The Race Relations Act and Racial Discrimination

Those who are healthy may be thought to have a moral duty to care for the sick. The National Health Service Act 1946 set up a national health service, funded by taxation, to provide free medical care for all citizens. The law adopts a broadly Christian attitude to marriage: marriages between two people of the same biological sex are unlawful, and unlike all other contracts, a marriage cannot be ended by mere agreement between the parties.

Polygamous marriages abroad are sometimes recognised, but otherwise, bigamy is an offence under the Offences Against the Person Act 1861. Bigamy, said Cockburn CJ in R v Allen (1872), involves an outrage on public decency and morals, and creates a public scandal by the prostitution of a solemn ceremony which the law allows to be applied only to a legitimate union. Where the common morality of society changes, the law may change with it. It was recognised in the mid-20th century that arbitrary discrimination based on a person’s colour is morally wrong.

The Race Relations Act 1966 gave effect to this moral rule, creating new offences of inciting racial hatred and a new tort of unlawful racial discrimination and setting up a Race Relations Board (now the Commission for Racial Equality) to combat unfair practices. On the other hand, the majority of people now regard abortion as an acceptable form of birth control, and the Abortion Act 1967 legalised abortion (previously a serious criminal offence) under certain broadly-defined circumstances.

Similarly, homosexuality is now regarded by many people as an acceptable mode of behaviour, and the law has changed to reflect this. The injunction (in the fourth Commandment) to remember the sabbath day and keep it holy was enacted at least in part in statutes such as the Sunday Observance Act 1677 and the Shops Act 1950, which sought to preserve Sunday as a day on which ordinary commerce does not take place.

The fact that both have now been largely repealed by the Sunday Trading Act 1994 and other Acts reflects the changing morality of a country most of whose citizens do not regard Sunday as having special religious significance. Other moral rules have clearly influenced judicial decisions and so have found their way into the common law. Sometimes this is quite explicit: Hoffmann LJ said in Airedale Health Authority v Bland [1993] 1 All ER 821, for example, that whether a patient should be allowed to die is not an area on which any difference can be allowed to exist between what is legal and what is morally right.

Sado-masochistic practices are morally unacceptable, and in the Spanner case the House of Lords ruled that the satisfaction of sado-masochistic desires was not a good reason for allowing people to inflict bodily harm on one another. (Contrast boxing and tattooing, which are not considered immoral and are regarded as good reasons for causing bodily harm. ) Present-day Western morality would say that a man should not force his wife to submit to sexual intercourse against her will. R v R (rape – marital exemption) [1991] 4 All ER 481, HL

A husband living apart from his wife forced his way into the house where she was living and had sex with her without her consent. Upholding his conviction for rape, the House of Lords said the long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate. This is not the creation of a new offence, said Lord Keith; it is the removal of a common law fiction which has become anachronistic and offensive and we consider it our duty having reached that conclusion to act upon it. It is a moral rule that people ought to keep their promises.

In 1947 in the High Trees case Denning J discovered the equitable doctrine of promissory estoppel, whereby a person who promised not to enforce his strict legal rights could not subsequently go back on that promise. It is also a noble and moral thing to try to help others, and the law takes a tender view of those who suffer injury or death while attempting a rescue. Central London Property v High Trees House [1956] 1 All ER 256, Denning J A landlord agreed to accept a reduced rent during the second world war; at the end of the war he sought to claim the arrears.

Denning J said that when a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights, the equitable principle of promissory estoppel makes that promise binding on him. Chadwick v British Railways [1967] 2 All ER 945, Waller J A man P suffered psychiatric injury after helping with a horrifying train crash. The judge said a person who helped rescue the survivors of a disaster was entitled to recover damages for his own psychiatric injury, even though he had voluntarily put himself in the danger area.

Baker v Hopkins [1959] 3 All ER 225, CA A doctor was overcome by fumes when trying to help two workmen suffocating at the bottom of a disused well, and died. His widow succeeded in her action for damages, even though he had ignored warnings of the danger and had voluntarily put himself at risk. During a short period in the 1960s the judges saw themselves as guardians of public morality, particularly in sexual matters, and even went to the extent of creating new offences.

Shaw v DPP [1961] 2 All ER 446, HLD published a booklet containing the names and addresses of prostitutes, their photographs, and details of the services they provided, and was charged with conspiracy to corrupt public morals, a supposed common law offence never previously charged. The House of Lords (Lord Reid dissenting) upheld his conviction. Viscount Simonds said that in the sphere of criminal law he had no doubt the courts retained a residual power to enforce the supreme and fundamental purpose of the law, namely, to conserve not only the safety and order but also the moral welfare of the state.

It was their duty to guard against attacks which might be the more insidious because they were novel and unexpected. Viscount Simonds’ dictum has now been widely disapproved, but the judges still allow their decisions to be influenced by moral factors. Hunter v Butler [1996] RTR 396, Times 28/12/95, CA A widow P claimed damages following the death of her husband H in a road accident; D admitted liability but disputed the damages.

H had been working part-time and earning 90 a week, but had simultaneously been claiming various social security benefits on the basis that he was unemployed. Waite LJ said judges should avoid subjective moral judgements, and should accept the realities of life in the modern welfare state, but there remain certain fundamental principles essential to any just and civilised society: damages for loss of income are limited to income honestly received! There are some legal rules, of course, that have no moral significance at all.

Many of them deal with purely regulatory matters, such as the side of the road on which cars should drive; their common feature is that most people would agree there must be some rule on the matter but it doesn’t really matter what the rule is. A few of these rules, however, are of more importance. A will is not legally valid unless it is signed by two independent witnesses. Alcohol cannot lawfully be sold in most public houses after 11. 00 pm. Smoking tobacco is lawful, but smoking cannabis is not. Each of these involves some arbitrary decision free of any moral element.

It is difficult to find moral rules that have had no influence at all on any legal rule, but a number of moral rules are certainly not reflected directly in the law. It is morally wrong to cheat in sports, but the law does not try to enforce the rules of any sport. (The few cases based on breaches of sporting rules have also involved breaches of the general law of assault &c. ) Gamblers who lose ought to pay up without arguing, but the law will not enforce a gambling debt: if the winner tries to sue, his case will be thrown out. Jones v Vernon’s Pools [1938] 2 All ER 626, Atkinson J

The conditions of entry of a football pool competition stated that the sending in of the coupon should not give rise to any legal relationship, and that the arrangements of the pool were binding in honour only. P claimed to have sent in an entry but DD denied having received it; it was conceded that had it been received it would have won a prize. The judge said the conditions of entry prevented P from succeeding in his claim, and it was consequently unnecessary to decide the issue of fact. In some situations, those empowered to make decisions on behalf of others may not be permitted to make decisions based on what they think is morally right.