§
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 KingI beg to move, That this House doth agree with the Lords in the said amendment.
§ Madam Deputy SpeakerWith this it will be convenient to discuss Lords amendment No. 19.
§ Mr. KingThese 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.
1097 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 1098 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.
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.
1100| Division No. 324] | [8.22 pm |
| AYES | |
| Alexander, Richard | Bennett, Nicholas (Pembroke) |
| Alison, Rt Hon Michael | Bevan, David Gilroy |
| Allason, Rupert | Blackburn, Dr John G. |
| Alton, David | Blaker, Rt Hon Sir Peter |
| Amess, David | Bottomley, Mrs Virginia |
| Amos, Alan | Bowden, Gerald (Dulwich) |
| Arbuthnot, James | Bowis, John |
| Arnold, Jacques (Gravesham) | Brandon-Bravo, Martin |
| Arnold, Tom (Hazel Grove) | Brazier, Julian |
| Ashby, David | Bright, Graham |
| Atkinson, David | Brooke, Rt Hon Peter |
| Baker, Rt Hon K. (Mole Valley) | Brown, Michael (Brigg & Cl't's) |
| Baker, Nicholas (Dorset N) | Buck, Sir Antony |
| Baldry, Tony | Budgen, Nicholas |
| Batiste, Spencer | Burns, Simon |
| Beaumont-Dark, Anthony | Butler, Chris |
| Beggs, Roy | Butterfill, John |
| Bellingham, Henry | Carlisle, John, (Luton N) |
| Carlisle, Kenneth (Lincoln) | Lilley, Peter |
| Carrington, Matthew | Lloyd, Sir Ian (Havant) |
| Carttiss, Michael | Lloyd, Peter (Fareham) |
| Cash, William | McCrindle, Robert |
| Chapman, Sydney | Maclean, David |
| Chope, Christopher | McLoughlin, Patrick |
| Clark, Hon Alan (Plym'th S'n) | Martin, David (Portsmouth S) |
| Clark, Dr Michael (Rochford) | Mawhinney, Dr Brian |
| Coombs, Anthony (Wyre F'rest) | Meyer, Sir Anthony |
| Coombs, Simon (Swindon) | Miller, Sir Hal |
| Cope, Rt Hon John | Mills, Iain |
| Cormack, Patrick | Mitchell, Andrew (Gedling) |
| Couchman, James | Molyneaux, Rt Hon James |
| Currie, Mrs Edwina | Morrison, Sir Charles |
| Davies, Q. (Stamf'd & Spald'g) | Morrison, Rt Hon P (Chester) |
| Davis, David (Boothferry) | Moss, Malcolm |
| Day, Stephen | Nelson, Anthony |
| Dorrell, Stephen | Neubert, Michael |
| Dover, Den | Newton, Rt Hon Tony |
| Durant, Tony | Nicholls, Patrick |
| Dykes, Hugh | Nicholson, Emma (Devon West) |
| Emery, Sir Peter | Oppenheim, Phillip |
| Fallon, Michael | Page, Richard |
| Favell, Tony | Paice, James |
| Fenner, Dame Peggy | Paisley, Rev Ian |
| Fishburn, John Dudley | Patnick, Irvine |
| Fookes, Dame Janet | Patten, Rt Hon Chris (Bath) |
| Forman, Nigel | Peacock, Mrs Elizabeth |
| Forsyth, Michael (Stirling) | Porter, Barry (Wirral S) |
| Forsythe, Clifford (Antrim S) | Porter, David (Waveney) |
| Forth, Eric | Portillo, Michael |
| Franks, Cecil | Raffan, Keith |
| Freeman, Roger | Raison, Rt Hon Timothy |
| French, Douglas | Redwood, John |
| Gale, Roger | Ridsdale, Sir Julian |
| Garel-Jones, Tristan | Ross, William (Londonderry E) |
| Glyn, Dr Alan | Rossi, Sir Hugh |
| Goodson-Wickes, Dr Charles | Ryder, Richard |
| Greenway, Harry (Ealing N) | Shaw, David (Dover) |
| Greenway, John (Ryedale) | Shaw, Sir Michael (Scarb') |
| Gregory, Conal | Shepherd, Colin (Hereford) |
| Griffiths, Sir Eldon (Bury St E') | Shersby, Michael |
| Griffiths, Peter (Portsmouth N) | Skeet, Sir Trevor |
| Ground, Patrick | Smith, Tim (Beaconsfield) |
| Gummer, Rt Hon John Selwyn | Smyth, Rev Martin (Belfast S) |
| Hague, William | Soames, Hon Nicholas |
| Hamilton, Neil (Tatton) | Speller, Tony |
| Hampson, Dr Keith | Spicer, Michael (S Worcs) |
| Hanley, Jeremy | Stanbrook, Ivor |
| Hannam, John | Stanley, Rt Hon Sir John |
| Hargreaves, Ken (Hyndburn) | Steen, Anthony |
| Harris, David | Stern, Michael |
| Hay hoe, Rt Hon Sir Barney | Stevens, Lewis |
| Heathcoat-Amory, David | Stewart, Andy (Sherwood) |
| Heseltine, Rt Hon Michael | Stradling Thomas, Sir John |
| Hill, James | Summerson, Hugo |
| Hind, Kenneth | Taylor, Ian (Esher) |
| Howarth, G. (Cannock & B'wd) | Taylor, Teddy (S'end E) |
| Howell, Ralph (North Norfolk) | Temple-Morris, Peter |
| Hughes, Robert G. (Harrow W) | Thompson, D. (Calder Valley) |
| Hunt, David (Wirral W) | Thompson, Patrick (Norwich N) |
| Hunter, Andrew | Thurnham, Peter |
| Irvine, Michael | Tredinnick, David |
| Jack, Michael | Trippier, David |
| Janman, Tim | Twinn, Dr Ian |
| Jessel, Toby | Viggers, Peter |
| Johnson Smith, Sir Geoffrey | Waddington, Rt Hon David |
| Jones, Gwilym (Cardiff N) | Walden, George |
| Jones, Robert B (Herts W) | Walker, A. Cecil (Belfast N) |
| Jopling, Rt Hon Michael | Walker, Bill (T'side North) |
| Kilfedder, James | Waller, Gary |
| King, Rt Hon Tom (Bridgwater) | Wardle, Charles (Bexhill) |
| Knight, Greg (Derby North) | Wells, Bowen |
| Knox, David | Wheeler, John |
| Latham, Michael | Widdecombe, Ann |
| Lawrence, Ivan | Winterton, Mrs Ann |
| Lee, John (Pendle) | Winterton, Nicholas |
| Lightbown, David | Wolfson, Mark |
| Wood, Timothy | Tellers for the Ayes: |
| Woodcock, Dr. Mike | Mr. John M. Taylor and Mr. Tom Sackville. |
| Yeo, Tim |
| NOES | |
| Adams, Allen (Paisley N) | Johnston, Sir Russell |
| Anderson, Donald | Jones, Barry (Alyn & Deeside) |
| Archer, Rt Hon Peter | Kennedy, Charles |
| Armstrong, Hilary | Kirkwood, Archy |
| Ashton, Joe | Leadbitter, Ted |
| Banks, Tony (Newham NW) | Leighton, Ron |
| Barnes, Harry (Derbyshire NE) | Lewis, Terry |
| Barnes, Mrs Rosie (Greenwich) | Litherland, Robert |
| Battle, John | Lloyd, Tony (Stretford) |
| Beckett, Margaret | Lofthouse, Geoffrey |
| Bell, Stuart | Loyden, Eddie |
| Benn, Rt Hon Tony | McAvoy, Thomas |
| Bennett, A. F. (D'nt'n & R'dish) | McCartney, Ian |
| Boateng, Paul | McGrady, Eddie |
| Bray, Dr Jeremy | McKay, Allen (Barnsley West) |
| Buckley, George J. | McNamara, Kevin |
| Caborn, Richard | McWilliam, John |
| Campbell, Menzies (Fife NE) | Madden, Max |
| Campbell, Ron (Blyth Valley) | Mahon, Mrs Alice |
| Campbell-Savours, D. N. | Marshall, Jim (Leicester S) |
| Clelland, David | Meacher, Michael |
| Clwyd, Mrs Ann | Meale, Alan |
| Cohen, Harry | Michael, Alun |
| Corbett, Robin | Michie, Bill (Sheffield Heeley) |
| Cousins, Jim | Morgan, Rhodri |
| Cryer, Bob | Morley, Elliot |
| Cummings, John | Morris, Rt Hon A. (W'shawe) |
| Darling, Alistair | Mowlam, Marjorie |
| Davies, Ron (Caerphilly) | Nellist, Dave |
| Davis, Terry (B'ham Hodge H'l) | Patchett, Terry |
| Dewar, Donald | Pendry, Tom |
| Dixon, Don | Pike, Peter L. |
| Duffy, A. E. P. | Powell, Ray (Ogmore) |
| Eadie, Alexander | Richardson, Jo |
| Evans, John (St Helens N) | Rogers, Allan |
| Fatchett, Derek | Short, Clare |
| Fearn, Ronald | Skinner, Dennis |
| Fields, Terry (L'pool B G'n) | Smith, Rt Hon J. (Monk'ds E) |
| Flannery, Martin | Steel, Rt Hon David |
| Flynn, Paul | Steinberg, Gerry |
| Foster, Derek | Wall, Pat |
| Galloway, George | Wallace, James |
| Godman, Dr Norman A. | Wardell, Gareth (Gower) |
| Gordon, Mildred | Wareing, Robert N. |
| Griffiths, Nigel (Edinburgh S) | Watson, Mike (Glasgow, C) |
| Griffiths, Win (Bridgend) | Wilson, Brian |
| Hattersley, Rt Hon Roy | Winnick, David |
| Hinchliffe, David | Wise, Mrs Audrey |
| Hogg, N. (C'nauld & Kilsyth) | Worthington, Tony |
| Home Robertson, John | Wray, Jimmy |
| Hood, Jimmy | |
| Howarth, George (Knowsley N) | Tellers for the Noes: |
| Hoyle, Doug | Mr. Frank Haynes and Mr. Frank Cook. |
| Hughes, John (Coventry NE) | |
| Ingram, Adam |
§ Question accordingly agreed to.
§ Lords amendments Nos.19 to 37 agreed to.