Lords amendment: No. 78, in page 52, line 6, at end insert- "The Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042)
27A. At the end of Article 49 of the Sex Discrimination (Northern Ireland) Order there is added-
"(4) Any act which by virtue of this Article or Article 48 could not be unlawful under Parts III to V (or, in the case of an act falling within paragraph (3), under Article 15) is not by virtue of section 16(2)(b) of the Fair Employment (Northern Ireland) Act 1976 (indirect discrimination on the grounds of religious belief or political opinion) unlawful under any provision of Parts III and IV of that Act".
27B. At the end of Article 63 of that Order there is added- "(3) Where a complaint is presented to an industrial tribunalunder paragraph (1) and it appears to the tribunal that the act to which the complaint relates is one in respect of which (as being unlawful discrimination within the meaning of the Fair Employment (Northern Ireland) Act 1976)-
(a) a complaint could be made to the Fair Employment Tribunal for Northern Ireland under PartIII of that Act;
(b) such a complaint has been made, but the proceedings under that Act have not been disposed of,
the tribunal shall not proceed further under this Order in relation to the complaint unless all proceedings which can be taken under that Act in respect of the act have been disposed of."" Motion made, and Question proposed, That this House doth agree with the Lords in the said amendment.- - [Mr. Tom King.]
Amendment (b), in line 11, leave out that Act' and insert the Fair Employment (Northern Ireland) Act 1976'.
Amendment (c), in line 26, at end add--
(4) Paragraph (3) does not apply unless the President or Vice-President has directed that the complaint under this Order shall be heard and determined by the Fair Employment (Northern Ireland) Act 1989.'.
Ms. Mowlam : We fear that the relationship between the Sex Discrimination (Northern Ireland) Order 1976 and the Fair Employment (Northern Ireland) Act 1976 will be jeopardised by Lords amendment No. 79. Indeed, it could bring the Sex Discrimination Order into disrepute and make it less effective in Northern Ireland. That causes great anxiety among women's groups in Northern Ireland, and the Equal Opportunities Commission in Northern Ireland, so we want the Government to consider the impact that Lords amendment No. 79 would have.
The Secretary of State has argued tonight that he wants a balanced Bill, with a procedure that will work. On the basis of his own criteria, we want him to reconsider Lords amendment No. 79. New section 27A protects affirmative action programmes under the Sex Discrimination Order from challenge, on the grounds that they are indirectly discriminatory, under the Fair Employment Act. Without such provision, a single-sex training course in which the participants are predominantly from one side of the divide could be found to be discriminatory under the Fair Employment Act. We pushed for, and support, the first part of new section 27A. The see of Northern Ireland also pushed for it. We are still convinced, however, that it does not go far enough. Although it protects against indirect discrimination, it does not protect against direct discrimination, and that worries us.
A problem with direct discrimination arises when a direct action scheme for women is undertaken to remedy a religious imbalance. This is the type of affirmative action which the Fair Employment Agency has recommended, most noticeably with respect to the clearing banks. If higher grades in a place of employment, or on a training programme, are filled predominantly by male Protestants and the lower grades are filled predominantly by female Catholics, an affirmative action scheme which is designed to improve the proportion of women who secure promotion would also lead to a rise in the number of Catholics. If left unamended, Lords amendment No. 79 would enable that to be challenged as discriminatory.
Column 1128The Lords amendment does not deal with the problem of direct discrimination, so it is ineffective and unacceptable. Indeed, it would be worse than that, as it would render unlawful the Fair Employment Commission's ability to pursue policies that were formerly pursued by the Fair Employment Agency. The legal uncertainty, especially in this part of the Bill, worries women in Northern Ireland. If employers are liable to challenges in the courts, progressive employers would be discouraged from taking action while those who are opposed to equality of opportunity for women will at best be able to use this as an excuse, possibly to turn back the clock. New section 27A is good as far as it goes, but we would like it to go much further in relation to direct discrimination. That is why we have tabled amendments (a) to (c). We think that they would deal with the problem much better than Lords amendment No. 79. The Minister has told us on previous occasions that these amendments are unnecessary because, under clause 52, employers will be able to use gender as a reference, provided it conforms to articles 48 and 49 of the Sex Discrimination (Northern Ireland) Order 1976. That argument has been used against it in the past. That is the only argument that the Government have made either in Committee or in the Lords, and if it is the only argument they advance now, it is incumbent on the Minister to answer two questions. First, if that argument holds, why is it necessary to put down an amendment to schedule 2 to deal with indirect discrimination? If the Government argument is valid, it can apply equally to indirect and direct discrimination.
Secondly, we understand that clause 52 as amended by the Government would not afford schemes such as those that I have mentioned protection by the Fair Employment Commission. The Government have failed to provide an answer to those two matters in relation to new section 27A. The Minister has told us that new section 27B is very important and that he wants to see the process working practically. New section 27B deals with the procedural relationship between sex discrimination and religious discrimination cases. The difficulty with amendment No. 79 as it stands is that a complainant may bring a case under sex discrimination legislation to the industrial tribunal. That same complainant may also bring a case of alleged religious discrimination to the fair employment tribunal which rests with the same evidence. That means that two channels are open.
Clause 6(2) of the Bill allows the president or vice-president of the tribunal discretion--that is the important word--to transfer the sex discrimination case to the fair employment tribunal where it may be heard concurrently with the fair employment case. The Government amendment to the schedule creates a problem in that, if the president or vice-president does not exercise the discretion provided, the sex discrimination case must
Column 1129be adjourned until all the proceedings under the fair employment legislation are completed. That worries us. Under the Sex Discrimination Order, that could happen immediately.
Under the procedures that the amendment would introduce, sex discrimination cases must be adjourned. As a result, the amendment enshrines in the Bill structural discrimination against women, which could obviously lead to a case under the EC equal treatment directive of 1976. The Minister may say that that is not so, but he is well aware that the Equal Opportunities Commission has informed the Government of its intention to take exactly this issue to the European Commission if the Government amendment is not withdrawn. I shall outline some defects in the procedure that I have described. First, since the fair employment case would already have been decided, the sex discrimination case would, by default, be prejudiced. Secondly, it is obvious that, in such cases, overlapping facts will have to be established when the first case is held. However, the applicant would be at a disadvantage because she would not be able to secure the assistance of the Equal Opportunities Commission for the fair employment hearing, and that would put her at a disadvantage at the sex discrimination hearing.
Thirdly, if the applicant wins the fair employment case, the decision will still be subject to appeal. As the Minister is well aware, taking a case to appeal in Northern Ireland can take anything up to two years, during which the sex discrimination case would continue to be pending. The applicant would then have the burden and the additional costs of a separate case, which would be based largely on the same set of facts.
Fourthly, witnesses would be required to give evidence twice, with an interval of anything up to two years between the cases. For those reasons, we have tabled amendments (a) to (c), which would overcome the difficulties in relation to the fair employment tribunal.
Mr. Tom King : I am grateful to the hon. Member for Redcar (Ms. Mowlam), who sought valiantly to make quite complicated matters seem simple and clear. She was discussing in particular the complicated matter of the interaction between religious discrimination at work, which the Bill is aimed at preventing, and sex discrimination. Some extremely complex scenarios can be constructed. Fortunately, the hon. Lady helped me through this and kindly gave us seven out of 10 for effort on new section 27A. This reflects what I chastised the hon. Member for Kingston upon Hull, North (Mr. McNamara) for not recognising--that we have tried to respond to what we thought were genuine concerns, as they have arisen.
The history of the Bill is not one of the Government producing legislation, laying it down, defeating every effort to criticise it and not being willing to consider a review. The hon. Lady fairly recognised that the first part of Lords amendment No. 79 directly addresses the points that have been raised. We think that all of it does so. The hon. Lady is at least prepared to accept that new section 27A is a good start in the right direction. She then pinched my best line by saying that I would probably say that once again this is a question of balance and practicality. Her shrewdness anticipated my reply, because that it what it is. As she knows, it is the hallmark of the Bill.
Against that background, I shall deal with the first interaction, which is the difficult one of how these cases
Column 1130will be dealt with. The hon. Lady drew attention to the problems which could arise, and immediately assumed that this would once again mean disadvantage for women faced with sex discrimination cases, which would be put back so that there were always delays and problems with cases going to appeal with a religious case as well. She spoke of the difficulties that this would impose.
It may be helpful if I tell the House what the normal practice will be. A religious case will go to the fair employment tribunal, and a joint sex and religious case will also go, under the provisions of clause 6, to the president, who has the discretion to direct that the fair employment tribunal hear both cases together. A sex case in which a religious issue arises cannot reasonably proceed before the industrial tribunal because that tribunal has no jurisdiction to hear the religious disputes. The way forward is for the individual concerned to lodge a case of religious discrimination with a fair employment tribunal, which can then hear and adjudicate on both cases. That is how we see it proceeding and we hope that that will be helpful. I accept, as the hon. Lady did in a most engaging way, that if one has these two elements interacting in this way, there can be complications, and the case will not be dealt with as expeditiously as it would if there were just one issue at stake. I hope that she feels that this is a genuine attempt to redress the matter. The hon. Lady then got into the complicated matter of protection from indirect but not direct discrimination. The Bill makes indirect religious discrimination illegal for the first time. The Government were pleased to accede to the Opposition's request to protect gender-specific training under articles 48 and 49 of the Sex Discrimination Act (Northern Ireland) Order 1976 from allegations of indirect religious discrimination. The territory into which the hon. Lady led us is extremely complex, and some hon. Members may not have found it easy to follow, despite her clarity.
Indirect discrimination is complex, involving the application of a requirement or condition which is applied equally but is such that it has an adverse impact on a person, it cannot be shown by the respondent to be justifiable irrespective of religious belief and it is to the detriment of a person because he or she cannot comply with it. It is difficult to envisage circumstances in which an employer operating a gender-specific training course could not deploy the justifiable defence of the second condition that I have mentioned, on the grounds that a training course was justifiable to remedy a gender imbalance in a work force. The Government acceded to the commission's request in recognition of the complexity of indirect discrimination and to ensure that those operating gender-specific training would be protected from these complexities.
We have sought to strike the balance to which the hon. Lady referred and to ensure protection for anti-discrimination measures. The hon. Member for Kingston upon Hull, North (Mr. McNamara) recognised that the legislation has some merits, and I am anxious to see it brought into effect as soon as possible.
I hope that the hon. Lady will not press her amendment to a Division, and I commend the Lords amendment to the House.
Amendment (a) proposed in lieu of the Lords amendment : line 8, leave out from not' to unlawful' in line 11.
Question put, That the amendment be made :--
The House divided : Ayes 68, Noes 167.
Column 1131Division No. 329] [10.57 pm
Barnes, Harry (Derbyshire NE)
Bennett, A. F. (D'nt'n & R'dish)
Buckley, George J.
Campbell, Ron (Blyth Valley)
Davis, Terry (B'ham Hodge H'l)
Duffy, A. E. P.
Fields, Terry (L'pool B G'n)
Godman, Dr Norman A.
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Home Robertson, John
Hughes, John (Coventry NE)
Jones, Barry (Alyn & Deeside)
McKay, Allen (Barnsley West)
Mahon, Mrs Alice
Marshall, Jim (Leicester S)
Michie, Bill (Sheffield Heeley)
Pike, Peter L.
Powell, Ray (Ogmore)
Thompson, Jack (Wansbeck)
Wardell, Gareth (Gower)
Wareing, Robert N.
Watson, Mike (Glasgow, C)
Wise, Mrs Audrey
Tellers for the Ayes :
Mr. Frank Cook and
Mr. Frank Haynes.
Alison, Rt Hon Michael
Arnold, Jacques (Gravesham)
Arnold, Tom (Hazel Grove)
Baker, Nicholas (Dorset N)
Bennett, Nicholas (Pembroke)
Blackburn, Dr John G.
Blaker, Rt Hon Sir Peter
Bottomley, Mrs Virginia
Bowden, Gerald (Dulwich)
Brooke, Rt Hon Peter
Brown, Michael (Brigg & Cl't's)
Buck, Sir Antony
Campbell, Menzies (Fife NE)
Carlisle, John, (Luton N)
Carlisle, Kenneth (Lincoln)
Clark, Dr Michael (Rochford)
Coombs, Anthony (Wyre F'rest)
Coombs, Simon (Swindon)
Cope, Rt Hon John
Currie, Mrs Edwina
Davis, David (Boothferry)