Ealing London Borough Council v Race Relations Board [1971] UKHL 3

Ealing Council refused to place Mr Zesko, a Polish national, on their housing waiting list because he was not a British subject. The House of Lords held that discrimination based on present nationality was not the same as discrimination on 'national origins' under the Race Relations Act 1968, and thus was not unlawful under the Act.

Facts

Ealing London Borough Council maintained a rule requiring applicants for their housing waiting list to be British subjects within the meaning of the British Nationality Act 1948. Mr Zesko, a Polish national of excellent character and war record, applied for housing in 1966 and 1968 but was rejected on both occasions because he was not a British subject. The Race Relations Board investigated a complaint on Mr Zesko’s behalf and formed the opinion that the Council had acted unlawfully under section 5 of the Race Relations Act 1968, which prohibited discrimination in housing on grounds of ‘colour, race or ethnic or national origins’. The Council sought declarations from the High Court that they had not acted unlawfully.

Issues

Jurisdiction

Whether the High Court had jurisdiction to grant declaratory relief, given that the Race Relations Act 1968 established a specific procedure for the Race Relations Board to bring proceedings in designated County Courts.

Substantive Issue

Whether discrimination against a person on the ground of their present nationality (i.e., not being a British subject) constituted discrimination on the ground of ‘national origins’ within the meaning of section 1(1) of the Race Relations Act 1968.

Judgment

On Jurisdiction

The House of Lords unanimously held that the High Court did have jurisdiction. Lord Donovan noted that clear words are necessary to oust the jurisdiction of the High Court and there were none in the 1968 Act. Viscount Dilhorne emphasised that section 19 of the Act applied to proceedings brought by the Race Relations Board, not to proceedings initiated by those accused of discrimination.

On the Substantive Issue

By a majority (Lord Donovan, Viscount Dilhorne, Lord Simon of Glaisdale, and Lord Cross of Chelsea; Lord Kilbrandon dissenting), the House of Lords held that discrimination on the ground of present nationality was not the same as discrimination on ‘national origins’.

Viscount Dilhorne stated:

“The word ‘national’ in ‘national origins’ means national in the sense of race and not citizenship… Mr. Zesko’s race was Polish. His national origins were Polish. Was he discriminated against on that account? If that was the ground of the discrimination it was not removed by his naturalisation, and the fact that despite his race and his Polish origin he was after naturalisation accepted on the waiting list shows, in my view, that he was not discriminated against on account of his national origins.”

Lord Simon of Glaisdale observed:

“‘Nation’ and ‘national’, in their popular in contrast to their legal sense, are also vague terms. They do not necessarily imply statehood… Scotland is not a nation in the eye of international law; but Scotsmen constitute a nation by reason of those most powerful elements in the creation of national spirit—tradition, folk memory, a sentiment of community.”

Lord Cross of Chelsea explained:

“To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a ‘nation’—whether or not they also constitute a sovereign state… ‘national origins’ and ‘nationality’ in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide.”

Dissent

Lord Kilbrandon would have dismissed the appeal, considering that the interpretation contended for by the Respondents led to a result ‘less capricious and more consistent with reality’.

Implications

This case established an important distinction between ‘national origins’ and ‘nationality’ in the context of anti-discrimination legislation. The decision meant that discrimination based on a person’s current citizenship status (as opposed to their ethnic or ancestral national background) was not prohibited under the Race Relations Act 1968. This highlighted a gap in the legislation that Parliament had not addressed, and the case demonstrated the limitations of statutory interpretation when Parliament has not clearly expressed its intention. The ruling had practical consequences for aliens seeking access to public services and housing, who could lawfully be treated differently from British subjects despite the anti-discrimination legislation.

Verdict: Appeal allowed. The House of Lords declared that by declining to place Mr Zesko on their housing waiting list on account of his not being a British subject, the Council did not commit a breach of section 5 of the Race Relations Act 1968. The cross-appeal on jurisdiction was dismissed.

Source: Ealing London Borough Council v Race Relations Board [1971] UKHL 3