Fair Employment and Treatment (Northern Ireland) Order 1998

HL Deb 07 December 1998 vol 595 cc755-73

5.30 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs) rose to move, That the draft order laid before the House on 30th November be approved.

The noble Lord said: My Lords, the purpose of the draft Fair Employment and Treatment (Northern Ireland) Order 1998 is to consolidate and extend the legislation on fair employment which is unique to Northern Ireland. I believe that it will be helpful to the House if I outline briefly the background to the order and then say a few words about its more important provisions.

The promotion of equality of opportunity has been a priority of successive administrations since the early 1970s and the order before the House represents the culmination of a comprehensive review of the legislation carried out over the past three years.

The first Fair Employment Act in 1976, which established the Fair Employment Agency, was ground-breaking legislation and paved the way for the introduction in 1989 of the second Fair Employment Act. That had considerably more teeth and put the onus on employers not simply to avoid discrimination but actively to promote equality of opportunity through affirmative action. Much has been achieved under the 1976 and 1989 Acts but the review of the legislation carried out by the Standing Advisory Commission on Human Rights, and published in June 1997, indicated that more needed to be done.

The Government considered carefully the SACHR recommendations and published its response in March of this year in a White Paper entitled Partnership for Equality. Subsequently the Government made a commitment in the Good Friday agreement to make rapid progress in the implementation of the measures set out in the White Paper. The order now before the House fulfils that commitment.

The order makes a number of amendments and contains several new provisions to strengthen the law on fair employment. These are set out in the explanatory document which accompanies the draft order and I do not intend to go into them all in detail. There are, however, some key issues which have been tackled in the order and I should like to comment briefly on them.

First, the order brings together in a single piece of legislation the 1976 and 1989 Acts and incorporates the various amendments that have been made to them. This exercise alone will be of considerable help to all those who work with the legislation, including employers, trade unions, the commission and the Fair Employment Tribunal.

One important change is that the order also extends the legislation to cover the provision of goods, facilities and services and the management and disposal of premises, which includes land. This brings fair employment law into line with that on sex discrimination and race relations, but that is not the main reason for the change. The main reason is that it is the right thing to do. As a matter of principle, all unjustified discrimination, whether in employment or in any other area, should be unlawful and the opportunity is now being taken to extend the law in that respect.

The order does, however, provide for reasonable exemptions. Since 1989, all except the very smallest employers have been required to monitor annually the community background of their employees, and larger employers and the public sector have also monitored job applicants. Monitoring is now widely accepted and understood, and employers have installed systems to assist them to meet the various requirements. The data that has been generated has been extremely useful but it does not provide a complete picture of movement in a workforce so far as relative community participation is concerned. The order therefore extends the monitoring provisions to include all part-time workers and applicants for employment. In addition, larger employers will be required to monitor leavers. The new requirements will be set out in revised monitoring regulations which will be published shortly but which will not apply until employers have had time to collect the relevant information.

When the 1989 Bill was going through its parliamentary stages there was some criticism that while it assisted those in employment it did little for the unemployed, particularly the long-term unemployed. The draft order addresses that issue in two ways. First, Article 75 enables an employer, if he wishes to do so, to fill vacancies in his workforce only from among people who have not been in work for a specified period of time and protects him against a charge of unlawful indirect discrimination. I hasten to add that no employer will be compelled to recruit exclusively from among the unemployed but those who wish will be able to do so.

The second change in the law which will be of particular benefit to the unemployed is a permissive provision in Article 77. This allows employers to provide training for people of a particular religious belief who are not in their employment. Up to now "religion specific training", as it is called, has been unlawful, but Article 77 would enable members of an under-represented community to take advantage of training which would enhance their skill levels and thus help them to compete on more equal terms for vacancies when a subsequent recruitment exercise takes place. As with Article 75, no employer will be compelled to provide this type of training.

Other significant changes to the existing legislation include compensation for unintentional discrimination in employment; action against persistent discrimination; new roles for the commission; extension of the law to cover barristers and larger partnerships; and the introduction of an appeal procedure against certificates issued by the Secretary of State for the purpose of safeguarding national security.

That is all I wish to say at this stage about the provisions of the draft order but in closing I must reiterate that fair employment and the elimination of unlawful discrimination continues to be an important issue and a priority for government in Northern Ireland. Enormous progress has been made in recent years and effective remedies are available to anyone who has a genuine grievance. Nevertheless, there is no room for complacency and there must be a continuing effort by all involved to work towards a situation where the scourge of unlawful discrimination is finally eradicated from society. I beg to move.

Moved, That the draft order laid before the House on 30th November be approved.—(Lord Dubs.)

Lord Lester of Herne Hill

My Lords, we on these Benches warmly welcome the order. It gives effect to the White Paper, Partnership for Equality and to the recommendations made by the Standing Advisory Commission on Human Rights in Northern Ireland. It is an important step towards greater coherence in this area of the law; namely, the use of law to tackle discrimination. It brings the fair employment law into better harmony with sex discrimination and race relations legislation. It shows that it is perfectly possible to introduce comprehensive legislation to tackle the scourge of religious discrimination. It highlights the continuing anomaly that we do not have legislation of this kind in Great Britain. That means that Muslims are wholly unprotected under the law against religious discrimination, and Jews are protected only if they can show that they are members of an ethnic or racial group. We hope that it will not be long before that gap is filled. I know that it does not concern the Minister's department.

The measure also highlights another matter beyond the scope of the Minister's remit. I refer to the need for a single code of legislation tackling discrimination generally: a single equal rights code with harmonised powers of enforcement. The Government have taken an important step in creating an equality commission which allows harmonisation of strategic enforcement across the Irish Sea in Northern Ireland. That step needs to be taken in some form or other on this side of the Irish Sea as well.

The Minister said—and I entirely agree with him—that all unjustified discrimination, whether in the field of employment or elsewhere, should be unlawful. However, there is unfortunately still a completely anomalous gap in this order. I gave notice to the Minister that I intended to raise this matter yet again. I raised it several times during the debates on the Northern Ireland Bill, as did the noble Lord, Lord Cope. I am sorry that the drafting of the order seems to have ante-dated the debates on the Northern Ireland Bill and so, unless the Minister tells me differently, the problem has not been tackled.

Perhaps I may explain to the House the nature of the gap. I have to do it in stages. The starting point is Section 76 of what is now the Northern Ireland Act 1998, which makes it unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate on religious grounds directly. It does not cover indirect religious discrimination but only what is known as direct religious discrimination by public authorities. During the debates on the Northern Ireland Bill I raised the need to extend the concept of indirect discrimination to cover public authorities carrying out public functions. I pointed out that it was necessary to amend the Bill because of an unfortunate majority decision of the Appellate Committee of the House of Lords in a case called re: Amin, which is reported in 1983 2 Appeal Cases at page 818.

That was a case involving the proper construction of Section 29 of the Sex Discrimination Act 1975, applying to the provision of goods, facilities and services to the public, a provision which is in identical language to Article 28 of the present order. A majority of the Law Lords, the noble and learned Lords, Lord Scarman and Lord Brandon of Oakbrook, dissenting, held that the reference in Section 29 to the provision of, goods, facilities or services to the public or a section of the public", concerned only marketplace functions performed by public authorities as though they were private persons. I believe that judgment to be wrong. I wish it had been tested by the Equal Opportunities Commission or by the Commission for Racial Equality in relation to a similar provision in the Race Relations Act, but it still stands in the law reports as good law.

The problem that it creates with relation to the present order can be explained in this way. Article 28 of the order uses identical language to that of Section 29 of the Sex Discrimination Act. It makes it unlawful, for any person concerned with the provision … of goods, facilities or services to the public … to discriminate", whether directly or indirectly. That is most welcome. It then gives examples of the facilities and services mentioned, one of which, in 28(2)(g), is: the services of any profession, trade or business, or any local or other public authority". Article 91(1), which deals with application to the Crown, applies the order to the Crown, as it applies to an act done by a private person". It is that language which was used by a majority of the Law Lords to narrow what is now Article 28 of the order by saying that, when Parliament refers to an act done by a private person, that means a marketplace activity and therefore cuts down the services provided by a public authority within the meaning of the equivalent of Article 28(2)(g) of the order.

There is the absurd consequence, first, that the Northern Ireland Act 1998, which we have recently enacted, covers only direct discrimination on religious grounds by a public authority and, secondly, that this order covers direct and indirect discrimination by a public authority in providing services and facilities, but, because of the decision of the Law Lords in re: Amin, it covers it only in relation to acts done by public authorities as if they were private persons. That is, if I may respectfully say so, totally absurd because a public authority is not performing private functions but public functions and, if anyone should be liable for direct or indirect religious discrimination, it is a public authority when it is discharging public functions.

The explanatory document does not deal with this matter. In paragraph 17 it correctly says that the article mirrors the existing law relating to gender and race relations and extends the anti-discrimination legislation into such areas as the services of, inter alia, a local or public authority, but it does not deal with the re: Amin gap.

I raised this matter during the debates on the Northern Ireland Bill and was ready to move one of several amendments. I raised it on 26th October on the third day of Committee (at columns 1748–49 of Hansard) and again on Report on 17th November (at columns 1212–14), the Minister having intervened (at column 1211). The Minister referred to the fact that the order would cover goods, facilities and services. I asked whether that protection against discrimination would apply to public authorities as well as to private bodies, having referred to the re: Amin gap. I said: Perhaps I can have clarification on that". The Minister replied, the answer is yes". I replied to that: that is a most welcome announcement by the Government. It seems to me to fill an important gap. I express great appreciation and beg leave to withdraw the amendment."—[Official Report, 17/11/98; col. 1214.] I would not have done that without that assurance. Unless I am much mistaken, the situation is that I was induced to withdraw an amendment on an unequivocal statement made by the Minister that this gap would be filled in the present order. It has not been filled. Therefore, although the Minister says that all unjustified discrimination, whether in the field of employment or elsewhere, should be unlawful, about which I agree with him, there is one kind of unjustified discrimination in the field of services and facilities—namely, where provided in a public capacity by a public body—which is not unlawful and which will not be unlawful under this order; and nor will it be unlawful under the Northern Ireland Act. That is completely absurd. More than that, it is inconsistent with our international human rights legal obligations.

Perhaps I may explain. For example, Article 1 of the First Protocol to the European Convention on Human Rights guarantees the right to property, including the allocation of, or refusal to allocate, public housing by a public authority. Article 2 of the same protocol guarantees the right to education, including allocation of educational opportunities in state-funded schools. Article 14 of the convention covers indirect as well as direct religious discrimination in relation to the allocation of public housing and educational opportunities in the public sector. So under the European Convention on Human Rights the United Kingdom is obliged to provide effective remedies for religious discrimination, direct or indirect, by public authorities whether in the field of housing or education. We are not fulfilling that commitment in this order or in the Northern Ireland Act.

Having had notice, I hope that the Minister will be able to deal with the matter in his reply. I have raised this matter on many previous occasions as it is very important. Unfortunately, when the Human Rights Act comes into force, someone will bring a case of alleged discrimination in the field of education or housing in the public sector. Remedy will not be obtainable under this order as it stands unless the case of re: Amin is reversed. It may be that in some future case it will be reversed. If so, the problem I have raised will no longer arise. However, as it stands, if re: Amin is good law and this order stands as it will today, we shall be failing in our duty under international human rights law and the Minister will fail to achieve his laudable objective of making unlawful all unjustified indirect as well as direct discrimination in providing goods, facilities and services for the public in Northern Ireland.

I apologise for having taken a long time on this explanation but I have done so because I wanted to make it intelligible to noble Lords who are not lawyers so that they understand why it is quite an important matter. I ask the Minister to indicate whether he agrees with that there is a gap caused by the case of re: Amin and what measures the Government intend to take to close that gap. Surely they cannot intend that there should be a gaping whole in the scheme of protection in this admirable measure.

Perhaps I may add one further comment in favour of the measure. The powers of monitoring; the duties imposed on employers and the powers of the Equality Commission are far stronger than anything in the sex discrimination, race relations or disability discrimination legislation. I very much hope that the powers of the commissions, if they are to remain separate on this side of the Irish Sea, and the powers in Northern Ireland of the Equality Commission will be harmonised so that we have the highest common factor of enforcement which is contained in this order. That highest common factor owes a great deal to Mrs. Thatcher's government who, in amending the Fair Employment (Northern Ireland) Act in 1989, gave the commission, as it became, much stronger powers than have been given to the other commission. This is not, therefore, a politically partisan matter. I congratulate that previous government on taking that important step in 1989. With those important caveats we welcome the order, but very much hope for clarification.

Lord Molyneaux of Killead

My Lords, I apologise to the Minister for being absent for the first few minutes of his speech. As regards the very important point just made about discrimination in terms of the provision of services, I wonder whether it is possible also to include what is becoming a very real problem in Northern Ireland; namely, the publicly orchestrated boycotts which in many cases have driven small companies, small shopkeepers and the providers of motor fuel and milk suppliers out of business purely on religious grounds. There must be very narrow dividing lines. I do not want to complicate the matter further, but perhaps the Minister can deal with that in his reply to the noble Lord, Lord Lester of Herne Hill.

As regards timing there is a certain similarity between the way in which we are treating this legislation and the premature Police (Northern Ireland) Bill which was passed into law some four months ago. It comes into force about the end of October before any possible publication of the Patten Report. My argument at the time was shared by several noble Lords in that it would be much wiser to await the conclusion of the Patten Commission before we set in the Bill proposals for major changes in the police.

Is there not a real danger that we are making this amendment to the existing fair employment legislation without taking into account the views and attitudes of the Equality Council set up by your Lordships only a few weeks ago when the Bill reached its final stages in your Lordships House and received Royal Assent? As was widely recognised in all parts of your Lordships House, inevitably there would be a degree of interplay with the Fair Employment Agency, in whatever form it survives, the equal opportunities and race relations bodies and the still more complicated question of sexual preferences being added, which is another pressure group.

It is having the effect that I predicted four years ago. The Good Friday agreement established the Equality Council and thereby fulfilled my prediction that even in terms of employment the cake must henceforth be cut into eight slices and not just two. There are the Roman Catholics, Protestants, atheists and agnostics, male, female and races, whose numbers who are yet unknown. They are already claiming a place in the sun and they are all clamouring for a slice of the cake. Now that United Kingdom law is subservient to European human rights law, it is inevitable that other groups will join in the clamour and demand inclusion in the kind of legislation that your Lordships are debating this evening.

It seems to me sensible to ensure that the Equality Council created by the Good Friday agreement, and therefore with the status of holy writ, should not be inhibited in any way by an order of the kind that we are dealing with this evening. In approving the order we should clearly express at least a willingness to amend this legislation or even replace it. The Equality Council has all the authority of the Good Friday agreement behind it which, we have often been told, cannot be tampered with and therefore is in many ways superior to the laws of the United Kingdom. The Equality Council should not find itself in any way constricted in its task of ensuring fair play in all the eight categories I have mentioned, and the others yet to emerge, and not just the two religions.

I repeat the plea of my noble friend Lord Cooke, on another occasion, for financial assistance for small companies burdened with the cost of unfounded and vexatious allegations of discrimination. I renew my own plea on that occasion for substantial financial compensation for public bodies such as hospital trusts forced to expend very scarce funding on defending themselves against what usually turn out to be facetious allegations. There is also the pernicious habit affecting all public bodies in that they settle rather than see the matter through to a tribunal for the simple reason that they are faced with the problem of diverting the services of fairly scarce and very expensive employees while also incurring very heavy legal fees. There is always a temptation to settle rather than allow the allegation to go before a tribunal. I condemn this entirely, but my condemnation will not stop it. I do not know whether Parliament can devise any means of making this practice illegal and forcing bodies against whom allegations have been made to go the whole way and pursue the matter before a tribunal. In the absence of such a measure there will be a burgeoning industry of complainants sure in the knowledge that, however frivolous their complaint may be, they can be assured of what, I understand, may be on average £20,000 tax free. It is not surprising that the habit catches on. I hope that this time the Minister will listen and perhaps persuade his colleagues in government to find some means of putting an end to this scandal.

6 p.m.

Lord Monson

My Lords, can the Minister say whether, apart from the odd isolated incident or series of incidents, such as the boycott described a moment ago by my noble friend Lord Molyneaux, there is any evidence of sustained, long-term discrimination in the provision of goods and services in Northern Ireland on religious or political grounds; or is this extension of the law essentially a symbolic gesture? There is nothing necessarily wrong with gestures, but it would be useful to know whether in the main this is a gesture or there are genuine and fairly widespread grievances that are about to be rectified. If so, is the noble Lord in a position to provide a couple of examples when he comes to wind up?

Lord Blease

My Lords, I thank my noble friend for outlining in some detail the extensive and comprehensive Northern Ireland order. It almost competes with the Northern Ireland Act in legislative detail. The order has 125 pages of parts, paragraphs and schedules whereas the Act has about 100. I should like to raise a couple of points that I believe require attention in relation to the Equality Working Group and its report.

However, perhaps I may seek the indulgence of the House for one moment while I say a few words about the Northern Ireland Act 1998. Because of the pressure of time at the winding-up stage of the Bill—I hope that that is an acceptable parliamentary description—I did not have the opportunity to pay tribute to all those who took part in a momentous occasion for Northern Ireland parliamentary affairs and Irish political matters.

As a Northern Ireland citizen I pay tribute to my noble friend Lord Dubs, his Front Bench ministerial colleagues and all those civil servants and parliamentary staff who helped in placing the Northern Ireland Act 1998 on the United Kingdom statute book. I also extend my words of appreciation to all noble Lords who took part in the debates, particularly noble Lords on the Official Opposition Front Bench. The whole approach to Northern Ireland legislative measures epitomises the great sense of bipartisanship in this House that sets an example.

The Fair Employment and Treatment (Northern Ireland) Order 1998 is one of the main pillars upon which the real function and work of the Northern Ireland Assembly will be built. There are other pillars which have already been mentioned in the course of this debate. However, I believe that this pillar will get people working together. There is a basic legislative framework in which the Equality Commission will operate and promote essential fair employment practices and equality of treatment. It will provide a great public opportunity for members of the Northern Ireland Assembly to exercise justice, mercy and fairness to all citizens. It will enable all Northern Ireland Assembly members to display humble witness to good citizenship and to undertake honourable political action for the benefit of all in the Province—indeed, a better life for all in Northern Ireland.

I understand that the Equality Working Group has met under the appointed chair, Dr. Joan Stringer, that it is compiling a report on structures and practical issues and that its report will be ready by the end of January. Can the Minister indicate how the group's report will be approved and implemented? Will it be submitted to the Assembly and to the Westminster Parliament? If so, what will be the procedure and timescale? If it is approved is it intended to be submitted to the Northern Ireland Assembly at its proposed March/April 1999 session?

There are continuing difficulties in the Province. However, to talk about this matter in a vacuum is perhaps the wrong approach in this House but it is more meaningful in the sense of the Northern Ireland Assembly. It is there that the exercise of rights and other matters should be fully appreciated and understood. However, I am hopeful that the new year may be peaceful and that there will be reasoned approaches in our strife-torn community. I believe that the Northern Ireland Act and the Fair Employment and Treatment (Northern Ireland) order will help to set our sights on an end to political strife and all that goes with it in the Province.

As we debate this measure today I feel very much an old man. I recall the setting up of the van Straubenzee Committee. The present Permanent Secretary of State for the Department of Economic Development, Gerry Loughran, was then secretary to the committee, which led to the setting up of the Fair Employment Agency. Later I went on to set up the Standing Advisory Committee on Human Rights. In those days we felt that we were getting to grips with matters but they only exposed the inadequacies of the people of Northern Ireland in learning to live together. I hope that this time matters may take a different course.

Lord Fitt

My Lords, my noble friend Lord Blease, with his long and distinguished record of the trade union movement in Northern Ireland, was only too well aware of the many allegations of discrimination that were made throughout his tenure of office in Northern Ireland when there was one-party government in Northern Ireland. It is to the credit of the trade unions, given the political divisions that then existed, that they tried desperately to bring about a set of circumstances in which discrimination would not be permitted.

My mind goes back vividly to 1976 when the noble Lord, Lord Molyneaux, and I served on a committee in the House of Commons and the very first Fair Employment Act was put on to the statute book. Since then it has been amended and regenerated. I am conscious of the fact that we can debate this order with all its clauses and its myriad suggestions in a civilised atmosphere, but I have no doubt that when this measure, which will affect the population of Northern Ireland, is discussed in Stormont a good deal of heat will be generated.

The noble Lord, Lord Molyneaux, mentioned two factors to which my attention was drawn. At the present time there are people in Northern Ireland who advocate discrimination. Far from making the plea that discrimination should be removed, they advocate it. One has only to think for five seconds of the ludicrous submissions made by Sinn Fein to the Patten Commission in relation to the RUC. I do not think that anyone could take its submission seriously for a single second when it advocates a massive reorganising of the present RUC on grounds of religion because most members happen to be Protestant. I do not think that it is possible, except in its own vivid imagination, to get thousands of Catholics to join the RUC and it would upset all the Protestants.

It also made a recommendation, which made the very few hairs that I have on my head stand on end when I read it, that 15 per cent. of the RUC should be lesbians and the rest should have some other discriminatory facet. Such a submission is made to a government-appointed agency.

In relation to the supply of goods and services, I support what was said by the noble Lord, Lord Molyneaux. Religious discrimination and sectarian discrimination have taken place over past years because of sectarian and religious divides. Catholics have been forced to boycott Protestant shops because of the religion of those who own the shops and Protestants have been forced, in certain areas in Northern Ireland, not to give their custom to Roman Catholics because of their religious beliefs. I do not want to mention a particular town in case it causes disharmony. However, in a town I know very well in County Down, I can think of one chemist's shop with a notice in the window saying, "No members of the security forces will be served in this establishment". The shop was owned by a member of the Social Democratic and Labour Party. There must be other establishments in Northern Ireland which, although they do not have a notice in the window, have made it quite clear that they will not do business with members of the security forces.

On the question of discrimination, there are many aspects to be examined by the Assembly, as I mentioned to my noble friend the Minister this afternoon when I received the order and saw that it contained over 100 articles. My noble friend Lord Blease and I were not aware that there was an explanatory leaflet which we received during the course of the debate. I believe that the most important decisions in relation to the implementation of the order will have to be taken in the Northern Ireland Assembly because members of the Assembly and those they represent will have to live with the consequences. All I can do is wish them well.

Lord Cope of Berkeley

My Lords, like other noble Lords, I welcome the order. In general, I am in favour of consolidating legislation when such legislation becomes too complicated. I do not think that we do enough consolidating of legislation. That is perhaps another way of saying that we fiddle about with the law too much and too frequently. It makes it extremely inconvenient for those who wish to consult the law and deal with it.

Most of the order is consolidation and there is a list of the origin of the clauses in the explanatory document. Because the order is not purely a consolidation measure, it has not followed the "consolidation route" in Parliament and so has not been subject to the usual checks. However, it is a long and complicated order, the old provisions and the new. In many respects, it is not very satisfactory to have to discuss it in a single debate. As the powers and the customs of your Lordships' House are under consideration, it seems to me—and I speak personally—that the possibility of the House going into Committee on an order of this length and importance, might be helpful. As I said in the course of debates on what became the Northern Ireland Act, our habit of never voting against orders might come into question as well.

I have many detailed points I want to raise which are, by their nature, Committee stage points, but I do not apologise as this is our only opportunity to raise them. The principal new part of the order, as has been said, is the outlawing of discrimination against goods and services. I say to the noble Lord, Lord Fitt, that I assume that in future it will be illegal for a shop to put up a notice saying that it refuses to serve Roman Catholics or Protestants. I am not sure whether it would still be illegal to put up a notice saying that it refused to serve the security forces. The security forces are not a religion, although they may sometimes feel as though they are. I would be interested to know the answer to that. Like the noble Lord, Lord Fitt, and other noble Lords, I strongly deplore any notice of that kind.

In the case of shops and businesses, it is extremely difficult to see how one could write a law that discriminates against the buyer, the customer, which the noble Lord, Lord Molyneaux, rightly and understandably, in many senses, asked for. If people choose not to buy from a particular shop, it is difficult to see how you can say, "Well, you should have bought your goods from shop A instead of shop B, and you should not have discriminated", even if the discrimination is on religious grounds of some kind.

6.15 p.m.

Lord Molyneaux of Killead

My Lords, I believe that the noble Lord, Lord Fitt, confirmed that there are cases where certain organisations, in newspapers and in distributed leaflets, have made no secret of, the identity of those promoting a boycott on a large scale. Surely, there must be something in common law, as it exists, to deal with that kind of thing. Could that provision be extended?

Lord Lester of Herne Hill

My Lords, perhaps I may take the example that the noble Lord, Lord Fitt, gave about the shop that would not serve the security forces. That is an example of indirect religious discrimination. If the proportion of the members of the security forces who could not comply were mainly of one religion, that indirectly could be a condition or a requirement, yet disproportionately. We are getting into complex areas. Perhaps I may take the example of the collective boycott. I am confident that that would be both an unlawful conspiracy in common law, a tort, and also might well constitute pressure to discriminate unlawfully under the order.

Lord Cope of Berkeley

My Lords, those are helpful interventions. I am glad to learn that a conspiracy of the kind described by the noble Lord, Lord Molyneaux, may fall foul of common law. I believe it would be better if it were stated in statute law as well.

As far as the security forces' religion is concerned, it may be difficult to mount a case even on the basis that the noble Lord, Lord Lester, suggests. In the Army, for example, there are many Roman Catholics and members of all sorts of religions. I have no reason to suppose that the proportions in the Army are different from the proportions in the general population of the United Kingdom. It might be difficult to use that argument. The RUC is a different matter because Catholics, for a long time, have been terrorised against joining the RUC. That is the basic reason why there is such an imbalance of religions in the RUC.

This order deals with the refusal of someone to sell a house to another person on the grounds of their religion whether Roman Catholic or Protestant. That is not the most disgraceful discrimination in the area of housing. The most disgraceful discrimination is when people are forced out of their houses because of their religion. We know that that occurs. It is already illegal. The order does not deal with that. However, it is an example of the point made by the noble Lord earlier: that there is little evidence of discrimination in the fields with which this order deals, but there is a great deal of evidence of other types of discrimination which are more vicious and damaging and difficult for the law, the RUC, and so on, to deal with.

I was also disturbed by the speech of the noble Lord, Lord Lester, when he described the re: Amin gap. During the debates on the Northern Ireland Bill (as it then was) we were given an assurance by the Minister. The noble Lord read a passage—he suggested that it was from Report stage; it is from Third Reading—which was entirely accurate. The Minister reassured us that the re: Amin gap would be filled. We all want it to be filled. The Minister shakes his head. I do not wish to read out the words again unnecessarily. The noble Lord, Lord Lester, asked whether discrimination would apply to public authorities as well as private bodies, and the Minister replied that the answer was yes.

On page 45, in paragraph 5.49 of the White Paper published in March of this year, there is discussion of this point and the recommendation of SACHR that the provision should be extended to apply to indirect discrimination of this type. The White Paper stated that the proposed extension of fair employment law to the fields of goods, facilities, services and premises will greatly extend the public sector's obligation to avoid indirect discrimination.

The order implements the White Paper in that respect. However, it does not appear to do what is advertised. As the noble Lord, Lord Lester, suggested, the order may have been drafted before the re: Amin point was raised in the course of debates on the Bill. I find that slightly unlikely. The order has been amended to take account of the existence of the assembly, and other points arising from the Bill. In any case, a problem still exists.

The noble Lord, Lord Lester, drew attention to a different problem: that of education arising from the application of the Human Rights Act. Previous legislation—it is continued into this legislation—exempts teachers and the employment of teachers from the provisions of the legislation. We know why that is. It is because many of the schools in Northern Ireland are of one religious persuasion or another. There are many Roman Catholic schools and the state schools consequently take primarily Protestants, with the integrated schools doing their best to take the balance from both communities. I understand that many teachers are not of what one might call the appropriate religion in the schools. There are some Protestant teachers in the Roman Catholic schools, and vice versa in the state schools. I wonder whether it is still necessary to exempt teachers from this legislation. If that gets us into trouble with the Human Rights Act it may have been better to have included teachers at primary and secondary schools in the legislation in the first place.

The order extends the monitoring to part timers and to leavers in most cases. I note that the monitoring regulations are to be left to the Assembly to agree, on the proposal of the department. That assumes, as we all assume and hope, that the Assembly goes ahead and is able to discharge that kind of responsibility. However, I wish to raise a few small points. The regulations in Article 48(10) have for some reason or another been assigned to the Assembly. It would be helpful to know why it is that, when a concern has to satisfy conditions for registration, reference to employees of any person shall include a reference to the employers and bodies corporate. It is a very technical clause. For some reason that has been picked out from among the many clauses and subsections to be the responsibility of the Assembly.

More interestingly, perhaps, orders made under Article 6(3) relate to, employment concerned with exploration of the sea bed or subsoil". By this provision this department is enabled to provide that the provisions shall have effect in a certain way. Regulations on that matter are specifically to be approved or otherwise by the Assembly. That surprised me because the sea bed and subsoil is a reserved matter, for the time being, under the Northern Ireland Act. It is not a matter that has been given to the Assembly.

Another matter which arises from the Northern Ireland Act concerns the definition of a Minister. We had much discussion on the definition of a Minister during the passage of the Bill. It was not left in a satisfactory situation. However, on page nine of the order, the definition of "Northern Ireland Minister" specifically includes the First Minister and deputy First Minister acting jointly, but not when they act separately. However, there is no reference to junior Ministers. I wonder whether junior Ministers should have been included in that definition. That is again the kind of point which would be discussed in Committee.

Page nine of the order gives a complicated definition of a member of a vocational organisation. For some reason there is a distinction in (a) and (b) between those who belong to a vocational organisation—a trade union, employer's organisation, or a professional association which covers people in their jobs. However, (b) states that students, for example, are not members if they are concerned with a trade union or employer's organisation, but only if they belong to a professional type of organisation. That seemed to me extremely odd.

More importantly, it seems odd that a member of a trade union includes an applicant or a former member except for the purposes of Article 23. Among other things, Article 23 deals with discrimination against retired members. It is odd that someone should not be held to be a member of a trade union, and hence covered by the legislation, if it has deprived him of membership, which is part of Article 23 on page 32. The point is complicated.

In the light of the kind remarks of the noble Lord, Lord Blease, about our previous co-operation on Northern Ireland matters, for which I am grateful, it would be only fair of me to say that if the Minister is unable to deal with the points in detail he might be kind enough to write to me in due course.

In general, I welcome the order, which consolidates complicated law and the extensions in a single document, provided the extensions have the desired meaning and the meaning that the Government intended—although doubt has been thrown on that during tonight's debate.

6.30 p.m.

Lord Dubs

My Lords, I am grateful for the comments that have been made in particular by my noble friends who were supportive of the legislation. I take the point made by the noble Lord, Lord Cope, and my noble friend Lord Fitt that the legislation is complicated. I fully understand why, given our procedures, noble Lords find difficulty in doing justice to it. Were we not handing over power to the Assembly I should be sympathetic to suggestions about changes in our procedure for dealing with such matters. All being well, such future legislation will be before the Assembly and not before Parliament. Therefore, the matter will be resolved happily.

I shall deal first with the point made by the noble Lord, Lord Lester, about the Amin case and indirect discrimination by public bodies. I agree with him that there is a gap provided the House of Lords' decision in that case represents the law. However, the gap in Northern Ireland is not as wide as in Great Britain because of Section 76 of the Northern Ireland Act and previously the provisions in Section 19 of the Northern Ireland Constitution Act 1973. To make any changes now to fair employment legislation would lead to it being out of step with that on sex and race.

Having agreed with the noble Lord, Lord Lester, that there is a gap, although smaller than he suggested, perhaps he will allow me to write to him in more detail.

The difference between us is not large, although I concede that there is a difference in the terms in which he put the point forward.

Lord Lester of Herne Hill

My Lords, I should be grateful if that could be done. However, I am troubled because I was persuaded not to seek to amend the Northern Ireland Bill to fill the gap. It is not filled by the order and I wonder whether the Minister would deal at least with the merits of the issue. Does he agree that one can think of no good reason for treating discrimination by a public authority as lawful and discrimination by a private person as unlawful, whether indirect or direct discrimination, in providing services and facilities?

I ask that question as a matter of policy and also because I expect that someone will at some time challenge the unfortunate decision by the House of Lords. Can the Minister or his colleagues identify any good reason for that highly restrictive approach to the problem? If not, it must be tested in the court or dealt with by subsequent legislation. If he cannot deal with that matter now can he write to me and to other noble Lords who are interested?

Lord Dubs

My Lords, while listening to the noble Lord, I was tempted for a brief moment to try to deal with the matter here and now. However, it would be wiser to accept his offer to write to him and to the noble Lord, Lord Cope. The issue is complicated and I believe that if I were to enter into it off the cuff I might mislead him. If I misled him on a previous occasion I very much regret doing so. It was not my intention. I answered the final question he put during our debate on the Northern Ireland Bill literally and not in the context that he has now outlined. I agree that that may have been a more appropriate interpretation of his question, but I interpreted it literally. The question he asked had only one answer, which was "yes". I did not qualify the answer and perhaps I should have done. It would be better if I wrote to him on the point he raised.

Lord Lester of Herne Hill

My Lords, I am not at all suggesting that there was any intention to mislead me or the House. I fully understand that under pressure the Minister said "yes" when he might have said "yes, but". I might then have had to press the point, so I shall be grateful if at this stage he could deal with, in correspondence, the mischief I have addressed and say how we can deal with it; whether by way of seeking clarification in the courts, through legislation, or otherwise.

Lord Dubs

My Lords, I shall certainly do so by letter. It might not be a consolation to the noble Lord if I say that had he pursued his amendment at that stage I should have been obliged to resist it, so it would not have passed anyway—I trust. I shall certainly deal with the issue by letter.

I thank the noble Lord, Lord Lester, for the complimentary words he uttered about the Government's basic approach to the legislation. The noble Lord, Lord Molyneaux, made a number of comments to which I wish to respond. The noble Lord, Lord Lester, may have dealt with the question of boycotts in his earlier intervention. I agree that boycotts are unhelpful. In the atmosphere of reconciliation, which the majority of people in Northern Ireland wish to pursue, it is particularly unhelpful that there should be boycotts as described by the noble Lord and my noble friend Lord Fitt. However, it is difficult to make a case against someone who does not use a particular service or buy other goods. I know that the point was also directed at organisations which seek to encourage such boycotts. The law is complicated and the noble Lord, Lord Lester, probably had it right.

The fair employment tribunal has the power to award costs in cases which are frivolous or vexatious. I assure the noble Lord, Lord Molyneaux, that the order has nothing to do with sexual orientation. I take it that the reference to the Equality Council is the Equality Commission created by the Northern Ireland Act.

The noble Lord, Lord Monson, asked about the justification for extending the legislation to include discrimination in the provision of goods, facilities and services and in the management and disposal of premises. It would be ill-advised of me to give anecdotal illustrations or examples as these could be better demonstrated by cases brought in the courts. Answering at the Dispatch Box would not be the best way to clarify this matter. The issues to which the noble Lord referred were not covered in the 1976 or 1989 Acts. The Government believe that any unjustified discrimination on the grounds of religious belief or political opinion should be unlawful. Therefore, as a matter of principle, it is right to extend the legislation to include goods, facilities, services and premises.

If the noble Lord were to look a long way back into the history of Northern Ireland he would find areas where such discrimination took place, but I doubt whether it would be helpful for me at this stage to go down that path.

Lord Monson

My Lords, I am grateful to the Minister for giving way. I accept that entirely. I was trying to ask whether there had been any recent, or relatively recent, cases of such discrimination. I understand why the noble Lord may not wish to give specific examples.

Lord Dubs

My Lords, I am grateful to the noble Lord for his understanding. My noble friend Lord Blease asked about the working group. That is not a statutory body. It will bring forward proposals to Northern Ireland Office Ministers after it has consulted relevant interest groups in Northern Ireland. I note my noble friend's interest in the group's proposals and I shall ensure that he receives a copy of them when they are ready.

I believe that I have dealt with the point made by my noble friend Lord Fitt in relation to shops that do not serve the security forces and indicate that by a notice. I deplore such acts of discrimination, even though they may not be unlawful within the terms of existing legislation. It is not helpful for shops to display such signs or for people to organise boycotts because we wish to move forward in a more positive manner in Northern Ireland. The majority of people want that, although the minority try to give a different impression. I hope that that minority will desist.

The noble Lord, Lord Cope, asked a number of specific questions. It will be unlawful to refuse to serve a person of a particular religion. If a member of the security forces were refused service, he might have a case of indirect discrimination against the service provider but it would be difficult, legally, to achieve that.

The noble Lord, Lord Cope, asked about the position of teachers. Employment as a teacher in a primary or a secondary school in Northern Ireland is exempt from the provisions of the order, as the noble Lord indicated. There has been no change in the position since 1976. However, the commission has duty to keep that exemption under review.

The noble Lord referred also to the description of "Northern Ireland Minister" to which we devoted quite some time during the various stages of the Northern Ireland Bill. That expression does not include a junior Minister for the purposes of this order. The only reason for that inclusion in Article 2.2 is to make clear that it includes the First Minister and Deputy First Minister when acting jointly and all Ministers other than junior Ministers. Junior Ministers do not have that particular position.

The noble Lord asked also about the definition of "member" and why it was split between two parts. The simple explanation is that it is merely for ease of reading. There is no complicated thinking at all. It is merely to make it easier to read the text by having it divided in that way.

Lord Lester of Herne Hill

My Lords, before the noble Lord leaves that point, the intervention of the noble Lord, Lord Cope, drew my attention to something of which I was unaware; namely, that trade unions are not covered by the legislation, as far as I can see, whereas they are under the race relations and sex discrimination legislation.

There is no direct provision making it unlawful for a trade union to discriminate on religious grounds against members or applicants for membership or in the collective bargaining process. That is my reading of the order. I thought that I was some kind of an expert and it may be that I am about to be proved wrong. However, if that is correct, the Minister may like to write to me because there is a complete mismatch, if I am right, between the race and sex equality legislation and the religious discrimination legislation. However, I may have missed a provision in the order and I am grateful to the noble Lord, Lord Cope, for drawing the matter to my attention.

Lord Dubs

My Lords, my understanding is that trade unions are covered by the definition of "vocation bodies".

Lord Lester of Herne Hill

My Lords, I understand that. I am not dealing with discrimination in training or vocation but in membership of the trade union or the role of the trade union in the collective bargaining process. I realise that that may be rather technical but I should be grateful if the Minister were able to clarify the position at some stage.

Lord Dubs

My Lords, I should be happy to write to the noble Lord and to the noble Lord, Lord Cope, who raised that matter.

The noble Lord, Lord Cope, referred to another point in the White Paper; namely the section in the White Paper which deals with SACHR's recommendations in relation to the constitution Act. The reference there to fair employment legislation is to clarify that the constitution Act provisions were effectively a goods and services provision for the public sector and that the fair employment legislation would extend those to the private sector.

The noble Lord, Lord Cope, raised a number of points about the way in which the order has been drafted. The order is drafted in post-devolution terms with transitional provisions to cope with the interim period. Again, I wish to write to the noble Lord on some of the technical points he raised.

In concluding, perhaps I may make two brief points about the fair employment legislation generally. First, there is evidence that it is achieving increasing cross-community recognition as those of all religious beliefs and none make use of the legislation and come to realise its value in upholding fundamental rights. That is surely a most welcome development.

I should like also to restate the Government's firm commitment to the principle of appointment on merit and their opposition to quotas or any form of discrimination. That is not only morally right but in economic terms it is the only approach which makes sense. More important, it is a key principle to which both communities in Northern Ireland can subscribe.

The merit principle ensures that the legislation is not partisan and that it can make a particular contribution to the success of the political settlement in Northern Ireland. I am encouraged by the progress made in promoting equality of opportunity in Northern Ireland. The introduction of the order will certainly continue that process. For those important reasons, I hope that your Lordships will join with the Government in formally approving the order.

Lord Lester of Herne Hill

My Lords, I am now satisfied, having listened to the Minister and having looked at the definition of "vocational organisation", that trade unions are covered fully. Therefore, it is unnecessary for the matter to be clarified further.

Lord Dubs

My Lords, I am grateful. That will save me one letter. I commend the order to the House.

On Question, Motion agreed to.