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Fair Employment (Northern Ireland) Bill
Lords amendment considered.
Lords amendment : No. 1, in page 2, line 18, leave out from "be" to "by" in line 20 and insert--
"(a
(a President of the Industrial Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as "the President"),)
(b
(a Vice-President of the Industrial Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as "the Vice-President"), and)
(c
(a panel of chairmen of the Fair Employment Tribunal,) who shall each be appointed by the Lord Chancellor and shall exercise the functions respectively conferred on them"
8.13 pm
The Secretary of State for Northern Ireland (Mr. Tom King) : I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker (Miss Betty Boothroyd) : With this it will be convenient to consider Lords amendments Nos. 2 to 17, 20 to 22, 75 to 77 and 81.
Mr. King : These are technical amendments which carry out understandings conveyed in another place.
Question put and agreed to.
Lords amendments Nos. 2 to 17 agreed to.
Lords amendment : No. 18, in page 7, line 28, at end insert-- "(2) It shall also be the duty of the Commission to keep itself informed about proceedings on complaints under Part III of the Fair Employment (Northern Ireland) Act 1976."
Mr. Tom King : I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker : With this it will be convenient to discuss Lords amendment No. 19.
Mr. King : These amendments are designed to cover a situation in which an individual case of discrimination is heard before the tribunal and, irrespective of the outcome, there are indications in the evidence or in the decision that the respondent may be failing properly to afford equality of opportunity. Lords amendment No. 18 makes it a positive duty on the commission to keep itself informed about such matters ; and Lords amendment No. 19 enables the commission, when it has formed an opinion that equality of opportunity is not being afforded, to inform the person concerned of its opinion and to allow that person to give a written undertaking to take appropriate action.
Mr. Kevin McNamara (Kingston upon Hull, North) : We disagree. It might be for the benefit of the House if I spelt out in a simple example exactly what the Lords amendment is designed to tackle.
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An employer could decide to exercise a preference in favour of people who were not residents of west Belfast, or in favour of those who were, thus offering less favourable treatment to Catholics, or to Protestants. As long as that preference was not an absolute ban on the employment of people from west Belfast, or absolutely in favour of them, it would be legal, and that clearly undermines the intention of the legislation.The reason for this strange situation is that a complainant can prove a case of indirect discrimination only if he can show that the barrier that has prevented him from securing the post in question is a requirement or a condition--something which is absolute ; and the courts have interpreted requirement or condition narrowly. There are two well-known cases in this regard--Meer and Pereira--which have been dealt with in the Court of Appeal. In both, a narrow interpretation was applied under which, in order to show indirect discrimination, the complainant must show that the behaviour of the employer constitutes an absolute bar to his
employment--anything less is not direct discrimination. I am sorry to have taken so long with this introduction, but it is the context in which the amendments must be considered.
The Government have recognised that the original version of the Bill would condone many of the practices that they claimed it would eradicate, but we are not satisfied that the Government have done enough to deal with the problem which they accept exists. The easiest and most satisfactory method would have been to amend the definition so that preferences such as the one that I have cited would be outlawed. The Government refuse to do that, presumably because they are worried that such a strengthening of the Bill would lead to demands for reform of the race and sex discrimination legislation in the rest of the United Kingdom.
We think that this is a weak case because we should like both the cases I have cited to be upset under sex and race legislation for the United Kingdom. We understood the Government's difficulties, although we do not accept them, so we have been much concerned to arrive at an agreement with them on this matter. We proposed a compromise measure, an amendment which would allow the fair employment tribunal in cases in which such discriminatory preference were visible to recommend that the respondent take action to provide equality of opportunity. In other words, an employer would not be obliged to pay compensation, but he would have to put a stop to such practices. That would solve the Government's worry about the read- over to the United Kingdom, it would undermine the principle in the cases that I have mentioned and it would ensure that the matter was properly dealt with.
The Government decided to reject our moderate approach and have instead tabled these defective amendments, in which they have placed a duty on the Fair Employment Commission to follow the proceedings of the tribunal and to issue an opinion that the employer should take action to provide equality of opportunity on the basis of the evidence heard by the tribunal. Quite apart from the administrative difficulties, that is not an effective solution, for a number of reasons.
The tribunal will be obliged to give a clean bill of health to an employer who is obviously discriminating. That decision will be reported in the media and will convince employers that indirect discriminatory behaviour is perfectly lawful. "Decision not to employ Shankill man
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upheld" would be the headline, and the article would not go into the finer points of preference and absolute conditions.At the same time, the Government's solution opens a virtual certainty of a clash between the jurisprudence of the tribunal and the enforcement and encouragement role of the Fair Employment Commission. The tribunal will be obliged to condone as legal the practices that the commission will be trying to end and which it will be spelling out in its code for employers as undesirable employment practices. There will be unacceptable confusion about where employers stand. That confusion will discourage employers from taking action to provide equality of opportunity.
The powers of the commission to require an employer to take remedial action on the basis of the evidence presented to the tribunal will be severely limited. As the Secretary of State said, the commission may, on the basis of the evidence, ask an employer to give a voluntary undertaking. If the employer refuses, the commission can take action only if it launches a full -scale investigation. That is an extremely cumbersome method of dealing with a case in which the facts have already been established.
I do not believe that the Government have grasped the importance of the issue. That became apparent in another place on 11 July when the former Minister, Lord Lyell, cited as one of the major reasons for the refusal to change the definition the fact that the Bill was concerned primarily with eradicating bad employment practices, not with technicalities, but unfortunately the technicalities add up. I shall make two points about that. First, the prohibition of indirect discrimination places a legal barrier on bad employment practices. The lower the barrier, the easier it will be for bad and discriminatory employment practices to continue. Secondly, the Minister in the other place appeared to believe that the definition of indirect discrimination is a simple matter of importance for the individual complainant, but that is not the case. It is of the utmost importance and relevance for the collective aspects of the Bill as the practices that will be lawful depend on that definition and will be cumulative.
For those reasons, the Opposition believe that we must register our protest against the Government's unwillingness to take the problem of indirect discrimination as seriously as they should.
Question put, That this House doth agree with the Lords in the said amendment :--
The House divided : Ayes 195, Noes 105.
Division No. 324] [8.22 pm
AYES
Alexander, Richard
Alison, Rt Hon Michael
Allason, Rupert
Alton, David
Amess, David
Amos, Alan
Arbuthnot, James
Arnold, Jacques (Gravesham)
Arnold, Tom (Hazel Grove)
Ashby, David
Atkinson, David
Baker, Rt Hon K. (Mole Valley)
Baker, Nicholas (Dorset N)
Baldry, Tony
Batiste, Spencer
Beaumont-Dark, Anthony
Beggs, Roy
Bellingham, Henry
Bennett, Nicholas (Pembroke)
Bevan, David Gilroy
Blackburn, Dr John G.
Blaker, Rt Hon Sir Peter
Bottomley, Mrs Virginia
Bowden, Gerald (Dulwich)
Bowis, John
Brandon-Bravo, Martin
Brazier, Julian
Bright, Graham
Brooke, Rt Hon Peter
Brown, Michael (Brigg & Cl't's)
Buck, Sir Antony
Budgen, Nicholas
Burns, Simon
Butler, Chris
Butterfill, John
Carlisle, John, (Luton N)
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Carlisle, Kenneth (Lincoln)Carrington, Matthew
Carttiss, Michael
Cash, William
Chapman, Sydney
Chope, Christopher
Clark, Hon Alan (Plym'th S'n)
Clark, Dr Michael (Rochford)
Coombs, Anthony (Wyre F'rest)
Coombs, Simon (Swindon)
Cope, Rt Hon John
Cormack, Patrick
Couchman, James
Currie, Mrs Edwina
Davies, Q. (Stamf'd & Spald'g)
Davis, David (Boothferry)
Day, Stephen
Dorrell, Stephen
Dover, Den
Durant, Tony
Dykes, Hugh
Emery, Sir Peter
Fallon, Michael
Favell, Tony
Fenner, Dame Peggy
Fishburn, John Dudley
Fookes, Dame Janet
Forman, Nigel
Forsyth, Michael (Stirling)
Forsythe, Clifford (Antrim S)
Forth, Eric
Franks, Cecil
Freeman, Roger
French, Douglas
Gale, Roger
Garel-Jones, Tristan
Glyn, Dr Alan
Goodson-Wickes, Dr Charles
Greenway, Harry (Ealing N)
Greenway, John (Ryedale)
Gregory, Conal
Griffiths, Sir Eldon (Bury St E')
Griffiths, Peter (Portsmouth N)
Ground, Patrick
Gummer, Rt Hon John Selwyn
Hague, William
Hamilton, Neil (Tatton)
Hampson, Dr Keith
Hanley, Jeremy
Hannam, John
Hargreaves, Ken (Hyndburn)
Harris, David
Hayhoe, Rt Hon Sir Barney
Heathcoat-Amory, David
Heseltine, Rt Hon Michael
Hill, James
Hind, Kenneth
Howarth, G. (Cannock & B'wd)
Howell, Ralph (North Norfolk)
Hughes, Robert G. (Harrow W)
Hunt, David (Wirral W)
Hunter, Andrew
Irvine, Michael
Jack, Michael
Janman, Tim
Jessel, Toby
Johnson Smith, Sir Geoffrey
Jones, Gwilym (Cardiff N)
Jones, Robert B (Herts W)
Jopling, Rt Hon Michael
Kilfedder, James
King, Rt Hon Tom (Bridgwater)
Knight, Greg (Derby North)
Knox, David
Latham, Michael
Lawrence, Ivan
Lee, John (Pendle)
Lightbown, David
Lilley, Peter
Lloyd, Sir Ian (Havant)
Lloyd, Peter (Fareham)
McCrindle, Robert
Maclean, David
McLoughlin, Patrick
Martin, David (Portsmouth S)
Mawhinney, Dr Brian
Meyer, Sir Anthony
Miller, Sir Hal
Mills, Iain
Mitchell, Andrew (Gedling)
Molyneaux, Rt Hon James
Morrison, Sir Charles
Morrison, Rt Hon P (Chester)
Moss, Malcolm
Nelson, Anthony
Neubert, Michael
Newton, Rt Hon Tony
Nicholls, Patrick
Nicholson, Emma (Devon West)
Oppenheim, Phillip
Page, Richard
Paice, James
Paisley, Rev Ian
Patnick, Irvine
Patten, Rt Hon Chris (Bath)
Peacock, Mrs Elizabeth
Porter, Barry (Wirral S)
Porter, David (Waveney)
Portillo, Michael
Raffan, Keith
Raison, Rt Hon Timothy
Redwood, John
Ridsdale, Sir Julian
Ross, William (Londonderry E)
Rossi, Sir Hugh
Ryder, Richard
Shaw, David (Dover)
Shaw, Sir Michael (Scarb')
Shepherd, Colin (Hereford)
Shersby, Michael
Skeet, Sir Trevor
Smith, Tim (Beaconsfield)
Smyth, Rev Martin (Belfast S)
Soames, Hon Nicholas
Speller, Tony
Spicer, Michael (S Worcs)
Stanbrook, Ivor
Stanley, Rt Hon Sir John
Steen, Anthony
Stern, Michael
Stevens, Lewis
Stewart, Andy (Sherwood)
Stradling Thomas, Sir John
Summerson, Hugo
Taylor, Ian (Esher)
Taylor, Teddy (S'end E)
Temple-Morris, Peter
Thompson, D. (Calder Valley)
Thompson, Patrick (Norwich N)
Thurnham, Peter
Tredinnick, David
Trippier, David
Twinn, Dr Ian
Viggers, Peter
Waddington, Rt Hon David
Walden, George
Walker, A. Cecil (Belfast N)
Walker, Bill (T'side North)
Waller, Gary
Wardle, Charles (Bexhill)
Wells, Bowen
Wheeler, John
Widdecombe, Ann
Winterton, Mrs Ann
Winterton, Nicholas
Wolfson, Mark
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