HC Deb 26 July 1989 vol 157 cc1110-8

Lords amendment: No. 70, in page 44, line 26, leave out from beginning to end of line 11 on page 45 and insert— 37A.—(1) This section applies where, in pursuance of affirmative action, persons are afforded access to facilities for training which would help to fit them for employment, for employment in a particular capacity or for a particular employment or occupation, but— (a) the facilities are provided only at a particular place in Northern Ireland or the training is confined to persons of a particular class, not being a class framed by reference to religious belief or political opinion, and (b) by providing the facilities only there or by so confining the training, access to the facilities by persons of a particular religious belief or political opinion is excluded or restricted. (2) For the purpose of determining whether any act done in, or in connection with, affording those facilities is by virtue of section 16(2) unlawful under any provision of Parts III and IV, the fact that, by providing the facilities only there or by so confining the training, their access to the facilities is thereby excluded or restricted is to be disregarded.'

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Mr. Tom King

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Speaker

With this, we shall consider amendment (a), in page 44, line 26, leave out from beginning to end of line 11 on page 45 and insert— 'Nothing in Parts III and IV shall render unlawful any act done by—

  1. (a) an employer,
  2. (b) an employment agency
  3. (c) a vocational organisation, or
  4. (d) a person providing services mentioned in section 22(1)
in or in connection with affording only persons of a particular community, facilities for training which would help to fit them for employment, for employment in a particular capacity, or for a particular employment or occupation. (2) For the purposes of this section "community" has the same meaning as in Part II of the Fair Employment (Northern Ireland) Act 1989.'.

Mr. King

I know that we have had considerable discussion about this matter. I have already commented on the balance that can be struck, but it is not so much a question of balance as a point of policy. It is no secret that, as the Bill has proceeded, under the expert guidance of my hon. Friend the Member for Gosport (Mr. Viggers), religious-exclusive training has been the issue. While we want to protect people from direct or indirect discrimination and measures to help particular groups, we are not prepared to agree to exclusion from training on religious grounds.

The hon. Member for South Down (Mr. McGrady) appreciates that some of the amendments that have been proposed would protect Harland and Wolff from this legislation if it wanted to run a Protestant-only training scheme. I am not sure whether that was the hon. Gentleman's intention.

We believe that it is right to encourage people and to tackle disadvantage in the most effective way. It would not be helpful, in the present climate in Northern Ireland, for people with particular religious beliefs to be forbidden from taking part in training courses. This subject has been debated extensively by hon. Members and in the other place.

The divide comes because this is not a matter of balance or interpretation, but a policy issue. We have not stood resolutely on the ground we previously held—we have tried to take account of serious points that were made during debates in Committee, and we gave a clear understanding that we would tackle them in another place. We are debating the form that those amendments took. The Opposition are saying in amendment (a) that the Lords amendment does not go as far as they would like.

As a matter of policy, we are not prepared to take that final step. We think that it would be unwise, and bring this legislation into disrepute, and be extremely dangerous to community relations. That is why we want to improve the Bill, as we have done, without going a bridge too far, which is what the Opposition seek to do. The difference between us centres on the Opposition's intention to benefit a particular religious group, which would discriminate against certain religious groups.

Lords amendment No. 70 provides for targeting of a particular location, such as west Belfast, and of the criteria used. One can do that without going a bridge too far. One can use the legislation to target training, effectively and legally, on specific areas and under-represented groups of people. That is what the legislation is intended to do, and it is perfectly defensible. Accordingly, religious under-representation can be taken into account when targeting training without there being any risk of direct discrimination.

The Lords amendment has been carefully and expressly framed so that an employer who intends to benefit an under-represented group is protected from allegations of either direct or indirect discrimination, provided that members of the majority group are not expressly excluded. There have been lengthy debates about this issue, and I hope that the House will think that we have made a wise judgment.

Mr. McNamara

It was remiss of me not to congratulate the Secretary of State and the Minister on their new posts. I beg forgiveness for not doing so, if only because the new Secretary of State represents the constituency of my standard charge.

The Secretary of State was right to say that this matter is the kernel of the Bill. It was the subject of much debate in Committee, in another place and at various meetings. I, too, pay tribute to the hon. Member for Gosport (Mr. Viggers) for his readiness to meet, to discuss and to disagree. Throughout all our debates, there has always been a major difference between us. The right hon. Gentleman referred to our amendment as a bridge too far. Although he has built many important bridges in the Bill. we believe that having got halfway across the river—I am about to mix my metaphors—he now finds himself without sufficient planks to get to the other side. The reason for that is that he has not dealt properly with the question of affirmative action.

If this part of the Bill is not right, it will not be effective in reducing inequality in Northern Ireland. The Bill will create an expensive apparatus that will clearly identify the problems but will not allow them to be tackled. We do not doubt the Government's intentions—that has never been an issue—but we doubt the quality of the advice that they have received and of the policy decisions that they have made.

Two key issues are at stake. First, there is a need to protect affirmative action programmes from challenges under the provisions dealing with discrimination. Secondly, there is a need to eliminate the conflict between the Bill and the sex discrimination legislation. The purpose of the amendment is to ensure that employers can organise training schemes for the purposes of affirmative action—that is, schemes calculated to help members of an under-represented community obtain employment in a place of work.

The employer must be protected from those who would claim that affirmative action constitutes a violation of the prohibition on discrimination. That is usually done by means of a specific exemption which excludes affirmative action from the prohibition on discrimination. That is the case with the legislation dealing with racial and sex discrimination, and it was the basis of our original amendment before we introduced new amendments in an attempt to accommodate some of the Government's fears.

More interestingly, that point is also recognised by the Government, who have introduced amendments to protect employers who advertise posts in such a way as to appeal exclusively to the under-represented community. The Secretary of State will remember the argument about the illegality of the Fair Employment Northern Ireland Act advert, which said that it would welcome applications from Protestants. During the passage of the Bill we had to point out that that was illegal. The Minister said that it was not, but then introduced an amendment to make it legal. I say that not in a disparaging way to the Minister, but in order to highlight the quality of advice to the Government. The Government were prepared to recognise our case in advertising and in everything else except training. If the argument is that it would be going too far to include training, why is the same principle not applied to advertising? The Bill also contains exemptions protecting an employer engaged in affirmative action training schemes from allegations of indirect discrimination. An employer is all right on indirect discrimination but not on direct discrimination.

Obviously, there is a major difference between the Government and Opposition and we regard it as fundamental to the Bill and the cause of much of our concern. The Government have not accepted that there is a need to provide an exemption against direct discrimination on religious grounds. They have two objections to such an amendment. First, they believe that they have done enough to protect employers. As the Secretary of State said, the Government believe that, if an employer provides a training scheme that would be indirectly discriminatory in the absence of an exemption provided for in clause 51, the scheme cannot at the same time be directly discriminatory. Unfortunately, that is not correct. The fallacy of that argument is revealed in the Bill because clause 48 clearly envisages situations in which a practice may be both directly and indirectly discriminatory. In other words, there is an overlap between the two forms of discrimination. That is why an exemption of some form must be included for discrimination as well as indirect discrimination.

Secondly, the Government also believe that an affirmative action scheme which does not totally exclude members of one or other community cannot be considered directly discriminatory. However, there is no requirement totally to exclude one or other community in order to demonstrate direct discrimination. The definition of direct discrimination contained in clause 48 refers to less favourable treatment and not to exclusion. That is the distinction.

Earlier in the debate the Secretary of State showed his confusion about the difference between religion-exclusive and religion-specific training schemes. In the former case, a scheme may be restricted to members of one group, hence the term exclusive. In the latter, the scheme is designed to enable members of an under-represented group to compete more successfully for employment, but it does not exclude all members of the over-represented group. The distinction and the argument has always been between religion-exclusive and religion-specific schemes.

The Government have set their face openly against permitting training schemes that are religiously exclusive. We heard that again today. The preference of the Opposition was simply to base the relevant sections of the legislation on the race and sex discrimination legislation and permit religion-exclusive training. This had the support of the Irish Congress of Trade Unions, but it is a nettle which throughout the debate the Government have refused to grasp. Nevertheless, the Opposition supported by my hon. Friend the Member for South Down (Mr. McGrady), again in a bid to secure agreement, attempted to accommodate the Government by tabling a variety of amendments at various stages of the passage of the Bill which allowed for religion-specific training, but not religion-exclusive training.

Unfortunately, it has become painfully obvious that the Government have not provided legal protection for religion-specific training. I am convinced that the Government hope that in practice religion-specific training will take place. They believe that this will happen through a variety of proxy criteria rather than through the use of religion itself. The problem is that the law is not what the Government intend it to be but what appears in the statute book. The nod and wink approach to an employer is not a proper way to legislate.

An examination of the Government amendment clearly shows that it has not satisfied the conditions that we laid down for our support of the Bill on Third Reading. We assumed, rightly or wrongly, that the Government would introduce an amendment that made religion-specific affirmative action lawful. We understood, although we did not accept it, that they would look at religion exclusive, but we wanted religion specific. Instead, we have an amendment that prevents religion-specific training, because it specifically prevents the employer from taking religion into account. The amendment would render unlawful the affirmative action programmes that the Bill is designed to promote.

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This strange consequence of the Government amendment is something that they find hard to take on board and one questions the nature of the advice that they are receiving. The surrealistic consequences can be imagined easily. Imagine an employer who launches an affirmative action programme and finds himself before the fair employment tribunal, asked to justify his position. The cross-examination would go something like this: "Why did you organise this affirmation action scheme?" Answer: "Because I wanted to increase the numbers of an unrepresented group." "Who are they?" "They are Catholics"—or, as the case might be, Protestants. "That is to use religion as a criterion for selection?" "Yes." "You are out of order under the Government's amendment."

Affirmative action programmes designed to rectify religious imbalances in the work force must inevitably contain an element of direct discrimination on religious grounds, but this is a factor that employers are not allowed to take into account when pursuing affirmative action. The Government amendment, to say the least, is, in the phrase beloved by the Department of Economic Development, technically deficient.

Faced with the Government's inability to provide sufficient protection for affirmative action, we believed that we could make our point most clearly by returning to our original position, with an amendment that extends the same protection to affirmative action under this legislation as already exists under the sex and race discrimination laws. Our amendment is clear and unambiguous on this point. The Government have failed to grasp that people abroad will not understand why the law on religious discrimination is not as strong, clear and precise in Northern Ireland as it is on the island of Great Britain.

Simplicity is a virtue in this respect. The more complex the legislation, the less affirmative action will take place. There is a need to clear up the Bill in order that employers have a clear understanding of what is permissible and what is not. This House cannot allow an excessive element of ambiguity to creep in. That would discourage employers from taking action to rectify religious imbalances in the work force.

The Lords amendment also contains another problem, one which the Opposition amendment has the further merit of resolving. This is the conflict between the Government amendment and the Sex Discrimination Order (Northern Ireland) 1988 and the EC's equal treatment directive of 1976. Although the Lords amendment avoids placing indirectly discriminatory criteria on the statute book, unlike the Bill as it stands without the Lords amendment, it encourages employers to use such roundabout methods, because they are prevented from engaging in religion specific training. The criteria in the existing clause, such as age, length of service and unemployment, would all be likely to discriminate against women, and therefore be liable to legal challenge.

Faced with that, the Government have taken out a particular provision. However, any of the criteria suggested are likely to have that effect, whether or not they appear on the face of the Bill. The value of our amendment is that the virtue of simplicity would encourage employers to pursue affirmative action programmes without having to run the risk that any criteria that they use could be challenged in the courts and taken as far as the European Community.

Finally, I shall place on record the Opposition's disappointment that the Government were unable to meet this point and hence to provide a Bill that would be workable and would have a serious effect on the problem of inequality of opportunity in employment in Northern Ireland. We made it clear that we believed that the changes in the Bill were necessary if it was to make an effective contribution to the establishment of fair employment in Northern Ireland.

We were prepared to give the Bill the benefit of the doubt in many parts that we feel are defective, such as contract compliance, if proper amendments were made in other parts.

Affirmative action was one of these concerns; others were indirect discrimination and the introduction of an independent element into the section 42 national security certification procedure, and the improved areas-the remedies available to victims of discrimination, monitoring and timetables. There has been some movement on these latter issues. However, the first two have not been satisfactorily resolved, much to my regret. As a result, it would be dishonest of me to say that I believe the Bill will be as effective an instrument as the Secretary of State believes it will be.

The situation is not beyond redemption. Although the Bill may not be the solution that it should have been, there are many ways in which the Government can reaffirm their commitment to fair employment and make some progress. They can still have an impact on fair employment and on affirmative action programmes and, at the same time, realistically attempt to attract inward investment to the Province, which is what it needs. Large parts of the Bill contain enabling measures, so it should be the priority of the Government to draw up the most effective code of practice and regulations possible within the limitations of the Bill—particularly for affirmative action programmes.

Due attention must be paid to the fair employment aspects of all Government policy—such as the location of public sector jobs and the location of industry. It is essential that all efforts be made to maximise the number of jobs. The Labour party wants fair employment and more employment, and it would be wrong of me not to congratulate the Secretary of State and his former Under-Secretary on the number of jobs that they have sought to bring to the Province. They have attempted to do a great deal in that respect.

It would be a mistake to think that the passage of this legislation is the end of the road: it is only the beginning. I am sorry that we have started out so hesitantly, but I still believe that we shall he able to make progress.

Mr. McGrady

I should like to remedy my earlier omission by congratulating the Minister on his new employment. I want to record my and my colleagues' thanks for his forthright and honest approach to the affairs of Northern Ireland. We often disagreed, but at least we did so in a gentlemanly fashion, and we welcome his successor to his new position. I also record my appreciation of the hon. Member for Gosport (Mr. Viggers), who had charge of the Committee and whom I found most receptive and understanding. I wish him well in his future endeavours.

Lords amendment No. 70 concerns an area in which the Government have shown a persistent reluctance to call a spade a spade. The Bill deals with religious discrimination, yet the Government seem preoccupied with avoiding that term. Clause 52 deals with outreach programmes—affirmative action programmes reaching out to sectors of the community which are under-represented in certain employers' work forces.

One of the most obvious outreach programmes is the provision of training facilities which we are now debating. The original Bill used every form of terminology except religion: areas of high unemployment, length of unemployment and even age. Then we added length of service. Suddenly we find that these were all totally inadequate and are wiped out by the Lords amendment.

The Government have come along and tried another definition of the problem, using the word "class". It is the only categorisation to be found in the Lords amendment: the training is confined to persons of a particular class, not being a class framed by reference to religious belief or political opinion". I defy the Minister to define class in a way that would satisfy the circumstances of Northern Ireland and provide the classification required to remedy the problems that the Bill has attempted to deal with. But the worst definition was in the original clause 52. Part II of the Bill defined communities as the Protestant community and the Roman Catholic community, yet in every other part of the Bill, the Government have been over-sensitive about putting down in black and white what its terminology means.

I would not argue for extra sympathy on religious grounds, but if we are to redress the imbalances, be they against the Protestant community or the Roman Catholic community, in the work force of a particular employer in a particular area, it is essential that the Bill permits training and outreach programmes to be directed at the under-represented community. I see no legal or moral objection to outreach programmes and training programmes welcoming applications for training from a particular section of the community which is underrepresented, without excluding members of the other community, as the hon. Member for Kingston upon Hull, North (Mr. McNamara) pointed out.

The Government's dreadful reticence and over-sensitivity is displayed by their abandonment of previous attempts under the original clause 52, which are replaced by the terminology of class. The Government should accept the amendment to the Lords amendment proposed by Labour Members and myself, to put clearly on the record the intent, the purpose and, hopefully, the practicality of the Bill.

Mr. William Ross

Anyone who listened carefully to the hon. Member for Kingston upon Hull, North (Mr. McNamara) must have shuddered when he drew attention to the fact that the Fair Employment Agency, which is supposed to monitor religious discrimination in Northern Ireland, placed an illegal advertisement in a newspaper to correct the imbalance in its work force. It did so believing that its efforts to correct that imbalance were sufficient to make what was illegal legal, and then found out that the illegality remained. That should have made plain to everyone the sheer complexity of the subject and the immense difficulties in trying to frame legislation to deal with it, rather than let the market deal with it, as Conservative Members are fond of proclaiming when it suits them and desert so rapidly when it does not.

The Bill has been improved by the other place, in so far as it is possible to improve such a weird and wonderful structure. We are grateful for that and we join the Government in resisting those who would destroy the improvements that have been made.

When my right hon. and hon. Friends examined the amendment in the name of the hon. Member for Kingston upon Hull, North and other assorted parties on this side of the House, we were surprised as it seemed to us to be a purely sectarian amendment and that that was the only way in which it could be described. The Secretary of State said that the Bill expressly excluded training schemes from which people could be excluded because of religious denomination. However, religious denomination does not really enter into it because one has to be a Protestant if one happens to be born in a Protestant community and educated at a state school, and one has to be a Roman Catholic if one happens to be born in what is perceived to be a Roman Catholic community and educated in a Roman Catholic school.

The Secretary of State then went on to tell us why we could not have training schemes that were expressly for Roman Catholics or for Protestants, but that the Goverment could possibly deal with that through the location of the training schemes. Anyone who knows the situation in Northern Ireland knows what happens in some training centres. There are some training centres with practically no Protestants and others where the number of Roman Catholics is extremely small.

It being Ten o'clock, further consideration of the Bill stood adjourned.