HC Deb 25 May 1989 vol 153 cc1155-9

After section 37 of the Fair Employment (Northern Ireland) Act 1976 there is inserted—

"Measures to encourage training from under-represented community

`37A. Nothing in Parts III or 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 members of the Roman Catholic, or members of the Protestant, community in Northern Ireland access to facilities for training which is not intentionally confined to members of the Roman Catholic or Protestant community as the case may be and which would help to fit them for employment, for employment in a particular capacity, or for a particular employment or occupation, where the act is done in pursuance of affirmative action (within the meaning of the Fair Employment (Northern Ireland) Act 1989'."—[Mr. McNamara.]

Brought up, and read the First time.

Mr. Kevin McNamara (Kingston upon Hull, North)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to take amendment No. 87, in line 20, leave out clause 51.

Mr. McNamara

The new clause seeks to protect affirmative action programmes from challenges under the provisions dealing with direct discrimination. The issue was extensively debated in Committee, and, therefore, I shall not detain the House too long on this point. However, it is essential to put it on record.

The purpose of the new clause is to ensure that employers can organise training schemes for the purposes of affirmative action. Those schemes are calculated to help members of an under-represented community to obtain employment in a place of work. On that, the Government and the Opposition are as one. However, in order to do so, the employer must be protected from those who would claim that affirmative action constitutes a violation of the prohibition on discrimination. That is normally done by means of a specific exemption, which excludes affirmative action from the prohibition on discrimination. That is the case with the legislation that deals with racial and sexual discrimination in Great Britain.

More interestingly, the position has been recognised by the Government, who have introduced amendments that protect employers who advertise posts in a way that appeals exclusively to the under-represented community. The Bill also contains exemptions protecting the employer engaged in affirmative action training schemes from allegations of indirect discrimination. We welcome those.

However, there is a difference of opinion between the Government and the Opposition which the Government have not, as yet, accepted. We believe in the need to provide an exemption against direct discrimination. The Government have two objections to that. First, they sincerely believe that they have done enough to protect employers from such a charge. They believe that if an employer provides a training scheme, which would be indirectly discriminatory in the absence of the exemptions provided for in clause 51, the scheme cannot, at the same time, be directly discriminatory. Unfortunately, that is incorrect.

The fallacy of that argument is revealed by the Bill. Clause 47 clearly relates to situations in which a particular practice may be both directly and indirectly discriminatory. In other words, there is an overlap between the two forms of discrimination. That is why the Opposition continue to believe that some form of exemption must be included for direct discrimination as well as for indirect discrimination.

Secondly, in Committee, the Government argued that they also believed that an affirmative action scheme that does not totally exclude members of one or other community could not be considered directly discriminatory. However, the Bill contains no requirement totally to exclude one or the other community to demonstrate direct discrimination: The definition of direct discrimination in clause 47(2)(a) states: on either of those grounds he treats that other less favourably than he treats or would treat other persons, The test is whether a person is shown less favourable treatment, not whether he is exclude.

The Government have set their face against permitting training schemes that are religiously exclusive. The new clause is explicit on that point. It would make it unlawful for an employer to set out with the intention of setting up a training scheme to exclude members of one or other of the two communities. Therefore, we hope that we have answered one of the Government's arguments relating specifically to religion.

There is a need to clear up the Bill so that employers have a clear understanding of what is, and what is not, permissible. The House cannot allow excessive ambiguity to creep in. That would discourage employers from taking action to rectify religious imbalances within the work force.

The new clause has a further merit. It deals with another continuing and vexatious problem—the conflict between clause 51 as it stands, the Sex Discrimination (Northern Ireland) Order 1976 and the European Community's equal treatment directive of 1976. At present the exemptions provided for affirmative action with respect to indirect discrimination are themselves indirectly discriminatory in regard to women. The criteria mentioned, such as age and length of service, could have a detrimental effect on women, and would therefore be subject to challenge in the European Court of Justice. The new clause would prevent such unfortunate circumstances from arising.

The Opposition are convinced that the Government did not intend the effect that the clause will have, but we think that careful consideration should be given to correcting the drafting. I hope that they will look favourably on the new clause, or will give an undertaking that it will result in changes being made in the other place.

Mr. Ashdown

I shall not detain the House for long. Let me say merely that I fully support the new clause, which strikes me as well and carefully drafted. The hon. Member for Kingston upon Hull, North (Mr. McNamara) said that he hoped that the Government would accept the spirit of the new clause. I think that he and I both know that the hand behind it is that of Dr. Chris McCrudden, a widely respected expert on these matters. I hope that the Minister will be able to accept both the spirit and the vast majority of the words of the hon. Gentleman's cogent argument.

The Government seem to be in a bit of a muddle. There is a clear contradiction between their admirable, laudable and supportable intention to provide affirmation action on the one hand, and their equally admirable aim to prevent indirect discrimination on the other. It is a matter of unfortunate circumstance that, at least in some instances, the one may be able to impinge on the other. Two admirable acts have been so juxtaposed that they may inhibit each other.

The ambiguity needs some clarification, as I hope that the Government will accept. It would be a crying shame if what emerged from Committee as an excellent Bill—as a result of the Government's flexibility and the Opposition's cogent arguments—were to suffer from the Government's feeling that they had made their quota of accommodations and could not make a further one in this instance. The case, I think, stands by itself, and I very much hope that the Government will respond positively.

Mr. James Molyneaux (Lagan Valley)

I think that clause 51 has a further defect. As drafted, it takes account of only two religious communities in Northern Ireland, completely ignoring others.

Unlike this island, Northern Ireland contains rapidly expanding ethnic communities. Furthermore, we are glad to say that we experience no friction or difficulty in absorbing those communities into the life and business activities of Northern Ireland. I feel that we should extend the narrow definition in the clause, which mentions only Roman Catholic and Protestant communities, making no allowance for others who, as British citizens—and, for that matter, non-British citizens—have a perfect right to enjoy the fulness of life in Northern Ireland.

I am sure that the Minister would acknowledge that many ethnic groupings contribute a great deal to the economy of Northern Ireland. Many are self-employed, but a considerable number are employed, and I feel that it would be a great mistake to exclude them from the provisions of the clause.

5.45 pm
Mr. Viggers

We are dealing with the crucial subject of outreach training carried out in pursuance of affirmation action, which is no simple matter. There is no doubt that such training can play an important role in remedying under-representation, and it is essential that the Bill should make appropriate provision for it. Clause 51 is a genuine attempt to do that, but I accept that the Opposition and, indeed, the Equal Opportunities Commission for Northern Ireland are sincerely concerned about it.

The Opposition consider that the circumstances specified in clause 51 could give rise to accusations of direct as well as indirect discrimination against any employer implementing the training permitted under the clause. Protection is, of course, already afforded in relation to indirect discrimination, and the Government are not as convinced as the Opposition of the legal validity of the need for protection against direct discrimination in the circumstances specified in clause 51. They readily accept, however, that the Opposition are motivated by a genuine concern to ensure as much protection as practicable against possible charges of direct discrimination, in addition to the protection against indirect discrimination that is already provided. They also accept that the Equal Opportunities Commission has genuine concerns about the criteria specified in clause 51—unemployment, age and length of service—and consider that they are potentially indirectly discriminatory against women and could invite challenge under not only national but European Community legislation.

The Government's concern is to ensure that the detailed provisions of the Bill, while satisfying the requirements of the Opposition and the Equal Opportunities Commission, do not permit religion-specific training which would be divisive and unfair in Northern Ireland. I respect the action of the hon. Member for Kingston upon Hull, North (Mr. McNamara) in tabling a new clause that takes account of our strong views, which are based on the position in Northern Ireland as we see it.

New clause 2 looks helpful: it offers a possible solution that could accommodate the genuine objectives of all the parties concerned. It merits serious and positive consideration, which it is receiving. Although I am not in a position to express my acceptance of the precise form of words proposed, I can accept the broad approach in principle. I therefore propose to continue my examination of the new clause with a view to bringing forward an appropriate amendment in the Lords. On the basis of that commitment, I hope that the hon. Gentleman will see his way clear to withdrawing the new clause.

The concern expressed by the Equal Opportunities Commission was on two counts. First, as I have said, the commission feared that the criteria specified in clause 51 might give rise to potentially indirectly discriminatory action against women. We are addressing that point in our consideration of a subsequent Lords amendment. The commission's second fear was that the gender-specific training provided under the Sex Discrimination (Northern Ireland) Order 1976 might be at risk of challenge on the ground of indirect religious discrimination. In Committee I gave a firm committment that nothing in the Bill would weaken the provisions of existing sex discrimination legislation, and that remains the Government's position.

It is likely that the approach suggested in new clause 2 will not answer the commission's second concern. I therefore propose to ensure that the necessary legislation is effected to satisfy the commission's anxiety to protect gender-specific training from any accusation of indirect religious discrimination.

I trust that the hon. Gentleman will recognise that we are seeking to meet the points that he has raised, and will be prepared to withdraw the new clause.

Rev. Ian Paisley (Antrim, North)

The Minister made no reply to the right hon. Member for Lagan Valley (Mr. Molyneaux). Perhaps he would like to comment on the right hon. Gentleman's remarks, and say whether, in considering the new clause, he will make provision for no minority to be discriminated against, and for all to stand on an equal plane of fair opportunity.

Mr. McNamara

No hon. Member on either side of the House wants discrimination to be practised against anyone on grounds of race, colour or creed. I am sure that I speak for the Government as well as for the Opposition.

I found the Minister's reply most encouraging and helpful, and indeed generous, and I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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