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Column 1155Winterton, Nicholas
Wise, Mrs Audrey
Young, Sir George (Acton)
Tellers for the Ayes :
Mr. David Heathcoat-Amory
and Mr. John M. Taylor.
McCrea, Rev William
Molyneaux, Rt Hon James
Robinson, Peter (Belfast E)
Tellers for the Noes :
Mr. Roy Beggs and
Rev. Ian Paisley.
Question accordingly agreed to .
Clause read a Second time, and added to the Bill .
Mr. D. N. Campbell-Savours (Workington) : On a point of order, Mr. Deputy Speaker. I am not complaining because I have done this, but I understand that while I was out of the Chamber the hon. Member for Littleborough and Saddleworth (Mr. Dickens) suggested that I had been given incorrect information and had tabled an early-day motion including that material. The document that I received, and on which the early-day motion was based, is a sworn affidavit that I interviewed the constituent of the hon. Member for Littleborough and Saddleworth in my office for one and a half hours, and that during that meeting he was unable to deny the total authenticity of that material. Subsequently, I have sought, and gained, a further affidavit from a person who was directly involved in the drawing up of the original affidavit. I stand behind every statement that I made and seek to confirm the information contained in the affidavit. The original affidavit is signed by Mr. Coughlan, a self-confessed phone tapper, in which he states that he, on behalf of Mr. Tiny Rowland and Lonrho, tapped the phones of the Al-Fayeds.
After section 37 of the Fair Employment (Northern Ireland) Act 1976 there is inserted--
" Measures to encourage training from under-represented community
37A. Nothing in Parts III or IV shall render unlawful any act done by
(a) an employer,
(b) an employment agency,
(c) a vocational organisation, or
(d) a person providing services mentioned in section 22(1) in or in connection with affording members of the Roman Catholic, or members of the Protestant, community in Northern Ireland access to facilities for training which is not intentionally confined to members of the Roman Catholic or Protestant community as the case may be and which would help to fit them for employment, for employment in a particular capacity, or for a particular employment or occupation, where the act is done in pursuance of affirmative action (within the meaning of the Fair Employment (Northern Ireland) Act 1989'."-- [Mr. McNamara.] Brought up, and read the First time .
Mr. McNamara : The new clause seeks to protect affirmative action programmes from challenges under the provisions dealing with direct discrimination. The issue was extensively debated in Committee, and, therefore, I shall not detain the House too long on this point. However, it is essential to put it on record.
The purpose of the new clause is to ensure that employers can organise training schemes for the purposes of affirmative action. Those schemes are calculated to help members of an under-represented community to obtain employment in a place of work. On that, the Government and the Opposition are as one. However, in order to do so, the employer must be protected from those who would claim that affirmative action constitutes a violation of the prohibition on discrimination. That is normally done by means of a specific exemption, which excludes affirmative action from the prohibition on discrimination. That is the case with the legislation that deals with racial and sexual discrimination in Great Britain.
More interestingly, the position has been recognised by the Government, who have introduced amendments that protect employers who advertise posts in a way that appeals exclusively to the under-represented community. The Bill also contains exemptions protecting the employer engaged in affirmative action training schemes from allegations of indirect discrimination. We welcome those.
However, there is a difference of opinion between the Government and the Opposition which the Government have not, as yet, accepted. We believe in the need to provide an exemption against direct discrimination. The Government have two objections to that. First, they sincerely believe that they have done enough to protect employers from such a charge. They believe that if an employer provides a training scheme, which would be indirectly discriminatory in the absence of the exemptions provided for in clause 51, the scheme cannot, at the same time, be directly discriminatory. Unfortunately, that is incorrect.
The fallacy of that argument is revealed by the Bill. Clause 47 clearly relates to situations in which a particular practice may be both directly and indirectly discriminatory. In other words, there is an overlap between the two forms of discrimination. That is why the Opposition continue to believe that some form of exemption must be included for direct discrimination as well as for indirect discrimination.
Secondly, in Committee, the Government argued that they also believed that an affirmative action scheme that does not totally exclude members of one or other community could not be considered directly discriminatory. However, the Bill contains no requirement totally to exclude one or the other community to demonstrate direct discrimination. The definition of direct discrimination in clause 47(2)(a) states :
"on either of those grounds he treats that other less favourably than he treats or would treat other persons,"
The test is whether a person is shown less favourable treatment, not whether he is excluded.
The Government have set their face against permitting training schemes that are religiously exclusive. The new clause is explicit on that point. It would make it unlawful for an employer to set out with the intention of setting up a training scheme to exclude members of one or other of the two communities. Therefore, we hope that we have answered one of the Government's arguments relating specifically to religion.
Column 1157There is a need to clear up the Bill so that employers have a clear understanding of what is, and what is not, permissible. The House cannot allow excessive ambiguity to creep in. That would discourage employers from taking action to rectify religious imbalances within the work force.
The new clause has a further merit. It deals with another continuing and vexatious problem--the conflict between clause 51 as it stands, the Sex Discrimination (Northern Ireland) Order 1976 and the European Community's equal treatment directive of 1976. At present the exemptions provided for affirmative action with respect to indirect discrimination are themselves indirectly discriminatory in regard to women. The criteria mentioned, such as age and length of service, could have a detrimental effect on women, and would therefore be subject to challenge in the European Court of Justice. The new clause would prevent such unfortunate circumstances from arising.
The Opposition are convinced that the Government did not intend the effect that the clause will have, but we think that careful consideration should be given to correcting the drafting. I hope that they will look favourably on the new clause, or will give an undertaking that it will result in changes being made in the other place.
Mr. Ashdown : I shall not detain the House for long. Let me say merely that I fully support the new clause, which strikes me as well and carefully drafted. The hon. Member for Kingston upon Hull, North (Mr. McNamara) said that he hoped that the Government would accept the spirit of the new clause. I think that he and I both know that the hand behind it is that of Dr. Chris McCrudden, a widely respected expert on these matters. I hope that the Minister will be able to accept both the spirit and the vast majority of the words of the hon. Gentleman's cogent argument.
The Government seem to be in a bit of a muddle. There is a clear contradiction between their admirable, laudable and supportable intention to provide affirmation action on the one hand, and their equally admirable aim to prevent indirect discrimination on the other. It is a matter of unfortunate circumstance that, at least in some instances, the one may be able to impinge on the other. Two admirable acts have been so juxtaposed that they may inhibit each other.
The ambiguity needs some clarification, as I hope that the Government will accept. It would be a crying shame if what emerged from Committee as an excellent Bill--as a result of the Government's flexibility and the Opposition's cogent arguments--were to suffer from the Government's feeling that they had made their quota of accommodations and could not make a further one in this instance. The case, I think, stands by itself, and I very much hope that the Government will respond positively.
Mr. James Molyneaux (Lagan Valley) : I think that clause 51 has a further defect. As drafted, it takes account of only two religious communities in Northern Ireland, completely ignoring others. Unlike this island, Northern Ireland contains rapidly expanding ethnic communities. Furthermore, we are glad to say that we experience no friction or difficulty in absorbing those communities into the life and business activities of Northern Ireland. I feel that we should extend
Column 1158the narrow definition in the clause, which mentions only Roman Catholic and Protestant communities, making no allowance for others who, as British citizens--and, for that matter, non- British citizens--have a perfect right to enjoy the fulness of life in Northern Ireland.
I am sure that the Minister would acknowledge that many ethnic groupings contribute a great deal to the economy of Northern Ireland. Many are self- employed, but a considerable number are employed, and I feel that it would be a great mistake to exclude them from the provisions of the clause.
Mr. Viggers : We are dealing with the crucial subject of outreach training carried out in pursuance of affirmation action, which is no simple matter. There is no doubt that such training can play an important role in remedying under-representation, and it is essential that the Bill should make appropriate provision for it. Clause 51 is a genuine attempt to do that, but I accept that the Opposition and, indeed, the Equal Opportunities Commission for Northern Ireland are sincerely concerned about it.
The Opposition consider that the circumstances specified in clause 51 could give rise to accusations of direct as well as indirect discrimination against any employer implementing the training permitted under the clause. Protection is, of course, already afforded in relation to indirect discrimination, and the Government are not as convinced as the Opposition of the legal validity of the need for protection against direct discrimination in the circumstances specified in clause 51. They readily accept, however, that the Opposition are motivated by a genuine concern to ensure as much protection as practicable against possible charges of direct discrimination, in addition to the protection against indirect discrimination that is already provided. They also accept that the Equal Opportunities Commission has genuine concerns about the criteria specified in clause 51--unemployment, age and length of service--and consider that they are potentially indirectly discriminatory against women and could invite challenge under not only national but European Community legislation.
The Government's concern is to ensure that the detailed provisions of the Bill, while satisfying the requirements of the Opposition and the Equal Opportunities Commission, do not permit religion-specific training which would be divisive and unfair in Northern Ireland. I respect the action of the hon. Member for Kingston upon Hull, North (Mr. McNamara) in tabling a new clause that takes account of our strong views, which are based on the position in Northern Ireland as we see it.
New clause 2 looks helpful : it offers a possible solution that could accommodate the genuine objectives of all the parties concerned. It merits serious and positive consideration, which it is receiving. Although I am not in a position to express my acceptance of the precise form of words proposed, I can accept the broad approach in principle. I therefore propose to continue my examination of the new clause with a view to bringing forward an appropriate amendment in the Lords. On the basis of that commitment, I hope that the hon. Gentleman will see his way clear to withdrawing the new clause.
The concern expressed by the Equal Opportunities Commission was on two counts. First, as I have said, the commission feared that the criteria specified in clause 51
Column 1159might give rise to potentially indirectly discriminatory action against women. We are addressing that point in our consideration of a subsequent Lords amendment. The commission's second fear was that the gender-specific training provided under the Sex Discrimination (Northern Ireland) Order 1976 might be at risk of challenge on the ground of indirect religious discrimination. In Committee I gave a firm committment that nothing in the Bill would weaken the provisions of existing sex discrimination legislation, and that remains the Government's position.
It is likely that the approach suggested in new clause 2 will not answer the commission's second concern. I therefore propose to ensure that the necessary legislation is effected to satisfy the commission's anxiety to protect gender-specific training from any accusation of indirect religious discrimination.
I trust that the hon. Gentleman will recognise that we are seeking to meet the points that he has raised, and will be prepared to withdraw the new clause.
Rev. Ian Paisley (Antrim, North) : The Minister made no reply to the right hon. Member for Lagan Valley (Mr. Molyneaux). Perhaps he would like to comment on the right hon. Gentleman's remarks, and say whether, in considering the new clause, he will make provision for no minority to be discriminated against, and for all to stand on an equal plane of fair opportunity.
Mr. McNamara : No hon. Member on either side of the House wants discrimination to be practised against anyone on grounds of race, colour or creed. I am sure that I speak for the Government as well as for the Opposition.
I found the Minister's reply most encouraging and helpful, and indeed generous, and I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn.
Subsections (2) and (3) of section 42 of the Fair Employment Act 1976 (certificate that act done for purpose of safeguarding national security, or of protecting public safety or public order to be conclusive evidence of that fact) shall cease to have effect.'.-- [Mr. McNamara.]
Brought up, and read the First time.
This matter was of considerable concern to our side of the Committee and in particular to my hon. Friend the Member for South Down (Mr. McGrady).
The effect of this new clause is to allow an independent scrutiny by the judiciary of national security notices issued by the Secretary of State, which at the present time cannot be challenged. This is an old argument over section 42. We believe that it is wrong for that decision to remain unchallengeable, first, because it is an anomalous element within the Bill. One of the strange facets of part II of the Bill concerns contract compliance. A contractor can be exempted and awarded a contract by the Secretary of State on the grounds of national security even if he happens to be an unqualified person, that is to say, a person who deliberately discriminates. Therefore, under the normal qualifications, and despite the enormous and very difficult procedures, he is eventually deemed to be not a suitable
Column 1160person to redeem a Government contract or a grant, but such an unqualified person may be given such a contract or grant on the ground of national security.
Under part II of the Bill the Secretary of State's decision in such a matter would be unchallengeable because the courts would be able to exercise judicial review of his decision. Under section 42 of the 1976 Act no such judicial review exists in the case of a person denied employment or a contract by virtue of the Secretary of State's national security certificate. This certificate allows the Secretary of State to prevent an investigation into a case of alleged discrimination on the ground of national security. No provision for any form of appeal or judicial supervision exists to prevent abuses of power in this way.
The other anomaly is that it is not in conformity with the Sex Discrimination Order under which, since an amendment moved by the Government last year, national security certificates are subject to judicial review. That is the case of Johnston v the RUC. As a result of this provision, and particularly because the tribunal may at times have both a sex and a religious jurisdiction to carry out, a ludicrous situation arises. An individual can bring a case under the Fair Employment Bill and under the Sex Discrimination Order. If a national security certificate were issued by the Secretary of State, the complainant could seek a judicial review under the Sex Discrimination Order but not under the Bill. That is obviously nonsense.
Secondly, once again, this Bill could be in conflict with international law. The case of Johnston v the RUC went to the Communities courts, but under the European convention on human rights there is an insistence that an individual must have redress against an arbitrary use of power. So, again, with regard to the Secretary of State's certificate, there could be an application to the European convention on human rights.
Thirdly, there is widespread concern in Northern Ireland about this issue, as demonstrated by the recent BBC programme "Taking Liberties". The Minister may object by saying that section 42 has been used only in a limited number of cases, and that is correct. That is wrong for two reasons. If an injustice has been done, a person should be entitled to a correction of that injustice under our system. Secondly, and more importantly, within Northern Ireland itself it is widely believed that the formal use of section 42 is merely the tip of the iceberg. It is widely believed that individuals are often denied access to employment on the pretext of national security when, in fact, the real reason for their exclusion is quite different.
There are two infamous cases of people denied work at Ballylumford. One of them, a scaffolder, could not work on national security grounds in Ballylumford but could be employed in the headquarters of the British Army in Lisburn, Northern Ireland opposite the General Officer Commanding. There is also the case of a person who was denied a job at Ballylumford but nevertheless got an invitation to the garden party at Hillsborough to meet the Queen Mother, together with a map of how to get there.
Our proposal recognises the need for national security exemption. Judicial review provides sufficient flexibility and security to combine proper concerns for national security with protection against the arbitrary use of power. An application to a judge ex-parte in this matter does not necessarily need the person making the appeal to see the evidence and does not have to take place in set premises.
Column 1161The judge concerned can examine the evidence upon which a decision is based at, for example the headquarters of the RUC.
One does not doubt the integrity of the Secretary of State. He has grievous responsibility in making such a decision. He can be led into error, as recent cases before the courts might possibly reveal. Let me give a hypothetical example. Public authority X, where there is an overwhelming majority of one group employed, decides to issue an application for a job or, more specifically, for a contract. Y, a member of the other community, either applies for a job or for the contract and gets that contract. Thereupon the majority work force of public authority X objects because, in one phrase, the person involved came from the borders, which is a polite euphemism for saying that he is a member of the nationalist community.
X's work force now objects to Y getting the job, because they are from the borders. X is in a difficulty with his work force and therefore withdraws the contract on the ground that Y is not competent to carry out the contract. Y then produces evidence to show not only that he is competent to carry out the contract but that he has carried out similar contracts in the past and is in every way well suited to carry out work of that nature. So, X having given way to the pressure from his work force to exclude a person from the contract or the job, seeks another way round and seeks to ensure that section 42 notice is issued by the Secretary of State to say that Y is in fact a potential threat, or a suspected threat, to national security.
I have given that example because it mirrors in many ways the case now before the court.
The effect of that case is that a person has been discriminated against on the ground of religion. There has been an attempt to disguise that discrimination by saying, first that, because a person is not competent, he cannot carry out the task at hand. When the competence is not shown to be a real reason for denying the employment, section 42 is called in to deal the blow.
If the Secretary of State has no reason to give and is not subject to judicial review, we cannot know how or why the decision has been made and whether it has been made fairly.
Many of the decisions are questions of judgment. We acknowledge that immediately. They are important matters concerning the life and safety of the subjects. However, they concern the freedom of the individual, the right to pursue one's chosen vocation without fear of the malicious intent of somebody objecting to one's religion, the malicious use of a confidential telephone call or somebody trying to settle a personal or industrial score. Those are the problems that arise now and we are seeking to overcome them by suggesting that the Secretary of State's complete power of exemption should be looked at carefully. It would be helpful if we had the power of judicial review of decisions made by the Secretary of State.
Mr. Viggers : The new clause, which is identical to new clause 6 tabled in Committee, is intended to repeal subsections (2) and (3) of section 42 of the Fair Employment (Northern Ireland) Act 1976. Subsection (2) provides that a certificate signed by or on behalf of the Secretary of State certifies that an act specified in the
Column 1162certificate was done for a purpose mentioned in subsection (1)--safeguarding national security or protecting public safety or public order. Subsection (3) provides that a document purporting to be such a certificate shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate. The effect of the new clause is to abolish the section 42 certificate procedure, but not the national security defence.
The hon. Member for Kingston upon Hull, North (Mr. McNamara) acknowledged the regrettable but nevertheless clear need to retain the national security safeguard provided in section 42(1) of the 1976 Act. The continuing need for such a provision was noted by the Standing Advisory Commission on Human Rights and there are few, if any, in the House who would attempt to deny that need. Nevertheless, the real effect of the hon. Gentleman's new clause 3 would be to dismantle the usefulness of the safeguard completely, and I feel sure that that is not his intention. Let me explain what I mean. An act is done by an employer on the ground of safeguarding national security, but is challenged on the ground that it is in fact an act of religious discrimination. The case comes before the Fair Employment Tribunal. If subsections (2) and (3) of section 42 are removed and the certification schemes abolished, the employer must appear before the tribunal to substantiate his claim that his action was justified on grounds of safeguarding national security, or protecting public safety or public order. Revelation of the kind of information which might have led to an employer forming that sort of judgment could be extremely damaging, not just to the overall security effort in Northern Ireland but, in some circumstances, to the safety of individuals. The House will not expect me to amplify these concerns, but they lie at the very root of the national security safeguard and the certification procedure which is part and parcel of that safeguard.
Mr. Harold McCusker (Upper Bann) : I apologise for being late, but I was unavoidably detained. However, I have listened carefully to the Minister and he is giving the impression that employers make judgments on national security and that it is employers who use that excuse to discriminate. In every case that has been presented to me where a person has been denied employment with a construction company at a security base within perhaps the grounds of Stormont castle, and the company has employed, say, a Roman Catholic and submitted the list of names to the Ministry of Defence or the Northern Ireland Office, the complaints are from the employers. They complain about the action taken by the Minister and his right hon. and hon. Friends in discriminating against a person by saying that he is not fit to work on the site. Who is the discriminator in those circumstances, or who is making the excuse of discrimination? Employers do not cite national security. Most employers could not care tuppence for national security. They are concerned only with earning a profit and getting their job done.
Mr. Viggers : The hon. Gentleman is entirely right. Section 42 procedure is used by the Government. The certificate is signed by or on behalf of the Secretary of State and it is for him to say that there are issues of national security involved and that he deems it necessary, in the public interest, that an individual should not be entitled to take advantage of the claim of discrimination which he is alleging,
Column 1163I do not demur from the point made by the hon. Gentleman, but I am sure that he will accept that concerns have been expressed about section 42 because, by nature of the procedure and because national security is involved, it is not possible to be as clear as one would like about the grounds on which the certificate has been signed. As the House would expect, section 42 certificate applications are taken seriously by my right hon. Friend the Secretary of State. They are subject to detailed scrutiny.
Mr. Ashdown : We all recognise that this is a complex matter. That was illustrated by the excellent speech made by the hon. Member for Kingston upon Hull, North (Mr. McNamara). However, I do not understand why the Minister is suggesting that allowing the Secretary of State's decision to be open to judicial review would be damaging in this case but works perfectly well under the Sex Discrimination Order 1988. If it applies in that case, why can it not apply here?
As I have said, concerns have been expressed about section 42 and we would like to find ways of modifying the system to make it more demonstrably fair. Although those responsible for the administration of the system can see that it is fair, we must seek to make it demonstrably fair.
As I warned in Committee, we were not optimistic about devising modifications that would not risk undermining the entire operation of the national security safeguard. I have to say that, at least for the time being, we are not in a position to make any change to the existing system. That does not mean that we have abandoned our attempt to meet the concerns that have been expressed. We are currently examining the administrative procedures to see whether they can usefully be revised. I am sorry that this is a disappointing response to hon. Members' concerns but we cannot countenance any change that would undermine a vital safeguard.
Mr. Molyneaux : The Minister should be assured that he should not have any qualms of conscience. We are not directing our criticisms solely at Conservative Secretaries of State and Ministers. I am sure that the hon. Member for Kingston upon Hull, North (Mr. McNamara) would admit that Labour Secretaries of State indulged in that activity with even greater enthusiasm in their day.
Mr. Viggers : We take no pleasure in the administration of the system. The prime concern must be the security of Northern Ireland and its people. However, we are seeking to find ways of demonstrating that the system we operate is fair and can be seen to be fair. That is why we are expressing so much concern about this point. The right hon. Member for Yeovil (Mr. Ashdown) asked about the distinction between fair employment provisions and those relating to sex discrimination. The hon. Member for Kingston upon Hull, North has made a case for changing section 42 in the same way that article 53 of the Sex Discrimination (Northern Ireland) Order 1976 was changed in 1988--removing the certification system altogether. Despite his pleadings, I am not convinced. The judgment in the Johnston case, which led to the Sex Discrimination (Amendment) Order 1988, was concerned
Column 1164only with equality of opportunity between the sexes. Legislation on religious discrimination is unaffected by that judgment.
He also mentioned the apparently anomalous case of a complaint of religious discrimination under part III of the 1976 Act which also contained allegations of sex discrimination contrary to part III of the 1976 order. I agree that this anomaly exists in theory, but I seriously doubt whether it is ever likely to arise in practice. The national security issues which might have been relevant in the context of article 53 of the 1976 order are not the same as the issues which would be relevant in the context of section 42 of the 1976 Act. The circumstances when being female could give rise to national security issues are likely to be limited, whereas such issues under the 1976 Act are likely to turn on a person's political opinion or supposed political opinion, and would therefore be uncommon. For those reasons, I urge the House to reject the new clause.
Mr. Eddie McGrady (South Down) : I support the new clause so ably proposed by my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara). On behalf of my party, I tabled amendments on this matter in Committee, and I think that I elicited some sympathy from the Minister because he undertook to deliberate on the points made to him. I am sure that he honoured that commitment, but I am extremely disappointed that the results of the deliberation are "no change". For the benefit of people who do not live in Northern Ireland, it is important to understand the context of my anxiety that a safeguard should be given to individuals and companies when national security is invoked. A telephone call on a confidential line can prevent a person from obtaining or taking a job or can result in a person being dismissed. The use of the confidential telephone can prevent a firm from being given a contract or can result in a firm being moved off a site. Of course, that can be done only after the issue of a section 42 certificate.
There have been occasions in my experience, and which I am capable of proving, when a section 42 certificate was withdrawn because it was invalid and not based on adequate evidence. In Committee I tried to achieve a means by which decision making could be challenged in a confidential way. A person or company can be accused, found guilty and "sentenced" without having any knowledge of the reason for the accusation. It was to try to achieve a vehicle by which justice could be seen to be done, to use an often quoted phrase, that we suggested a means of appeal so that the persons concerned could at least be made aware of their alleged transgressions and could be given the opportunity, as justice demands, of presenting a defence. It was nothing more dramatic than that. It was simply to try to introduce an element of natural justice.
I am extremely disappointed that the Minister has come to us again with no progress to report on that matter, although I admit that he has made much progress in many other spheres. On this matter no progress appears to have been made and no hope is being held out. Cases can crop up from day to day. I have seen young apprentices and adult men and women deprived of jobs, and I have seen companies deprived of contracts without apparent justification. After representations from me, some people were reinstated. Every Northern Ireland Member will have similar experiences. That is why it is important for us to
Column 1165have a means by which the defence of innocence can be made and reconsideration can be undertaken by the Secretary of State. Much of this is done on the basis not of national security, but simply of raw, naked sectarianism.
Mr. Ashdown : I did not intend to intervene in the debate, but the Minister's argument was so tortuous and unconvincing that I wonder whether there is something more at the heart of this that is not being revealed to us. I read the reports of the proceedings in Committee and they seemed to be characterised by a great deal of intelligence and logic and people adopted accommodating positions. The Minister's argument has not been characterised either by such accommodation or by such logic.
The Minister suggested that because an injustice is likely to be small it does not matter. It is the argument about the housemaid's baby. Surely in the special circumstances of Northern Ireland it is more important there than elsewhere to apply justice equally and fairly. We all know that there are quirks and idiocies in the law as it applies in England, and that they take a good deal of time to iron out.
The Government have the opportunity to set in place a law whose application will be manifestly different from those of a similar law which applies to discrimination in other areas. It is clear that there is the possibility of one case running in parallel with another. A person against whom a security certificate has been laid could appeal in a sex discrimation case. That person has the right to appeal to a judicial review, but another person who is claiming discrimination on religious grounds and against whom a security certificate is also laid does not have the right to such an appeal. How could that be fair, logical or just?
The Minister's argument on judicial review rests on two pillars. The first is that there will be relatively few--I think that is what the Minister said--cases of discrimination on grounds of sex which would have national security implications. I do not argue that there will be many such cases, but the Minister must concede that potentially there will be some. Why should they be treated on a different basis?
The second pillar of the Minister's argument is that providing judicial review will so wholly undermine the process of security certification as to make it worthless. If it does not make it worthless in the case of sex discrimination--and the Government have not taken that view--why should it make it worthless in this case? I do not understand why the Minister is following a course which is so manifestly not equal on both sides and which so obviously does not stand up to logical scrutiny.
I suppose that the House must take refuge in the fact that in the past the Minister has accommodated arguments and when he has told us that he will go away and think further about a matter we must give him the benefit of the doubt that he will do that. I appeal to him to find a mechanism to meet the legitimate grievances that have been put forward. If he does not, he has in his hands a positive and deliberate mechanism to build into the process of the law that he is constructing an inequality which will make the law look like an idiot when it is applied.