§ 3.45 p.m.
§ Mr. PowellI beg to move Amendment No. 72, in page 28, line 32, after second "act", insert
certified in accordance with the following provisions of this section as".There is in this amendment a substantial point and one that is material for the administration of the Bill. I am aware that similar wording was enacted earlier today in the context of labour relations. Nevertheless, that should not excuse us from viewing the difficulties that will arise if Clause 42(1) is left at large as a precedent. As the clause stands, the position is that anyone accused of an act of discrimination can claim that he did it for the purpose of safeguarding national security, for the purpose of protecting public safety or of protecting public order. If that excuse, if I may use an unofficial word, is not accepted by the agency, he may appeal to the court and endeavour to make good that that was his purpose in so discriminating.In subsection (2) we find an irrefutable proof of the requirements of national security or public safety in the form of a certificate from the Secretary of State. But the possession of a certificate from the Secretary of State is not necessary to constitute a defence. The defence can be set up without such a certificate.
There are several objections to this approach. It would be preferable to make a clean-cut decision and to say "If you think you are going to discriminate on any of these grounds, which are public grounds, you had better be covered 1985 by a certificate to that effect, and you cannot come along afterwards and seek to argue that your purposes were of the highest quality and were for the protection of public order."
It could well be that a private citizen thinks that in discriminating he was doing so for the purpose of protecting public order. It could be that he was doing it for the purpose of protecting public order, although a different view may be taken by the rest of us. As I read it, provided he could prove to a court that his purpose in discriminating was the protection of public order, he would be outside the scope of this measure.
I do not think that the requirements of public order and public security should be taken on the judgment of an individual or that such a purpose, proved by an individual as having been in his mind, should be a sufficient defence against anything which would otherwise be done in contravention of the legislation.
There is a second and, in a sense, converse difficulty created by the clause. It is that if it is intended that the citizen shall be able to plead any of these justifications, as the clause is drawn he would always be asked by his opponents "If that was the case, why did you not go to the Secretary of State and get a certificate?" However we approach this, we seem to be brought to the conclusion that, where these considerations of national security, public safety and public order are to oust the provisions of the Act, they ought to be certified as considerations which exist by the responsible Minister whose duty it is to look to these things and who has to justify his actions to Parliament.
I will not be answered simply by a statement that we have done this before or even that we were parties to doing it 16 hours ago. We are entitled, particularly in the highly sensitive context of this new legislation, to be fully satisfied that the clause is in the proper form. I ask the Minister of State to address himself to the substantive grounds I have endeavoured to put before the House.
§ Mr. ConcannonI said in Committee that I would see whether the arguments of the right hon. Member for Down, South (Mr. Powell) held water. I promised to consider certain matters, and 1986 I think that my record in that respect is petty good and that I have, wherever possible, suggested the right amendment. We have considered this matter to see what could be done, but we find no reason to alter the Bill.
The effect of the amendment would be to require anyone who wished to invoke the provision of subsection (1)—that the Bill shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or order—must obtain the certificate from the Secretary of State referred to in subsection (2). The Bill as drafted does not make that requirement, but that is the requirement for which the right hon. Gentleman looks. The judge of whether an employer was justified in relying on this defence is, first, the agency and, in the end, the court. It would be wrong to give the Secretary of State power to make this judgment and so supplant the court entirely.
Provisions similar to this provision appear in other legislation—for example, the Race Relations Act, the Northern Ireland Constitution Act, the Trade Union and Labour Relations Act and the Sex Discrimination Act.
§ Mr. PowellWill the hon. Gentleman say whether I am correct in thinking that a person whom it is sought to bring within the ambit of the legislation would escape if he could prove not that his act protected public safety or public order—it is not necessary to prove that—but that the act done by him was for the purpose of protecting safety and order? It could not be anybody else's purpose because it would be his act. If he can show that his purpose in doing the act was to protect public safety—he might genuinely believe that, although no public authority would uphold his belief—is it the intention that he should be outside the provisions of the legislation?
§ Mr. ConcannonThat is not the intention. He will come within the legislation.
Although it is likely that most employers would seek to obtain a certificate to support their action, there appears on the face of it to be no reason why such a requirement should be made compulsory. In instances where no certificate has been obtained, the agency should still be able to consider whether a defence of national security could be invoked.
1987 I grant to the right hon. Member for Down, South that in practice it might not be easy to convince the agency if no certificate existed.
§ Amendment negatived.