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Mr. Viggers : Out of a total of 28 section 42 certificates, 17 were signed by the Secretary of State for Northern Ireland only after very careful deliberation. That puts into context the problem with which we are dealing. Certificates are not issued lightly ; they are issued with great care. A section 42 certificate is conclusive in the sense that it is a statement by the Secretary of State that national security is involved and that, therefore, the merits of the issue cannot be investigated. In some instances the very demonstration of the case in public or to the people concerned, the very explanation of the facts that have been brought together, would be contrary to the national security interest. I cannot elaborate further on what I have said to the House.

Mr. McNamara : I am disappointed at what the Minister has said. Although I do not intend to divide the House on the issue because it may be raised in another place in more detail, I should like to make one or two observations on what the Minister has said. First and most important, he said that merely because Johnston v. the RUC concerned women, he did not think that it would be a terribly important precedent. I shall give him an example.

Within a sensitive area, job applications are sought for three clerks. Suppose that there are a number of applications for those jobs, one of which is from a woman, but that they are all filled by men and that the woman is denied one. The woman could bring an action on the ground of sex discrimination because all the other applicants were men and that, on the balance of merit, she should have been seriously considered for an appointment rather than be caught out because of her sex. Alternatively, she could make an appeal to the tribunal on the same basis, and then to the courts.

It could be that that woman applicant is a potential para-military. However, if all the appointees had been women, and the one male applicant had not been appointed in the interests of national security, he would not, under the Minister's proposals, be allowed to appeal against that decision except on the ground of sex discrimination. He would not be able to do that if all the others appointed were men. Equally, a woman applicant could not appeal if there were women among those appointed.

I hoped that the Minister would take a stronger approach to the question of administrative procedures. A number of cases currently before the courts concern situations in which strange decisions have been made. It will be impossible for the Government to defend their position. Someone will inevitably take a case to the European Court citing the European convention on human rights and arbitrary uses of power, with the result that there will be another cause ce le bre such as the Grogan case. That would not be good for the Government, and not a happy precedent to set in dealing with the sensitive matter of security in Northern Ireland. It will not help matters if the Government are paraded before the European Court for being insensitive to human rights. Nor will it do our country, or the administration of justice, any good, or help to enhance confidence in legal and civil administration.

I hope that the Government will be able to produce a more persuasive argument when the Bill goes to another place. While I understand the Government's arguments, it is possible under existing systems to provide for a degree

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of review by an independent member of the judiciary. A judge can say, "I have considered certain matters where I consider that the Secretary of State's judgment was right, but in other cases it was wrong and an injustice was done." I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4

Contract and grant compliance

(1) Except in contracts certified in accordance with the provisions of section 39(7) of this Act, all public authorities shall include the provisions of the Code of Practice in every contract hereafter entered into with every person ("the contractor"). (2) The contractor shall include the provisions of the Code of Practice to this Act in every sub-contract so that such provisions are binding upon each subcontractor, unless the sub- contract is certified in accordance with the provisions of section 39(7) of this Act.

(3) Every public authority shall require as a condition for the award of any contract that each prospective contractor or subcontractor shall submit a statement in writing to the effect that he is already implementing the provisions of the Code of Practice. (4) Every public authority which administers a programme involving financial assistance included in section 41(2) of this Act applies shall require as a condition for the approval of any such grant, that the applicant shall submit a statement in writing to the effect that he is implementing the provisions of the Code of Practice. (5) The Department shall draw up regulations providing such means of enforcing the provisions of this section as it considers appropriate.'.-- [Ms. Mowlam.]

Brought up, and read the First time.

Ms. Marjorie Mowlam (Redcar) : I beg to move, That the clause be read a Second time.

New clause 4 attempts to point out the inadequacies of the Bill's contract compliance provision. It suggests an alternative concept to that proposed by the Government, who conceive of contract compliance as a last resort to be used as a stick against those employers who deliberately and persistently fail to promote equal opportunity. Our clause involves a carrot approach. Rather than use contract compliance in a punitive way, it enshrines a positive strategy. Employers who promote equality of opportunity would enjoy the advantages of being eligible for contracts and grants. Employers who did not promote it would not. Employers would be required to attain an acceptable minimum standard of fair employment before becoming eligible. Therefore, contract compliance would be used primarily as an instrument to reward good employers, rather than as a last-sanction against persistent discriminators.

That approach was suggested by the Department of Economic Development in its consultative document on fair employment. The Government jettisoned the best feature of that document. The same type of contract compliance was advocated by the Standing Advisory Commission on Human Rights, and by the Northern Ireland Congress of Trade Unions. The new clause has two other noteworthy features. First, it extends contract compliance requirements to subcontractors, which is important but notably absent from the Bill. Secondly, it ensures that the same procedures apply both to contracts and Government grants. At present, that is not the case, because clause 39 states that a public authority shall not enter into any contract with unqualified persons unless certain conditions are fulfilled, while discretion to award

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contracts to unqualified persons is given in clause 40. The possibility that public authorities will make grants to persistent discriminators is unacceptable.

Mr. Viggers : The scope of new clause 4 is wide and would involve a substantial change to the Bill. It is superficially attractive, but I urge the House to resist it on the grounds that it is impracticable and unworkable, and that to incorporate it in the Bill as it has evolved would be difficult. It would also be difficult to enforce. The mechanism proposed in the Bill for the application of important economic sanctions is straightforward, equitable and effective. It strikes when notice of disqualification has been served by the commission. It has none of the complications of inserting provisions into contracts or of auditing conformity with declarations of statements of intent. New clause 4 would introduce all those unnecessary and cumbersome complications. It requires every contract and subcontract to include all the provisions of the code of practice, and it provides no definition of what is meant by a contract. It applies to contracts regardless of their nature and size, and of the financial amounts involved.

New clause 4 falls back on a mechanism that we tried and found inadequate-- the submission of statements of compliance. The hon. Member for Redcar (Ms. Mowlam) was right in saying that the Department of Economic Development made such a proposal, but we came to the conclusion that that would not be the best way to proceed. The Bill as drafted incorporates a broadly similar mechanism, which is the declaration of principle and intent. We propose moving on to a system that we are sure will be much more effective, which is a clear trigger mechanism based on a notice of disqualification.

The new clause does not set out coherent or considered proposals for enforcing the provisions it makes but proposes instead to delegate that important aspect to departmental regulations. There is no indication of what those regulations might contain. For the practical reasons that I have described, the new clause would not be helpful and I invite the House to resist it. In doing so, I am not rejecting the concept that the hon. Lady presents, but careful consideration of it has prompted us to move on from the basis suggested in her new clause.

Mr. Molyneaux : The clause appears to deal solely with contractors based in Northern Ireland. I have always found it difficult to understand why contract compliance does not exist in Great Britain, where there is a far greater need for it. From time to time there are clamourings for such a provision, but even right hon. and hon. Members who are the representatives of ethnic communities do not seem to be terribly diligent in promoting their constituents' claims and requests in this House.

What will happen under the provisions of new clause 4 if a company based in England decides to tender for a Northern Ireland contract? There are many examples of that happening. Is it required to certify that it is complying already with the terms of the clause? What will happen if such a contractor comes to Northern Ireland and says, "I cannot sign that certificate because the requirement does not exist in law in England where I am based"?

Perhaps the Minister can clarify whether his Department and those responsible for enforcing the legislation will be content with an English contractor promosing that if he obtained the contract he would

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comply with the codes of practice and all the regulations. How would that promise be enforced if the contract were awarded and the operation were sealed? At what stage and in what manner would the authorities manage effectively to apply the regulations and make certain that they were watertight?

6.30 pm

Rev. William McCrea (Mid-Ulster) : I am sure that many right hon. and hon. Members feel that the legislation is one-sided. People feel that there is massive discrimination in Northern Ireland by Protestants against Roman Catholics. I shall refer to my constituency of Mid-Ulster. I do not think that the Opposition have shown much consideration or care for people, especially the Protestant community west of the Bann. Will the Minister confirm that sanctions will be applied against Roman Catholic companies in my constituency that have no Protestant employees whatsoever? I note that Opposition Members are nodding approval, but I have never heard any Opposition Member referring to the Protestants west of the Bann who are being discriminated against. It appears that many Government and Opposition Members feel that the legislation will apply east of the Bann to remove Protestants from jobs and to deny them jobs rather than being fair across the community.

Rev. Ian Paisley : Does my hon. Friend agree that the employment of Mr. Cooper lends credence to what he has said? Time and again cases have been drawn to the attention of Mr. Cooper and he has refused to investigate. For example, he would not investigate firms in Londonderry which employed no Protestants whatsoever. How can the people of Northern Ireland have any faith in him and believe that he will have a Damascus road experience--or a Dublin road experience--and say that he will now investigate firms that do not employ people from both sides of the religious divide?

Rev. William McCrea : My hon. Friend has made the next point that I wanted to draw to the attention of the House. My biggest problem is that I have consistently made representations to the Fair Employment Agency about the denial of jobs to my constituents, but the agency would not investigate. Will the Minister assure the House--I should like it on record so that I can refer to it in future--that, whenever a Member of Parliament makes representations and requests investigations into firms west of the Bann, such an investigation will take place?

In my constituency, some firms employ a work force that is 98 per cent. Roman Catholic and 2 per cent. Protestant, yet those firms receive handsome handouts in Government aid. Photographs often appear in the newspapers and they are commended for their excellent employment.

I know that my colleagues from Northern Ireland want fair employment, not favoured employment. We are not denying the right to fair employment. I would fight for fair employment, but it seems that there will be favoured employment and I do not accept that that is a proper concept.

The Minister should take into account the fact that a report by Mr. Cooper of the Fair Employment Agency on employment in local government in Magherafelt found the

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Magherafelt district council guilty of discrimination against Roman Catholics. In the past 16 years, the council was under SDLP control for 12 years, and under Unionist control for only four years. It was interesting that Mr. Cooper's report revealed that the only years of fair employment were the four years when I was chairman of the Magherafelt district council. I found that most interesting. I should be glad if the Government and the Opposition would read that report, as it proves that I believe in fair employment and at that time there was fair employment in the Magherafelt district council and throughout the community.

I am concerned that sanctions appear to apply to Protestant firms and people who own companies. It will be most interesting when I refer to the Minister companies in my constituency that are displaying, in the words of the hon. Member for South Down (Mr. McGrady), blatant sectarianism in discriminating against the Protestant community. I hope that the hon. Member for South Down will join me in making representatons for funding to be removed from those firms.

Mr. Viggers : With the leave of the House, I rise only to reassure hon. Members that the legislation we are considering applies equally to Catholics and Protestants. In that sense, it is entirely even-handed. If the hon. Member for Mid-Ulster (Rev. William McCrea) feels that any case of discrimination is not being pursued and is unable to get satisfaction from the Fair Employment Commission, I hope that he will draw it to my attention and not make allegations in the House which he has not pursued elsewhere. It would be quite wrong for the hon. Gentleman to make allegations which were difficult to substantiate if the Government had not been given the opportunity to pursue them. Subject only to those points, I reaffirm that we do not consider that the new clause would be helpful.

Ms. Mowlam : I wish to make one short point to the hon. Member for Mid-Ulster (Rev. William McCrea). If he had read the Standing Committee report in sufficient detail, he would know that hon. Members on both sides of the House gave examples from both sides of the Bann.

Rev. William McCrea : When we referred matters of discrimination to the relevant authorities, it did not work. I have not received an authoritative statement from the body that I was told would look into fair employment. I have requested an investigation into the Department of Health and Social Services, naming the officers and the posts, and after six years I have still to receive an answer from the Fair Employment Agency.

Ms. Mowlam : The hon. Gentleman raised two points and I was replying to the first, so his intervention was irrelevant to my remarks. If he has specific complaints, he should take them up with the Government and not with the Opposition.

The hon. Gentleman seems to use the Fair Employment Agency when it suits him--as he did when he referred to Magherafelt council--and then he makes negative comments in the House against Mr. Bob Cooper of the Fair Employment Agency, when Mr. Cooper is unable to reply.

Mr. Molyneaux : Will the hon. Lady give way?

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Ms. Mowlam : No, I shall not give way, as those points should be addressed by the Minister. I was simply putting it on record that it was out of order for the hon. Gentleman to raise those points in that way.

I understand the difficulties that the Minister has pointed out with regard to the new clause. It is disappointing that he feels unable to include it in the Bill in a more concrete way than saying that he accepts the concept. I hope that the Minister will not divorce theory and practice in regard to other issues. If he accepts the concept of the new clause, I hope that there will be further developments on contract compliance in another place or at a later stage. We are disappointed, but we accept the Minister's points. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1

The Fair Employment Commission

Mr. Viggers : I beg to move amendment No. 1, in page 1, line 16, leave out from Commission)' to end of line 19 and insert

after paragraph (a) there is inserted--

"(aa) promoting affirmative action ;".'.

Mr. Deputy Speaker (Mr. Harold Walker) : With this, it will be convenient to consider Government amendments Nos. 64, 65 and 72.

Mr. Viggers : The purpose of Government amendment No. 1 is to give the commission a clear and specific duty to promote affirmative action as well as promoting equality of opportunity and working for the elimination of discrimination. It in no sense changes the remit originally given to the Fair Employment Commission. It merely imposes a clear and specific duty on it to promote affirmative action. For that reason, I hope that Opposition Members and other hon. Members will believe that the amendment is worthwhile.

Amendment agreed to.

Mr. Viggers : I beg to move amendment No. 2, in page 1, line 19, at end insert--

(3) References in the Fair Employment (Northern Ireland) Acts to the Commission include, in relation to any time before the commencement of subsection (1) above, references to the Fair Employment Agency for Northern Ireland.'.

We are moving through many amendments. I am happy to clarify any of the Government amendments, but unless I am challenged, I propose to deal with them briefly.

Government amendment No. 2 makes it clear that any reference to the commission in the Act between Royal Assent and the creation of the commission under clause 1(1) should be construed as a reference to the Fair Employment Agency. It is a simple matter.

Amendment agreed to.

Clause 2

Constitution of the Tribunal

Mr. Viggers : I beg to move amendment No. 3, in page 2, line 8, after exercised', insert

by a single tribunal or'.

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The amendment seeks to remove the unsatisfactory form of words from clause 2(2) and provides a clearer description of the way in which the Fair Employment Tribunal will operate.

Amendment agreed to.

Clause 3

The President

Mr. Jim Marshall : I beg to move amendment No. 74, in page 2, line 21, leave out Department' and insert Lord Chancellor'.

Mr. Deputy Speaker : With this, it will be convenient to consider the following amendments : No. 75, in page 2, line 24, leave out Department' and insert Lord Chancellor'.

No. 76, in page 2, line 26, leave out Department' and insert Lord Chancellor'.

Mr. Marshall : I hesitate to slow down the rapid progress we are making on the Bill, but I must address amendment No. 74 and the others in a little more detail than was given to the three previous amendments.

The amendment concerns the person or body who is to appoint the president of the Fair Employment Tribunal. Under the Bill, the president of the Fair Employment Tribunal is to be appointed by the Department of Economic Development. I do not intend to go into a diatribe or a detailed criticism of the history of the Department of Economic Development as this is not the appropriate place or time. The amendment should not be seen as a direct or indirect criticism of the Department of Economic Development.

We seek to remove the power of the Department to appoint the president and to vest that power in the Lord Chancellor. Our reason is to emphasise the independence of the tribunal. As the Minister knows from Committee, we believe that if the president of the Fair Employment Tribunal is seen to be appointed by the Department of Economic Development, it could call into question the independence not only of the president himself, but of the tribunal.

All parties are agreed that it is vital that the tribunal is both seen to be and is in practice impartial and independent of the Government. The Bill shows that the Government themselves partially recognise that problem. Once the president of the tribunal is appointed, he is appointed for life. Once he is appointed, there is no further need to genuflect either to Ministers or to the Department of Economic Development. The Government should go the whole hog and remove any nexus between a Government Department, such as the Department of Economic Development, and the president of the tribunal.

6.45 pm

Before the Minister tells me that that would create a precedent and might create problems for appointments in the future, I must point out to him that there are precedents that support the basis of our amendment. I will highlight two of them. The Lord Chancellor appoints the president of the industrial tribunals for England and Wales. More importantly, the Lord Chancellor also makes appointments to bodies whose remit is within the confines of Northern Ireland Departments. The president of the Social Security Appeals Tribunal for the north of Ireland, for example, is appointed by the Lord Chancellor. There

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is support for the amendment from all parties in the Chamber. I urge the Government to accept the amendment.

Mr. Viggers : I must point out to the hon. Member for Leicester, South (Mr. Marshall) that the president of the Fair Employment Tribunal is not appointed for life. He is appointed until the age of 72 and I am sure that the hon. Gentleman will join with me in wishing Mr. Maguire a long and happy retirement after the age of 72. I cannot accept the hon. Gentleman's suggestion that the appointment would be made better by the Lord Chancellor than by the Department. I understand the hon. Gentleman's desire to emphasise the similarities between the functions of the president and those of a judge. There are considerable similarities, but there is one important difference. Industrial tribunals, fair employment and the regulation of employment practices and employment matters generally are transferred matters, which in the event of devolution would be the responsibility of a devolved Administration. We had a similar discussion in Committee when it was suggested that my right hon. Friend the Secretary of State should have direct responsibility for fair employment matters, rather than most of the statutory responsibilities resting with the Department of Economic Developments.

Mr. Molyneaux : That is a vital point. The Minister said that if devolved government were achieved that would be one of the responsibilities of the devolved Government. That is something new and we are encouraged by it. But the Anglo-Irish Agreement does not say that. It says that, in the event of agreement being reached under article 4, certain matters may be devolved, but not the transferred matters. That is an advance and I am grateful for it.

Mr. Viggers : What I have said is clearly understood. I am certainly not enunciating a new principle. If the right hon. Gentleman thinks that I am, perhaps we need to discuss why that should be. I assure the right hon. Gentleman that I was enunciating simple and clear principles.

event of devolution, it would be inappropriate for the Lord Chancellor to have responsibility in transferred matters. It would bopen to a devolved Administration and a devolved assembly to make whatever changes they thought fit in employment law. It would be strange if the Lord Chancellor and a devolved Administration were involved in the same area and it would only cause confusion. I ask the House not to accept the amendment. Mr. Jim Marshall : As the Minister knows, we discussed these matters in Committee. We put similar arguments and the Minister has given virtually the same replies as he gave in Committee. Perhaps we are at a stand-off. Before gracefully withdrawing the amendment-- [Interruption.] We will continue to make our point in another place and in this House again, if the Bill returns amended from the House of Lords. We seek to emphasise the absolute independence of the tribunal both from Government Ministers and from specific Government Departments, such as the Department of Economic Development, in the north of Ireland. A method of doing that has still to be found.

We regret very much that the Government are not prepared to accept the Lord Chancellor instead of the

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ment in that role, but perhaps the Minister will reconsider the problem. When the issue is raised in another place, perhaps the Minister who replies there on behalf of the Government could respondto this point as sympathetically as the Minister has just done. Perhaps with a little more understanding and co-operation we could seek to bring about the change that we desire. I shall withdraw the amendment. Mr. Beggs : I raised this matter in Committee and was grateful for the support that was given to me then. I should be opposed to the amendment being withdrawn.

Rev. Ian Paisley : It would be more helpful if the House knew about the deals between the two Front Benches and if we knew which amendments were to be withdrawn and which put up for barter because what we are doing now is a charade. We shall press the amendments for all the reasons that were given by the Opposition Front Bench spokesmen who have appealed to hon. Members from Northern Ireland. We realise that there is reason, but I should have thought that it would be far better if the Lord Chancellor made the appointment because that would remove this issue from politics and from a Government Department. The appointment would then be removed from a Government Department and from accusations of Government patronage. I should have thought that that would be a good way to proceed. The Opposition should hold on to their amendment and seek to divide the House.

Mr. Jim Marshall : I should like to make two points in response to what the hon. Gentleman has just said. I must emphasise to the reverend gentleman that there is no agreement in terms of timetabling the remaining stages of the Bill-- [Interruption.] The hon. Member for Mid-Ulster (Rev. William McCrea) seems to find this amusing.

Rev. William McCrea : I certainly do.

Mr. Marshall : Of course, and I understand the reasons. His ignorance of this matter was obvious in our previous discussions. If he had had discussions with his hon. Friend the Member for Belfast, East (Mr. Robinson) he would know that this matter was discussed fully in Committee and that we were heavily defeated.

That brings me to my second point, which is a political point. If we were to seek to press the amendment to a Division now and if we were to suffer a heavy defeat of around 170 votes to 15 or 20, it would hardly enhance our ability to ensure that a change was achieved in the Bill in the other place. For that and other reasons. I beg to ask leave to withdraw the amendment.

Hon. Members : No.

Question put, That the amendment be made :--

The House divided : Ayes 26, Noes 101.

Division No. 217] [6.52 pm


Banks, Tony (Newham NW)

Barnes, Harry (Derbyshire NE)

Beggs, Roy

Bermingham, Gerald

Boateng, Paul

Corbyn, Jeremy

Dixon, Don

Garrett, Ted (Wallsend)

Griffiths, Win (Bridgend)

Hattersley, Rt Hon Roy

Haynes, Frank

Ingram, Adam

McKay, Allen (Barnsley West)

McNamara, Kevin

Madden, Max

Marshall, Jim (Leicester S)

Michael, Alun

Molyneaux, Rt Hon James

Mowlam, Marjorie

Paisley, Rev Ian

Pike, Peter L.

Powell, Ray (Ogmore)

Robinson, Peter (Belfast E)

Ruddock, Joan

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