TRIBUNAL PROCEDURE (Hansard, 25 May 1989)

§ Mr. Viggers
I beg to move amendment No. 6, in page 3, line 28, leave out paragraph (j).

§ Mr. Deputy Speaker (Mr. Harold Walker)
With this it will be convenient to take Government amendment No. 7.

§ Mr. Viggers
The amendment honours a promise that I made to the hon. Member for Leicester, South (Mr. Marshall) in Committee. It had always been our intention that the Fair Employment Tribunal would be expected to announce reasons for its decisions. The hon. Gentleman suggested that it should be specifically made a burden and responsibility for the tribunal. We are happy to include that in the Bill.

§ Mr. Jim Marshall
It is not my intention to delay the House. I thank the Minister for tabling the amendments. We are grateful that the guarantee that he gave in Committee has been translated into amendments.

§ Mr. Ashdown
I have no wish to detain the House either, but I should be grateful for a word from the Minister. Perhaps this is the appropriate time to ask a question. The Minister will recall that, when the Government published the White Paper, they said that people of standing in the community would be on the tribunal. I note that that has not been carried forward specifically into the Bill. A word of reassurance from the Minister might be helpful.

§ Mr. William Ross (Londonderry, East)
These are interesting amendments. I listened carefully to what the Minister said. He told the House that he was fulfilling a promise made in Committee, but that it was always the intention of the Government that reasons would be given by the tribunal. The Minister was extremely brief. When the tribunal is giving its reasons, I hope that it will not be as brief.
Reasons could be given in one sentence, or they could take up half a book. On many occasions, brief explanations will suffice, but on many other occasions a fuller explanation will be needed. No doubt there will be cases under the legislation where the tribunal has to pass judgment. I hope that it will give a full explanation. That is not spelt out on the face of the Government amendments. Perhaps the Minister will go further and will open the door for a more expansive amendment to be moved in another place, specifying the sort of information that will be given, how full the explanation of the various reasons will be, what factors have been taken into account and whether the tribunal will be guided only by the evidence given to it or whether it will carry out further investigations which may change its opinion.
In Northern Ireland, many rumours fly about. We would not want decisions to be taken on unsubstantiated allegations. When the tribunal is giving reasons, they should be soundly based in law and should be sufficiently detailed for everyone to understand why the tribunal reached its decision. We will not be put off by a bit of jiggery-pokery in the corner. We want the background to be explained and the tribunal to make it clear why it has come to a particular conclusion on each item.
If tribunal members are divided in their opinion, the tribunal should have a duty to provide for minority reports 1177 so that the dissenting voice may be heard. This is a small amendment, but the Minister has treated it too lightly, as have Her Majesty's Opposition. If the amendment is tossed in out of the blue to meet a commitment, surely the Minister should give more than two sentences of explanation. We want a full explanation of what sort of written reasons will be provided for the public to assess and to take into account when the next case is coming before the tribunal.

§ Mr. Viggers
It is important that there should be broad public confidence in the tribunal and the justice it provides. In setting out its reasons, the tribunal will provide a body of coherent and consistent case law which will build up and be available to employers and employees alike to work upon so that they may understand the workings of the tribunal.
The right hon. Member for Yeovil (Mr. Ashdown) asked about representation on the tribunal. We will seek broad representation from both employers and unions. I reaffirm that we will seek people of substance to sit on the tribunal.

§ Rev. William McCrea
As the right hon. Member for Yeovil (Mr. Ashdown) said, there is concern in the hearts and minds of people in the Province. In the past, many tribunals were appointed by the Government, and they usually had one political affiliation—the Alliance. It would be in the interests of the right hon. Member for Yeovil to ensure that matters continue in that way, because of his close association with that party. I hope that the Minister will assure the House that there will be wide political representation on the tribunal. If not, there will be favoured representation, as has happened in the past. I hope that the right hon. Member for Yeovil will associate himself with my remarks, because he would not—

§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. I hope that the right hon. Member for Yeovil (Mr. Ashdown) will not press the matter any further. It is clearly outside the scope of the amendment.

§ Rev. William McCrea
Your remark is interesting, Mr. Deputy Speaker. That was the substance of the remarks of the right hon. Member for Yeovil, and he was not called to order.

§ Mr. Deputy Speaker
The hon. Member for Mid-Ulster (Rev. William McCrea) is quite right; I was not quick enough. I will bear in mind what the hon. Gentleman is saying should a similar occurrence arise again.

§ Mr. Viggers
I beg to move amendment No. 8, in, page 4, line 30, leave out from 'above' to end of line 36 and insert—

'(a) is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

(b) if without reasonble excuse the failure continues after conviction, is liable on a second or subsequent summary conviction to a fine not exceeding one tenth of level 5 on the standard scale for each day on which the failure continues.'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Government amendments Nos. 19, 21, 73, 37 to 41, 46 to 50 and 52 to 56.

§ Mr. Viggers
The amendment introduces a new mechanism whereby any incremental fine will apply only from the date on which an employer is convicted of an offence rather than the date of the offence itself. We believe that to be fair.

§ Mr. Jim Marshall
This is one occasion on which I join other hon. Members who wish that the Minister had spoken at greater length and in greater detail. If he had done so, I could have related my comments more closely to what he said.
Contrary to the other Government amendments that have been passed, which, on the whole, we have supported, we regret that the Government have sought to introduce this series of amendments, which substantially weaken the Bill. I do not recall any hon. Member asking for such amendments at any stage of our proceedings. Why were the amendments put down, and from what quarter did the request come?
7.15 pm
An employer who fails to provide a monitoring return is subject to a per diem fine until he or she meets the requirements of the legislation. Government amendment No. 8 would restrict the per diem fines until after second conviction. That is a retrograde step, as the amendment would remove the immediate incentive for an employer who has committed an offence to comply with the law. If there is a breach of the legislation, employers should quickly compy with any demands placed upon them. The amendment would weaken that aspect of the Bill. I am sure that the Minister recognises that it will inevitably offer the opportunity for some employers to prevaricate, and also place a greater burden on enforcement bodies.
We ask the Government to think again. It will surprise the hon. Members for Antrim, North (Rev. Ian Paisley) and for Mid-Ulster (Rev. William McCrea) that, contrary to their belief that there is bipartisan agreement, it is our intention to oppose Government amendment No. 8.

§ Mr. William Ross
This is an important series of amendments, and it must be explored at some length. If we are to support the amendment, it should state rather more than the bland not exceeding one tenth of level 5". Will the Minister be kind enough to translate that into pounds, shillings and pence—that reveals my age—so that we know what we are talking about?
A firm going to Northern Ireland may transgress the law for any one of a hundred reasons, possibly as a result of ignorance of the demographic and religious spread of the population. That firm could find itself guilty of—

§ Mr. Beggs
Bankrupt.

§ Mr. Ross
As the hon. Member for Antrim, East (Mr. Beggs) said, it could find itself bankrupt. The hon. Gentleman jumped the gun.
We are trying to attract firms of all sizes to invest in all sorts of matters. People go along to the Industrial Development Board and they are given glossy promotional material, and are told of all the help that will be available. I wonder whether the complications that could arise from the legislation are sufficiently spelt out for 1179 incoming investors. Are officers in Government Departments in the I DB presently engaged in rewriting the glossy brochures? If not, it is about time someone started the job. In the interest of fairness, people should be informed not only of grants and help for firms investing in Northern Ireland, but of the pitfalls created by the Bill. They should be told exactly what position they will find themselves in.
Suppose a small firm decides to set up a branch in Northern Ireland to do a vital part of its manufacturing process or to distribute its products in Northern Ireland, and it has nine employees of one religious denomination. The word "denomination" is incorrect. We are not talking about denominations; we are talking about one denomination—the Roman Catholic denomination. All the others are lumped together. A few are labelled "others". Presumably they would be of non-Christian extraction or non-practising Christians. If one who is born in Northern Ireland becomes an atheist, agnostic, Hindu or whatever, it is of no matter. Under the Bill, if one is born a Prod, one will remain a Prod until the day one dies. It is no good saying that one has changed one's religion. That will not wash. One will be labelled a Prod for the rest of one's days. There are children in my children's primary classes—

§ Mr. Deputy Speaker
Order. I see nothing in the amendments that has anything remotely to do with what the hon. Gentleman is saying. We are discussing fines.

§ Mr. Ross
I am sorry, Mr. Deputy Speaker. You are a little too quick off the mark. We are discussing the consequences of the legislation. I am talking about a firm setting up a branch in Northern Ireland and employing 10 people. A week later it finds to its horror that nine of the 10 are adherents of the hon. Member for Antrim, North (Rev. Ian Paisley). The firm, having employed those people in good faith, finds that, out of ignorance, it has transgressed the law.
Much of the problem is due to the fact that we are not told what location is taken into account when the case reaches the tribunal or the Fair Employment Agency. It seems that geographical area will be established at the time of those proceedings. Contractors come to Ireland from England and hire workers from all over the place.

§ Mr. Deputy Speaker
Order. It is difficult to see what that has to do with the terms of the amendment, which is concerned with levels of fines. I hope that the hon. Member will address his remarks to the terms of the amendment.

§ Mr. Ross
I am grateful for your guidance, Mr. Deputy Speaker. I was simply trying to protect investors in Northern Ireland from being fined.

§ Mr. Deputy Speaker
Order. The hon. Member will have to do that on a suitable later amendment. He cannot do it on the one that is now before the House.

§ Mr. Ross
I am giving the Minister notice that, when people come to Northern Ireland to invest, they must be helped to avoid committing the offences of which we are speaking. The Minister will have to give them careful advice, drawing their attention to the consequences of this legislation. That must be done before they get a foot through the door. They, or those employing people on their behalf, could find themselves in prison or be fined 1180 "not exceeding level 5". I do not know whether the courts, in taking account of the circumstances, would impose a fine not exceeding level 1.
Firms coming in, before employing people, should be given a sort of health warning—a bank account protection warning—and perhaps the Minister will give an assurance that such a warning will be placed on all relevant literature. People must be made aware that, if their work force is out of balance, they will be fined or pursued by one section of the community or another.

§ Rev. Ian Paisley
The amendment contains the phrase "if without reasonable excuse", which I should have thought related to the argument that the hon. Member for Londonderry, East (Mr. Ross) adduced. Some hon. Members think that all jobs in Northern Ireland are open to all classes of the community. The roofing industry in Belfast has been in the hands of Roman Catholics for years. Is the House saying that in future those engaged in roofing must sack a certain number of Roman Catholics and employ a certain number of Protestants? [Interruption.] I have carefully read the Official Report of the Committee proceedings. For example, the hon. Member for South Down (Mr. McGrady) pointed out at that stage that not all things were equal because of the geographical structure and because certain types of employment were in the hands of certain religious people. In the old days in the shipyards—

§ Mr. Deputy Speaker
Order. The hon. Member is going very wide of the amendment. I hope that he will address his remarks to the level of fines as mentioned in the amendment.

§ Rev. Ian Paisley
I draw your attention, with respect, Mr. Deputy Speaker, to the fact that we are talking about people having a reasonable excuse.

§ Mr. Deputy Speaker
Order. The hon. Member is using the phrase "without reasonable excuse" to apply to matters which are not the subject of the series of amendments before the House. The "reasonable excuse" provisions relate to specific matters, of which he is going wide. I hope that he will now address his remarks to the terms of the amendment and not to matters outside it to which the phrase "reasonable excuse" might apply.

§ Rev. Ian Paisley
Employers coming into Northern Ireland and breaching this law will be fined. It is reasonable not to proceed against such people immediately but to give them an opportunity to try to rectify the situation. Is it being suggested that firms coming to Northern Ireland will not be told anything about the fair employment laws applying there? Will they simply be told, "Go ahead and recruit your labour"?
The Government have a duty to ensure that every prospective investor knows what he is up against so that he can make his decision on that basis. If people breach the legislation, they should be given an opportunity to put matters right. They should not be proceeded against immediately.
That is what the amendment is about, and I am sorry to find myself on the side of the Government. I do not like to be on their side. This is reasonable because I want o see more employment in Northern Ireland. We do not have enough jobs. If we were overflowing with employment we would not need this legislation. The fact that there is a lack of jobs makes it necessary. The more jobs the better, and 1181 if employers come and put money into Northern Ireland, the Government must not act in a dictatorial manner against them. They should be given an opportunity to rectify what has gone wrong.

§ Mr. Molyneaux
I support the hon. Member for Antrim, North (Rev. Ian Paisley) because he and I in our respective parties play a modest part in persuading investors and companies to come to Northern Ireland, in my case from this side of the water and in his case from across the Atlantic. We would have it on our consciences if we brought them into a trap without prior warning.
That is why the Minister must provide what my hon. Friend the Member for Londonderry, East (Mr. Ross) called a health warning—I would call it an early warning—to alert them in clear and unambiguous language to the difficulties that they could face. That will enable them to take advice and decide, on commercial grounds, whether they can comply with the legislation. If they cannot comply with it, we will all be disappointed, but at least we will not feel that, through negligence, we have persuaded people, for the best of reasons, to walk into a trap that they had not foreseen.

§ Mr. Viggers
I was brief in moving the amendment. Perhaps with some further explanation I will be able to persuade the hon. Member for Leicester, South (Mr. Marshall) and his hon. Friends not to vote against the amendment; it is a reasonable amendment.
The intention behind the amendments is to make provision for imposing on a defaulting emloyer an incremental fine for each day in which he fails to discharge the offence of which he has been convicted, and "convicted" is an important word in this context.
A similar provision was included in the Bill at the appropriate places, but on carefully considering the matter, we in the Department decided that, in the interests of natural justice, the basic mechanism which had been provided was unfair. The general formula that we were using was on the lines set out in clause 35(8), where the incremental fine was applied for each day of noncompliance following the date stipulated by the commission in a notice of requirement—not a conviction, but a stipulation by the commission in a notice of requirement.
In practical terms, therefore, an employer who failed to comply by the specified date and who, in the genuine belief that he had a reasonable excuse for his failure, wished to plead the defence provided by clause 35(9) could, if unsuccessful in that defence, find himself confronted with a large, even a massive, incremental fine the size of which owed more to the timing and duration of court proceedings than to the seriousness of the original offence.
We are saying that interest should follow a conviction, and not the date stipulated by the commission. Mention was made of a "second conviction". There will be only one conviction. A date will be stipulated by the commission in the notice of requirement, but the matter will not appear before the court and will not be adjudged by a court until it comes up following an appeal against a notice by the commission.
I hope that the hon. Member for Leicester, South will feel that it is right that interest should follow the date of a conviction in a court and that an individual employer 1182 should not be penalised from a date stipulated by the commission. There could be genuine reasons for a delay between a date stipulated by the commission and a notice of requirement.

§ Mr. Jim Marshall
The hon. Gentleman has referred to paragraph (b) in amendment No. 8, which says: if without reasonable excuse the failure continues after conviction, is liable on a second or subsequent summary conviction to a fine". Are we talking about conviction on two separate failures or is it two convictions in the same case, where the person has been convicted once, he has failed to comply and is convicted again on the same case?

§ Mr. Viggers
There are, of course, two completely different sets of circumstances. There is the employer who has not been stated to be in default by the commission and who is before the courts for the first time, and an employer who has had a previous conviction. The employer who, following a conviction by the magistrates court, wilfully remains in default of his obligations will be liable to further proceedings in the magistrates court and, if convicted, will be penalised by the total of the daily fines which have occurred since the date of the original conviction.
Further failures in compliance will be penalised in the same way by subsequent convictions until the employer finally discharges the offence. That mechanism is similar to that which applies to offences under companies legislation. It appears to be both consistent and appropriate to extend it to the offences created by the Bill. In this case, we have modelled ourselves on the similar legislation applying to companies, where the firms concerned could have substantial funds and it is necessary to have a substantial prospective fine available to ensure that companies comply with the law.
On the matter of the first set of circumstances, we do not think it right that an employer, who has not at this stage been convicted, should be at penalty to a daily fine following the date stipulated by the commission in the notice of requirement. I hope that I have made that point clear. I hope that the hon. Member for Leicester, South accepts that it is reasonable that we should regard individuals who have not been held guilty by a court as not being subject to daily penalties.
The hon. Member for Londonderry, East (Mr. Ross) asked about the level 5 fine, which is currently £2,000, with a maximum fine per diem of £200. We are therefore talking about quite substantial amounts.
Hon. Members have raised the question whether we advise prospective incoming investors about the fair employment legislation. I can tell them that we are scrupulous in doing so.

§ Mr. Jim Marshall
The Minister said that he thought that he had made the position clear. I am sure that he has made it clear, but it is unfortunate that it is not clear to me. Perhaps my position would be better if I could say that I would consider the Minister's remarks and come back to him at a further stage. However, obviously that is inappropriate on Report.
We indicated that, if a Division was called, we would vote against the Government amendment. However, in view of the Minister's response, I would say that it is not our intention to divide on the amendment, but we intend 1183 to consider the Minister's reply very carefully and, if necessary and possible, to pursue our argument in another place.