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Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 163:
The noble Lord said: We had a full debate on this issue and the matter needs to be reconsidered when we see the Government's amendment relating to goods and services to the public. I deal now with indirect religious discrimination.
As I have tried to explain, the case of Re: Amin--a 3:2 decision with strong dissent from Lord Scarman among others--decided that the goods and services to the public provision did not apply to public authorities. Therefore, if the Government are to introduce a goods and services amendment and regard Re: Amin as good law, we will have a situation where there will be an obligation not to discriminate directly or indirectly in providing goods and services to the public except in relation to the non-marketplace functions of public authorities. That would be bizarre and would certainly annoy the Catholic bishops who have made representations in the educational field about the need for indirect religious discrimination to be covered. It would annoy the minority community on the receiving end of religious discrimination by public authorities if there was a narrow definition.
I cannot believe that the politicians in Northern Ireland or in the Irish Republic would wish that. I hope that they will be able to reconsider the matter in the light of this debate as well as the Government. I shall not move the amendment, but leave it at that and hope that further consideration can be given to it.
[Amendment No. 163 not moved.]
[Amendment No. 164 not moved.]
Lord Dubs moved Amendments Nos. 165 to 168:
On Question, amendments agreed to.
[Amendment No. 169 not moved.]
Lord Williams of Mostyn moved Amendment 169A:
The noble Lord said: This is a technical amendment which deals with the question of public authorities, bringing the matter into line with Clause 60. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 170 to 173 had been withdrawn from the Marshalled List.]
Clause 61, as amended, agreed to.
Clause 62 [Unlawful oaths etc.]
Lord Dubs moved Amendment No. 174:
The noble Lord said: The group consisting of government Amendments Nos. 174 to 178 all relate to Clause 62. Amendment No. 174 is a simple technical amendment which removes from the Bill provisions which appear elsewhere.
Amendments Nos. 175 and 176 ensure that the ban which the clause imposes on the making of certain oaths applies to both authorities and departments. Amendment No. 177 is a technical amendment which reduces the number of words used to describe those Ministers who are subject to the clause. The term "Minister" is now defined elsewhere in the Bill. Amendment No. 178 confines actions for breach of the clause to Northern Ireland. I beg to move.
Lord Cope of Berkeley: I was unclear as to the origin of this clause about taking oaths and making declarations. In particular, it seemed to me that to take an oath or make a declaration is not that different from giving a pledge, which the members of the Executive and others are required to do in the terms of Schedule 5. That is taken directly from the Belfast agreement.
However, it seemed to me that under Amendment No. 174, in taking out the references to an oath or declaration installed by the Bill we were taking out the protection that would otherwise be given to that pledge, if it might be regarded as an oath or declaration. I do not know what the difference is between those three types of statement. Obviously, the pledge in Schedule 5 goes beyond the requirements of Clause 62(3). It seems to me that Amendment No. 174 is in danger of rendering the pledge unlawful under that clause. That is clearly undesirable.
Lord Holme of Cheltenham: Perhaps the noble Lord could help those of us who do not have the back-up that he has to identify where in the Bill the definition of "Minister" referred to in Amendment No. 178 is to be found, so that we can establish whether we support it.
Lord Dubs: I understand that lines 34 to 36, which are the subject of Amendment No. 174, are already covered by Clause 77(4)(b). All the amendments in this group relate to Clause 62 which prevents specified authorities and bodies from requiring persons to take an oath or declaration as a condition of employment of services or appointments except in certain circumstances. It largely re-enacts Section 21 of the Northern Ireland Constitution Act 1973 which in turn was designed to implement paragraph 64 of the 1973 White Paper Northern Ireland Constitutional Proposals.
Lord Cope of Berkeley: I had not appreciated the effect of Clause 77(4). On the face of it, we do not need either subsection (2)(a) or (b).
Lord Dubs: Amendment No. 50, agreed by the Committee last week, added a new clause before Clause 18. I believe that that is the explanation but I am not totally certain.
Lord Cope of Berkeley: That is probably the answer to the question put by the noble Lord, Lord Holme, rather than my question. Perhaps noble Lords will have the opportunity to return to these matters on Report.
On Question, amendment agreed to.
Lord Dubs moved Amendments Nos. 175 to 178:
The noble Lord said: I beg to move Amendments Nos. 175 to 178 en bloc.
On Question, amendments agreed to.
Clause 62, as amended, agreed to.
Clause 63 [Removal of restrictions on investigation into maladministration]:
Lord Dubs moved Amendment No. 179:
The noble Lord said: The amendment seeks slightly to widen the circumstances in which restrictions on investigations into complaints should not apply. As a result of the amendment the restrictions will not apply to investigations into aiding and inciting discrimination and investigations into discrimination itself.
On Question, amendment agreed to.
Clause 63, as amended, agreed to.
Clause 65 [Participation in NSMC and BIC]:
[Amendment No. 180 not moved.]
Clause 66 [Attendance at BIIC meetings]:
Lord Dubs: I beg to oppose the Question that the clause stand part of the Bill.
Page 29, line 30, at end insert--
("( ) For the purposes of subsection (1), a person ("person A") discriminates against another person ("person B") on the grounds of religious belief or political opinion if--
(a) on either of those grounds person A treats person B less favourably than he treats or would treat other persons, or
(b) person A applies to person B a requirement or condition which person A applies or would apply equally to persons not of the same religious belief or political opinion as person B but--
(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as person B who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it,
(ii) which person A cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and
(iii) which is to the detriment of person B because he cannot comply with it.").
Page 29, line 44, leave out from ("to") to end of line 45 and insert ("any act or omission which is unlawful by virtue of the Fair Employment (Northern Ireland) Act 1976, or would be unlawful but for some exception made by virtue of Part V of that Act.").
Page 30, line 1, after ("making") insert (", confirmation or approval").
Page 30, line 8, after ("making") insert (", confirmation or approval").
Page 30, line 10, after ("to") insert ("the").
Page 30, leave out lines 14 to 20 and insert--
("( ) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation);
( ) any body (other than a Northern Ireland department) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
( ) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);").
Page 30, leave out lines 34 to 36.
7 p.m.
Page 31, line 4, after ("any") insert ("department or").
Page 31, line 5, leave out ("(authorities") and insert ("(departments and other authorities").
Page 31, line 8, leave out from beginning to ("a") in line 10 and insert ("a Minister and").
Page 31, line 11, after ("actionable") insert ("in Northern Ireland").
Page 31, line 30, after ("discrimination") insert (", or aiding or inciting any person to discriminate,").
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