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Orders of the Day

Fair Employment (Northern Ireland) Bill

Lords amendment considered.

Clause 3

The President

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.

Clause 10

Survey of employment, etc., patterns

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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