Ealing London Borough Council v Race Relations Board

Discrimination on the ground of a person's present legal nationality or citizenship was not discrimination on the ground of “national origins” within section 1(1) of the Race Relations Act 1968. National origins referred to origins associated with nationhood, race or descent. They could remain unchanged when citizenship changed. A housing authority therefore did not contravene section 5 merely by restricting its waiting list to British subjects.

The statutory enforcement procedure did not exclude the High Court’s jurisdiction to determine the authority’s rights by declaration. Jurisdiction could be excluded only by clear words or necessary implication, neither of which appeared in the Act.

A local housing authority restricted admission to its housing waiting list to British subjects. It refused an application from Mr Zesko because he was then a foreign national, although it accepted him after his naturalisation.

The Race Relations Board considered that the refusal constituted unlawful discrimination under sections 1(1) and 5 of the Race Relations Act 1968. The authority sought declarations in the High Court. Swanwick J held that the court had jurisdiction but dismissed the originating summons on the merits.

The authority appealed directly to the House of Lords. The Board cross-appealed on jurisdiction and discretion. The central issues were whether the Act excluded declaratory proceedings and whether discrimination based on present nationality amounted to discrimination on the ground of national origins.

1. Appeal allowed by a majority of four to one; cross-appeal dismissed unanimously. Viscount Dilhorne, Lord Donovan, Lord Simon of Glaisdale and Lord Cross of Chelsea concluded that the authority’s rule did not contravene section 5 of the Race Relations Act 1968. Lord Kilbrandon dissented on that issue but agreed that the procedural objections failed.

2. Per Lord Donovan and Viscount Dilhorne, with whom Lord Simon agreed on the procedural issues, section 19 regulated proceedings brought by the Race Relations Board. Its requirement that those proceedings be brought in designated county courts did not govern an authority’s application to the High Court for a declaration. The High Court’s jurisdiction could be excluded only by clear words or necessary implication. The Act contained neither.

3. Per Viscount Dilhorne, where the facts were undisputed and legality depended solely upon statutory construction, an originating summons was a convenient means of resolving the issue. A housing authority accused of illegality had a legitimate interest in obtaining an early determination and need not await enforcement proceedings by the Board.

4. Per Viscount Dilhorne, Lord Donovan, Lord Simon and Lord Cross, “national origins” and present nationality were distinct concepts. In their statutory context, national origins referred to origins connected with race, nationhood or descent. Those origins could remain constant although citizenship changed. Parliament’s use of “nationality” elsewhere in the Act did not justify implying that word into section 1(1); the saving provisions could have been included from caution.

5. Per Lord Simon, the statutory language, the Acts’ social and legal context, their long titles, the associated penal provision and the use of “nationality” elsewhere all supported the narrower construction. Lord Cross similarly reasoned that legal nationality was irrelevant to the racial discrimination at which the legislation was directed.

6. The authority had acted because Mr Zesko was not then a British subject, rather than because of his Polish origins. His later acceptance following naturalisation confirmed that distinction. The House declared that, by declining to place him on the waiting list for that reason, the authority had not breached section 5. The remaining declarations were refused.

7. Lord Kilbrandon would have dismissed the appeal. He considered that the competing interpretations were finely balanced but that including nationality within national origins produced the less capricious result and better reflected the practical operation of the legislation.

1. House of Lords: By [1972] AC 342, the authority’s appeal was allowed by four votes to one. The Board’s cross-appeal was dismissed unanimously, and a declaration was granted that the refusal did not breach section 5 of the Race Relations Act 1968.

2. High Court: Swanwick J rejected the Board’s jurisdictional and discretionary objections but held that unlawful discrimination had occurred and dismissed the originating summons. The authority appealed directly to the House of Lords with leave.