INVESTIGATION OF COMPLAINT OF UNLAWFUL DISCRIMINATION (Hansard, 11 June 1976)

§ Mr. Powell
I beg to move Amendment No. 52, in page 17, line 18, leave out from'23' to first 'an' in line 19, and insert 'while'.

§ Mr. Deputy Speaker (Sir Myer Galpern)
With this we shall take Government Amendment No. 87. We shall also take the following amendments:
1970 No. 53, in page 17, line 20, leave out 'may be brought'.
No. 54, in page 17, line 20, at end insert 'in respect of that Act are pending'.

§ Mr. Powell
The purpose of the amendment is to prevent the concurrence in time of jurisdiction, if I may slightly misuse the expression, between the agency and any other resource, but not to eliminate it altogether. It is clearly undesirable that both the agency and some other instance of appeal should be seized of the same action at the same time. But it does not follow from that that an action which has been considered by an instance of appeal from one point of view should therefore be outside the purview of the agency in the context of its function.
Our three amendments seek to eliminate concurrence in time while preserving the two alternative jurisdictions where there is scope for two aspects, both of which may be the subject of appeal.

§ Mr. Moyle
I understand the purpose of this amendment and I have put down Amendment No. 87 with a view to partially meeting the objective of the right hon. Member for Down, South (Mr. Powell).
The problem can be illustrated by two examples. I accept what the right hon. Gentleman says about the purpose of the Bill being that if there is a remedy available under some other machinery, the Fair Employment Agency does not consider the case. The right hon. Gentleman would like the other machinery to consider the problem first, with the agency being able to intervene at a subsequent stage after the exhaustion of the first machinery.
However, that would lead to problems in certain cases, including removal from the register or roll of nurses or from the roll of midwives. If a professional body moves to do that, an aggrieved individual may appeal to the High Court.
I do not say it would be inappropriate but it would certainly be a matter for deep constitutional consideration and philosophical contemplation to propose that there should be an appeal from the High Court to the agency and that the agency, which is an administrative body and, at the most, quasi-judicial, should have a right to review decisions of the High Court. To British constitutional 1971 man, the highest form of judicial consideration is a court of law and it would not be wise for the agency to be able to review decisions of a court of law.
Another example is the case of a man who felt aggrieved at the refusal of a licence to hatch and rear poultry. He may appeal to a panel of three lawyers under the Poultry Improvement (Northern Ireland) Act 1968 and may think that the panel, which is a quasi-judicial body appointed by the Department of Agriculture, had rejected his appeal on sectarian or religious grounds, leaving him with a sense of grievance. There might be a good argument for a reference from that body to the agency and the purpose of my amendment is to meet this sort of case.
If the right hon. Member for Down, South and his hon. Friends withdraw their amendments and accept mine, where an appeal against removal from a roll by professional bodies lies to a court of law, that court will be the end of the matter. Where it lies to a quasi-judicial body, the agency will be able to consider the case.

§ Mr. Powell
I am grateful to the Minister of State for the careful attention he has evidently given to the problem ventilated in Committee and for the ingenuity of his proposed solution. The Minister's amendment is starred and when I first saw it this morning, I failed to recognise that it was even a partial solution. However, I recognise that there is a real logic in the hon. Gentleman's amendment and the arguments he puts for it.
I take one of his examples—the case of a nurse struck off the roll—to think it through. The nurse might be struck off the roll purportedly for incompetence or for some other professional deficiency. If he or she took the view that the striking off the roll was discriminatory, the indications that it was discriminatory could be brought out by the aggrieved person before a court. Therefore, the discriminatory aspect could be covered by the alternative instance of appeal where, as in that case, it is the High Court.
On the other hand, the Minister said that the amendment would eliminate the possibility of a decision which falls to be taken on grounds which have nothing to 1972 do with religious discrimination, such as whether premises are suitable for rearing chickens, which for all I know might oust an appeal to the board on the ground that it was merely a cloak for discrimination and was a twisted judgment. I believe that we have probably got as near as we are likely to get to the right answer in this respect, and I beg to ask leave to withdraw the amendment.