HC Deb 11 June 1976 vol 912 cc1910-21
Mr. McCusker (Armagh)

I beg to move Amendment No. 5, in page 3, line 27, leave out Clause 4.

Mr. Speaker

With this we may take the following amendments:

No. 38, in Clause 13, page 10, line 38, leave out 'by the Appeals Board'.

No. 39, in Clause 14, page 11, line 7, leave out 'Appeals Board ' and insert ' County Court'.

No. 41, in page 11, line 19, leave out 'Appeals Board' and insert 'court'.

No. 42, in page 11, line 24, leave out 'Appeals Board' and insert 'court'.

No. 43, in page 11, line 29, leave out 'Appeals Board' and insert 'court'.

No. 47, in Clause 15, page 12, line 10, leave out 'Appeals Board' and insert 'court'.

No. 48, in page 12, line 15, leave out 'Appeals Board' and insert 'court'.

No. 49, in page 12, line 25, leave out 'Appeals Board' and insert 'court'.

No. 83, in page 48, line 18, leave out Schedule 2.

Mr. McCusker

It is with considerably less enthusiasm than I felt five minutes ago that I rise to speak to the amendment, after hearing the last few comments of the Minister of State. Nevertheless, I shall do my best.

Clause 4 and Schedule 2 set up a body to be known as the Fair Employment Appeals Board, which will have a semi-judicial function and will have two very limited aspects. It will be to that board that an employer will appeal if he feels aggrieved at having his name removed from the Register of Fair Employers. It will also be to that board that an employer will appeal if he feels that the directions made by the agency have been unfair.

In all our deliberations on the Bill we have tried to tidy it up, to reduce its costs and to do away with anything that is unnecessary. We feel that it is unnecessary that there should be two separate and distinct appeals procedures under the Bill. There is the board, which deals with those two very limited and specific matters, and later there is the appeal to the county court against an allegation that an employer has been guilty of discrimination.

We believe that the two appeals can be equally well dealt with by the county court. By accepting the amendments, the Government would do away with this extra body. We already have enough such bodies. If the Minister does away with it, at least he will not have the embarrassment of announcing another name which will be greeted with horror on these Benches. As it is a matter of some importance and has some bearing on the whole question of deciding what is discrimination and what is not, the decision can, we feel, be left to the county court.

When he was Under-Secretary, the Minister of State told us in Committee, on 9th March, as reported at column 122 of Hansard, that the decisions of the appeals board "do have legal effect". If they are to have legal effect, why cannot they be made by the county court?

Mr. John Biggs-Davison (Epping Forest)

We have some sympathy with the argument of the hon. Member for Armagh (Mr. McCusker). I always have a slight sinking of the heart when I hear that yet another new board or bureaucratic institution is to be set up. There is something to be said for uniformity, and there is more to be said for avoiding the setting up of additional machinery of this kind. But there are strong contrary arguments.

The hon. Gentleman does not want to have distinct appeals procedures, but there are two distinct matters which would be the subject of appeal. The Bill provides for an agency for the promotion of equality of opportunity in employments and occupations". That is one object. Secondly, the Bill outlaws certain kinds of discrimination on the ground of religious belief or political opinion", as defined in Parts II and III.

The promotion of "equality of opportunity" is something rather nebulous. At any rate, it is less readily justiciable and involves the pseudo-philosophical declaration of intent about which there was considerable debate and about which there are amendments on the Notice Paper. It involves the Register of Equal Opportunity Employers and Organisations and all the rest.

To allow county courts rather than a specialised appeal body to become involved in disputes over the removal of names from the register, or the refusal to restore names to the register, seems to us likely to be confusing and to add to rather than diminish bureaucracy.

Part II has more of an administrative than a legal character. It does not seem to us appropriate for courts of justice to hear appeals concerning patterns and trends of employment, as would be required if the amendments were accepted. These questions are better kept out of the courts.

Mr. Powell

I was disappointed by the last words which fell from the hon. Member for Epping Forest (Mr. Biggs-Davison). It seemed to me that he had initially seized what I think is the main point here—the natural presumption against the creation of additional machinery where that is not necessary. Those of us who in Committee ploughed through all the minutiae of the establishment of the Fair Employment Agency, which is the heart of the Bill, do not relish the same procedure being applied all over again—expenses, allowances, employees, conditions of service and so on—to an appeals board unless that board is strictly necessary.

I fancy that, even in the three months since we were considering those clauses in Committee, public opinion in this country and probably opinion in the House have moved more strongly still against superfluous bureaucratic agencies. I find myself very much in support of the criticisms which come from the Government side of the House of the new structures in local government which were created by a previous Parliament. There is a general prejudice today against looking with starlit eyes of hope towards newly-invented tribunals, agencies and boards. The day of the board is waning, and I trust that its sun is setting.

Therefore, in considering the arguments put forward by my hon. Friend the Member for Armagh (Mr. McCusker), the House must address itself to the following simple question. Is it really essential to have a new board—admittedly a judicial board, to judge from its composition—to do a job which can be carried out by a well-known, accepted, existing judicial authority?

12 noon.

I accept that there is a distinction between the nature of Part II, whence appeals would go to the board, and Part III. Part III appeals ultimately relate to alleged or real individual cases of discrimination and injury, whereas Part II appeals are against behaviour on the part of the agency which might be regarded as unreasonable and unjustifiable. To that extent there is a difference in the nature of the function, but there is something more important than the difference which constitutes the underlying similarity and claim for hearing in a court of law. In both cases, under Parts II and III, the citizen is trying to protect himself against injury by proving that that injury would be unjustified.

My hon. Friend the Member for Armagh has pointed to the two clauses. There are only two. We are really setting up a new board to hear appeals under two clauses of one part of the Bill. The two cases are, first, appeals against removal of name from or refusal to restore name to the register and, secondly, appeals against unreasonable directions issued under Part II by the Fair Employment Agency. In both instances the action being taken by the agency will injure the person against whom it is taken. There would be no point in removing his name from the register unless it were to be a disadvantage. There would be no point in issuing directions to him unless those directions were going to constrain him to take steps which he would not otherwise voluntarily take. Those are the two instances in which appeals ultimately lie in Part II to the board.

The central point is that these are just as much cases where the citizen has the right to prove that he is being unreasonably damnified as any of the instances under Part III. Therefore, the natural conclusion is that the ordinary courts of law are perfectly capable of deciding upon reasonableness and justification under Part II as under Part III.

What is more, the courts will have to deal with the same kind of evidence. The court which is hearing appeals will have to hear witnesses who will establish what was done to an individual employee, what the employer did or did not do, committed or omitted, in alleged contravention of the requirements of Part III. But that is what the court will have to do under Part II, and that is exactly what the appeals board will have to do. It will have to say to the agency "What reason have you got for removing or purporting to remove this firm's name from the register?"

I hope that it will be no good the agency saying to the appeals board "We do not like his face, we do not like the name of his firm, or we have an uneasy feeling about this chap." That will not do. It will have to say "We ask you to consider the following instances of behaviour by this firm. These instances of behaviour by this firm which have come to our notice have led us to the conclusion that he is not complying with the declaration, and consequently his name ought to be removed from the register."

It will be exactly the same propositions, the same allegations and the same rebuttals to which the appeals board is directing itself in Part II as those to which the courts will be directing themselves on appeals in Part III. The mere fact that the context of those appeals is different in Part II from the context in Part III does not alter the nature of the appeals or the suitability of the county court for determining them.

The Minister of State, the hon. Member for Mansfield (Mr. Concannon), caused a surge of hope in our hearts when, after deploying these arguments in Committee, as reported at column 124, he set out once again the point which I have made, but shown to be irrelevant, about the different context in Parts II and III. The Minister, evidently impressed, said: Clearly, from what has been said from the Opposition Benches, we shall consider very carefully the views put forward without saying that we could or would alter it."—[Official Report, Standing Committee H, 9th March 1976; c. 124.] The Government have now had an opportunity to consider this matter. It is clear that they believe that there is a case. I ask them to accept that there is a presumption against creating new machinery where existing machinery will work. I am sure that this will appeal to the Treasury. If I could invoke the Treasury on this argument——it is not for me to imagine what minutes may have passed between the Northern Ireland Office and Her Majesty's Treasury—I know which side it would be on. The Treasury knows that the setting up of a new appeals board—it may be the most curmudgeonly appeals board one could imagine—means additional expense. It means an increase in staff and an increase in expenditure of all kinds.

Therefore, the Northern Ireland Office will be serving the general purposes of the Government, as well as complying with the increasing mood of public opinion, if it recognises—there is no shame in such recognition, especially after what the Minister said in Committee—that this job can be done with the machinery that we have. If it is done with the machinery that we have, the cost will be nil. That should be made clear.

The mere fact that an additional two or three appeals will be heard by a county court somewhere, apart from giving a greater sense of satisfaction to the appellant, whichever way the decision goes, would add nothing whatsoever to the cost of the administration of justice or of administration generally in Northern Ireland.

I trust that the Government will show that their second thoughts have been wiser and that they will comply with the appeal that has been addressed to them by my hon. Friend the Member for Armagh.

Rev. Ian Paisley (Antrim, North)

There is a philosophy abroad that the way to solve all the problems in Northern Ireland is not by election but by selection and the multiplication of boards. We have had this in every stratum of our society. However, it is not for me to go into that matter, because I should no doubt be ruled out of order.

We are saying that the proposed appeals board is not necessary. We have the real kernel for appeal in the county court. Instead of going to the first appeal system, why not go directly to the final appeal system? That is the nub of the whole argument today.

I did not serve as a member of the Committee, but I pay tribute to those of my colleagues who spent so much time on this Bill in Committee. It shows that Northern Ireland Members are trying to make a vital contribution for the betterment of this legislation, with which we do not agree. However, as parliamentarians we are prepared to do our bit to try to make it as acceptable as possible and to make it a machine which can be operated.

I am sure that those who have read the report of our proceedings will have noted that the Minister said that he would look closely at this. He underlined the point that he thought there was weight behind the argument. I ask the Minister of State to tell us why the arguments that evidently carried weight with his hon. Friend are now to be rejected.

Mr. Powell

No. He intends to accept them.

Rev. Ian Paisley

I am glad that hope is rising within my right hon. Friend's heart. If the Government intend to accept the arguments, well and good. If not, we should know what are the arguments which have led them to reject this point of view.

Following the announcement of the name of the chairman of the agency, I feel that in Northern Ireland there will be those who will think that by having that gentleman in that position the agency will have a difficult time convincing people that it will act in an impartial manner.

We have illustrated the fact that selection of boards seems to be the only philosophy that this House can put forward to solve the problems of Northern Ireland.

The Minister of State, Northern Ireland Office (Mr. J. D. Concannon)

This has been a long-running Bill. It has been twice in Committee in the other place. Amendments were tabled to this clause in the other place. It has had a Second Reading and a long, detailed Committee stage in this House. All in all, the Bill has had a pretty thorough going-over. We were not dogmatic in Committee. We listened to and accepted many of the points put to us. In some cases we promised to have another look at an issue without commitment.

It is unfortunate that the first two groups of amendments have come forward in this way, because there are many Government amendments that have been tabled specifically to meet the point made in Committee. I pay tribute to those who worked on the Bill in Committee. It is a better Bill as a result of their scrutiny.

After much thought, we have not been able to meet hon. Gentlemen on this point. There was disagreement about this matter in Committee. Looking through the Committee reports, I find that after three attempts to explain the situation I seem to have returned to the original defence of the clause and the appeals board. When we left Clause 4 I said that I would look at this point again. By the time we reached Clause 14 we had done so. We thought it best to leave the appeals board as it is.

The normal function of a court is to consider whether actions are consistent with the law. The function of the appeals board is to hear appeals against directions issued by the agency under Clause 13. These are directions to secure equality of opportunity. They will stipulate certain actions designed to achieve that end. Until a direction has been issued, there is no statutory duty on the employer to take such action. The purpose of the appeal is to determine not whether the respondent is in breach of the statutory duty but whether he ought to be given one.

This is essentially a matter not of law but of policy, which is not readily justiciable. The grounds on which an appeal may be made against a direction by the agency are that in all the circumstances it is unreasonable to expect the appellant to comply with the directions, that compliance with the direction would not have the effect of securing equality of opportunity or that the appellant is already affording equality of opportunity and the direction is therefore unnecessary.

The body hearing appeals on such grounds will require practical knowledge and expertise on employment problems and situations rather than a detailed knowledge of the law.

12.15 p.m.

We have heard already today about the good work being done by tribunals in other areas in Northern Ireland. I see this one working on the same lines. The appeals board will contain persons drawn from outside industry as well as from the law. The difference between appeals to the Fair Employment Appeals Board under Part II of the Bill and under Part III to the county courts, is that in Part III the appeals will be against the findings by the agency of unlawful discrimination. Under Part II the appeal will be made to the board rather than to the court because a review of the directions can be termed to be balancing different policy considerations rather than applying the law to determine facts.

Mr. Powell

Might I draw the Minister's attention to the function of the appeals board in conjunction with Clause 8, which surely cannot be a matter of policy. It must be an application to a specific case of the implications of the statute.

Mr. Concannon

In the final analysis the right hon. Gentleman is correct. The enforcement of directions issued by the agency can be achieved only by invoking the courts. The courts would not, however, enforce directions that were inconsistent with the terms of the Act. We have gone into this in great detail. I would not want there to be two appeal bodies when one would suffice. It is better to have the tribunal system than to use the courts. We have met hon. Members on many points. I am sorry that we cannot meet them on this one.

Mr. Biggs-Davison

The hon. Gentleman has paid tribute to the tribunals operating in Northern Ireland. I wonder whether, in the interests of saving money, there could be a pooling of staff and administrative facilities between the appeals board and some other body. Is this under consideration by the Northern Ireland Office?

Mr. Concannon

We shall certainly not be looking for extra finance. We shall wish to keep a tight control on spending.

Naturally, we shall look at all sorts of suggestions.

Rev. Ian Paisley

Can the Minister tell us whether legal aid will be available to those who appear before the appeals board?

Mr. Concannon

I assume that the same system will obtain as obtains with any tribunal. Legal aid as such is not available.

Mr. McCusker

We appreciate that the Minister and his officials have gone into this matter in depth but we, too, have given it serious consideration. Under Part III the court must decide whether an employer has been guilty of an unlawful act against an employee by reason of religious discrimination. That would be a specific instance of someone making a specific complaint against an employee. That is not the situation under Part II, under which the agency may come to virtually the same conclusion about an employer. There may not be an allegation of religious discrimination made against the employer, but the agency may come to the conclusion that he is guilty of certain practices.

As that is the decision to be made in both instances—whether it is a question of an individual making a complaint, or whether it is a matter of judgment on whether the agency has been right in making an allegation against the employer—since they are basically the same thing, a court should make that judgment. For that reason, we shall press the amendment to a Division.

Question put, That the amendment be made:—

The House divided: Ayes 6, Noes 84.

Division No. 175.] AYES [12.22 p.m.
Carson, John Paisley, Rev Ian TELLERS FOR THE AYES:
Dunlop, John Powell, Rt Hon J. Enoch Mr. McCuster and Mr. Robert J. Bradford.
Molyneaux, James Ross, William (Londonderry)
Barnett, Guy (Greenwich) Concannon, J. D. Fowler, Gerald (The Wrekin)
Barnett, Rt Hon Joel (Heywood) Crosland, Rt Hon Anthony Fraser, John (Lambeth, N'w'd)
Bates, Alf Cryer, Bob Freeson, Reginald
Benn, Rt Hon Anthony Wedgwood Cunningham, Dr J. (Whiteh) Gilbert, Dr John
Bishop, E. S. Davidson, Arthur Graham, Ted
Blenkinsop, Arthur Deakins, Eric Harrison, Walter (Wakefield)
Booth, Rt Hon Albert Dell, Rt Hon Edmund Hattersley, Rt Hon Roy
Brown, Hugh D. (Provan) Dormand, J. D. Healey, Rt Hon Denis
Brown, Robert C. (Newcastle W) Duffy, A. E. P. Hooson, Emlyn
Callaghan, Rt Hon J. (Cardiff SE) Dunn, James A. Howell, Rt Hon Denis
Castle, Rt Hon Barbara Ennals, David Huckfield, Les
Cocks, Michael (Bristol S) Fitt, Gerard (Belfast W) Jenkins, Rt Hon Roy (Stechford)
Colquhoun. Ms Maureen Foot, Rt Hon Michael Judd, Frank
Kelley, Richard Moyle, Roland Urwin, T. W.
Lamborn, Harry Ogden, Eric van Straubenzee, W. R.
Lever, Rt Hon Harold Palmer, Arthur Varley, Rt Hon Eric G.
Lipton, Marcus Pavitt, Laurie Walker, Harold (Doncaster)
Luard, Evan Peart, Rt Hon Fred Walker, Terry (Kingswood)
MacFarquhar, Roderick Pendry, Tom Wellbeloved, James
Maclennan, Robert Prentice, Rt Hon Reg White, James (Pollok)
Madden, Max Price, C. (Lewisham W) Williams, Alan (Swansea W)
Marks, Kenneth Rees, Rt Hon Merlyn (Leeds S) Williams, Alan Lee (Hornch'ch)
Mason, Rt Hon Roy Richardson, Miss Jo Williams, Rt Hon Shirley (Hertford)
Meacher, Michael Shore, Rt Hon Peter Wise, Mrs Audrey
Mellish, Rt Hon Robert Silkin, Rt Hon John (Deptford)
Mikardo, Ian Silkin, Rt Hon S. C. (Dulwich) TELLERS FOR THE NOES:
Millan, Bruce Snape, Peter Mr. David Stoddard and Mr. Joseph Harper.
Morris, Alfred (Wythenshawe) Stallard, A. W.
Morris, Charles R. (Openshaw) Stewart, Rt Hon M. (Fulham)
Morris, Rt Hon J. (Aberavon) Taylor, Mrs Ann (Bolton W)

Question accordingly negatived.

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