`Subsections (2) and (3) of section 42 of the Fair Employment Act 1976 (certificate that act done for purpose of safeguarding national security, or of protecting public safety or public order to be conclusive evidence of that fact) shall cease to have effect.'.—[Mr. McNamara.]
§ Brought up, and read the First time.
§ Mr. McNamara
I beg to move, That the clause be read a Second time.
This matter was of considerable concern to our side of the Committee and in particular to my hon. Friend the Member for South Down (Mr. McGrady).
The effect of this new clause is to allow an independent scrutiny by the judiciary of national security notices issued by the Secretary of State, which at the present time cannot be challenged. This is an old argument over section 42. We believe that it is wrong for that decision to remain unchallengeable, first, because it is an anomalous element within the Bill. One of the strange facets of part II of the Bill concerns contract compliance. A contractor can be exempted and awarded a contract by the Secretary of State on the grounds of national security even if he happens to be an unqualified person, that is to say, a person who deliberately discriminates. Therefore, under the normal qualifications, and despite the enormous and very difficult procedures, he is eventually deemed to be not a suitable 1160 person to redeem a Government contract or a grant, but such an unqualified person may be given such a contract or grant on the ground of national security.
Under part II of the Bill the Secretary of State's decision in such a matter would be unchallengeable because the courts would be able to exercise judicial review of his decision. Under section 42 of the 1976 Act no such judicial review exists in the case of a person denied employment or a contract by virtue of the Secretary of State's national security certificate. This certificate allows the Secretary of State to prevent an investigation into a case of alleged discrimination on the ground of national security. No provision for any form of appeal or judicial supervision exists to prevent abuses of power in this way.
The other anomaly is that it is not in conformity with the Sex Discrimination Order under which, since an amendment moved by the Government last year, national security certificates are subject to judicial review. That is the case of Johnston v the RUC. As a result of this provision, and particularly because the tribunal may at times have both a sex and a religious jurisdiction to carry out, a ludicrous situation arises. An individual can bring a case under the Fair Employment Bill and under the Sex Discrimination Order. If a national security certificate were issued by the Secretary of State, the complainant could seek a judicial review under the Sex Discrimination Order but not under the Bill. That is obviously nonsense.
Secondly, once again, this Bill could be in conflict with international law. The case of Johnston v the RUC went to the Communities courts, but under the European convention on human rights there is an insistence that an individual must have redress against an arbitrary use of power. So, again, with regard to the Secretary of State's certificate, there could be an application to the European convention on human rights.
Thirdly, there is widespread concern in Northern Ireland about this issue, as demonstrated by the recent BBC programme "Taking Liberties". The Minister may object by saying that section 42 has been used only in a limited number of cases, and that is correct.
That is wrong for two reasons. If an injustice has been done, a person should be entitled to a correction of that injustice under our system. Secondly, and more importantly, within Northern Ireland itself it is widely believed that the formal use of section 42 is merely the tip of the iceberg. It is widely believed that individuals are often denied access to employment on the pretext of national security when, in fact, the real reason for their exclusion is quite different.
There are two infamous cases of people denied work at Ballylumford. One of them, a scaffolder, could not work on national security grounds in Ballylumford but could be employed in the headquarters of the British Army in Lisburn, Northern Ireland opposite the General Officer Commanding. There is also the case of a person who was denied a job at Ballylumford but nevertheless got an invitation to the garden party at Hillsborough to meet the Queen Mother, together with a map of how to get there.
Our proposal recognises the need for national security exemption. Judicial review provides sufficient flexibility and security to combine proper concerns for national security with protection against the arbitrary use of power. An application to a judge ex-parte in this matter does not necessarily need the person making the appeal to see the evidence and does not have to take place in set premises. 1161 The judge concerned can examine the evidence upon which a decision is based at, for example the headquarters of the RUC.
One does not doubt the integrity of the Secretary of State. He has grievous responsibility in making such a decision. He can be led into error, as recent cases before the courts might possibly reveal. Let me give a hypothetical example. Public authority X, where there is an overwhelming majority of one group employed, decides to issue an application for a job or, more specifically, for a contract. Y, a member of the other community, either applies for a job or for the contract and gets that contract. Thereupon the majority work force of public authority X objects because, in one phrase, the person involved came from the borders, which is a polite euphemism for saying that he is a member of the nationalist community.
X's work force now objects to Y getting the job, because they are from the borders. X is in a difficulty with his work force and therefore withdraws the contract on the ground that Y is not competent to carry out the contract. Y then produces evidence to show not only that he is competent to carry out the contract but that he has carried out similar contracts in the past and is in every way well suited to carry out work of that nature. So, X having given way to the pressure from his work force to exclude a person from the contract or the job, seeks another way round and seeks to ensure that section 42 notice is issued by the Secretary of State to say that Y is in fact a potential threat, or a suspected threat, to national security.
I have given that example because it mirrors in many ways the case now before the court.
The effect of that case is that a person has been discriminated against on the ground of religion. There has been an attempt to disguise that discrimination by saying, first that, because a person is not competent, he cannot carry out the task at hand. When the competence is not shown to be a real reason for denying the employment, section 42 is called in to deal the blow.
If the Secretary of State has no reason to give and is not subject to judicial review, we cannot know how or why the decision has been made and whether it has been made fairly.
Many of the decisions are questions of judgment. We acknowledge that immediately. They are important matters concerning the life and safety of the subjects. However, they concern the freedom of the individual, the right to pursue one's chosen vocation without fear of the malicious intent of somebody objecting to one's religion, the malicious use of a confidential telephone call or somebody trying to settle a personal or industrial score. Those are the problems that arise now and we are seeking to overcome them by suggesting that the Secretary of State's complete power of exemption should be looked at carefully. It would be helpful if we had the power of judicial review of decisions made by the Secretary of State.
§ 6 pm
§ Mr. Viggers
The new clause, which is identical to new clause 6 tabled in Committee, is intended to repeal subsections (2) and (3) of section 42 of the Fair Employment (Northern Ireland) Act 1976. Subsection (2) provides that a certificate signed by or on behalf of the Secretary of State certifies that an act specified in the 1162 certificate was done for a purpose mentioned in subsection (1)—safeguarding national security or protecting public safety or public order. Subsection (3) provides that a document purporting to be such a certificate shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate. The effect of the new clause is to abolish the section 42 certificate procedure, but not the national security defence.
The hon. Member for Kingston upon Hull, North (Mr. McNamara) acknowledged the regrettable but nevertheless clear need to retain the national security safeguard provided in section 42(1) of the 1976 Act. The continuing need for such a provision was noted by the Standing Advisory Commission on Human Rights and there are few, if any, in the House who would attempt to deny that need. Nevertheless, the real effect of the hon. Gentleman's new clause 3 would be to dismantle the usefulness of the safeguard completely, and I feel sure that that is not his intention. Let me explain what I mean.
An act is done by an employer on the ground of safeguarding national security, but is challenged on the ground that it is in fact an act of religious discrimination. The case comes before the Fair Employment Tribunal. If subsections (2) and (3) of section 42 are removed and the certification schemes abolished, the employer must appear before the tribunal to substantiate his claim that his action was justified on grounds of safeguarding national security, or protecting public safety or public order. Revelation of the kind of information which might have led to an employer forming that sort of judgment could be extremely damaging, not just to the overall security effort in Northern Ireland but, in some circumstances, to the safety of individuals. The House will not expect me to amplify these concerns, but they lie at the very root of the national security safeguard and the certification procedure which is part and parcel of that safeguard.
§ Mr. Harold McCusker (Upper Bann)
I apologise for being late, but I was unavoidably detained. However, I have listened carefully to the Minister and he is giving the impression that employers make judgments on national security and that it is employers who use that excuse to discriminate. In every case that has been presented to me where a person has been denied employment with a construction company at a security base within perhaps the grounds of Stormont castle, and the company has employed, say, a Roman Catholic and submitted the list of names to the Ministry of Defence or the Northern Ireland Office, the complaints are from the employers. They complain about the action taken by the Minister and his right hon. and hon. Friends in discriminating against a person by saying that he is not fit to work on the site. Who is the discriminator in those circumstances, or who is making the excuse of discrimination? Employers do not cite national security. Most employers could not care tuppence for national security. They are concerned only with earning a profit and getting their job done.
§ Mr. Viggers
The hon. Gentleman is entirely right. Section 42 procedure is used by the Government. The certificate is signed by or on behalf of the Secretary of State and it is for him to say that there are issues of national security involved and that he deems it necessary, in the public interest, that an individual should not be entitled to take advantage of the claim of discrimination which he is alleging,
1163 I do not demur from the point made by the hon. Gentleman, but I am sure that he will accept that concerns have been expressed about section 42 because, by nature of the procedure and because national security is involved, it is not possible to be as clear as one would like about the grounds on which the certificate has been signed. As the House would expect, section 42 certificate applications are taken seriously by my right hon. Friend the Secretary of State. They are subject to detailed scrutiny.
§ Mr. Ashdown
We all recognise that this is a complex matter. That was illustrated by the excellent speech made by the hon. Member for Kingston upon Hull, North (Mr. McNamara). However, I do not understand why the Minister is suggesting that allowing the Secretary of State's decision to be open to judicial review would be damaging in this case but works perfectly well under the Sex Discrimination Order 1988. If it applies in that case, why can it not apply here?
§ Mr. Viggers
I shall come to that. It is a detailed point and I hope that the right hon. Gentleman will allow me to proceed with my argument until I reach it.
As I have said, concerns have been expressed about section 42 and we would like to find ways of modifying the system to make it more demonstrably fair. Although those responsible for the administration of the system can see that it is fair, we must seek to make it demonstrably fair.
As I warned in Committee, we were not optimistic about devising modifications that would not risk undermining the entire operation of the national security safeguard. I have to say that, at least for the time being, we are not in a position to make any change to the existing system. That does not mean that we have abandoned our attempt to meet the concerns that have been expressed. We are currently examining the administrative procedures to see whether they can usefully be revised. I am sorry that this is a disappointing response to hon. Members' concerns but we cannot countenance any change that would undermine a vital safeguard.
§ Mr. Molyneaux
The Minister should be assured that he should not have any qualms of conscience. We are not directing our criticisms solely at Conservative Secretaries of State and Ministers. I am sure that the hon. Member for Kingston upon Hull, North (Mr. McNamara) would admit that Labour Secretaries of State indulged in that activity with even greater enthusiasm in their day.
§ Mr. Viggers
We take no pleasure in the administration of the system. The prime concern must be the security of Northern Ireland and its people. However, we are seeking to find ways of demonstrating that the system we operate is fair and can be seen to be fair. That is why we are expressing so much concern about this point.
The right hon. Member for Yeovil (Mr. Ashdown) asked about the distinction between fair employment provisions and those relating to sex discrimination. The hon. Member for Kingston upon Hull, North has made a case for changing section 42 in the same way that article 53 of the Sex Discrimination (Northern Ireland) Order 1976 was changed in 1988—removing the certification system altogether. Despite his pleadings, I am not convinced. The judgment in the Johnston case, which led to the Sex Discrimination (Amendment) Order 1988, was concerned 1164 only with equality of opportunity between the sexes. Legislation on religious discrimination is unaffected by that judgment.
He also mentioned the apparently anomalous case of a complaint of religious discrimination under part III of the 1976 Act which also contained allegations of sex discrimination contrary to part III of the 1976 order. I agree that this anomaly exists in theory, but I seriously doubt whether it is ever likely to arise in practice.
The national security issues which might have been relevant in the context of article 53 of the 1976 order are not the same as the issues which would be relevant in the context of section 42 of the 1976 Act. The circumstances when being female could give rise to national security issues are likely to be limited, whereas such issues under the 1976 Act are likely to turn on a person's political opinion or supposed political opinion, and would therefore be uncommon. For those reasons, I urge the House to reject the new clause.
§ Mr. Eddie McGrady (South Down)
I support the new clause so ably proposed by my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara). On behalf of my party, I tabled amendments on this matter in Committee, and I think that I elicited some sympathy from the Minister because he undertook to deliberate on the points made to him. I am sure that he honoured that commitment, but I am extremely disappointed that the results of the deliberation are "no change".
For the benefit of people who do not live in Northern Ireland, it is important to understand the context of my anxiety that a safeguard should be given to individuals and companies when national security is invoked. A telephone call on a confidential line can prevent a person from obtaining or taking a job or can result in a person being dismissed. The use of the confidential telephone can prevent a firm from being given a contract or can result in a firm being moved off a site. Of course, that can he done only after the issue of a section 42 certificate.
There have been occasions in my experience, and which I am capable of proving, when a section 42 certificate was withdrawn because it was invalid and not based on adequate evidence. In Committee I tried to achieve a means by which decision making could be challenged in a confidential way. A person or company can be accused, found guilty and "sentenced" without having any knowledge of the reason for the accusation. It was to try to achieve a vehicle by which justice could be seen to be done, to use an often quoted phrase, that we suggested a means of appeal so that the persons concerned could at least be made aware of their alleged transgressions and could be given the opportunity, as justice demands, of presenting a defence. It was nothing more dramatic than that. It was simply to try to introduce an element of natural justice.
I am extremely disappointed that the Minister has come to us again with no progress to report on that matter, although I admit that he has made much progress in many other spheres. On this matter no progress appears to have been made and no hope is being held out. Cases can crop up from day to day. I have seen young apprentices and adult men and women deprived of jobs, and I have seen companies deprived of contracts without apparent justification. After representations from me, some people were reinstated. Every Northern Ireland Member will have similar experiences. That is why it is important for us to 1165 have a means by which the defence of innocence can be made and reconsideration can be undertaken by the Secretary of State. Much of this is done on the basis not of national security, but simply of raw, naked sectarianism.
§ Mr. Ashdown
I did not intend to intervene in the debate, but the Minister's argument was so tortuous and unconvincing that I wonder whether there is something more at the heart of this that is not being revealed to us. I read the reports of the proceedings in Committee and they seemed to be characterised by a great deal of intelligence and logic and people adopted accommodating positions. The Minister's argument has not been characterised either by such accommodation or by such logic.
The Minister suggested that because an injustice is likely to be small it does not matter. It is the argument about the housemaid's baby. Surely in the special circumstances of Northern Ireland it is more important there than elsewhere to apply justice equally and fairly. We all know that there are quirks and idiocies in the law as it applies in England, and that they take a good deal of time to iron out.
The Government have the opportunity to set in place a law whose application will be manifestly different from those of a similar law which applies to discrimination in other areas. It is clear that there is the possibility of one case running in parallel with another. A person against whom a security certificate has been laid could appeal in a sex discrimation case. That person has the right to appeal to a judicial review, but another person who is claiming discrimination on religious grounds and against whom a security certificate is also laid does not have the right to such an appeal. How could that be fair, logical or just?
The Minister's argument on judicial review rests on two pillars. The first is that there will be relatively few—I think that is what the Minister said—cases of discrimination on grounds of sex which would have national security implications. I do not argue that there will be many such cases, but the Minister must concede that potentially there will be some. Why should they be treated on a different basis?
The second pillar of the Minister's argument is that providing judicial review will so wholly undermine the process of security certification as to make it worthless. If it does not make it worthless in the case of sex discrimination—and the Government have not taken that view—why should it make it worthless in this case? I do not understand why the Minister is following a course which is so manifestly not equal on both sides and which so obviously does not stand up to logical scrutiny.
I suppose that the House must take refuge in the fact that in the past the Minister has accommodated arguments and when he has told us that he will go away and think further about a matter we must give him the benefit of the doubt that he will do that. I appeal to him to find a mechanism to meet the legitimate grievances that have been put forward. If he does not, he has in his hands a positive and deliberate mechanism to build into the process of the law that he is constructing an inequality which will make the law look like an idiot when it is applied.
§ Mr. Viggers
Out of a total of 28 section 42 certificates, 17 were signed by the Secretary of State for Northern Ireland only after very careful deliberation. That puts into context the problem with which we are dealing. Certificates are not issued lightly; they are issued with great care. A section 42 certificate is conclusive in the sense that it is a statement by the Secretary of State that national security is involved and that, therefore, the merits of the issue cannot be investigated. In some instances the very demonstration of the case in public or to the people concerned, the very explanation of the facts that have been brought together, would be contrary to the national security interest. I cannot elaborate further on what I have said to the House.
§ Mr. McNamara
I am disappointed at what the Minister has said. Although I do not intend to divide the House on the issue because it may be raised in another place in more detail, I should like to make one or two observations on what the Minister has said. First and most important, he said that merely because Johnston v. the RUC concerned women, he did not think that it would be a terribly important precedent. I shall give him an example.
Within a sensitive area, job applications are sought for three clerks. Suppose that there are a number of applications for those jobs, one of which is from a woman, but that they are all filled by men and that the woman is denied one. The woman could bring an action on the ground of sex discrimination because all the other applicants were men and that, on the balance of merit, she should have been seriously considered for an appointment rather than be caught out because of her sex. Alternatively, she could make an appeal to the tribunal on the same basis, and then to the courts.
It could be that that woman applicant is a potential para-military. However, if all the appointees had been women, and the one male applicant had not been appointed in the interests of national security, he would not, under the Minister's proposals, be allowed to appeal against that decision except on the ground of sex discrimination. He would not be able to do that if all the others appointed were men. Equally, a woman applicant could not appeal if there were women among those appointed.
I hoped that the Minister would take a stronger approach to the question of administrative procedures. A number of cases currently before the courts concern situations in which strange decisions have been made. It will be impossible for the Government to defend their position. Someone will inevitably take a case to the European Court citing the European convention on human rights and arbitrary uses of power, with the result that there will be another cause célébre such as the Grogan case. That would not be good for the Government, and not a happy precedent to set in dealing with the sensitive matter of security in Northern Ireland. It will not help matters if the Government are paraded before the European Court for being insensitive to human rights. Nor will it do our country, or the administration of justice, any good, or help to enhance confidence in legal and civil administration.
I hope that the Government will be able to produce a more persuasive argument when the Bill goes to another place. While I understand the Government's arguments, it is possible under existing systems to provide for a degree 1167 of review by an independent member of the judiciary. A judge can say, "I have considered certain matters where I consider that the Secretary of State's judgment was right, but in other cases it was wrong and an injustice was done." I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.