Clause 62

HC Deb 27 July 1998 vol 317 cc115-9

DISCRIMINATION BY PUBLIC AUTHORITIES

10 pm

Mr. McGrady

I beg to move amendment No. 51, in page 29, line 4, after 'discriminate', insert 'directly or indirectly'.

The First Deputy Chairman

With this, it will be convenient to discuss the following amendments: No. 158, in page 29, line 5, leave out from 'discriminate' to end of line 6 and insert `against a person or group of persons on any grounds set out in section 61(1), subsections (a) to (d).'. No. 52, in page 29, line 5, after second 'of, insert `gender, race, disability, age, marital status, dependants, sexual orientation,'. No. 53, in page 29, line 6, at end insert— `(1A) Subsection (1) does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of gender, race, disability, age, marital status, dependants, sexual orientation, religious belief, or political opinion.'. No. 172, in clause 79, page 38, leave out lines 18 to 25.

No. 171, in clause 79, page 38, line 18, at end insert— `(3A) Subsections (2) and (3) do not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantage because of gender, race, disability, language, age, marital status, dependents, sexual orientation, religious belief or political opinion.'. No. 54, in clause 79, page 38, leave out lines 22 to 25.

Mr. McGrady

The amendment is simple, and asks that discrimination be dealt with whether it is direct or indirect. The clause simply states that it is unlawful to discriminate on the grounds of religious belief or political opinion. As hon. Members have said, we need to be more specific, and amendment No. 52 seeks to add other grounds to make the clause more specific.

Amendment No. 53 would put into effect what I am sure the Committee would intend—that any programme or activity that seeks to ameliorate discrimination should not be unlawful. I ask the Government to take that on board. Amendment No. 54 seeks the removal of subsection (5) of clause 79, which states: A certificate purporting to be signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for the purpose of safeguarding national security shall be conclusive evidence that it was done for that purpose. Great injustices have been caused over many years in Northern Ireland by the issue of such certificates, and I shall give two brief examples.

One of my constituents was fired without cause because a colleague wanted his position, and used the confidential telephone to inform the authorities that my constituent was not a reliable person and was suspected of association with terrorist activities. Nothing could be further from the truth, but because that person worked in a military establishment in my constituency, he was fired forthwith. He had no recourse, and was not given a reason, and I could not extract information about any avenue through which he could make his views known. A telephone call to a confidential line alleging paramilitary involvement cost him his job, and he had no recourse whatever.

Another example from my constituency gave rise to considerable legal interest this week. Five to seven years ago, the firm of Tinnelly in Rostrevor in my constituency won a demolition contract from Northern Ireland Electricity. However, the firm was barred from executing the contract by a certificate of the type referred to in clause 79(5). The firm had extreme difficulty in proving that it was not a security risk. It took the firm many years to do so, and only within the past 10 days has it been vindicated by the European Court of Human Rights. The case is now known as the Tinnelly case.

The Secretary of State of the day certified that the firm employed people who were a risk to security, and that cost that firm a substantial contract. Again, there was no recourse to any avenue of justice—not even the reasonable course of putting its case against the Secretary of State's case, which was unstated and therefore irrefutable. I cannot accept that a Secretary of State, certifying on the ground of safeguarding national security, can be conclusive. This is an example of where it is anything but conclusive. Indeed, the European Court has now found that the Secretary of State was wrong to issue such a certificate, and that the case did not impinge on national security.

I ask the Minister to accept the amendment, or find some other means of ensuring that national security is preserved and safeguarded, rather than this archaic, unjust and, to my mind, wholly unlawful one-sided act, which is completely indefensible and gives no justice to the person or firm against which the certificate is issued. I commend the amendment to the Committee and the Minister.

Mr. McNamara

I want to speak briefly about the Tinnelly case. Those who considered the fair employment legislation—as I did with my hon. Friend the Member for South Down (Mr. McGrady)—will remember our long debates with the Ministers of the day about the need to amend clause 42, which is now contained in clause 79(5).

My hon. Friend has referred to the gross unfairness of the Tinnelly case, for two reasons: first, the secretive and vicious nature of particular actions that could result in people losing their employment; and, secondly—the trade unions have made this point—the gross unfairness of no compensation being paid to any worker dismissed under the clause.

At the time that we considered the fair employment legislation, we urged that other methods be found, because of the gross infringement of civil liberties. The then Secretary of State refused to do anything. We cited the Tinnelly case—a particularly nasty and vicious case, as it involved lying by Northern Ireland Electricity Services. The Secretary of State put out a document without a proper examination of the causes and reasons. The court upheld it, because it felt that it could not get behind the mind of the Secretary of State and had to take the clause as it stood, without question. It is to the credit of Tinnelly that it has taken the case all the way to the European Court.

It is interesting to read what the European Court said in its judgment: The Court acknowledged the security considerations at stake in this case and the need of the authorities to display the utmost vigilance in the award of contracts for work involving access to vital power supplies or public buildings situated in town centres in Northern Ireland. However, the Court considered that the conclusive nature of the certificates has a disproportionate effect on the applicants' right of access to a court to have a judicial determination on the merits of their complaints that they were victims of unlawful discrimination. It stressed in this respect that the right to a court guaranteed by Article 6.1 of the Convention cannot be displaced by the ipse dixit of the executive even if national security considerations constitute a highly material aspect of the case. The European Court said: In the Court's opinion such a modified procedure or the introduction of other special procedures could only serve to enhance public confidence in the administration of justice"— namely, that the procedures invoked have had to be modified.

I am surprised that clause 79(5) is even included in the Bill, given both the undertaking in the Belfast agreement that the matter would be considered—it obviously has been considered, and thrown away—and the known imminence of the judgment from the European Court of Human Rights. I support the comments of my hon. Friend the Member for South Down on the provision.

I support my hon. Friend the Member for South Down also in his attempt to extend the definition of discrimination, to state whether it is direct or indirect. The distinction is of the utmost importance in fully considering discrimination in Northern Ireland and all the related issues.

Mr. Öpik

I speak again in my continuing crusade for human rights in Northern Ireland. I shall not repeat points that I made earlier, but simply highlight a few arguments. Amendment No. 158 is straightforward in its attempt to tighten up the definition of who is to be protected against discrimination under this part of the Bill and would include in clause 62 the forms of discrimination listed in clause 61.

The reason for doing so is simple. We think that limiting the definition of discrimination in the Bill to that based on religious belief or political opinion is too restrictive. We should like the Bill's definition of discrimination to be widened.

Amendment No. 158 would have essentially the same effect as amendment No. 52, which I very much support.

Amendment No. 53 seems to make sense, and will ensure that we do not preclude important work that is done to ensure that the conditions of disadvantaged individuals and groups improve.

Amendments Nos. 171, 172 and 54 seem to exclude the possibility of acting in a possibly discriminatory manner for national security, public safety or public order reasons. We cannot go along with such a provision. Given Northern Ireland's history, we feel that we should have a safeguard to act in such a way—although I am sure that every hon. Member hopes that such a necessity is in the past for Northern Ireland.

We hope that—simply in the interests of consistency—the Minister will look kindly on our efforts to widen the definition of discrimination from the very narrow one in clause 62.

Mr. Paul Murphy

I am conscious of the fact that the Committee would like to move to the next group of amendments, but I shall do my best to deal as quickly as I can with the points made by hon. Members in this debate.

The inclusion in the Bill of a provision dealing with indirect discrimination would create much future uncertainty for public authorities, as case law establishes the grounds of justification for a requirement or condition resulting in disproportionate impact.

We believe that the statutory obligation in clause 61 to have due regard to the need to promote equality of opportunity", combined with our stated intention in government to extend fair employment legislation to cover goods, facilities, services and premises, will achieve much of the intended purpose of amendment No. 51.

Amendments Nos. 158 and 52—which are similar—suggest extending the scope of clause 62 to include a broader range of potential spheres of discrimination, identical to those for which the equality of opportunity obligation would apply under amendment No. 61. The danger is that, by extending clause 62 to cover all categories without having an extensive list of exemptions, common administrative practices could become unconstitutional.

Possible cases include state benefits for people with disabilities; minimum age thresholds for education, employment, voting and the age of consent; age thresholds for pensions; tax incentives for married couples; and tax incentives and state benefits for people with benefits. We therefore resist amendments Nos. 158 and 52.

As for amendment No. 53, we accept that there are circumstances in which affirmative action is right and necessary; but where that conflicts with the provisions in the Bill against discrimination, it should be clearly specified in the appropriate legislation, with explicit amendments to the legislation where necessary. That is also established by the fair employment legislation.

A general exception to the clause on the basis of affirmative action would, we believe, create great uncertainties in this complex legal field, especially if taken with amendment No. 51, which would outlaw indirect discrimination.

Amendment No. 54 is linked with amendment No. 172. We accept entirely that the recent judgment by the European Court of Human Rights does in fact affect the clause. We shall have to consider the implications for the clause of that judgment, but I would ask that the amendment be withdrawn in the knowledge that, as I said on Second Reading, we will look very carefully at the consequences of the court case in Europe.

Amendment No. 171 would create an exemption to clause 79(2) and (3). These subsections refer to direct discrimination in Acts of the Assembly and in executive functions. We do not believe that direct discrimination, even for purposes of redressing disadvantage, is acceptable. It may also contravene the European convention on human rights and European Union law. With those comments, I ask that the amendment be withdrawn.

Mr. McGrady

In view of the Minister's undertakings to the Committee, and of his reassurance that he will replace subsection (5) of clause 79, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clauses 63 and 64 ordered to stand part of the Bill.