§ Mr. McCusker
I beg to move Amendment No. 59, in page 20, line 28, leave out from 'under' to end of line 30, and insert:'this section, the parties shall be the Agency and the appellant'.We debated this matter in fair detail in Committee, and at that stage there was a fair amount of confusion. The Minister assured us that he would consider our comments.
This part of the clause deals with the right of an appeal of an employee or employer against a decision by the agency. If the agency, in investigating a complaint of discrimination, finds an employer has been guilty of discrimination, the employer may appeal to the county court and the parties to the action will be the employer and the agency. If, on the other hand, the agency finds that there has not been discrimination, the employee who is complaining can appeal to the county court as well, only 1973 in that event it is not the agency and the employee who are parties at court but the employee and the employer.
At one stage in Committee the Minister defended that situation on the ground that the agency could not be a party because it had to defend the employee, but the agency would have made a finding after careful investigation, ruling against the employee, having found that there was not religious discrimination. The Minister was suggesting that the agency would go to the courts and act on behalf of the employee against the employer on a decision at which it had arrived.
We say by way of the amendment that in any appeal brought under this section the parties should be the agency and whoever is making the appeal. I hope that now consideration has been given to this matter the Minister will be able to explain the reasons for rejection if he is to reject the amendment, or for accepting it, if that is to be the case. I hope that in doing so he will use words such as "employee" and "employer". When we use words such as "complainant" and "respondent" I become somewhat confused. I am sure that others become confused as well.
§ Mr. Moyle
I can assure the hon. Member for Armagh (Mr. McCusker) that there is unanimity in the House as regards his last sentence. I shall endeavour to meet his wishes in that respect.
If there is any advantage in myself having taken over this Bill in its concluding stages from my predecessor, the right hon. Member for Salford, West (Mr. Orme), it is that a different mind is brought to bear on some of these tricky little matters. I devoted myself to the consideration of this problem and I have come up with a view which is the same as that of my predecessor.
On the face of it, it looks a little unfair. If the agency considers a complaint by an employee that he has been unfairly discriminated against by his employer and finds that there is no discrimination, the employee takes the agency, not the employer, to the county court. On the other hand, if the agency finds that there is discrimination and the employer does not like that, the employer does not take the agency to the county court: the 1974 parties then are the employer and the employee. The arguments is that the employer is in an unfair position, because the agency is the other party when the employee appeals, and the employer is the person appealed against in the second case——
§ Mr. Moyle
I apologise to the House. The matter is entirely the other way round.
If there is a finding of non-discrimination against the employee, he is not in the position of being accused of moral inadequacy. If some one is found guilty of discrimination, there is an element of moral reprobation, but a complaint of discrimination by an employee which fails does not produce that sort of stigma against the employee.
If the employer is accused of religious discrimination, and the agency believes that that is true, and the employer wants to appeal against that decision, we think that the employer should have the right to argue his case before the county court, and should not have the case argued on his behalf by the agency. The moral reprobation in that case is such that it should be left to the employers to argue his case in public before the county court. For that reason, the existing procedure should be followed. I apologise to the House for causing confusion by getting the argument back to front.
§ Mr. Powell
I was warned by my hon. Friend the Member for Armagh (Mr. McCusker) not to confuse the House further by anything that I may say. I shall endeavour to comply with his request, but in doing so may run the risk of over-simplification.
Subsections (2) and (3) deal respectively with appeals against a finding. In each case the finding is the finding of the agency. The natural assumption is that, as the appellant is appealing against a finding of the agency in both cases, the parties are the aggrieved person and the agency which caused the grievance of the aggrieved person. I still cannot see that that simple deduction is not the most just.
I can see at least two disagreeable consequences which can arise from subsection (5). The imbalance of subsection (5) 1975 means that if the agency finds for the employer, the employee has to go for the employer direct instead of going against the agency. I cannot think that that can be conducive to good industrial relations or to the harmonious development of employment. I can imagine without much difficulty a complainant who, having gone to the agency and having been told by the agency "You have nothing to complain about, my dear friend", says "I do not agree with you", and goes to the court against the agency. What does not seem to me to be right is that he should then take his employer to court to prove that which the agency, which was established a priori for the purpose, did not find. That seems to me to be likely to cause the worst possible feeling—that, failing with the agency, the employee puts the employer in the clock, as it were, in court.
The second difficulty which I think arises—I think I am right here—is over the matter of costs. If in both cases the agency is the other party, the allocation of the costs and the bearing of the costs by the public, where the agency is a party, will be on the same footing whether the finding was for or against the complainant. Those seem to me to be two grounds on which the commonsense view of what is the implication of subsections (2) and (3) is justified.
I think I note that a certain amount of consultation is even now taking place. Once again we are in the difficulty that, being in the second House and drawing nigh the end, we are very limited for opportunities for reconsideration, but I am sure that that will not prevent the Minister of State, if there is any ground for looking at this matter again, from finding some method of doing so, such is the candour with which he and his colleagues have conducted the Bill from the start.
§ Mr. Moyle
I am grateful for the further attempt by the right hon. Member for Down, South (Mr. Powell) to explain the situation to the House. What I want to achieve, and what I thought I had achieved before I came to the House and considered the wording of the Bill, is that, where there is a decision by the agency against the employer that he has discriminated, the employer will have the 1976 right to argue his case in the county court and not leave it to the agency.
There is an element of moral reprobation about religious discrimination which is imported by the Bill and which I believe that people should have a full opportunity to refute in public if they feel that injustice has been done to them. That is the essential point.
I am not sure what one can do about the revision of the wording if on reflection I find that the wording does not coincide with what I understood it to provide. However, as a result of listening to the debate I think that it is a difficulty of exposition rather than of wrong drafting that is at stake. For that I apologise to the House most profusely, but it is a fairly complex matter. I regret that there is not a great deal that one can do at this stage. I will certainly bear the matter in mind.
§ Mr. McCusker
We are not complaining about that. We fully accept and understand that where an allegation has been sustained by the agency against an employer, the appeal to the county court will be one in which the parties will be the employer and the agency which found against him.
We are concerned about a case in which an appeal has been made against a decision by the agency and has not been upheld. In such circumstances the employee who complained in the first place can appeal against the decision of the agency. The difference is, however, that when the employee goes to the court the other party is not the agency but the employer. Therefore, the employer is the other party to the appeal even though the body which made the decision—the agency—is not.
We agree precisely with what the Minister of State said in the first place. The difficulty is that in the alternative the agency is not the other party.
§ Mr. Moyle
There is no doubt that the argument that costs are borne does not necessarily apply in practice. I do not know what the procedures will be with regard to costs of hearings before the agency.
In any case, there is provision that, where the parties cannot afford the costs, legal aid will be available before the county court. Therefore, I do not think 1977 that is a particularly relevant Point, in that nobody who is not capable of bearing costs will be asked to do so. I see the point made by the hon. Member for Armagh (Mr. McCusker), but that is the way in which the Bill is to be left, and in the circumstances I prefer to stand my ground on this point and ask the House to reject the amendment.
§ Mr. McCusker
Because our minds are not clear on this matter, and because there has been some confusion about it, I regret that the Minister is not prepared to consider the matter further.
The situation will be that an employee, having made an allegation against his employer and having had the matter diligently examined by the agency—which will consider the issue thoroughly and sympathetically—will be told that he has no ground for complaint. He may then appeal to the county court, and he will appear there with his employer. It is the employer who will have the task of dealing with a matter considered by the agency.
I do not think that that will result in harmony between the employer and employee, because in the interim period some satisfactory working arrangement may have been come to between them. We object to the fact that the employee has to take his employer to court to fight a case when the decision has been taken by the agency.
§ Amendment negatived.