimination is forbidden is that in which a person is concerned to provide
something which in its nature is generally offered to and needed by the
public at large, or a section of it, which is offered impersonally to all who
choose to go through the doors or approach the counter: things which, in
their nature, would be provided to anyone, and the refusal of which to
persons of different colour etc., could only be ascribed to discrimination on
grounds of colour etc. Conversely, they do not extend to matters, the
provision of which is a private matter, as to which the motives of the
refusing provider may reasonably have nothing to do with colour etc., at all.

Then there are the exceptions. Those of particular interest are:
Section 7(1)(2)—dealing with lodgers in small premises.
Section 7(6)—dealing with sharing of cabins.

Section 7(7)—dealing with private disposals of owner occupied
premises not through an estate agent.

Section 8(6)—dealing with the employment of any person for the pur-
poses of a private household.

Section 8(10)—dealing with the sharing of accommodation on a ship
by employed persons.

I regard these exceptions as very significant; but I would not use them,
as we were invited to do, just to construct arguments based on anomalies,
though it is difficult to avoid the force of an argument that if Mrs. Watson
could refuse to employ a coloured nurse or a coloured charwoman or to
accept a coloured lodger it seems strange that she could not refuse to accept
a coloured child. But arguments based on anomalies are liable to be
dangerous in an Act such as this, for on any view many must exist. I prefer
to regard the exceptions as yet further signposts directing one away from
situations of a private or intimate or domestic character. And an expressio
unius argument seems to me, in such an Act as this, where ” purpose ” and
” policy ” are all important, with respect, to be pedantic and misplaced.

I have so far attempted to extract the meaning of section 2 of the Act
by considerations of a general and purposive character. A process of word
by word analysis may suggest, as the careful judgments in the Court of
Appeal show, that such a case as the present comes within it: the Watsons
are “concerned”, because they habitually do what they do; the local
authorities are ” a section of the public “, or the children are ” a section of
the public”. The “seeking” is done by the local authorities either for
themselves or as agents for the children: what the Watsons offer are
” facilities ” or ” services ” or both. So it all adds up to a total application
of this section. No doubt each of these steps can be forcefully argued,
though I must say that some of them seem to me rather strained, but there
remain two questions: would the ordinary man regard the subsection as a
whole as applying to decisions to take children into his home: is the end
result consistent with the purpose of the Act?

I have so far spoken of admission to the home, but I must now analyse
more carefully what exactly it is that Mr. and Mrs. Watson do. They are
acting in accordance with the provisions of the Children Act, 1948. This
Act is only one of many which relate to the taking by householders of other
people’s children into their home or family. Most important, and closely
related, is the Adoption Legislation, and the Children Act, 1958, which
deals with fostering. I should regard it as inconceivable that the Race
Relations Act should apply in either of these two areas; the case of the
1958 Act is, I understand, one as to which doubts are thought to exist, but,
with respect, I cannot share them. I should therefore expect that a consistent
policy would place the Children Act, 1948, so far as it relates to the reception
of children and cases covered by it, in the same category.

The basic provision, relevant here, is section 1 of the Act. I quote sub-
sections (1) and (2).

” 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.”

Then follow sections 12 and 13.

” 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.—(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).

Regulations have been made under section 14 (S.I. 1955, No. 1377). Their
general scope is defined in Regulation (I) as follows:

” 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.”

Then there are somewhat different regulations, according as the child is
expected to remain more or less than eight weeks, but I do not think that
the details matter. In either case an undertaking has to be signed by the
” foster parents “. This recites that the named child has been received into
their home ” as a member of our family “, and paragraph I contains an
undertaking that ” we will care for (the child) and bring him up as we would
” a child of our own.” Various other obligations are specified.

What is the effect of this, and what relationship is established? First,
we must not be confused by labels. The label ” foster parent ” may or may
not be strictly appropriate, or bear the sense that it bears elsewhere. Here
it means no more or less than a person who undertakes the responsibilities
defined by the Act and regulations. The label ” boarding out ” again is
purely shorthand for what happens under the Act and regulations ; it has
no independent meaning, and to point to the use of the same words among
the list of facilities in the Race Relations Act, section 2(2), is an argument
of pure verbalism.

In truth, to describe the Watsons as providing ” board ” or ” board and
” lodging ” is to ignore what the Children’s Act, Part 1 is setting out to
achieve. This is not merely to provide shelter, or a bed, for children who
have nowhere to sleep. It is to provide a substitute for the child’s parents
when the child has lost its parents or when its parents, for some reason,
become incapable of performing their parental duties. Section 1 of the
Children’s Act is quite explicit as to this. Equally explicit are the Regula-
tions, insisting as they do, that the child shall be received as a member of
the family and brought up as such.

To suggest that all persons such as the Watsons provide is board and
lodging of a superior kind is to misrepresent, and indeed to degrade, what
is expected of them. And certainly Mr. and Mrs. Watson do not look at
the matter in this way. This is what Mr. Watson said:

” 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

” 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.”

And again:

” 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.”

All of this is what one would expect, or at least hope for. from people
offering their service. It underlines the essentially personal, domestic and
familial nature of the relationship.

There are two arguments which I must deal with. First, it is said that
the local authority, in taking children into care, is performing a public
service and so, therefore, must the ” foster parents “. But this does not
follow. The public character of the local authority’s work does not determine
the character of that of private persons whom the authority asks to help.
The local authority is under a statutory duty to take children into care
and it cannot turn anyone away. But the foster parents are volunteers: they
need not accept anyone. The local authority takes children into care: the
foster parents take them into their home. Their position is quite different
from that of ” community homes ” which can be regarded as an adjunct of
the local authority. Mr. and Mrs. Watson are helping the local authority
in its public duty, but in a personal and private way, as the Regulations
show.

Secondly, it is said that the Watsons only take children for short periods,
so that the familial aspect is slight or non-existent.

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.

My Lords, I cannot bring myself to agree that the Race Relations Act,
with the possibility of proceedings in court, can ever have been intended
to apply to a situation so essentially private, domestic and familial as this.
To say otherwise means that a woman maintaining a household, with
perhaps her own children and others taken in from care, may not say:
” I am very sorry, I have nothing against coloured children, or white
” children, or children from far off countries about which I know nothing,
” but I cannot take the responsibility of caring for them as my own “. To
say this, represents an undesirable and impractical intrusion into the spheres
of private decision and one which is not likely to advance the cause of
improving race relations. It is not, in my opinion, called for by the Act.

I would allow the appeal.

Lord Simon of Glaisdale

MY LORDS,

By Part I of the Children Act, 1948, it is the duty of local authorities
to assume care of children in certain cases. Of section 1 I need cite only
– sections (1), (2) and part of subsection (3):

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.

” (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, . . .”

Section 2 provides for the local authority by resolution in certain circum-
stances to assume parental care. The treatment of the children of whom
the local authorities have assumed care under Part I of the Act is dealt with
under Part II. I set out only section 12, which deals with the general duty
of the local authority in respect of a child in its care, and part of section 13,
which stipulates the mode of provision of accommodation and maintenance
for such 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.

” 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—

” (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:

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).

Mr. and Mrs. Watson have for twenty-three years been fostering children
in local authority care. During that time they have taken in over 300
children, of whom about 60 per cent, were coloured. They do it as the
practical expression of their Christian faith. Normally they take four or
five children at a time, but it may rise to seven in emergencies. The length
of stay was generally two or three weeks. At the end of January, 1970,
the Watsons moved from Finchley to a house in Potters Bar, Hertfordshire:
the move was partly prompted by a desire for improved amenities for
the children taken in. In evidence at the Westminster County Court in these
proceedings Mr. Watson said:

” 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.”

I draw attention to the words ” in emergency ” and ” temporary “. Similar
arrangements were made with the authorities of the Borough of Barnet
and the Hertford County Council.

The activities of Mr. and Mrs. Watson to which I have referred aroused
the resentment of the appellant. Mr. Applin, and of Mr. Taylor (who has
not been represented before your Lordships), respectively the Branch
Organiser and the Area Organiser of an organisation called ” The National
“Front”: they objected to coloured children being among the Watson’s
beneficiaries. In pursuance of this objection Mr. Applin and Mr. Taylor
started locally a public agitation against Mr. and Mrs. Watson. Their
aim was admittedly to procure that the Watsons confined their beneficence
to white children.

Mr. Watson made a complaint to the Race Relations Board (see Race
Relations Act, 1968, section 15), and in due course the Race Relations
Board started proceedings in the County Court, claiming that the actions
of Mr. Applin and Mr. Taylor amounted to unlawful incitement under
the Race Relations Act and also seeking an injunction against them (see
sections 12 and 19). Before the learned County Court Judge it was contended
on behalf of Mr. Applin and Mr. Taylor that, even if the course of action
that they were urging on Mr. and Mrs. Watson would have been unlawful
under the Race Relations Act, their own conduct did not nevertheless
amount to unlawful incitement under section 12. That contention has,
however, now been abandoned. The sole issue before your Lordships is
therefore whether, if Mr. and Mrs. Watson had acceded to the agitation
of Mr. Applin and Mr. Taylor and refused to foster any other than white
children in care, that would have been unlawful action under the Act. In
a careful judgment the learned County Court Judge decided that issue in
favour of Mr. Applin and Mr. Taylor. His decision was reversed by the
Court of Appeal, who granted a declaration that the acts of Mr. Applin
and Mr. Taylor were unlawful by virtue of sections 12 and 2 of the Race
Relations Act, 1968: though they refrained from granting an injunction,
on the ground that there was no threat of repetition of the action complained
of. Mr. Applin now appeals to your Lordships’ House.

The following are the key provisions of the Race Relations Act, 1968:

” 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) 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.”

In Heydon’s Case (1584) 3 Co.R. 7a it was resolved by the Barons of the
Exchequer (p. 7b):

” 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.”

This approach has frequently been adopted : see Maxwell on Interpretation
of Statutes, 12th ed. 1969, pp. 40 43.

The common law before the making of the first Race Relations Act
(1965) was that people could discriminate against others on the ground of
colour, etc., to their hearts’ content. This unbridled capacity to discriminate
was the mischief and defect for which common law did not provide. The
remedy Parliament resolved and appointed was to make certain acts of
discrimination unlawful. The reason for the remedy must have been that
discrimination was thought to be socially divisive (indeed, section 6 of the
1965 Act suggests, potentially subversive of public order) and derogatory to
human dignity. The 1968 Act widens and strengthens the provisions of the
1965 Act, the latter having been apparently thought to be inadequate remedy
for the mischief.

Did the matter rest there, thus simply stated, this appeal would present
little difficulty. The appellant was plainly inciting the Watsons to discriminate
in their fostering facilities and services in favour of white children in care

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.”

The hesitations about applying the general provision to situations of a
purely private character appear partly from the words ” person concerned
” with the provision to the public or a section of the public ” (which fell for
construction in Charter’s case), partly from the provisions of sections 7 and
8. The result of Parliament’s hesitation to legislate against every act of
racial discrimination means that there must be a number of borderline
situations which Parliament either did not envisage, or else preferred not to
deal with by specific statutory regulation, rather leaving them to the courts.
In consequence, though there can be no doubt what is the paramount
purpose of the Act—namely, the discouragement of racial discrimination
by various deterrents and other remedies—room was left for the powerful
argument for the appellant to the following effect. Parliament undoubtedly
refrained from making all situations of racial discrimination unlawful: in
particular Parliament refrained from carrying its sanctions into the family
circle. For example, it would not be unlawful for a stepfather to discriminate
on the ground of colour in favour of a white stepson and against a coloured
stepson. Nor even (as the Board agrees) would it be an offence for a
proposed adopter of a child to discriminate in his act of adoption on the
ground of colour: since, in taking the child into his family, he is not a
person concerned with the provision to the public or a section of the public
of any goods, facilities or services. So too, it was argued, with a foster-
parent under the Children Act 1948: look at the very opening of the Form
of Undertaking. ” We having received C.D. into our home as a member of
” our family undertake that we will care for him and bring him up as we
” would a child of our own “. Counsel adds, for good measure, that it would
be odd for Parliament to allow discrimination on the ground of colour in
relation to the employment of, say, a nurse for the children (see section
8(6)), but not in relation to the children themselves, who are received into
the much more intimate role of members of the family.

Where the paramount statutory purpose is palpable, the fact that it has
not been carried through into every conceivable situation does not, in my
view, mean that ” the mischief rule ” (Heydon’s Case) ceases to have any
value. At the very least it should operate, where Parliament has stipulated
express exemptions in derogation of its paramount statutory purpose, to
cause the courts to hesitate in going on to imply further exemptions in added
derogation.

Moreover, the appellant’s argument which I have just rehearsed pre-
supposes that the facilities and services with which your Lordships are con-
cerned are those provided by the Watsons to the children—and provided in
the Watsons’ home after the children’s entry there. But Mr. Applin and
Mr. Taylor were not inciting the Watsons to discriminate against the
coloured children once they had had entry to the house: they were inciting
the Watsons to deny entry to coloured children. It is therefore necessary
to examine the words used in the statute to see whether they extend to such
conduct. If they do, such conduct lies more obviously in the public domain
(to apply a test I ventured to propose to your Lordships in Charter’s case
at p. 901B) than discrimination within the household.

Furthermore, if the statute extends to the relationship, not between the
Watsons and the children, but to that between the Watsons and the local
authorities—if, in other words, it extends to what (if anything) the Watsons
provided for the local authorities, and the Watsons could have been regarded
as discriminating in that respect if they had yielded to the incitement—the

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

In examining the language of a statute which affects people in their
ordinary, unspecialised lives, there is a ” golden ” rule that the words are
presumptively intended in their natural, ordinary and grammatical meaning.
This canon of construction, always potent, is particularly so if there are
forensic situations which Parliament seemingly either did not envisage or
preferred not to deal with (rather leaving them to the courts): see Reg. v.
Governor of Pentonville Prison, ex pane Cheng [1973] AC 931, 950-951.
This “golden” rule has, however, a rider: the Interpretation Act, 1889, is
a code assisting the draftsman to signal the legislative intention to the courts ;
so that the natural, ordinary and grammatical language may be extended by
the provisions of the Interpretation Act. With these aids I turn to analyse
section 2(1) of the Act.

It shall be unlawful for any person . . .

By the Interpretation Act, section 1(1)(b), words in the singular include
the plural, unless the contrary intention appears,. No contrary intention
appears here; so ” any person ” extends to Mr. or Mrs. Watson or both
of them together. By section 19 of the Act ” person ” includes any body of
persons corporate or unincorporate, unless the contrary intention appears
(see also section 2). ” Person ” therefore extends to the local authorities
in the absence of a contrary intention appearing. Not only does no such
contrary intention appear, but the references in section 2(2) of the Race
Relations Act, 1968, to “facilities for education” and “the services of
” any . . . local . . . authority ” reinforce the Interpretation Act, and make
it clear that the reference to ” person ” in the opening line of section 2(1),
as also in section 1, includes the three local authorities with which your
Lordships are concerned. This conclusion will be important to the interpreta-
tion of ” person ” when it appears later in section 2(1).

“… concerned with the provision . . . of any goods, facilities or
” services . . .”.

In pursuance of their duty under Part II of the Children Act, 1948, the
local authorities were concerned with the provision of goods, facilities and
services to the children whom they had taken into care in pursuance of
their duty under Part I of the Act—including the provision of accommoda-
tion and maintenance by boarding-out (section 13(l)(a)).

The Watsons were concerned with the provision of boarding-out facilities
to the local authorities, whereby they could discharge their duty to provide
accommodation and maintenance for the children in their care. The
Watsons were also concerned with the provisions of goods, facilities and
services to the children themselves—not only once the children had entered
their home, but also in permitting their entry. I do not say that ” provision
” of facilities” extends to ” provision of facilities to obtain facilities”.
But it seems to me to be a natural use of the words ” provision of facilities ”
to include a right to enter a home provided for homeless children. In
this respect the instant case differs from Charter’s case, where the facilities
and services in question were those within the club itself.
” . . . to the public or a section of the public. . . “

It was not disputed on behalf of the appellant that the children fell
within this description before they entered the Watsons’ home. But it was
claimed that on entry they ceased to be a section of the public and became
members of the Watsons’ family; reliance being particularly placed on the
opening words of the Form of Undertaking to be signed by foster-parents.
I cannot agree that the children ceased to be a section of the public on

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.

I also respectfully agree with Buckley L.J. that the local authorities too
constituted a section of the public. Their own role is by definition wholly
in the public domain.

“… to discriminate. . .”

This term is defined in section 1(1). The word ” would ” (” would treat”)
is important. If the Wasons had declared that they would accept white
children but not coloured children, they would be treating the latter less
favourably than the former in allowing the former, but not the latter, entry
to their home; and also treating the latter less favourably than they would
treat the former after entry to their home.

Moreover, I respectfully agree with the learned Master of the Rolls that
by insisting on white children only the Watsons would be, within the
statutory definition, discriminating against the local authorities themselves
on the ground of colour. It is inadmissible to read section 1(1) as if it
read ” on the ground of his colour “. Not only would this involve reading
into the subsection a word which is not there ; it would also mean that some
conduct which is plainly within the ” mischief” would escape—for example,
discriminating against a white woman on the ground that she had married
a coloured man. It would therefore, in my view, be discrimination if the
Watsons had treated local authorities seeking boarding-out facilities for
coloured children less favourably than they would treat local authorities
who either had no coloured children in care or who proffered none for
boarding-out.

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

The children were persons seeking (through the local authorities) to obtain
and use boarding-out facilities.

The local authorities were seeking to obtain and use boarding-out
facilities on behalf of the children (white and coloured) and also to obtain
such facilities on their own behalf in order to fulfil their statutory duties.
” Person ” would include the local authorities by virtue of the Interpretation
Act, in the absence of a contrary intention appearing. It was argued on
behalf of the appellant that the use of the word ” him ” (“to provide him
with any of them or to provide him with goods [etc.] of the like quality
” [etc.]”) showed a contrary intention, the pronoun being inappropriate
to a local authority. But where the draftsman uses the same word twice
within four lines there is a strong presumption against a change of usage;
and I have already ventured to point out why “person” in the opening
line of section 2(1) must include local authorities. Furthermore, once the
draftsman has used the shorthand of the Interpretation Act (” person ” for
” persons or persons, including bodies corporate or unincorporate “) it is

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… “.

This phrase is complete in itself, the following words being alternative
(starting with the word ” or “). If the Watsons had refused to take coloured
children, they would have been refusing boarding-out facilities to the coloured
children seeking (through the local authorities) to obtain and to use them.
If they refused the local authority boarding-out facilities for their coloured
children, they would be refusing to provide the local authorities with some
of their boarding-out facilities (” any of them “).

I am, therefore, of opinion that the conduct to which the Watsons were
incited by the appellant would have been unlawful in the terms of sections 1
and 2 of the Act, without straining them, but with the aid of the Interpreta-
tion Act. Linguistic scrutiny, therefore, reinforces interpretation in accord-
ance with the rule in Heydon’s Case IV.

I turn finally, to consider other matters that were canvassed during the
argument.

The examples in section 2(2).

I think that counsel for the appellant was justified in claiming that these
on balance tell in favour of his client, all the facilities and services which
are there exemplified being to the public at large. But I do not think much
weight can be put on this subsection. First, giving examples merely, it is
self-evidently not intended to be exhaustive. Secondly, it seems to be setting
out some of the most easily envisageable and most derogatory forms of
discrimination. Thirdly, in view of this and of the fact that the section 2(1)
facilities and services are limited to those provided to the public or a section
of the public, it is not surprising that the leading examples are those provided
to the public at large. Fourthly, I have already pointed out the significance
of the express inclusion of local authority facilities and services among the
examples. Fifthly, accommodation in a boarding-house and facilities for
education and recreation are not so very different in kind from the facilities
and services which the Watsons provide for the children. In sum, there is
nothing in section 2(2) which leads me to think that the conduct incited to is
other than within the plain mischief of the Act and falls within the natural
meaning of the words of sections 1(1) and 2(1).

Anomalies.

Courts will try to construe an Act of Parliament in such a way as to avoid
anomaly ; since anomalies involve injustice—treating A and B differently
in essentially comparable circumstances—and Parliament is to be presumed
to intend justice: Maxwell on Interpretation of Statutes, ch. 10. The pre-
sumption against anomaly and injustice will have special force where it
seems probable that Parliament has not envisaged the actual forensic situa-
tion: see Rugby Joint Water Board v. Shaw-Fox [1973] A.C. 202, 231 G.
Counsel for the appellant was able to point to a number of anomalies which
would arise from the respondents’ interpretation of the Act—the most striking
arising out of section 8(6), to which I have already referred. But construction
to avoid anomaly is a secondary canon, subordinate to the ” mischief ” rule
and the “golden” rule: see Reg. v. Governor of Pentonville Prison at
p. 957C. There are bound to be anomalous borderline cases in view of the
hesitation of the Legislature to carry its predominant policy into situations
of a purely private character. No doubt the interpretation contended for
on behalf of the appellant would minimise some of the anomalies (though
at the cost of derogation from the paramount parliamentary purpose); but
anomalies would still remain, even on the appellant’s case. For example,
on their case it would be lawful to discriminate as regards children in care
whom the local authorities seek to board out; but it would be unlawful to
discriminate in relation to the (presumably older) children in care whom
the local authorities seek to place in lodgings (other than premises falling

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.

I would dismiss the appeal.

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.

I find it imposible, on the uncontradicted evidence, to hold that the
Watsons’ establishment was not a private household in which they treated
the children whom they took in exactly as if those children had been members

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.

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.

My Lords, for these reasons, I would dismiss the appeal.

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