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Question agreed to.

Lords amendments Nos. 39 to 44 agreed to.

Lords amendment : No. 45, in page 25, line 30, after "and" insert

"in a case where it was reasonably practicable for him to comply with it after that time, to show"

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 take Lords amendments Nos. 47 and 61.

Mr. Tom King : I shall address my remarks to the first amendment, as it is an example of the others. It is designed to cover the possibility that an employer who was required to supply information to the commission under clause 31 fails to do so within the specified time, and for genuine reasons is unable to meet the requirements thereafter.

The clause as it left this House provided a "reasonable excuse" defence for an employer who could not meet the requirement for information within the specified time. What it did not do, however, was provide a defence for an employer who could not provide the information even after the specified time--by reason, for example, of his personnel records being accidentally destroyed. This amendment allows the commission to recognise those circumstances, and to make appropriate allowances. It does not, however--I stress this--provide an employer with an excuse for not providing information on time : it therefore does not weaken the enforcement provisions made by the Bill. Similar amendments are made to clause 35 and 44.

Mr. Jim Marshall (Leicester, South) : The House will recall that in replying to the previous debate, the Secretary of State said that he thought that the Opposition were seeking perfection and that if perfection were enshrined in the legislation, it would be extremely difficult to make the legislation work in practice. Perhaps Hansard will make it clear whether that was a distortion or a paraphrase. However, the right hon. Gentleman certainly said that Opposition Members are trying to make the Bill more complicated than it needs to be to do the job that the Government and the Opposition wish it to do.

Throughout the lengthy proceedings on the Bill, although we accept the Government's good intent in fair employment and other key issues, Opposition Members have said that the Government have not gone far enough to ensure that the legislation will be strong enough to provide for fair employment within the Province. Time and again the Secretary of State has exhibited a tendency to rely on the word "reasonable"--what is reasonable and what is unreasonable. In moving amendment No. 45 he used the reasonableness argument again. To underline his reasonableness, he said that the amendment will not aid employers who wish to thwart the implementation of the fair employment legislation.

The Opposition disagree with the Secretary of State on that. That is why we shall vote against amendment No. 45. The amendment further weakens the legislation and will provide some employers--we do not suggest that there will be many--who do not want to be reasonable, who are not the reasonable men to whom the Secretary of State refers, and who wish to thwart the spirit of the legislation with another line of defence if they fail to comply with the wishes or orders of the tribunal.

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As the Secretary of State correctly said, as the Bill stands, an employer who fails to provide information upon request from the commission is liable to conviction, but he has two defences open to him. First, he can show that he has a reasonable excuse-- namely, unreasonable cost or inconvenience. Secondly, he can show that it was not practicable for him to comply or try to comply with the requirements before proceedings began. Amendment No. 45 adds the further defence that an employer feels that it is not reasonably practicable to supply information. Amendment No. 45 will place a further restraint on the commission's ability to obtain necessary evidence to identify persistent discriminators.

The Government argue that the amendments are necessary to protect employers from reasonable circumstances--namely, the destruction of records by fire, an act of terrorism, or an act of God. However, the Secretary of State is sufficiently long in the tooth to know that, if that defence is available to employers, every employer who fails to comply with a request will run off to his solicitor or barrister to erect a defence that he can put forward as reasonable. The Secretary of State does not want to give such an opening to recalcitrant or persistent discriminators in the Province. He knows that some people are prepared to spend large amounts of money to be defended in the courts. Solicitors and barristers in the Province will have a field day trying to erect defences which comply with the reasonableness aspect of the amendment.

I do not know whether the Secretary of State has followed through the consequences of the amendment. There are now three defences. The third defence, provided by the Lords amendment, is on the question of reasonableness. It is our view that more employers will be able to get round the requirements of the fair employment legislation. I know that the Secretary of State is busy contemplating pastures new, but I wonder whether it has crossed his mind in the past few days that the consequence of the amendment will be further to water down the contract compliance provisions in the Bill.

9.15 pm

The Secretary of State will know that the Bill contains a complex procedure for an employer ultimately to be deemed an unqualified person under the terms of the Act. Only after that exceedingly complex procedure has been undertaken can the contract and grant provisions come into operation. This group of amendments makes it even harder to visualise the contract compliance provisions ever being used. If the threat is no longer real, the provisions will be further undermined.

Even at this late stage we urge the Government to think again so that the Secretary of State's last act is not to make fair employment legislation inoperable in practice.

Mr. Tom King : We make no apology for seeking to establish a reasonable basis for the Bill. We come back to the question of judgment. The matter depends partly on one's judgment and partly on whether one understands the law.

There is an error in what the hon. Member for Leicester, South (Mr. Marshall) said. It is not sufficient for an employer simply to have a reasonable excuse. He must also comply as soon as reasonably practicable, or prove that the proceedings were brought too soon. There is

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greater protection than the hon. Gentleman appreciates. Our reasonable basis is even more reasonable than he may realise. Question put, That this House doth agree with the Lords in the said amendment :--

The House divided : Ayes 183, Noes 77.

Division No. 326] [9.17 pm

AYES

Alexander, Richard

Alison, Rt Hon Michael

Alton, David

Amess, David

Amos, Alan

Arbuthnot, James

Arnold, Jacques (Gravesham)

Ashby, David

Atkinson, David

Baker, Nicholas (Dorset N)

Baldry, Tony

Batiste, Spencer

Beggs, Roy

Bellingham, Henry

Bennett, Nicholas (Pembroke)

Bevan, David Gilroy

Blackburn, Dr John G.

Blaker, Rt Hon Sir Peter

Boswell, Tim

Bottomley, Mrs Virginia

Bowden, Gerald (Dulwich)

Bowis, John

Braine, Rt Hon Sir Bernard

Brandon-Bravo, Martin

Brazier, Julian

Bright, Graham

Brooke, Rt Hon Peter

Brown, Michael (Brigg & Cl't's)

Buck, Sir Antony

Burns, Simon

Burt, Alistair

Butler, Chris

Butterfill, John

Campbell, Menzies (Fife NE)

Carlisle, John, (Luton N)

Carlisle, Kenneth (Lincoln)

Carrington, Matthew

Carttiss, Michael

Cash, William

Chapman, Sydney

Chope, Christopher

Clark, Dr Michael (Rochford)

Coombs, Anthony (Wyre F'rest)

Coombs, Simon (Swindon)

Cope, Rt Hon John

Couchman, James

Cran, James

Currie, Mrs Edwina

Davies, Q. (Stamf'd & Spald'g)

Davis, David (Boothferry)

Day, Stephen

Dorrell, Stephen

Douglas-Hamilton, Lord James

Dover, Den

Durant, Tony

Dykes, Hugh

Fallon, Michael

Fenner, Dame Peggy

Fishburn, John Dudley

Fookes, Dame Janet

Forman, Nigel

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, Peter (Portsmouth N)

Ground, Patrick

Gummer, Rt Hon John Selwyn

Hague, William

Hamilton, Neil (Tatton)

Hampson, Dr Keith

Hanley, Jeremy

Hargreaves, Ken (Hyndburn)

Harris, David

Hayhoe, Rt Hon Sir Barney

Heathcoat-Amory, David

Hill, James

Hind, Kenneth

Howarth, G. (Cannock & B'wd)

Howell, Ralph (North Norfolk)

Hughes, Robert G. (Harrow W)

Hunter, Andrew

Irvine, Michael

Jack, Michael

Janman, Tim

Jessel, Toby

Johnson Smith, Sir Geoffrey

Johnston, Sir Russell

Jones, Gwilym (Cardiff N)

Jones, Robert B (Herts W)

Jopling, Rt Hon Michael

Kennedy, Charles

Kilfedder, James

King, Rt Hon Tom (Bridgwater)

Kirkwood, Archy

Knight, Greg (Derby North)

Knox, David

Latham, Michael

Lawrence, Ivan

Lightbown, David

Lilley, Peter

Lloyd, Sir Ian (Havant)

Lloyd, Peter (Fareham)

McCrindle, Robert

MacKay, Andrew (E Berkshire)

Maclean, David

McLoughlin, Patrick

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

Moynihan, Hon Colin

Nelson, Anthony

Neubert, Michael

Nicholls, Patrick

Nicholson, Emma (Devon West)

Oppenheim, Phillip

Page, Richard

Paice, James

Paisley, Rev Ian

Patnick, Irvine

Peacock, Mrs Elizabeth

Porter, David (Waveney)

Portillo, Michael

Raffan, Keith

Raison, Rt Hon Timothy

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