§ The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Richard Needham)
I beg to move,That the draft Fair Employment (Amendment)(Northern Ireland) Order 1991, which was laid before this House on 4th July, be approved.Fair employment is a most important issue in Northern Ireland. It is of concern to everyone and it affects relationships between and within both sides of the community. The order addresses one of its key aspects—the equitable, prompt and effective processing of individual complaints of alleged discrimination.
It may be helpful to the House if I outline briefly the background to the order and its consequential draft monitoring regulations, copies of which have been provided to assist hon. Members. When the Fair Employment (Northern Ireland) Act 1989 was passing through Parliament, the Government undertook to watch how the new legislation worked out in practice and to review its operation.
The Fair Employment Commission's monitoring report for 1990 is encouraging. For one thing, statutory monitoring has established facts—hard and concrete evidence—about the actual employment situation. In doing so, it has helped to dispel the myths, prejudices and misinformation that so often surround the topic. It has shed much-needed light on the reality of the overall situation. That is a most significant contribution to objective debate on the subject, as is the gathering of evidence that shows that there are disadvantages and under-representation in both communities.
Statutory monitoring has also revealed some very positive features, such as the almost equal representation of both communities in higher professional posts such as teachers, lawyers and doctors. It has revealed the small differential between Protestants and Catholics in the broad managerial and technical group of occupations. It suggests that Northern Ireland is moving far closer to fair employment in aggregate terms than has been generally believed.
Of course, we are not complacent. Catholic under-representation in such industrial sectors as engineering, banking, finance and insurance, and in the skilled manual, clerical and sales occupations, is not acceptable. The same applies to Protestant under-representation in certain management and professional occupations. But there is no doubt that the first statutory returns show a more positive, and certainly a far more complex and sophisticated, picture than the simplistic crude and misleading caricatures painted by the MacBride proponents. So, overall, there is encouraging evidence that the 1989 Act is already helping us to move in the right direction. Progress is being made and areas for further improvement are being identified and quantified so that they can be selected for future action.
However, the House will be aware that in October 1990, a decision of the fair employment tribunal disclosed a serious problem in relation to the operation of a single but important aspect of the Act. It relates to the handling of individual discrimination cases. The problem is that the protection afforded by section 30 of the 1989 Act to information used for monitoring purposes, or from which the community background of an employee or job 177 applicant could be deduced, is too wide. Individuals are unable to pursue cases and employers are unable to bring forward evidence to answer complaints.
When we canvassed possible solutions in a consultative paper in November 1990, views were divided. On the one hand, there were those who wanted total repeal of section 30 and on the other there were those who supported amendment to allow disclosure of monitoring information, but only in very carefully defined and limited circumstances.
Total repeal would be clear cut, but it would mean removing the specific offence of releasing information obtained during monitoring. There is considerable concern that such information should remain confidential except in very limited circumstances. At the same time, it is not easy to define all the circumstances in which such confidential information should be disclosed, while ensuring that the fair employment tribunal is not overburdened with cases about disclosure.
After careful consideration of the comments received on their consultative paper, the Government proposed a further approach. That approach set out a reasonable compromise between the requirements of disclosure and confidentiality.
The main elements of the Government's approach are repealing section 30 of the 1989 Act and adding to section 28 a new provision which will provide for the confidentiality of monitoring information through regulations. The regulations will preserve the confidentiality of monitoring information obtained under the three principal methods of monitoring. They will remove confidentiality from information obtained under the residuary method of monitoring. They will permit the disclosure of confidential information in limited circumstances, for example, to the Fair Employment Commission, the Labour Relations Agency, the Equal Opportunities Commission, the fair employment tribunal, the courts and industrial tribunals.
The comments received on the Government's draft order and regulations, and the debate on them in the Northern Ireland Committee, showed that all parties appreciated the need to ensure that individual cases—330 are currently pending—could proceed quickly. But it was clear that the basic division remained between those favouring total repeal of section 30 and those favouring limited disclosure.
As a result of that Northern Ireland Committee debate, the Government were persuaded of the need to amend our draft order in a number of ways. It now ensures that, neither the Fair Employment Commission nor the Equal Opportunities Commission are unnecessarily limited in their ability to seek information from monitoring returns—nor does the order preclude disclosure to consultants or trade union officials; it contains appropriate retrospective provisions to permit the processing of cases affected by the tribunal's ruling last October; and it corrects an omission from the 1989 Act about time limits for bringing a complaint where an act of discrimination has taken place over a period.
The order addresses two key objectives: first, the need for individual complainants to have ready access to the relevant information necessary to pursue their cases; and, secondly, the need for all who hold protected information to have a clear appreciation of what information is 178 protected by the legislation and what is not, and to have the necesssary statutory backing for the release of confidential information under the exceptions provided in the order and regulations.
I am very conscious of the particular sensitivities aroused in Northern Ireland by permitting the disclosure of information on perceived religious belief or community affiliation, or on the names and addresses of specific individuals. I recognise those sensitivities and know that they can be considerably heightened by the terrorist activities in both communities. But it is important to maintain a sense of proportion. The reality is that in the vast majority of cases the only information in which the commission or tribunal are likely to have an interest is that which discloses the community affiliation of an individual. It is most unlikely that, in most cases, more detailed information about, for example, address, occupation, or club membership will be requested. Even in the most unlikely event of its being requested—and this is the important point—the order does not require or compel the release of such information. So it is important not to overegg the sensitivity issue; and it is equally important to keep in mind that the order is permissive. It does not insist on the release of information whether sensitive or
Ultimately, it is for the fair employment tribunal to determine what information it is reasonable for an employer to provide or withhold, in response to a request from a complainant. The tribunal has absolute legal discretion in this matter and the Fair Employment Commission, without in any way compromising the tribunal's discretion, has said that it stands ready to provide employers with guidance on how they should respond to requests for information in individual cases. It is prepared to advise employers on the content, nature and timing of the release of information. So I suggest that all employers make use of it when they are concerned about how best to respond to a particular request.
Turning to points of detail, it may be useful to the House to focus on the primary reason for this amending order and to point out clearly what it does and does not do. At present the confidentiality provisions under section 30 of the 1989 Act are so wide that individual cases cannot proceed and employers cannot bring forward information to defend themselves. As a result, no information likely to disclose community affiliation can be divulged. Clearly, this is unacceptable to both complainants and employers. So the order effectively breaks this logjam on individual cases taken by members of both communities and it enables employers to know clearly what information is, and what is not, covered by confidentiality.
It is important to emphasise that the amending order does not require the divulging of confidential information about Royal Ulster Constabulary or Ulster Defence Regiment members, for example, or indeed any other individuals. It does not give complainants or the FEC the right to demand specific information and to have this supplied. Complainants and the Fair Employment Commission can, as at present, request information, but employers are still not obliged or required to provide it.
So at present, the release of requested information remains voluntary. Criminal sanctions also remain to protect confidentiality. The amendment focuses confidentiality on information supplied by one of the three principal methods of monitoring and on the determination by the employer of community affiliation.
179 It follows that if a complainant asks for any information including the name and address of an individual who happens to be a member of the RUC or UDR, the employer could still refuse to provide it; an employer is not obliged to provide any information in response to a question from a complainant or the Fair Employment Commission. So an employer could still, as at present, refuse to provide that information.
The Government are determined to enforce the best practice of fair employment in Northern Ireland on behalf of both communities. Too many firms in Northern Ireland are still either almost totally Protestant or almost totally Catholic—242 concerns employ more than 90 per cent. Protestants and 142 more than 90 per cent. Catholics. This shows the need for better integration of work forces in Northern Ireland. It shows the need to continue to provide equality of opportunity and fair employment for both Protestants and Catholics.
By working more closely together—by playing on the same team within the work force—people get to know, trust and respect each other better. Residual suspicions and outdated myths about people from different communities and cultural traditions are challenged and eroded. This is what the Government's fair employment legislation aims to do. I hope that we can all agree that the better integration of the work force throughout Northern Ireland is good for not only fair employment but the economic, social and political well-being of the region.
These objectives, particularly the fair employment and economic priorities, are linked. There must be substantial job creation and inward investment. Jobs for all requires jobs in the first place. That is what those who support the MacBride campaign tend to forget. The only political party in Northern Ireland that supports the MacBride campaign is Sinn Fein. And the House knows what the Sinn Fein policy on job creation amounts to in practice: the use of the bomb and the bullet to destroy jobs, threaten both the lives and the livelihoods of workers and to keep whole communities and families deprived of economic opportunity and hope.
I am sure that all those with a genuine interest in equality of opportunity in Northern Ireland will wish to renew their call for increased investment and job creation in the region as an important complement to fair employment. This order is a further stage in the encouraging progress that has been made since the passage of the 1989 Act. It will enable the equitable, effective and expeditious processing of individual cases by the fair employment tribunal. I commend the draft order to the House.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
The order seeks to correct an error which was made when the Fair Employment (Northern Ireland) Bill was passed. It is an error in the important area of monitoring. In the past year the final responses of employers to the monitoring procedures have been obtained. I take issue with the Minister on what the monitoring has shown. It is argued that, because the monitoring returns show that Catholics and Protestants are employed in relation to their numbers in the population, there is no discrimination. That is profoundly misleading.
180 The monitoring returns do not tell us the respective proportions of Catholics and Protestants within the work force. They tell us the number of employees only in firms of 25 or more staff. They give no indication of the state of employees who work for fewer than 16 hours each week. They produce only aggregate results for multi-site employers. Therefore, the statistics perhaps require more careful examination than that suggested by the Minister.
As long as large gaps remain in the statistics, there will be difficulty in ascertaining the true picture, especially as it applies to both communities, to people in part-time jobs and, above all, to female employees. Nevertheless, the final responses of employers to the monitoring requests have given us a basis on which we can work from year to year to build up a picture of what is happening in the work force.
The Opposition welcome the fact that the Government have decided to address the problem of the Fair Employment (Northern Ireland) Act 1989 that was identified in the case of Pryce v. University of Ulster. Although, as we are amending a Westminster statute, we consider that such matters should usually properly be dealt with by public Bill procedure, we recognise the need for urgency in this case. The decision of the fair employment tribunal in the Pryce case was the only legally correct one, so no useful purpose would be served by any further delay in resolving the difficulty. The urgency of action on this issue is clear since the Pryce verdict has paralysed the operation of the fair employment tribunals and the industrial tribunals. We hope that the adoption of the order will lead to a rapid clearance in the backlog of the cases before the tribunals. We hope that the Government will facilitate the tribunals with all the assistance that they may consider necessary to achieve that objective.
I should point out that the order does not follow the direct approach to the disclosure problem which the Opposition sought and which was originally requested by the Fair Employment Commission, the Equal Opportunities Commission and the Standing Advisory Commission on Human Rights. We all advocated the simple repeal of section 30 of the 1989 Act. The Government decided, for reasons that the Minister gave us, that they could not follow that particular road. We can hope, therefore, only that the order does not lead to further as yet unforeseen problems in the implementation of the legislation. Nevertheless, it would be ungracious not to commend the Government on their positive response to many of the suggestions and arguments advocated by the Opposition during Committee when we discussed the principles of the Bill. Many of them were part of the proposals of the various organisations to which I have already referred—SACHR, the Fair Employment Commission and the Equal Opportunities Commission.
In particular, we welcome the Government's decision to allow full disclosure of the information to the tribunals. Similarly, the fact that the order will be retrospective is of great importance in ensuring access to justice. The definition of "recurrent discriminatory practices" at the last rather than the first instance of discrimination is also to be commended. We also recognise the Government's good sense in allowing for a disclosure to equal opportunities consultants, trade unions and other negotiators. Although we accept that the confidentiality of monitoring information on individuals must be protected, we do not believe—the Government also seem to accept 181 this—that such protection should be so inflexible as to subvert the purpose of the Fair Employment Acts. We welcome the fact that the Government have accepted that.
The importance of the fair employment issue cannot be overestimated. I regret that its degree of importance has certainly not been reflected in the scheduling of this order for consideration by the House tonight in what might be called less than peak viewing period. The search for equality and justice is vital in the struggle to make Northern Ireland like any other part of these islands, and of Europe. The Opposition hope that we can put this unfortunate episode behind us and that the Pryce case is now history. We must get on with the task of establishing genuine equality of opportunity for all sections of the community. We hope that the order will now permit the effective implementation of fair employment legislation. In that hope, should the order be challenged, the Opposition will support it in the Lobby.
§ Rev. Ian Paisley (Antrim, North)
On behalf of the people of Northern Ireland, I should like to make the strongest possible protest in the House at the way in which the legislation has been introduced. First, we had a charade in Committee when neither the Whips nor the Opposition evidently understood that if the matter was referred to the House a gag would be put on all further debate in the Committee. Therefore, it was only possible for two Members representing Northern Ireland to make contributions in Committee.
We are now considering the matter at this ridiculous hour of the morning. The legislation is important: it covers new ground, it is not applicable to any other part of the United Kingdom, and it is retrospective. Information gathered under the Fair Employment (Northern Ireland) Act 1989 which was considered confidential is now to be taken out of the arena of confidentiality and made public in certain circumstances. We are called at this late hour to debate the matter. If this is the way in which Ministers responsible for Northern Ireland think that they should proceed with such issues, it is nothing less than a disgrace.
The 1989 Act and the order flow from the Anglo-Irish Agreement and statements made in Dublin. The Government in Dublin have made strong representations to the Secretary of State for Northern Ireland that legislation should be introduced immediately to rectify the so called grave and terrible discrimination against Roman Catholic work people in Northern Ireland. Those accusations are not true. It would do hon. Members good to study the people who are making such accusations.
I read with great interest a recent article by Noel Browne, a veteran figure of left-wing politics in the Republic, who was Minister for Health between 1948 and 1951. He wrote of the Irish Republic:It is a carefully-cocooned, well-preserved fly in amber, a unique relic of pre-Reformation, mediaeval Europe. In both eastern and western Europe, the republic is the last remaining vestige of Philip II's infamous Roman Catholic Empire, 'on which the sun would never set' … Lest the corrupting influence of free-thinking Lutheran Protestants should corrupt the Catholic Irish, separate development was established to keep Catholics distinct. As well, Protestants were denied the right to earn a living in the republic, and were driven out. Three out of four Protestants fled what is now the Republic in the last hundred years.We can see the attitude to the employment of Protestants in the Irish Republic. That attitude was 182 described not by a Unionist or someone who is known for right-wing politics, but by a veteran socialist who was driven out of politics in the south of Ireland by the pressures of the Roman Catholic hierarchy. Yet those in the south of Ireland make accusations about discrimination and call for legislation against it in the north of Ireland.
Recently I wrote to the British ambassador in Dublin to inquire how many Protestants are employed in the civil service in the Irish Republic and in the Gardai. Her Majesty's ambassador to the Irish Republic, Sir Nicholas Fenn KCMG, replied:We have spoken to the Central Statistical Office; the office of Census and Population Studies; the Civil Service Commission; the Employment Equality Agency; and the Department of Finance, but have drawn a blank on your constituent's enquiry. The information is simply not available here".The people who call for legislation on fair employment to apply in Northern Ireland do not do anything about the matter in their own country.
I believe in fair employment, but I do not believe that people should be employed because of their religious affiliation. People should be employed because of their qualifications to do the job. When this legislation was first brought before the House we were told that there would be no such thing as quotas. We were told that everything would be confidential and that it was just a monitoring system. Increasingly, a regimentation of religious affiliation is being carried out. The strange thing is that, if the Government decide that someone is a Roman Catholic or a Protestant, that affiliation can never be changed.
I have raised with the Minister the issue of a constituent of mine who, because she happened to have attended a maintained school, was registered for ever as a Roman Catholic. A letter from the Northern Ireland Health and Social Services Board says that that does not really matter and that my constituent should not be concerned about it. I do not see why wrong or misleading facts should be put into the monitoring system without providing a way to change them. The Government should seek to be truthful in their information.
In the past, I was told that all the information would eventually be destroyed, but we are now told that it will be kept and can be asked for by the courts. May I put forward my party's opposition in principle to the disclosure of anyone's religious affiliation to any third party, and to the entire monitoring procedure set up by the fair employment legislation. People should not be required by law to state their religion, nor should employers be required by law to inquire into their employees' affiliation.
The Fair Employment Commission seems eager to highlight what it calls discrimination against Roman Catholics, but it is less eager even to investigate what happens with regard to companies that employ more Roman Catholics than they should. I have in my possession an interesting document that has been much quoted in the press. Some time ago, the British Broadcasting Corporation decided to put on what was to be the show of all shows and spent almost £1 million on it. Naturally, it was a complete and awful flop, the money was poured down the drain and many people were consequently put out of work.
The document, which is a complete record of all that happened in that show, was found on a rubbish heap in Belfast. The floppy disk reference number on the document is REGFM12.011. I purposely quote that 183 reference to the House because Mr. Cooper cannot find a way to investigate the matter. He now has the number of the floppy disk, so he has the power to ask the BBC for the records. He did not do so because the record shows that the ratio of employment in that show was seven Roman Catholics to one Protestant at the best, or worst, whichever way one looks at it, and five Roman Catholics to one Protestant at the worst, or the best. But Mr. Cooper is not prepared to do the job that he is supposed to do. Unless the Fair Employment Commission is fair, no one will have any faith in what it carries out.
The Fair Employment Commission published an investigation into the Post Office a short time ago. As I have already made clear, I do not hold any brief for the FEC, but its figures show that Protestants were under-represented in Belfast, Ards, Londonderry, Magherafelt and Strabane. If Roman Catholics had been under-represented, what a furore there would have been and what accusations would have been made. But the FEC seems to be endeavouring to stage a cover-up.
So serious was the under-representation of Protestants in the north-west that the Post Office must treble the number of Protestants on the payroll to give them the same percentage as exists in the local community. But instead of recruiting Protestants, the Post Office has been recruiting even higher percentages of Roman Catholics in recent days. The FEC examined Ulsterbus and City Bus that employ almost 2,900 people, and again found that the Protestant community was under-represented. The more recent the recruitment, the higher the percentage of Roman Catholics employed.
Those are the FEC's own figures. We heard about managerial posts not being given to Roman Catholics. Sometimes attempts are made to establish that, when Roman Catholics get jobs, they get less skilled posts, while Protestants tend to be given the managerial and salaried positions. But Anthony Murphy and Graham Gudgin of the Northern Ireland Economic Research Centre recently commented on the fact that the FEC's annual report showed that Catholics are ahead of Protestants in the managerial, technical and professional occupations. The House should make itself aware of those facts.
The FEC report on the University of Ulster dealt another heavy blow to the myth. It found that the higher the salary scale, the greater the percentage of Roman Catholics employed. The same report also showed that the difference between Catholic percentages in established posts as opposed to new positions was startling.
Many leading researchers in Northern Ireland are now being faced with demands from Protestants about the treatment of their community. When a company in Northern Ireland expands its business and takes on hundreds of additional staff, it is usual practice for a Minister to make a statement and tell the good news—I agree with that because employment in Northern Ireland is good news. United Technologies of Londonderry had an increase of 300 jobs. How many of them went to Protestants? As far as we can ascertain, not one. Those are the facts, and the House should be aware of them.
Dublin makes many accusations about the way that Protestants treat Roman Catholics in the north. But it is not a one-way street and Northern Ireland Ministers should be as enthusiastic about fighting for jobs for 184 Protestants as they are about fighting for jobs for Roman Catholics. There is in the Fair Employment Commission a tendency—more than a tendency, a bias—not to let the full facts be known.
Today Mr. Cooper was sought by the press because this wonderful document which was discovered on a rubbish tip was to be mentioned in the House. Mr. Cooper was conveniently unavailable, but when a report states that Roman Catholics are not getting a fair crack of the whip in some places of employment he is on the radio and television and making statements galore running down Protestant employers.
I noted what the Minister said about Protestants and Roman Catholics. He should crusade equally for both and should see to it that Protestants get as fair a crack of the whip as Roman Catholics. According to the Fair Employment Commission, there is a great variation. Something is wrong and steps must be taken to ensure fair play. The answer to problems about fair employment is to have plenty of employment. But when there is not plenty of employment the House must be even-handed, because if it is not there will be no confidence in legislation on this matter.
I am seriously alarmed about confidentiality being breached, although some hon. Members may say that that does not really matter. In the Committee examining the order I and the hon. Member for Kingston upon Hull, North (Mr. McNamara), who led for the Opposition, were amused by some of the goings on. The right hon. Member for Strangford (Mr. Taylor) said:Two points arise. First, does the Opposition Front-Bench spokesman—he is a Roman Catholic—[Interruption]—…"it seemed that that was a terrible thing to say—recognise the conclusion of the Fair Employment Commission that it has many more more Roman Catholics on its staff than is reflected in the general population of Northern Ireland,".I raised a point of order and said:It is strange that we are discussing an order that makes it the responsibility of everyone who is employed to state where he stands as between Protestantism and Romanism only. Yet when a right hon. Member referred to a member of the Committee as a Roman Catholic there were protests.The Committee was deciding that everybody must be religiously labelled, but when a member of the Committee was referred to as a Roman Catholic there was an interruption and anger.
The hon. Member for Kingston upon Hull, North made clear what he was and said that he did not get his job because he was a Roman Catholic. He was not in the quota system. He said:I am a Labour Member of Parliament who happens to be a Roman Catholic. I was elected on a Labour ticket and no other. If I were to stand on any other ticket, I would be soundly beaten by a Labour candidate and deservedly so."—[Official Report, Northern Ireland Committee, 16 May 1991; c. 15–16.]The hon. Gentleman would not get a job in Northern Ireland under the order. That shows the hypocrisy in this matter, and how the Ulster people look on that hypocrisy.
Confidentiality is important. What we need to fight in Northern Ireland is fear. People are afraid. Only today, we had another report that information from the Army, with photographs, had got into the wrong hands. People are worried about safety. I want to know how there will be confidentiality if we go on releasing these monitoring procedures, and what they bring out in all places where 185 they can under the order. Who will have the information? Will there be a religious roll call of everybody in Northern Ireland?
Many in Northern Ireland feel that the House has not had enough time adequately to consider the order. I must finish my speech soon because other hon. Members wish to speak, and we have only an hour and a half for the debate. Usually, on a debate such as this, we would have three hours, but when the Government decided to put the order before the House at this late hour Ministers did not want to be having their breakfast before they went to work. They want to have their cornflakes at home, not here. Some of us cannot get home, so we would be happy to talk all night on this theme. We are not chained or tied to anything. I see the Minister of State the hon. Member for Peterborough (Dr. Mawhinney) sadly nodding his head. All that I can say is that, if the Government put such measures before the House at this hour, he cannot expect us to do anything other than use the full hour and a half for the debate.
All the information gathered last year in the monitoring exercise was gathered under the provisions of section 30. People co-operated under the law as it then was. They were told that the information would be confidential. Tonight, we are being asked to breach the very foundation on which this information was given. The Order in Council will enable employers to disclose information that was given to them on the basis of confidentiality. Thus, the Order in Council is retrospective, as the Minister made clear. That is a serious bar to our acceptance of the order. If section 30 is to be done away with, in the sense that it is to be altered by the order, then no information should be released until a new monitoring exercise has been carried out, and every employee is told that the information will not be kept confidential because in certain circumstances it will be made public, and his religion will be made public to a third person.
These people should now be told the new circumstances under which the information about them can be released, and to whom. There should be an amendment so that if an employer proposes to disclose information about an employee, that employee has the right to be notified that that information will be disclosed. It is not right that the employer can disclose information, gathered on the basis of confidentiality, without telling the person concerned that that information will be released. What have the Government to say about those two matters?
This monitoring is not done in England or Scotland or in Wales. We are on new ground, and we should be doing something tonight that will regiment the work force of Northern Ireland. As the hon. Member for Kingston upon Hull, North said, later it will go down to smaller firms as well.
There has been no difficulty on the work floors of Northern Ireland during all the troubles. That is a big thing to say, but it is a fact. There are some who would lead others to believe that people are at loggerheads on the work floors, but the troubles in our country have been kept away from areas of work almost entirely. That is to be commended. I have been worried for a long time, however, that, when objections are made by the Fair Employment Commission about the flying of the Union Jack or the putting up of poppies on Remembrance day, disaster will be brought into places of employment. These are matters to which the Government must pay heed. We need to keep the troubles away from the workplace in Northern Ireland.
186 When we pass the order tonight, we should realise how serious are the matters that it raises. I trust that Mr. Cooper will be sacked and that we shall get someone in Northern Ireland who people can trust and in whom they have confidence. It matters not whether that person is Roman Catholic or Protestant. It does not matter what his religion is as long as people can put their faith and trust in him. Whether the Government like it or not, the people have lost all trust in Mr. Cooper.
Why was it that the report on industries and shops in Londonderry was not brought forward quickly? Why did Mr. Cooper drag his feet? When the report was completed, why did he put it under wraps? He did so because it was an indictment of the way that Protestants were being treated in Londonderry. Let us have fair play. If we have fair play all round, people will have some confidence in what is happening.
Information was gathered in confidence and people were told that it would never be used. Now we are asked to accept that there should be a breach of confidentiality and that confidential information can be used without telling the person who co-operated fully, thinking that the information would remain confidential. That is an indictment of the order.
§ Mr. David Trimble (Upper Bann)
We are considering a significant piece of legislation and, as other hon. Members have said, it is disgraceful that it is being debated at nearly 3 am under a procedure that prevents proper detailed discussion of the measure. I know that we discussed the matter during one sitting of the Northern Ireland Committee. Members who attended that sitting will know that we never got down to the details of the legislation, even in that context. There was not a proper debate on the details, and there has not been one tonight.
The use of the Order in Council procedure for this legislation is especially inappropriate. It introduces—not for the first time—confusion between the two statute books. The Order in Council made on the Northern Ireland Acts is a form not of secondary legislation but of primary legislation. The question that arises—it is a point that I put to the Minister during a meeting that was held to discuss the matter—is which statute book the order will go into.
The order amends the Fair Employment (Northern Ireland) Act 1989 which is contained in the United Kingdom statute book which is appropriate. Where will the Fair Employment (Amendment)(Northern Ireland) Order go? It amends the 1989 Act, so in which statute book will it appear? We have a Northern Ireland statute book—so-called—but it contains only Orders in Council and is, generally speaking, confined to transferred matters and is said to be intended to maintain continuity. However, there is no question of continuity with regard to the Fair Employment (Amendment)(Northern Ireland) Order because the Act that it amends is not in the Northern Ireland statute book, but in that of the United Kingdom. Logically, the Order in Council should appear in the United Kingdom statute book. It will be interesting to see how that is made up at the end of the year.
This is not merely a technical point or a matter of curiosity; it is a question of which interpretation Act is to be applied. Being drafted as an Order in Council, it looks as though the draftsman has followed the usual form for 187 Northern Ireland Orders in Council and has applied to it the Interpretation Act (Northern Ireland) 1954. Of course, the interpretation Act that applies to the United Kingdom statutes is the United Kingdom Interpretation Act 1978, and the two Acts are not the same. It is ludicrous that the order inserts new sections into the 1989 Act, but should the question of interpretation arise when reading the greater part of that Act one applies the United Kingdom interpretation Act. However, in some sections and subsections one will have to switch from the United Kingdom Interpretation Act to the Interpretation Act (Northern Ireland) if the person interpreting the Act appreciates that there is a difference.
Anomalies are created not just in respect of the Interpretation Act. Orders made under the Northern Ireland Act 1974 are subject to vires limitations by reference to the provisions of the Northern Ireland Constitution Act 1973, which apply to this Order in Council and to the regulations made under it, which will then be inserted into a United Kingdom Act to which there are no vires limitations. It is a constitutional monstrosity, and I am amazed that it is being carried out by Order in Council, which states that it must be done for reason of urgency. If it were a matter of urgency, there has been plenty of time to vote the matter through as a Bill and to have debated it if the Government considered it urgent enough and were prepared to make time available. This is July and the matter arose in November. There has been consultation and discussion, and there has been more than enough time to push the issue through in the normal way, That should have been done, but it has not been done.
The use of the Order in Council procedure reveals another matter of interest. It exposes the fraudulence of the argument used to deny us proper legislation. When we complain about the Order in Council procedure we are told that it must be maintained to maintain the integrity of the statute book. There is no integrity in the statute book in this case. That shows that the integrity of the statute book is not the reason why the procedure is maintained.
The use of the Order in Council procedure is also bad in this case because it reinforces the fact that the legislation is confined to Northern Ireland because Orders in Council can legislate only for Northern Ireland. If legislation of this nature is considered appropriate, it should apply on a United Kingdom-wide basis. It is said that there is disadvantage in employment in Northern Ireland on what might be called ethnic grounds. There is also disadvantage in the United Kingdom on ethnic grounds. If it is wrong to discriminate against a person on the grounds of his national or ethnic origin, it should be wrong throughout the kingdom. If legislation of this nature is considered necessary in Northern Ireland, it should also apply in England and Wales where there is significant disadvantage for ethnic minorities—but not only for them.
A few months ago, an interesting survey revealed that Roman Catholic university graduates from Northern Ireland who sought employment in England and Wales fared less well than Protestant graduates from Northern Ireland who did the same. That fascinating survey showed that Roman Catholic graduates seeking employment in England did worse than those remaining in Northern Ireland, which implies that there is greater discrimination 188 against Northern Ireland Catholics in England than in Northern Ireland—though any one set of figures must be treated with some reservation.
If sufficient time had been available to me, I would have examined the origins of the 1989 legislation, which can be found in the problem that was said to have arisen in the case of Pryce v. University of Ulster. I am not convinced that the problem did stem from that case. If that case had been properly pursued at the time, the alleged difficulty in the 1989 Act would have disappeared. However, it would take more time to make that argument than is at my disposal this evening.
If the Pryce case did reveal a problem in respect of section 30, it could have been resolved by a short and simple amendment. It was held that section 30 confined disclosure for the purposes of the 1989 Act, whereas the Pryce case was brought under the provisions of the 1976 Act. If that was true, all that was needed was an amendment to section 30, substituting for the words "this Act" a phrase such as "the Fair Employment (Northern Ireland) Acts".
When the Minister was consulted last November, it was said that the problem related to the tribunal case. We pointed out that that could be cured by a minor change, and that the more radical changes to the law on confidentiality that would be made by the order would then be unnecessary. The disparity between the limited nature of the problem and the extent of the proposed changes made us suspect that the Government and the Fair Employment Commission had a hidden agenda.
Replying to those points in his letter of 21 February, the Minister said:I should say too that the decision to seek an amendment of the 1989 Act was not made simply on the basis of the ruling of the tribunal president, but on the clear view that the case brought to light a quite complicated problem, which required speedy resolution.Unfortunately, the Minister did not state what the problem was. However, in our consultations with him a few weeks ago, he said that it was feared that the offence of disclosure created by section 30 was so wide that if a person who was aware of an item of information about an individual—such as the school that he attended—happened to disclose it, even though the information had not been gained in connection with classification under the legislation, that person would be committing an offence.
The solution to that problem would be a provision on the lines of the new subsection (7) that will be added to section 19 of the 1989 Act by article 4 of the order. However, the disparity between the alleged problems and the extent of the proposed alterations makes us wonder why the order considerably widens the disclosure provisions in the way that it does. No explanation was offered by the Minister on past occasions or more recently.
Article 4 also imports a new subsection (1)(a) into section 19 of the 1989 Act, which provides for disclosurenecessary or expedient for the proper discharge of the functions of the Commission".Subsection 1(b) refers to such a disclosure thatis made for the purpose of, or in connection with—I contrast the wording of the new subsection (1)(a), which refers to a disclosure that is
- (i) any actual or prospective proceedings before the Tribunal, or an industrial tribunal; or
- (ii) any actual or prospective civil or criminal proceedings before a court."necessary or expedient for the proper discharge of the functions of the Commission"—189 which is not present in subsection (1)(b)—with the existing section 19(1)(b) of the 1989 Act, which refers to a disclosure that isnecessary—
Originally, disclosure was to be limited to where it was "necessary"; now, the word "necessary" has been omitted.
- (i) for the purposes of any proceedings".
The changes in the legislation permit disclosure not just to the Fair Employment Commission—we might feel some sympathy with that—but to the Labour Relations Agency and the Equal Opportunities Commission, and for the purpose of any other proceedings. To demonstrate that my comments are not politically motivated, let me quote the Belfast Solicitors Association, which said:If there is reason in that these bodies may be legitimately involved in the investigation of a Fair Employment complaint, then disclosure to that extent should be permitted, but specifically limited to their involvement in such investigations. If there is reason why such bodies should have more general access to such information, then that should be debated and provided for in their own enabling legislation.No one could disagree with that. This is fair employment legislation, and the disclosure provisions in it should be for the purposes of such legislation. Instead, much wider provision has been made for disclosure, and—as the Minister said in the letter that accompanied the most recent alterations—it is permitted wherever it is required for the purposes of any legislation. That, surely, is taking things too far.
There is also provision for disclosure in connection with any civil or criminal proceedings. At the meeting to which I referred, we asked the Minister if he could provide any example in which disclosure would be necessary in connection with fair employment proceedings. He was unable to do so, and I shall be interested to see whether he can do so on this occasion.
People are sensitive about the disclosure of such information. Many do not like the classification that results from the legislation; many are concerned for safety reasons, as identification of a person's religion is significant. For that reason, the protection of confidentiality is important. The hon. Member for Antrim, North (Rev. Ian Paisley) raised the issue when the original Bill was debated, asking what provision would be made in that regard. The then Secretary of State replied:Although the hon. Member for Antrim, North … dressed it up in rather more lurid colours, he made an important point about confidentiality. He will know that confidentiality of information has been a clear concern of the Government in the preparation of this legislation. He knows that clause 19 is directed specifically to that important point. Clause 19 makes it an offence to disclose information from which a person's religious beliefs could be deduced."— [Official Report, 26 July 1989; Vol. 157, c. 1104.]That important point has been substantially eroded in the new legislation. Not only has the provision for disclosure been widened, but protection has been transferred from the legislation to regulations.
The Belfast Solicitors Association commented on that, too. It said:As the provisions regarding confidentiality, even though wrongly drafted, were originally, and rightly, considered to be of sufficient importance to be contained in the 1989 Act, it is wrong that the amending provisions should not also be contained in the primary legislation. They should not be delegated to the subordinate legislation of the Department of Economic Development.This is not just a technical point. It is actually undesirable that the provisions regarding confidentiality should be contained only in the Department's regulations, because these are not subject to any mandatory voting or other scrutiny 190 procedure at Westminster other than the negative resolution procedure—the requirement of laying before Parliament under paragraph 3(3) of Schedule 1 to the Northern Ireland Act 1974.This means that the Regulations are not subject to scrutiny at Westminster by the Houses Joint Committee on Statutory Instruments. Nor is there any procedure of scrutiny in Northern Ireland. Because these Regulations are subject to the negative resolution procedure at Westminster they would not come before the Examiner of Statutory Rules. (In any case apparently his post became vacant some years ago, and has not subsequently been refilled.)Accordingly, if the amendments are to be contained in the Monitoring Regulations there will be insufficient scrutiny or protection.Where there are sensitivities about disclosure, to remove protection is not a good idea. It should have been achieved in primary legislation that should have been enacted properly.
It is ironic that the apartheid regime in South Africa has been applauded for removing legislation that requires people to be monitored and their ethnic origin to be registered at a time when we are reinforcing this procedure in Northern Ireland. Many people find it objectionable, even though it must be conceded that that monitoring occasionally produces information that is of assistance in rebutting some of the wilder allegations.
None the less, the monitoring is objectionable in principle because it obscures the merit principle that should underlie the legislation and employment. It leads to a form of excessive head counting that is unhealthy for employment. It leads also to a surreptitious introduction of quotas by the back door which is the vice of the Fair Employment Commission, something which the commission's chairman understands and about which he is encouraging people to act illegally although he does not have the courage to admit that openly.
The monitoring also leads people to the fallacy of believing that we should be dealing with equality of outcome. In terms of the legislation, it would be perfectly proper for us to be dealing with equality of opportunity. It is important that there should be equality of opportunity, but only a fool would think that there must therefore be equality of outcome in every branch of industry and grade of employment. A series of factors will interpose between equality of opportunity and the outcome. Some of the factors are social, but it would be foolish to search for a perfect equality of outcome in every respect of employment, and that is what monitoring leads to.
§ Mr. Needham
The hon. Member for Kingston upon Hull, North (Mr. McNamara) said that monitoring until now dealt only with a certain proportion of the work force and did not involve companies employing fewer than 25 people. He was quite right. However, it covers two thirds of the total work force. I have no reason to believe that as it spreads out to companies employing fewer than 25 employees it will show any difference.
The figures show that the numbers in employment match closely the proportions in the communities although not as perfectly as one might wish, but very much in line with the proportions in the population as a whole. That is very important. The hon. Member for Upper Bann (Mr. Trimble) referred to the advantages of monitoring.
The hon. Member for Antrim, North (Rev. Ian Paisley) made a point about the lateness of the hour for the debate and I agree with him about that. However, that is not 191 necessarily a matter for me. Other hon. Members have kept the House talking tonight. We had a full debate on Northern Ireland business last week although some of that was rather detailed and perhaps this debate would have been better earlier in the day and perhaps a week earlier as well.
I do not agree with the hon. Member for Antrim, North about the Anglo-Irish Agreement having any involvement in this. I am determined to administer the economy of Northern Ireland so that we have fair employment for Protestants and Catholics alike. The hon. Gentleman made great play about that and he was right to do so; it should be fair on both sides.
At the moment 68 per cent. of Protestant males are in employment and 32 per cent. of Catholic males are employed. There is an imbalance. In a certain area 142 companies employ 90 per cent. Catholics. However, there are about 240 who employ 90 per cent. Protestants. I do not want to make too much of an issue of that except to say that matters have to be balanced equally, which is what the legislation is about. I think that the hon. Gentleman accepts that.
§ Mr. Peter Robinson (Belfast, East)
Should we take the Minister's denial of the comments of my hon. Friend the Member for Antrim, North (Rev. Ian Paisley), who suggested that the fair employment legislation was a child of the Anglo-Irish Agreement, as a rebuke for Mr. Gerry Collins, who claimed that it was?
§ Mr. Needham
Mr. Collins can take it any way he likes. The fact is that fair employment legislation was introduced in the House in 1976, long before the Anglo-Irish Agreement was in anybody's eye. The hon. Member for Antrim, North cannot have it both ways. He cannot say that he dislikes monitoring and fair employment legislation in principle and then attack—and I do not deny that he does so with some justification—the imbalance that exists in certain areas or companies in Northern Ireland. He is right to point out where imbalances exist. The very fact that the places that he quoted, such as the Post Office and the BBC, come out of the monitoring process shows that the Act is having effect. I agree that it is vital that the Fair Employment Commission is seen to be even-handed and balanced in the way in which it carries out its investigations. I am sure that Mr. Cooper will look carefully at the blue document that the hon. Member for Antrim, North found on the rubbish tip.
§ Rev. Ian Paisley
Is the Minister prepared to say in the House that he would direct Mr. Cooper, as I understand he has the power to do, to look at the document? As he already has the floppy disk number, he can get the information from the BBC.
§ Mr. Needham
I do not like directing people. As I have said, I am sure that Mr. Cooper will look closely into the points that the hon. Gentleman makes. Mr. Cooper can also read Hansard and see the points that have been made about him. He is as aware as anybody of the need to ensure that the Fair Employment Commission has a reputation in Northern Ireland for balance and even-handedness.
The hon. Member for Upper Bann raised a series of technical points on the legislation, and it was fair enough for him to do so. The Government do not accept that the 192 fact that this legislation is an order and that the act is on a different statutory basis is any reason why lawyers looking at the two parts of the legislation will not be able to work in harmony. I listened to what the hon. Gentleman said. We have no evidence to suggest that the order and the Act should not work in harmony.
I understand the hon. Gentleman's point about the reason why we introduced the order. As he rightly says, the reason was that we wanted to make good the omissions from the 1989 Act as soon as we could because we did not wish a back-log of cases to grow and so undermine the basis of the fair employment legislation and how it is seen in the United States and in many parts of Europe—as a way forward which all of us in the House accept gives the image of Northern Ireland a boost for inward investment and economic potential.
§ Mr. Trimble
The Minister said that he saw no difficulty in the order and the Act being together in harmony. Does that mean that they will be in harmony on the same statute book?
§ Mr. Needham
The answer is that they cannot be in harmony on the same statute book because, as the hon. Gentleman has rightly pointed out, they come under transferred matters and other matters.
§ Mr. Needham
I will not give way to the hon. Gentleman again. There is no reason, other than the technical points that he made, to believe that the legislation should not continue to work effectively. I am not clear whether the hon. Gentleman is trying to undermine the legislation through a series of technical quibbles on the basis that he disagrees with it in principle. He has admitted that he feels that monitoring has benefits, but he then said that head-counting is unhealthy. He should tell that to the hon. Member for Antrim, North who spent most of his speech talking about head-counting and nothing else.
The hon. Member for Upper Bann then said that merit and equality of opportunity should be the criteria. I agree entirely. The whole basis of the legislation is to ensure that merit can be seen to be the basis on which jobs are gained in Northern Ireland and that equality of opportunity is what we are about. The hon. Gentleman then talked about the fact that equality of opportunity does not exist in certain companies and that there is no balance. He was perfectly right to address that point—it must be addressed. Nevertheless, the legislation shows that after a long history in both communities, where it cannot be argued that there has not been discrimination and unfair employment, the Government are determined to attack and remedy the problem. In so doing, they will set an example to others.
§ Rev. Ian Paisley
Surely the Minister must understand that certain employment sectors in Northern Ireland have always been wholly in the hands of either the Protestants or the Roman Catholics. Tiling and slating, for example, have always been in the hands of the Roman Catholics. Is he saying that he should break into that and into sectors that have always been either predominantly Protestant or Roman Catholic? Surely history must have some influence, 193 as should the areas where people live. We cannot ask Protestants to go into a Roman Catholic area to work. Surely the Minister must keep those things in mind.
§ Mr. Needham
I absolutely agree with the hon. Gentleman. There should be no quotas and no compulsion, but we must ensure under the legislation—
§ Mr. Needham
I have not finished answering the hon. Gentleman yet.
We must ensure that what is done is done on the basis of fairness and balance and that the policies that employers follow are not discriminatory. The hon. Member for Antrim, North made a fair point when he talked about Londonderry and about United Technologies. He has shot his own fox because that is a good example of a company that is located in a specific place and where it would be extremely difficult—I am not saying impossible; we all want to work towards this—to get a balance in a certain travel-to-work area. We all know what the difficulties are, but that does not mean that we do not do whatever we can to try to ensure that the policies that companies and employers adopt are seen clearly to be within the framework of fair employment legislation so that everyone in Northern Ireland knows that they have a reasonable opportunity when they try to get a job.
§ Mr. Trimble
I thank the Minister for eventually giving way—I had been seeking to raise a point with him before the hon. Member for Antrim, North (Rev. Ian Paisley) intervened.
The Minister affected to be confused about the argument that I was making towards the end of my speech. I am sorry if it was a little rushed, but I was speaking quickly to try to assist the House. The point that I was making, which I repeat, is that the monitoring process, and especially the way in which it is applied by the Fair Employment Commission, undermines the merit principle, which is good and should be vindicated. The way that monitoring operates is undermining that principle by surreptitiously introducing quotas. The targets and all the rest are effectively quotas, whereas the merit system should apply.
The Minister said that I was raising technicalities. I am not, but I am waiting to find out why the disclosure provisions could not be confined to the purposes of the Act.
§ Mr. Needham
I shall not weary the House at this late hour with examples under fair employment legislation where religious or community affiliation would be necessary for a civil or criminal action. I am happy to write to the hon. Gentleman. I assure him that there are cases. I will give examples to him.
On the hon. Gentleman's first point on monitoring, I do not accept that it is a surreptitious way of introducing quotas. Nor do I accept that monitoring which shows the religious composition of the work force undermines the merit principle. I believe that when the work force in a travel-to-work area shows a balance between the two communities, whatever the composition of the population 194 in that area, that is much more likely to show that the merit principle is operating than a total imbalance one way or the other. That is unless the hon. Gentleman argues that there is a particular degree of intelligence in one community in one area or in another community in another area. We know that that is not the case.
We are trying to show that companies and employers are using the best possible recruitment and personnel practices to ensure that they recruit for jobs in a balanced way. I believe that that is what everyone in Northern Ireland wants. People do not want to see discrimination any more than the hon. Member for Antrim, North does. I commend the order to the House.
§ Question put and agreed to.
That the draft Fair Employment (Amendment)(Northern Ireland) Order 1991, which was laid before this House on 4th July, be approved.