HL Deb 17 June 1975 vol 361 cc767-843

2.50 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Donaldson of Kingsbridge.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Constitution and general duties of the Agency]:

Lord BELSTEAD moved Amendment No. 1: Page 1, line 10, after ("appointed") insert ("after consultation with the Northern Ireland Regional Council of the Confederation of British Industry, the Northern Ireland Committee of the Irish Congress of Trade Unions and the Northern Ireland Chamber of Commerce and Industry ").

The noble Lord said: I beg to move Amendment No. 1, and, with the permission of the Committee, I would speak also to Amendment No. 34. The effect of Amendment No. 1 is to require the head of the department of the Northern Ireland Department of Manpower Servies, before appointing members of the Fair Employment Agency, to be the main body under this Bill, to consult with the three organisations which took part in the Working Party on discrimination in the private sector of employment on whose Report this Bill is based. The powers and duties of the Fair Employment Agency are to be quite wide. There is the educational function which is to be found under Clause 2 of the Bill; there is the whole broadly constructive approach, found in Part II, which provides for the Agency to try to promote equality of opportunity; and there is the Agency's duty to prevent discrimination under Part III. In fulfilling, these powers and duties I submit that it is of the utmost importance that the members of the Agency should have the confidence of industry and commerce upon whom the provisions of the Bill will mainly fall.

Also, the provisions of the Bill will give the Agency every opportunity to try to approach its work by way of conciliation—trying to carry people with it. To succeed in this the members of the Agency must be tactful and persuasive and must have first-hand experience of industry and commerce. These qualifications will be specially necessary when surveys into employment patterns are undertaken under Clause 11 and when investigations are instituted under Clause 12. I support these two clauses because I do not believe that Part II will work without them. But if the Agency is to take the initiative under this Bill, and does so insensitively, considerable damage could be done to good industrial relations in Northern Ireland. Industrial relations there are a great deal better than often we believe. I am trying to make the point that the Agency will need to exercise restraint in the use of its powers. After all, rigid lines of demarcation which are to be found in the housing areas of Northern Ireland are not necessarily repeated when people go out of their housing areas to mix in sport or work or vocational organisations. Of course, it is true that the problem is to get people out of their housing areas in which they feel no longer threatened. It would be a disservice to the objectives of this Bill to exaggerate the problem of discrimination in employment in Northern Ireland.

I apologise for taking up the time of the Committee, but I thought that perhaps under Amendment No. 1 it was reasonable to say just a word or two about the general nature of the Agency. If my brief analysis of some of the responsibilities is correct, or even if it is not, the point is that members of this Agency must have knowledge and experience in order to understand how to use the powers which the Bill provides. The Report of the Working Party recommended that both management and trade unions ought to be represented on the Agency, which ought to be a composite body drawing on a wide range of experience, understanding and skill. To try to achieve this, surely the three organisations which were represented on the Working Party ought to be consulted about appointments to the Agency. It is for this situation that Amendment No. 1 provides. Once the Agency is in being members will presumably come and go, and to ensure that the original intention of this Amendment is not lost in the passage of time Amendment No. 34 also provides that consultation shall be repeated for future appointments. I beg to move.


I support the Amendment proposed by my noble friend Lord Belstead. I would ask the Government to consider a further addition, and that is the Chamber of Trade. The distributive trades in the United Kingdom are first of all larger in numbers of employers, and secondly they employ more people than any other part of our trade. Therefore, when this Bill—which comes into force in two stages; first for the larger firms and secondly for the smaller firms—is implemented we must involve the Chamber of Trade, which has the maximum number of employers, even if they are individually employing a small number. In the Government's consideration of this matter before Report stage, I should like them to consider the Chamber of Trade and maybe other organisations.


I should have liked to begin the afternoon by conceding everything the noble Lord, Lord Belstead, has asked for in this Amendment. I cannot go the whole way but can go a very long way with him. It is perfectly evident, as both noble Lords have implied, that to appoint a Fair Employment Agency without consultation with the parties mentioned would be simply ridiculous. We have no intention of such a thing happening. The difficulty is that it is never wise to tie down administrators too tightly. It is also technically defective to name non-statutory bodies in a Bill because their names may change. I wonder whether it would meet the noble Lord's intention if I gave an undertaking now, which my right honourable friend will repeat in another place, that the Department of Manpower will normally consult with representatives of employers and employees in making these appointments. I think this is everybody's intention; it is certainly ours, and if that assurance will satisfy the noble Lord perhaps he will withdraw the Amendment.


I am grateful to the noble Lord. In fact, the Amendment is even more technically defective than he was good enough to say, because already the expression "the Northern Ireland Regional Council of the Confederation of British Industry" is, I gather, wrong because its name has changed since the Working Party's Report was produced; it is no longer a Regional Council but the Northern Ireland CBI. I am afraid I got that point wrong in tabling the Amendment. At first sight the noble Lord's undertaking is extremely welcome. I should, however, like to think about it, but at this stage of the Bill I beg leave to withdraw the Amendment and thank the noble Lord for going what is I think a long way towards meeting my point.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Meaning of "equality of opportunity"]:

2.59 p.m.

Baroness BACON moved Amendment No. 2: Page 2, line 23, after ("different") insert ("or no").

The noble Baroness said: I beg to move the Amendment standing in my name on the Marshalled List. I do so not because of my own beliefs, but because of representations I have received from people I know well in Northern Ireland. Clause 3(1) defines, "equality of opportunity" as, equality of opportunity between persons of different religious beliefs". What, then, of those who have no religious beliefs? Are they protected against discrimination? When one noble friend of mine saw this Amendment down he asked: "Are there any people in Northern Ireland without any religious beliefs?" Strange as it may seem, the answer to that is, Yes, although when we see what religion has done to Northern Ireland I am amazed that there are not more people over there without any religious beliefs.

The purpose of my Amendment—to insert the words, "or no"—is to make it quite clear that those with no religious beliefs are protected against discrimination. Its effect would be that Clause 3(1) would read: In this Act 'equality of opportunity' means equality of opportunity between persons of different or no religious beliefs". I know that in his reply my noble friend will refer me to the interpretation clause, which is Clause 53 on page 35.


That is quite right.

Baroness BACON

It was my intention also to seek to amend Clause 53(2) on page 35, which reads: In this Act references to a person's religious belief or political opinion include references to this supposed belief or opinion and to the absence of any particular belief or opinion". I know that my noble friend will argue that this subsection makes it unnecessary for my Amendment to be passed, but it is the word "particular" in this definition which is worrying some of the people whom I know in Northern Ireland. One person who has made representations to me is a lawyer, and if it is not clear to him I am sure that it will not be clear to those who will have to administer the Bill.

Clause 53(2) ought to read: … the absence of any or any particular belief or opinion". By leaving the interpretation clause as it is, it seems that there is a difference between those who believe but who belong to no particular Church, and those who do not believe at all. Therefore, I think that my noble friend ought either to accept my Amendment or to change the interpretation clause, Clause 53.

Another point that we must bear in mind is that the terms that we use and understand here are not necessarily understood in the same way in Northern Ireland. That reminds me of the experience of a friend of mine in another place who was very interested in Northern Ireland affairs and visited Northern Ireland from time to time. On the first occasion when he went there some years ago, he was talking to a group of people and a man said to him before a meeting started: "Let's get it clear. Are you a Catholic or a Protestant?" The Member of Parliament replied, "I'm a Jew". There was a long silence and then the man said, "Ah, yes, but are you a Protestant Jew or a Catholic Jew?" It seems to me, since the interpretation clause does not appear to be clear, that my Amendment to Clause 3 would put the matter beyond question. I hope that it will not be resisted. It cannot harm the Bill in any way to insert the words "or no", and it would make the position perfectly clear in Northern Ireland. I beg to move.


I hope that the Minister will give a sympathetic reply to the plea which my noble friend Lady Bacon has made. The noble Lord, Lord Donaldson of Kingsbridge, will be aware of the contribution which those who do not accept the theology of either Catholicism or the Protestant Church are making in Northern Ireland. They are independent and neutral in the struggle between the Catholic and Protestant populations, and the Humanists in Northern Ireland are now making a very great contribution indeed towards conciliation between the opposite sides in Northern Ireland.

My noble friend has pointed out that this clause may be interpreted as referring only to Protestants and Catholics. There are many others in Northern Ireland, even if they be a minority, to whom no discrimination should apply. As the noble Baroness has indicated, there are those of the Jewish race, and there are those like myself who are Humanists who do not accept the theology of the Churches, although I would not deny that we have a religious background. When any measure for no discrimination is brought before this House, it is very desirable that it should include those who are not Catholics and not Protestants. Particularly because of the very great contribution which they are making at the present time towards conciliation in Northern Ireland, I hope that the Minister will give a very favourable reply to the appeal which my noble friend has made.


I should like to say a word in support of my noble friend's Amendment. There may be persons who are of a particular religious belief or Christian sect, but there may also be others who are genuine agnostics and are not members of any religious sect—Christian, Jewish or other—who are also not convinced atheists. It seems to me that as it now stands the clause assumes that everybody has a religious belief of some kind or another, and does not allow for the genuine agnostic. On those grounds, I should like strongly to support my noble friend's Amendment.


May I suggest to my noble friend that there is much to be said for this Amendment in another context? Religion and politics have become so closely intertwined in Northern Ireland that we tend to think in terms of religion when a person wishes to argue a political case. I tried not to do so at meetings over there in the days when I had something to do with it, but almost inevitably one came back to the question whether one said one's prayers in Latin or in English. It has almost reached the stage, as in Glasgow, where a person who is a supporter of neither Rangers nor Celtic gets the rejoinder, "Well, you're an atheist".

If we are to achieve a more peaceful approach to political matters in Northern Ireland, it would be very good if those people of very strong religious beliefs did not express their political opinions from a religious point of view. I am aware of people in Northern Ireland who are quite devout Christians of one kind or another, and who detest the thought that they cannot speak in public without being deemed to be carrying the flag on the religious grounds that we know so much about. If we could make it quite clear that in the politics of Northern Ireland we would welcome greater concentration on their economic problems in the way that we on the mainland are used to, it would be a great advantage. We could then begin to focus our thoughts on those very difficult economic and industrial matters which have been the curse of Northern Ireland for so long, and which at the moment do not seem to be capable of solution. If the Minister could accept my noble friend's Amendment, it would do much to ensure that the political issues become more closely related to those matters to which we would like to see them related, rather than to the background of religion.


May I ask the noble Lord whether he can explain something which seems to me to be peculiar, in that Part II of the Bill uses religion throughout whereas Part III uses religion and political beliefs? May I add to what the noble Lord, Lord Lee of Newton, has brought out so very clearly—that this is not a war between people holding one religion against people holding another religion. It has nothing to do with that. Religion operates in a terrorist situation. But there is no war between Protestants and Catholics as such. It is a war between a small minority of gangsters who may or may not have the political beliefs of their parents.


I, too, hope that my noble friend Lord Donaldson of Kingsbridge will give sympathetic consideration to this point. Indeed, I am sure he will. I have known that for a very long time there have been agnostics in Northern Ireland. I remember when I was Lord Chancellor and went to Belfast where the Bar, as in Edinburgh, do not practice from Chambers but from the Library, I was told then that normally all the Protestant barristers sat at one end of the Library and the Catholic barristers sat at the other end; but latterly this practice was rather breaking down because of the increase in the number of young barristers who were agnostics.


I should like to add one point. As our law stands at present a person can affirm; consequently, if we adopt the same principle in so far as this matter is concerned, obviously something in the nature, if not in the actual terms, of my noble friend's proposed Amendment should be clear in the Bill.


While completely agreeing with the thought behind this Amendment I should like to point out that its acceptance would lead to considerable difficulties in the re-drafting that would be necessary in subsection (2), because this would need to read: any person of any or no religious belief has equality of opportunity with a person of any other or no religious belief". It would be almost impossible to word it. Therefore, I wonder whether it might be more appropriate to substitute "conviction" for "belief". This would have the same effect. It would mean that a person had no belief but had a religious conviction; namely, that he was an agnostic or a Humanist.

While I am speaking I should like to say how much I agree—and that does not happen very often—with the noble Viscount, Lord Brookeborough, in his surprise that difference of political opinion is not included in equality of opportunity, whereas it is included later on in questions of discrimination. I should like subsection (1) to end with the words "between persons of different religious convictions or political beliefs".


When the noble Lord considers this point I hope he will look at it all round. I feel that the suggestion just made by my noble friend would hardly meet the case, because a person who is an agnostic has no religious conviction either for or against. I do not think the drafting difficulties would be insuperable.


A lot of ammunition has been used on this point, and if I had been asked to speak at the beginning I could have saved a good deal of time because the Government are absolutely clear that they totally agree with this Amendment. Of course the intention of this Bill is that a conscientious agnostic—or he need not be conscientious—or an athiest is subject to the Bill in exactly the same way as a member of any religion. My advisers, who are pernickety on this sort of thing, do not like tautology and they say that this Amendment would in fact be tautologous. I think they say that it is perfectly clear that a religious belief includes a belief in nothing or a doubt about belief, and it is certainly clear that Charles Bradlaw was excluded from the House of Commons for many years because of his religious beliefs.


If I may interrupt my noble friend, he has indulged in an historical inaccuracy. Charles Bradlaw was not excluded from the House of Commons because of his religious beliefs; he was excluded because the Conservative Party refused to accept his beliefs. As a matter of fact, Mr. Bradlaw never refused to take the Oath; he was prevented from taking it.


I am most grateful to my noble friend. Shall I say that Charles Bradlaw was excluded as a result of his religious beliefs? Would that perhaps meet the case more accurately? I do not wish to mislead the Committtee in an historical question. However, there is a perfectly easy way of dealing with this, which was hinted at by my noble friend in her discussion of the Amendment which was to deal with the definition in Clause 53(2). As my noble friend said that reads: In this Act references to a person's religious beliefs or political opinion include references to his supposed belief or opinion and to the absence of any particular belief or opinion. I am quite prepared to modify that, if my noble friend would be satisfied, by adding the words: and the absence of any, or any particular, belief or opinion". My advisers tell me that it does not make any difference, but the noble Baroness is entitled to her view and in order to satisfy her I will on Report—the Amendment not having been made in this form—undertake to bring in something along those lines.


I am a little worried at finding political opinion and religious belief apparently being equated in subsection (2) of the interpretation clause. While clearly it would be wrong to discriminate in any job on religious grounds or on the absence of religion, surely there is a number of security jobs in which one would wish to discriminate against communists, or it may be, in certain instances, fascists? I should have thought that to employ communists might be very difficult indeed.


I do not want to pile one difficulty on top of another, but in Ulster one difficulty is that there are Catholic newspapers and Protestant newspapers. If I were a Protestant going for a job on a Catholic newspaper perhaps I should not be very welcome and I might be told that I am unsuitable. How will that situation be affected, either in the Bill as it stands at the moment or in the Amendment moved by my noble friend?


Before the noble Lord replies to that—and I rather think there is a convincing reply to that question—may I just remind him that he has not replied to a question put by my noble friend Lord Brookeborough, and repeated by the noble Lord, Lord Kilbracken? I think at this stage of the Bill it is important that the noble Lord should explain to the Committee why it is that Part II refers only to religious discrimination, whereas Part III refers to both religious and political discrimination.


I was not trying to dodge that question, but it clearly does not arise out of this Amendment. I naturally thought we might deal with it in its proper place.

Baroness BACON

I should first like to thank all those noble Lords who have supported this Amendment, and particularly my noble friend for the reply he has given and for his willingness to change Clause 53(2), because that would suit me admirably. To be quite honest, after I had tabled this Amendment and when it was too late to table an Amendment to Clause 53, I realised that my wish might have been better accomplished in Clause 53 rather than in Clause 2. I am very grateful to my noble friend for his assurance and wish to thank him for it, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 3 shall stand part of the Bill?


I think that now is the time when the noble Lord might answer.


If the two noble Lords who raised this point had been able to attend the Second Reading debate, they would have heard my answer, but I am happy to give it again. The position is that Part II of the Bill deals with the positive duty to provide equality of opportunity. Part III of the Bill deals with the negative fact of discrimination in giving people jobs. As I think my noble friend pointed out, the former is a position where it would be wrong to insist, in a blanket way, on political opinions being ignored.

On the other hand, in the specific cases of discrimination, where it is alleged that an employer refuses a man because that man is a member of the Party, it is a case where political opinions, in our view, should be taken into consideration. One has a positive and a negative conception. They are different. When we come to the clauses later on, noble Lords will note that the root of appeal is different. We have an Amendment about this under the next clause which I will leave until then. Under Part II there is a non-judicial appellate body. Under Part III of the Bill, appeals go to the courts. One is a question of general behaviour and morals, the other is a legal question. I do not know whether that answers the noble Lord, Lord Belstead.


I must press the noble Lord a little more, not because I am deliberately trying to be difficult for the sake of it, but because this is a chance to elucidate a Bill, not very easy to understand, at least, if one is not a lawyer. I agree with every single remark the noble Lord has made, with the exception of one phrase which caused me some apprehension. The noble Lord said, as his noble friend had said—and this was one of the noble Lords who had spoken—that it would not be right to ignore political opinions. As I understand the wording of Clause 3(1), this is precisely what will happen. Equality of opportunity will be decided on the question of religious belief, or lack of it, but not on the question of political opinion. I genuinely wonder why the phrase "political opinion" has been left out of Clause 2.


This follows the van Straubenzee Report exactly. It was their exact recommendation, and we agreed with them. The arguments are fully set out. The noble Lord may want to go through them again; I do not know. This Bill follows the van Straubenzee Report with which the noble Lord's Party, and mine, and the various people concerned, such as the TUC and the CBI, have all agreed. This is a subtle point—




—but one which seems to be valid. I do not think by restating it one makes it any clearer. One is a positive duty, and the other is an active breach of the law which is suggested. These are two quite different things. I really do not think I can take it any further.


Surely we would say that on this side of the water there was equality of opportunity, quite apart from political opinion. But it is also true that if a noble Lord on the Benches opposite were to apply for the appointment of Secretary of the Labour Party, it is unlikely he would have an equal chance of getting the job with someone already in the Labour Party. This is on a totally different footing from discrimination on grounds of race or religious belief. All jobs are not all equally open to all people, because they require certain qualifications. One of the qualifications for political jobs is to hold certain political opinions.


I am most grateful to the noble Baroness, Lady Wootton of Abinger.


I should like to raise a point on the Question, Whether Clause 3 shall stand part of the Bill? I do so now because I do not think my point fell within the ambit of Amendment No. 2. I ventured to suggest on Second Reading that it might be preferable for the term religious affiliation" to be substituted for the term "religious belief". After all, the religious discrimination with which we are trying to deal, to the extent that it still exists in purely religious form, is based on affiliation and not on doctrine. A great many people have pointed this out over the years, notably Mr. Harold Jackson, former correspondent of the Guardian in Belfast, in an excellent pamphlet published by the Minority Rights Group. Nobody throws stones at another person in Northern Ireland because of their belief or non-belief in the 39 Articles, or the doctrine of Trans-substantiation. It is basically a question of religious affiliation, which is thought to be connected with political affiliation.

The second point is that "affiliation" is surely a more precise and objective term than "belief", which is inherently a subjective and vague term. Retention of the word "belief" can lead to undesirable and unforeseen anomalies, as I tried to point out on Second Reading. Have the Government been able to give any further thought to that point?


It seems to me that "affiliation" would not stand up to the Amendment we have just accepted from my noble friend. The agnostic is not affiliated as a rule; some belong to certain bodies, but most are just ordinary people who do not agree with one. I do not think the noble Lord, Lord Monson, is making a helpful suggestion. I do not believe this would make it either more clear or easier to operate. "Belief" is a clear word; we all know what we mean by it. It does not take a lawyer to confuse it, and it would be a great mistake to bring in a different word which has another connotation.

Clause 3 agreed to.

Clause 4 [The Fair Employment Appeals Board]:

3.28 p.m.

Lord BELSTEAD moved Amendment No. 3: Page 3, line 24, at end insert ("who shall be legally qualified").

The noble Lord said: There is a great deal to be said in Part II of this Bill for making every effort to try to avoid recourse to law, and to promote equality of opportunity by agreement, not by going to the courts. But the fact is that if agreement ultimately cannot be reached under Part II then it will be necessary to have the final decision by way of appeal under Clause 14, and enforcement by way of injunction from the county court under Clause 15.

I think I am right in saying that the Working Party did not recommend an Appeals Board. This is something which appears in the Bill, but which did not appear in the Report. The Working Party only recorded that there ought to be a right of appeal for judicial review—those were the words used in the van Straubenzee Report—of the Agency's directions. Because this is to be the function of the Appeals Board in so far as Part II is concerned, then I should have thought it was a logical conclusion that the chairman at least of the three-man Appeals Board ought to be a lawyer. I should have thought this would fit in with a recommendation for a judicial review. As such, he would hold an independent position. He would provide the legal knowledge which surely must be necessary, especially as Schedule 4, paragraph 3 provides that both the appellant and the Agency can be represented by solicitor or counsel at the hearing of an appeal. I would hope that this Amendment would leave the way open for the other two members of the Board to represent possibly the various sides of industry and commerce. I beg to move.


This is not a point on which the Government feel very strongly. On the whole, our view is that because Part II deals with the positive moral duty rather than the legal breach, it is better not to insist on a judicial chairman, even though if the right person who had a judicial capacity seemed to turn up there would be no objection. If one looks around your Lordships' Committee, I can pick out half a dozen people—I look not only in front of me; I know who is behind me—who would be eminently suitable to be chairman of a Board of this kind, and who are not legally qualified. Therefore, I should be sorry to accept the Amendment, simply on the grounds that it is tying the hands of the people who have to appoint for this very difficult job in a way not really necessary. If the noble Lord and his friends feel very strongly about it I will look at it further, but I believe it would be a mistake. I think it is better simply to choose the best person, man or woman, lawyer or layman, whom you can find. I hope the noble Lord will not find it necessary to press this Amendment.


There is no question at all of pressing anything at this stage. So far as I am concerned, we are here in the Committee stage to find out as much as we can about a Bill which I am not finding easy to follow. Possibly some decisions—I hope by agreement—can be reached at a later stage. May I just make one point? The noble Lord says there is a positive moral duty under Part II. I hope I have made it clear that this is something with which I absolutely agree; I think it is right. But there is a difficulty. If an employer is hauled up for breach of this positive moral duty, it will be very serious indeed for the employer, it will be widely known that he has fallen foul of these perfectly correct provisions, as I consider them, in Part II. Noble Lords may say that such an employer has his desserts, but none the less it will be important and possibly even tragic for an employer if things go wrong. For that reason not only should justice be done but it should be seen to be done. I should be grateful if the noble Lord would think about it again before we get to the next stage.


I will certainly do that. The noble Lord said, "If he was hauled up for a breach". Being hauled up for a breach would be under Part III and therefore there would be legal recourse to the court.


This position of Chairman of the Fair Employment Appeals Board will be a very important one, because we have already recognised in the preceding clauses of the Bill that differences and disputes are likely to arise over the employment or non-employment of Catholics on the one hand, and Protestants on the other. Therefore, may I ask: how is the impartiality of this Chairman of the Board to be viewed, if he happens to be a Catholic, on the one hand, or if he happens to be a Protestant, on the other, and he has to adjudicate between an aggrieved Catholic employer and a Protestant, or the other way round? I recall that over 30 years ago, in my newspaper days, we had a staff reporter in Belfast. We recognised the great difficulty of having either a Catholic or a Protestant, so we had a Jew and he did his job very well indeed.


May I just ask the noble Lord, before he replies to that point, about a point on which I may be misled? I used the off-hand expression about being hauled up. My reading of the Bill is that if, after directions have been given—and the word is "directions"—for remedying certain practices where an employer has not provided equality of opportunity, there is no conciliation and it is quite clear that the employer will not comply with those directions, then we come to Clauses 14 and 15, which are still under Part II and not under Part III, when we come to the court. I should be grateful if the noble Lord could say whether I have got that right. He said I was mixing up Part II with Part III.


May I first deal with my noble friend's point? The choice of Chairman for a Board of this kind will be based on his integrity, in the same way as the choice of our Chief Constable—recently knighted, I am delighted to see—and of the Lord Chief Justice as Chairman of the Convention. One is a Catholic, the other is a Protestant. We still have a number of individuals in Northern Ireland whose integrity is beyond reproach, and that will be the basis of the choice. As to the point raised by the noble Lord, Lord Belstead, I think I should explain. It may be that an employer is doing something which the Agency thinks gives less than fair employment. The Agency approaches the employer, discusses it with him, makes suggestions as to what he should do, and the employer after long discussion refuses. That is the crunch position. The Agency then gives him a direction to do something, but cannot enforce it; it can enforce it only by going to the court if the employer refuses to do something. That is the final situation, and it is true to say that in that final situation—which normally should not arise, because there are so many steps between the first discussion and the final disagreement—the noble Lord is right in saying that this goes to the court in the end. So to that extent I modify what I said.


I thank the noble Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Guide to manpower policy and practice]:

3.37 p.m.

Lord BELSTEAD moved Amendment No. 4: Page 3, line 34, after ("Agency") insert ("the Northern Ireland Regional Council of the Confederation of British Industry, the Northern Ireland Committee of the Irish Congress of Trade Unions and the Northern Ireland Chamber of Commerce and Industry").

The noble Lord said: I beg to move Amendment No. 4, and as this deals with consulting various bodies in the drafting of the guide to good manpower policy and practice under this Bill, and the noble Lord has already been good enough to say that in principle this is something that will be done, I think the Committee can reasonably conclude that I shall not press the Amendment. But I should like to say a word for a rather different reason, of which I think the noble Lord is aware. The guide to good manpower policy and practice for which this Bill makes provision is central to the whole importance of Part II of the Bill. If anyone doubts the need for having Part II in this Bill, although I may have sounded critical so far, I should just like to ask a simple question. How can it be hoped to legislate for people's actions if the legislation does not first try to create good intentions among those concerned?

On Second Reading, the noble Lord, Lord Donaldson, answered a possible criticism, that an Act of Parliament does not alter how people behave. I remember the noble Lord quoted from the Working Party's Report, which in broad terms showed that a law can create a general climate of improvement, and he concluded that this Bill seeks to afford fair employment, "by adopting a mixed approach combining the voluntary with the compulsory". Surely it is the voluntary part of this Bill, Part II, which has to do with the mixed approach. In that sense, therefore, Part II is an absolutely vital ingredient in the provisions of this Bill. The guide to which this Amendment refers is the cornerstone of Part II, which is why I begged indulgence to be allowed to speak on it for a moment.

Although Clause 5(4) provides that in carrying out its functions the Agency "may have regard" to recommendations which will be in this guide, I believe that that document is bound to become the book of reference for both the Agency and the Appeals Board. It was for those reasons that in tabling this Amendment I felt it was important that all sides of industry and commerce should be consulted when the guide is being prepared. For the reasons I gave, I am certainly not going to press at any stage that this should be written into the Bill, but I should like to ask the noble Lord for an undertaking that the Department will ask individually for the views of the CBI, the trade unions, the Chamber of Commerce and Trade, while the guide is in draft, not as part of the operation under Clause 5(2), which covers publication of the guide, but as part of the compilation of the guide.

While I am still speaking to this Amendment, may I ask the noble Lord about two other points? In Chapter 8 of the Working Party's Report, Mr. van Straubenzee set out in detail points which they thought could be included in this guide. At this very early stage of the Bill, do the Government envisage any major departure from, or addition to, what the Working Party recommended? Secondly, will the Government undertake by some means to bring the contents of the guide, when finally prepared, to the notice of Parliament? Otherwise I can foresee this part of the Bill, which is the cornerstone of Part II, once this Bill has passed, never being seen again by this House or another place.

3.40 p.m.


The noble Lord is quite right. It would be ridiculous to draw up a guide of this kind without consulting the people concerned, and there is no intention to do so. I can deal with that part of his speech and his Amendment by giving the same assurance that I gave before. I will give the assurance—and my right honourable friend will repeat it in another place—that the representatives of employers and employees will be consulted by the Department in preparing the guide. That is specifically and clearly elementary. As to what is in the guide, as your Lordships will probably remember the Working Party laid down a certain number of points, and as a result of their suggestions the Government undertook to have a firm of consultants draw up a guide taking these points into consideration and also looking at other guides of an equivalent kind; we have some in the industrial relations field, and so on.

The job of drawing up the guide is, under Clause 5, that of the Department of Manpower Services which has taken over that part of the Department of Health and Social Services which was, in the Working Party, given the duty, but for all intents and purposes it will be more or less the same people. There will be extensive consultations. Without knowing exactly in what form, I am happy to give an undertaking that the contents will be shown to Parliament. Whether it will be put in the Offices, or whether by that time there will be an Assembly and it will be done over there, I do not know. But, in principle, when the guide is drawn up and agreed on it must be made clear and open to Parliament.


I am grateful to the noble Lord. If the Assembly is sitting again, under a later provision of the Bill they presumably will see the details of what we are talking about because they are to receive an annual report. My worry was that, if that was the case, Parliament would probably never see the details of the guide. But the noble Lord has given me a full answer, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7 [The Register of Equal Opportunity Employers and Organisations]:

3.43 p.m.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 5:

Page 5, line 12, at end insert— ("( ) Where a name is removed from the register under subsection (2)(b) (iii), the notice under subsection (3) shall inform the employer or organisation of the right of appeal conferred by section 8.")

The noble Lord said: This Amendment is a purely drafting Amendment. Its objective is to achieve consistency with other provisions of the Bill. It is a question of giving notice of the right to appeal, and it is given in Clauses 13(4) and 22(3) but not here. We think that it should be given here. It is giving the employer extra advice of his rights. I do not think that I need say more about it, though I shall be happy to do so if your Lordships want further details.


I think that most of the noble Lord's Amendments are of a drafting nature, and I shall certainly not keep on interrupting. However, on this one point may I welcome it. I am not sure whether it would not be right to at least consider whether there should be a right of appeal before someone is struck off. The noble Lord may say to me that that would not be consistent with Clause 13, because under Clause 13 if somebody is found not to be offering equality of opportunity then there is no appeal; the appeal is against the remedies, the directions, to put the matter right. If you cannot appeal under Clause 13 against the finding, then presumably it would not be right to appeal against the finding that one ought to be struck off the register.

Are we right in having no appeal either under Clause 13 against findings, or under this clause against the decision that somebody should be struck off the register? Your Lordships will realise why I raise the point. For somebody to be struck off will be a traumatic experience. Goodness knows what it will mean to some employers, and particularly when this Bill comes into operation and smaller employers come within its scope!


I am a little at sea because this has nothing to do with the appeal beyond informing the offender of his right of appeal. Surely we cannot object to that.


I have used the opportunity of the Amendment to put a point to the noble Lord which is not part of his Amendment.


The problem here is that you cannot do both. At the moment we give the right of appeal to the man who is struck off the register. Surely this is sound. I am not quite sure what else the noble Lord is asking should be done.


Appeal before he is struck off.


Appeal before he is struck off? Against what?


Over the intention.


This would be very elaborate and unusual. I do not think that you can appeal against an intention. If you are being pursued by a body who suggest you are breaking the agreement and not giving fair employment, I do not think that you can appeal until that body has done something about it.


I hope that the noble Lord does not mind my raising this because appeal does come up later on, and I shall bring it up under Part III. If the noble Lord would glance again at Clause 7, which is the clause we are on, subsection (2)(b)(iii), he will see that the decision to strike off includes the occasion when there has been an investigation. The point, in essence. I am putting is that if the Agency conducts an investigation it is not always to be assumed that it will reach the right conclusion. As this is Committee, I am probing the matter. At least it is reasonable to probe whether if, after an investigation, the Agency reaches the conclusion that this employer ought to be struck off the register, it might be fair to say, before the act of striking off is carried out, that there shall be the possibility of an appeal.


I am quite prepared to look at this. On the face of it, it does not seem to me to be right. It has not been suggested before by anybody. It is an additional insertion. I have not thought about it. I should have thought that it was unnecessary. One has to visualise that this is being done, one hopes, in a civilised way. You have a company making its living, you have an Agency that is trying to ensure something which everybody says they believe in, and the Agency comes to the company and says, "I think that this is not a very sound way of recruiting your men. I think it is unfair." Surely they then discuss that, and it is only when it gets to the next stage that the trouble really arises. I do not think that the Fair Employment Agency would say, "We have now decided to strike you off", and that between then and when they did strike them off there would be a period during which that appeal would be relevant. I do not get the point. I am not hostile to it. I shall look at it again.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clauses 8 and 9 agreed to.

Clause 10 [Offences in relation to Section 7]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 6:

Page 6, line 36, leave out subsection (2) and insert— ("(2) Where an individual or a body corporate is required by a notice under section 7(3) to return a certificate to the Agency and fails without reasonable excuse to do so, he or it shall be guilty of an offence.")

The noble Lord said: This again is not exactly a drafting but a clarifying Amendment. Its object is to distinguish between incorporated bodies which can be dealt with as individuals, and unincorporated bodies which have to have an individual nominated before you can put a duty on them. It is as simple as that. This appears three times: on page 6, lines 36, 39 and 41. These are three different Amendments but I hope that noble Lords will find each of them acceptable. I beg to move Amendment No. 6.

On Question, Amendment agreed to.


I beg to move Amendment No. 7.

Amendment moved— Page 6, line 39, leave out ("organisation") and insert (" unincorporated body")—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.


I beg to move Amendment No. 8.

Amendment moved— Page 6, line 41, leave out ("organisation") and insert ("body")—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clauses 11 and 12 agreed to.

Clause 13 [Undertaking or directions for remedying of certain practices]:

3.55 p.m.

Lord BELSTEAD moved Amendment No. 9: Page 8, line 41, leave out ("either generally or")

The noble Lord said: With Amendment No. 9 I should like to speak to Amendments Nos. 10 and 18. The effect of these Amendments would be to prohibit the imposition of employment quotas to which the Agency might resort in order to try to achieve a theoretical balance of denominations at a place of employment. On Second Reading the noble Lord, Lord Donaldson of Kings-bridge, speaking for the Government, acknowledged the danger of concluding that a study of employment trends which comes in Clause 11 (to which we have now agreed) might lead to a system of quotas. The noble Lord recorded the Working Party's rejection of such a conclusion, and then declared that the Government would have nothing at all to do with employment quotas.

Why, then, have I tabled these Amendments? It is because, although I accept absolutely the assurance given by the noble Lord, I believe that the Bill as drafted could encourage the view, and I certainly believe it could allow a future Government to conclude, that quotas could be a natural consequence of surveys and investigations. Clause 11 provides for surveys of employment patterns. I accept this provision because I do not see how the Agency can be properly prepared to undertake more specific investigations under Clause 12.

Clause 12(1) provides for those investigations. Again I accept that. We all hope that these investigations will lead to conciliation about which the noble Lord spoke on an earlier Amendment. That surely is a primary purpose of this Part of the Bill. I also accept Clause 12(2), which gives wide powers of investigation, including investigation of previous employment practices which is a necessary ingredient in order to protect the existing position of the employer.

It is the wording of Clause 13, which prescribes the remedies if an investigation reveals failure to provide equality of opportunity, which I think could lead to the Agency imposing employment quotas. Clause 13(1) reads: Where … the person concerned has failed to provide equality of opportunity, either generally or in relation to any class of persons, the Agency shall use its best endeavours— (a) to secure that he takes such action to ensure equality of oportunity as is, in all the circumstances, reasonable and appropriate, and then (b) provides for a written undertaking to he given.

On reading subsection (1), surely one is driven to the conclusion that if a person fails to provide equality of opportunity generally then the only action which the Agency can logically take is to give general directions that the position ought to be balanced, and I should have thought that this meant a quota. That is the reason for the first Amendment. It is not really a probing Amendment. In fact I should think that the words "either generally or", are in themselves misleading and ought to be omitted.

The second, rather longer, Amendment clarifies the matter. I will not embark on the reasons for resisting the idea of quotas. The case was very fully developed in Chapter 5 of the Working Party's Report, and this I know the Government accept. My sole objective is to ensure that the Bill does not inadvertently encourage or even allow quotas, and I hope that the Amendments achieve that aim. I beg to move.


The question of employment quotas has been raised May I ask my noble friend precisely how is it intended that equality of opportunity is to be achieved? I want to give a particular example of the kind of difficulty I foresee. There is a Catholic enclave on the East Bank of the Lagan, Short Strand, with which I have recently become rather intimately acquainted. There is an unemployment rate amongst employable males of over 50 per cent. In the middle of the Short Strand there is a factory—which I will not name unless pressed—which employs nearly 2,000 people. Of these 2,000 people in a wholly Catholic area—99.9 per cent. Catholic—all but six are Protestants. They come in each morning, sometimes under military escort, and they march out each evening. It seems to me clear that equality of opportunity cannot be said to exist in these circumstances. But what precisely is the Agency going to try to do? Is it going to say, "This is a wholly Catholic area and therefore the workers should be wholly Catholic"? Or is it going to say, "Two-thirds of the inhabitants of the Six Counties are Protestants and therefore two-thirds of the workers should be Protestants?" On what basis is it going to work, and where you have a situation where there is a large and thriving factory with an entirely Protestant workforce, how can you change that situation so that equality of opportunity exists? It is not something that can be done in a couple of weeks. I wish we could have some guidance as to how it can be hoped to achieve equality of opportunity.

Another example is the Harland and Wolff shipyards which will be State owned, so that the State will be the employer. It is all very well to talk about this wonderful ideal and the ideal of doing away with discrimination, but I should like to know more about the principles that the Agency will follow.


First, I should like to tell the noble Lord that the reason why I was not here at Second Reading—although I have read the report of his speeches—was that his right honourable friend in another place determined that I had to stand for election. The Second Reading was during the election and I apologise for not being here. After listening to the noble Lord, Lord Kilbracken, may I say that the question of discrimination is not by any manner of means the sole property of any one side, and in areas which I know extremely well there is just as vicious discrimination in employment as anywhere else. But one must realise that where a company is making money and has a contented labour force it is very dangerous and difficult to interfere. I feel that the whole tone of this debate and of the Bill indicates that this subject will be very delicately handled indeed. One should remember—and we shall refer to this on a later clause—that in some of the areas where the problem exists it is the employees who make for the discrimination, by making it impossible for somebody else to be employed. The responsibility lies there, and later we will be referring to this.

In my view, this question of discrimination is very much exaggerated. We all heard before the Ombudsman came in what the likely outcome would be. Many people in Great Britain imagined that there would have to be five Ombudsmen working absolutely flat out, but in the end the total number of cases with which the Ombudsman had to deal was very small and he found that the level of administration in Northern Ireland was very good. Thus, I do not see that this will be a very big problem, because in my view the whole approach will be gradual for, despite the difficulties, industrial relations in Northern Ireland have been quite outstanding and the small amount of time lost through strikes has been a great factor. We must be careful—it is on this point that I particularly support the remarks of my noble friend Lord Belstead—on this question of quotas, because what area is one to use? Is one to use a ward, a county, or what? It is absolutely vital, therefore, that this question of quotas is completely outlawed and every possible Amendment that will secure that should be accepted.


I find this a rather difficult matter. I do not think there are many employers in England, who are employing on a fairly large scale, who have the slightest idea of the religion of their employees. Indeed, in my view they would consider it an impertinence to ask. I am bound to say that if I were preparing the guide which we are discussing, the first thing I should be inclined to put into it are words to make it illegal to ask anybody what is his religion. Unless one has inquiries and registers, which would seem to put people into two camps anyway, how is this report to be prepared and how does one work out whether or not there is fairness?


I strongly support this series of Amendments moved by the noble Lord, Lord Belstead. There are two main objections to a quota system. The first and, I suppose, most important is that it accentuates religious consciousness rather than diminishes it, which is exactly the opposite of what we are trying to achieve. The second is that in the event of the Government retaining the word "beliefs" in Clause 3, as they obviously intend to do, then to achieve any balanced quota to cover every permutation and combination of religious beliefs would be the work of several years. For those two reasons alone this Amendment should be given the most serious consideration.


We have swung away from the Amendment to a number of Second Reading speeches, although I do not object to that. This is a very important Bill and it is the meat rather than the nuts and bolts with which people are concerned. But it would be helpful if we could deal with the Amendments as they arise and have the more general discussion on the Question, Whether the clause shall stand part; that would certainly help me.

When I first read the Amendment, I did not know what was its object. Now I know that it is to make sure that there is no truck with quotas, I would only say that the Government are absolutely determined that there should not be; it is an essential part of the Bill that there should not be and there is nothing in the Bill to the contrary, despite what the noble Lord said to suggest that there will be. If the phrase, "either generally or" is taken out and one is left with "or", one will have the Agency confined to the examination of specific trades. In other words, the Agency could not say about a factory as a whole, "There are 20 different trades here and there is discrimination throughout the factory." It could say only, "There is discrimination among the transport drivers" or something of that sort. This would be limiting the powers of the Agency and would be doing nothing to further what we are all trying to do.

On the question of quotas, these would be directly contrary to the Bill. There cannot be any doubt about it. The Agency must deal with all failures to provide equality of opportunity. The Amendment to Clause 24 would have a similar effect, in that if the Agency found a failure to provide equality of opportunity during investigation under Clause 12, it could act only under Clause 13 to seek a remedy if the failure related to a class of employees, as opposed to employees generally. This is not the point at which the Amendment is directed, but it is what it would achieve. As I see it, the Amendment would not help us over quotas, but it would tie the hands of the Agency in a way which I do not think any of us want to do.

I hope, therefore, that the noble Lord will not press the Amendment. I think the subject of quotas will arise again a little later and I am prepared to discuss that at length, because it is absolutely fundamental to our whole attitude. If one said, "You must appoint this man but you must not appoint that man, because one is a Catholic and the other is a Protestant", then that is discrimination on account of religion in the clearest possible way. I really believe that noble Lords are pursuing a will-o'-the-wisp here. The Government are absolutely sure that this is not the way to proceed, and the Bill does not suggest for one moment that it is. I respect the noble Lord's fear that something might be read into this clause, but I assure the Committee that it is a figment of his imagination and I therefore hope that he will not find it necessary to press this Amendment, because it will achieve almost exactly the opposite of what he wants to achieve.


There is nothing between the two sides of the Committee and the noble Lord has made quite clear what it is we want to achieve. Certainly, all noble Lords who have spoken would not want quotas imposed and the noble Lord, Lord Monson, gave two good reasons why not. I hesitate to cross swords with the noble Lord, Lord Donaldson of Kingsbridge, when he is so well advised and when any drafting which is necessary is in much better hands than it could be in mine. Nevertheless, I ask him to look at the Bill before the next state to ensure that he is absolutely right in saying that my Amendment would tie the hands of the Agency and would, by its wording, confine it to investigating only particular trades.

I ask this because when I look at subsection (2) of Clause 12 I find it quite clearly said that the investigations which the Agency will carry out shall be, (a) into the composition, by reference to religious beliefs, of— and then it says, (i) the general body of employees … Resting on that wording, I felt that I was absolutely safe in tabling this Amendment, because I have moved front the investigation which is contained in Clause 12 to the undertaking of directions for the remedying of certain practices, which is contained in Clause 13, and there I brought down my Amendment. Quite deliberately, I sought there to constrict the Agency by making it impossible, as I thought, for it to impose quotas. Possibly there is no need for the noble Lord, Lord Donaldson, to reply, because I still feel that at this stage he will not agree with me. But I hope he will read what I have said and perhaps I will have the opportunity to look at what he has said, and possibly we can return to this issue at the next stage of the Bill.


Would my noble friend Lord Donaldson of Kingsbridge respond to the appeal made by my noble friend Lord Kilbracken and define what is meant by "equality of opportunity"? The last thing I wish to do is to throw a spanner into the works and to impede the passage of the Bill. However innocuous it may be in implementation, everybody hopes it will ease the situation in Northern Ireland to a limited degree. However, the term "equality of opportunity" has been much bandied about in the course of this discussion and I join with my noble friend Lord Kilbracken, in wishing to ascertain whether it is possible to define it.

As I understand it, it was first enunciated by John Stuart Mill or it may have been Jeremy Bentham. We frequently use the term and I am certain that it is acceptable to every Member of this House, but how is it to be implemented? How are we to give it the necessary force of action which will justify its existence? It seems to me that to use a term of that kind in connection with Northern Ireland, or, for that matter, with the United Kingdom or any part of the civilised or uncivilised world, is to use a term that has no meaning at all. However, it may be that my noble friend Lord Donaldson has the intellectual capacity to be able to define it and I am glad to await his reply.


I was hoping to reply when discussing whether the clause shall stand part, but we are still dealing with the Amendment so I shall carry on on the Amendment. Also, I had intended to reply to my noble friend Lord Paget of Northampton, but he has gone, so I need not. I was also to reply to my noble friend Lord Kilbracken and that would involve replying to my noble friend Lord Shinwell because it is the same question. The answer to that question is, first, that it is very difficult and, second, that it is clear that nothing which we put in a Bill of this kind will solve the question.

Nobody ever thought it would. We take the view that there is an evil to be corrected. Some people think that it is greater than others, as we have already heard. We believe that there is such an evil and that we must do our best to define it and to lay down rules which will not be oppressive to the people operating businesses in Northern Ireland but which will meet with the general approval of everybody whom one meets in Northern Ireland all of whom, without exception, disapprove of discrimination on grounds of religion. Whatever they may do, if one asks them over breakfast or dinner, they will say that it is, of course, absolutely wrong.

We are trying to make it difficult for them to go on doing what is absolutely wrong without being aware that they are doing it. That is the first thing. In order to do that, we have set up—and this is really my Second Reading speech, but I am only too happy to give it again—an independent body, carefully appointed and with a chairman of integrity who is acceptable to both sides. As I said earlier this afternoon, such people can still be found in fair numbers in Northern Ireland. This body, the Agency, is given a definition of equality of opportunity. Clearly that definition is, like all such definitions, inadequate but it is a guide. It is laid down in Clause 3, which we have already discussed. The Agency is told to look round to see whether it can observe any cases, such as have been quoted by my noble friend Lord Kilbracken and by the noble Viscount, Lord Brookeborough, in which it seems that this rather uncertain definition is not being observed. Having done that, the Agency's business is to get in touch with the employer and to discuss the matter with him. It is perfectly clear that, in the Short Strand case quoted by my noble friend—and I have no idea what are the facts—the sort of answer which would be perfectly satisfactory would be that the labour force needed a certain kind of training and the local population did not have that. There may be an answer of that kind.

The answer then is not to make that man employ people who cannot do the work but, possibly, to look at training. Indeed, that is happening with Harland and Wolff, where we are pinning our hopes on the training arrangements. There is no discrimination as to who is trained and we hope that there will be no discrimination as to who gets the jobs. That is Part II. Part III lays down that, if somebody thinks he has been discriminated against, he can go to the Fair Employment Agency and make a complaint. The Agency can then pursue the complaint with ultimate recourse to the courts.

Putting it very briefly, that is what we are trying to do. It will not work 100 per cent., but if it works 60 or 65 per cent. there will be nobody who will not be extremely pleased and matters in Northern Ireland will be very much better straight away. We are not claiming a great deal. We are saying that we have a situation which we regard as wrong and that we have attempted to set up machinery with a view to correcting that situation gradually and over the years.

In the absence of my noble friend Lord Paget of Northampton I shall still answer his point. He said he thought it wrong to try to find out—in England, at any rate—the religion of one's employees. I should be rather annoyed if I were asked my religion by my employer, but in Northern Ireland it is a matter of the deepest interest to everybody and, whatever the employer may know, there is not a single employee who does not know the religion of every single individual. So it is no good talking like that. It is a different world. If we are to deal with this, I believe we must accept the fact that there are differences which are delineated by the religious denomination.


As my noble friend has twice referred to the fact that I was not present during the Second Reading debate, I should like to say that, unfortunately, I simply cannot afford to attend your Lordships' House as frequently as I should like. Secondly, in relation to his remarks about how distasteful it would be to be asked his religion, I should like to say that, when I was in the Short Strand, I was stopped three times by members of the Army who asked me my name, my address, my age and my religion. That is a normal practice which I find deplorable, but I thought it better to reply so I gave the answer that I was an Agnostic. The questioner said, "A what?" I repeated it and he wrote it down in his notebook.


My noble friend should use the ordinary Forces' formula which is "C of E".


I am not "C of E" and I never have been. I should also like to point out that the noble Viscount, Lord Brookeborough, was perfectly correct in saying that the same thing happens the other way round and that, in Catholic areas, there are factories or businesses which employ only Catholic workers. Of course, one would not expect to find a business which had many Protestant employees in the Falls. But I think that it is a bit different when, as in the case of the engineering works in the Short Strand—and I see that the noble Lord, Lord O'Neill of the Maine, is present, and that business was in his constituency—

Lord O'NEILL of the MAINE

No, it is nowhere near.


Am I wrong? I thought that the noble Lord had been Member for East Belfast, but I see that I made a mistake. I am sorry. Certainly, though, he has been electioneering in the Short Strand. That fact is still remembered and appreciated. He is one of the few Unionist politicians to have been into that area. I feel that it is quite different when one has a factory in an area such as the Short Strand. There are six Protestants in the Short Strand apart from the nearly 2,000 who go in each day from the Protestant areas around about to work in a wholly Catholic area. I think that that is a deplorable situation.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 11:

Page 9, line 7, leave out from ("appropriate") to the end of line 9 and insert—

  1. ("(i) where paragraph (a) applies, shall serve on the person concerned a notice containing directions such as are mentioned in subsection (3), or
  2. (ii) where paragraph (b) applies, shall either serve on him such a notice or make an application to the county court under section 15 for enforcement of the undertaking.")

The noble Lord said: This is a purely drafting Amendment to cure an inconsistency between two clauses. These are concerned with steps to be taken following the finding by the Agency of a failure to provide equality of opportunity. The Amendment is intended to secure that when an undertaking has been given but not complied with, the Agency may give directions under Clause 13, or proceed without giving such directions, to apply in the county court for enforcement of the undertaking. It is a slender point, and I hope the Committee will accept it.

On Question, Amendment agreed to.

On Question, Whether Clause 13, as amended, shall stand part of the Bill?

4.21 p.m.

Lord KILBRACKEN: Subsection (2) reads:

"Where the Agency asks the person concerned for an undertaking such as is mentioned in subsection (1)(b), but—

  1. "(a) the undertaking is not given, or
  2. (b) the undertaking, although given, is not complied with"

the Agency, unless it decides that no further action by it is appropriate, shall serve on him a notice containing directions …".

Could my noble friend explain why the words: "… unless it decides that no further action by it is appropriate," are necessary? An undertaking has been asked for and has not been given, or, if it has, it has not been complied with. I cannot imagine any circumstances under which the Agency could then decide that no further action is appropriate. I wonder whether my noble friend would consider at a later stage—and I regret the short notice of the question—deleting that conditional clause from the Bill.


I do not know whether the noble Lord has caught up with the drafting Amendments, but we have just agreed that this clause should be altered. However, it is not altered in the words to which the noble Lord objects. The Bill reads: Where the Agency asks the person concerned for an undertaking … and the undertaking is not given, or … although given, is not complied with, the Agency, unless it decides that no further action by it is appropriate shall"— then the Amendment we have just passed takes over.

There will not be very many cases where this could happen; but there might easily be a case where the employer comes along with new evidence or something of that sort. I see no difficulty in these words; there is nothing sinister about this, and I think it is better to leave it as it is.


In view of what my noble friend has said, I am prepared to leave it at that.

Clause 13, as amended, agreed to.

Clauses 14 and 15 agreed to.

Clause 16 [Meaning of "discrimination" and "unlawful discrimination."]:

On Question, Whether Clause 16 shall stand part of the Bill?


The point I wish to raise concerns subsection (3) This is a definition of "discrimination." It states: … a person discriminates against another person … by way of victimisation if he treats that other person less favourably in any circumstances than he treats or would treat any other person in those circumstances, …". Perhaps this means more than it is intended to mean. I feel it should read: … if he treats that other person less favourably in any circumstances than he treats or would treat any other person having the same skills and qualifications in those circumstances. Secondly, in the next line there is the very curious phrase: … and does so by reason that the person victimised has— (a) made a complaint … This is a phrase I have not previously come across in the English language, and I do not know what it means. It is repeated in the third line of the next page. Perhaps it would be clearer and better English to have it read: … in those circumstances, if the person victimised has (a) made a complaint …".


Taking the second point first, my understanding is that the legal phrase "by reason that" means "because". I am prepared to look at this. If it only means "because" I am prepared to alter it. If it has some other overtones, it is probably not desirable to do that. I should like also to look at the first point again. This is covered by earlier definitions, because earlier in the Bill we go into some detail about equal qualities and abilities, but just how this subsection to which the noble Lord refers relates back to this, I do not know. If it does not relate back it ought to. My belief is it probably does, but I am not able at the moment to tell him exactly how.


I looked into that matter carefully because I know in a Bill one always has to look forwards and backwards several times before finding out what the clause is trying to say. It is true that discrimination is described as discriminating by virtue of religious opinion or belief: A person discriminates against another person … if he treats that other person less favourably in any circumstances than he treats or would treat any other person in those circumstances. But surely qualification is required here, which I think my noble friend will find is not already implied through what has gone before, by the words, "having the same skills and qualifications"—or "having equal physical and mental aptitudes", which was the phrase my noble friend used in his Second Reading speech, which I read three times? He may find it desirable to include something along those lines.


I have said I will look at this point. If what my noble friend says is correct, some alteration is required. But I have a feeling that there will be an answer to this.

The Earl of ONSLOW

Is the noble Lord aware that while I find Bills extremely complicated to understand, on this particular occasion the wording is crystal clear? This is bogging down in the minutiae of the English language. We all know that the Irish write English better than the English, but do not let us try to get it into Acts of Parliament. For once, what is set out here is crystal clear.


May I put a different point? We have come to Part III of the Bill. It is in many ways the absolute centre of the Bill and it is my apprehension that I—and other noble Lords will not fall into this trap—will find myself raising small points. There are things in the clauses to which we are now coming which are a worry in practical terms; and for my own consumption, if not for that of other noble Lords, one ought to bear in the forefront of one's mind the main purpose of the Bill now that we have got to Part III, namely, to counter religious and political discrimination. Those were the terms of reference for the Working Party over two years ago, and it was something which they reported was widely supported by people whenever they asked questions about it in Northern Ireland.

Having said that, there is a practical difficulty I should like to raise which I sought to refer to on Second Reading. I can raise it only under Clause 16. It is the problem of what happens to an absolutely reputable employer, one who is on the register, who receives an application from a person whom he suspects of deliberately seeking employment in order to cause trouble. Such a situation could arise in several ways. An employer may be warned that the appli- cant for the job is a person around whom trouble or even violence has previously centred; or the employer may sense that certain people are curiously eager to see this person employed and, putting two and two together, he may conclude that behind this application stand other people who have an interest in seeing that trouble is created at that place of work. What is the employer to do?

The noble Lord was good enough to write to me on this subject between the last stage of the Bill and this; and broadly speaking he made two points. The first was that, if the ill-disposed person or anyone else made a complaint as a result of a situation of this sort the matter could then be investigated and the employer could be cleared, if indeed he was in a situation where he should be cleared. Secondly, it would presumably be possible for the Agency to advise the employer of the general lines on which the Agency is going to operate, so that the employer could then decide for himself how he ought to act. It is the second line of procedure mentioned in the noble Lord's letter that I should very much like to see written into this Bill, because I believe that a complaint of unlawful discrimination will be a reflection on a respondent and will certainly be a great cause for worry to an employer who has never had such a thing happen to him before. I should also like to see unnecessary complaints prevented, and I believe it could be the only way out of this very difficult situation which I have sought to describe to the Committee.

I have not tabled an Amendment because I hoped I might better get the views of other noble Lords, and particularly of the Government. May I say that the noble Lord's letter, expressing the Government's views, was a considerable encouragement to me on this point, but I should like to explore the matter further to see whether something could be written into the Bill on a point which I find extremely difficult.


I should like to support my noble friend over the problem he has raised. This Bill is all about people, whether employers or employees, and for this reason I should like to go a little further and tell your Lordships from personal experience about some actual problems which can arise. My real worry at the present moment is that the Bill will come into force at a time when there is still a great deal of unrest and violence in Northern Ireland. I should like to know whether the Government have discussed with the Security Forces the implications of this as it affects employers at this juncture. If not, I should like to ask whether the Government would do so and let us know their view. I feel that we must have some security advice on this situation. How does an employer, assuming this Bill becomes law, deal with an applicant whom he has good reason to believe to be a man of violence? I am going to use the phrase "IRA man", but my remarks really relate to any violent man—and I would stress that there is no difference between violent men: they are all evil and very violent.

I would ask your Lordships to put yourselves in this employer's position. A man applies to him and he turns him down because he knows in his own heart that the man is involved in violence. That employer, who has previously enjoyed a very good record, is then verbally pilloried—because that is the object of it—and is accused of unfair practices. If the man of violence had a previous conviction, no doubt the Agency would support him and he would be perfectly all right. If he had been interned, then I am sure the Agency would support him; but the level at which people are involved in violence, convicted and interned, is something which is very difficult to define. There are many people outside who cannot be convicted but who are involved in violence, and the level at which they are interned, convicted or detained varies according to the Secretary of State's advice as to the level of violence at that particular moment. So one is faced with a number of people who are evil men, trying to get into situations from which they can do evil. The IRA, especially, have carried out their operations always as a result of very careful planning, and that is why one gets people "planted" in those situations.

As an employer, I have a prime duty to look after my life and the lives of my family. It would be a very difficult situation if you had to employ any person who had any connection at all with the IRA. The only way at the present moment by which one can tell whether a man is likely to be put under pressure of violence is first of all by his religion and where he lives; because it is on the pressure—or, if you like, intimidation—that others are able to place on him that gives guidance on what one's judgment should be. This applies to both areas: one is no worse than the other.

I should like to give your Lordships several instances I know of from my own knowledge. Someone applied to come into my own employment: he was a young boy of 17 and came from a long way away. I carried out investigations about his background and so on, and I was very strongly advised not to employ him because the area from which he came was such that he would be put under pressure to provide information about my comings and goings. Noble Lords know that members of the Judiciary have been murdered because people knew of their regular comings and goings. I can think of three who were murdered because they were regular in their movements, in taking their children to school and so on. The information which is gathered by men of violence is very detailed and it is most important that people who are likely to be targets—and many are—should not have information given about their movements. Under this Bill what would my position be if I turned down that person, and a complaint was made? I personally would not take the risk involved for myself and my family.

The next case was that of an officer in the Ulster Defence Regiment who tried to employ two men who were Roman Catholics from a building contractor who was also a Roman Catholic. The UDR officer asked the contractor whether he would lend him these two men to do a bricking job. The contractor said he thought that would be very ill-advised, because those men, although highly-skilled craftsmen, unfortunately lived in an area with a very strong IRA cell. He said: "You should not do it: you are being unfair to those men. Further, if they did put pressure on them, you yourself could end up being murdered as a result of information that would be squeezed out of them." I wonder what the position of that man would be in such a case.

Lastly, I should like to tell your Lordships about a contractor who was building a UDR centre in our area. We all knew that the contractor had a gang which included a number of fairly active IRA people. They were not convicted and they had not even been questioned by the police, but it was well known that their associations were bad. In fact, the contractor did absolutely nothing about it—whether or not he knew this I do not know, but we all did—and at the appropriate time when the building was nearly finished it was blown sky-high. Had that contractor taken the advice which certainly might have been given to him, though I have no knowledge about that, and sacked those men—in other words, discriminated against them—what would his position have been? I feel that it is most important that we should look at it with the security advice in view, because it is people we are talking about and unless there is some way of dealing with this subject we are going to put men's lives at risk. Certainly this is what we should not do.


May I support what the noble Viscount, Lord Brookeborough, has said about Clause 16. The noble Viscount has cited three very thought-provoking examples from his own experience which must merit the very close attention of the Government. However, leaving aside those political groups which are engaged in violence and are peculiar to the Northern Ireland situation, I am wondering whether the Minister can seriously defend a situation in which it will be perfectly legal for an employer in England, Scotland or Wales to refuse to employ a man who is a Communist, a Fascist, a Nazi, an International Socialist, or whatever, but in which it will be illegal for an employer in Northern Ireland to do so.

The Earl of ONSLOW

I completely and utterly understand what the noble Viscount, Lord Brookeborough, is saying on this issue. However, in this case there is a danger of unsubstantiated evidence. I do not live in Northern Ireland—and I regret that I have to say, "Thank God!" However, we could get ourselves into a position where, to take the case of the noble Viscount, Lord Brookeborough, we say, "We don't want to employ 'X' because we all know that he is an IRA man and that so-and-so is a hard core 'Loyalist'—a violent man". How do we get ourselves off the horns of the dilemma of the Agency saying, "Yes, we see your point. You are not discriminat- ing on the grounds of religion." Alternatively, you cannot sack a man on the basis of religion. It is a terrible dilemma. For the benefit of your Lordships, all I am trying to do, having completely understood both sides of the question, is to underline my own doubts.


This is, of course, the most difficult part of the Bill. Are we to allow the kind of wholesale discrimination on religious grounds which is alleged to exist today? Are we to do nothing about it because we have run into a certain number of hard cases? My answer, and the Government's answer, is No, we must go ahead and we must set up machinery which is flexible enough to deal with difficult cases.

Let us take, for example, the case cited by the noble Viscount, Lord Brookeborough, of an IRA man, or a group of IRA men. In the first place, no employer will be accused of discriminating on religious or political grounds if he says. "I think that this man is going to cause trouble in my factory". This is a fact which has nothing to do with religion or politics. It may be due to religion or politics, but it is a fact in itself and nobody who had had the advice of the Security Forces that three or four people were dangerous IRA men would fail to convince a sensible Fair Employment Agency that they had good reason not to employ them. This is simply a question of how the Fair Employment Agency works.

The Earl of ONSLOW

I apologise for interrupting the noble Lord, but I should like the noble Lord to clarify a point which has just come into my mind. If an employer says to the Agency, "I have reason to believe that this man is a dangerous IRA man" and that man is not a dangerous IRA man—or even if he is. or even if, as I say, he is a "Loyalist" and, therefore, a dangerous man—can that man, if he hears about it, then sue for libel?


You can always sue for libel if you think that it is libellous to be called a member of the IRA. Most of them do not think that it is libellous! Of course, you can sue for libel if somebody tells what you think is a lie about you. However, the man who is sacked, ostensibly because he is a troublemaker—in fact, he says, because of his politics—can go to the Fair Employment Agency and make a complaint. The Agency then takes it up with the firm and the matter is openly and honestly discussed. If the Fair Employment Agency is any good—and if it is not the whole thing is no good—in most cases it will come to a sensible answer.

I think it would have been legitimate to refuse to employ Marx but not Engels. There are differences between them. One was a pure theoretician; the other was a theoretician who was actually provoking activity in the people to whom he was expounding theory. This may not be a very good example. If you have a tiny man who has never done any harm but who believes passionately in something which is affected by this Bill, he may be perfectly harmless. If, however, there is a man who is known to have associated with men of violence, or who is likely to be subverted, as the noble Viscount suggested, by men of violence, I can say only that if I were the chairman of the Fair Employment Agency I should say, "This is a good reason for not employing him". I cannot say that everybody will. In my opinion, you simply cannot lay this down in a firmer way.

What we must do is get this moving. We are aiming at the ordinary man who is discriminated against, and according to the reports he is very widely discriminated against. Noble Lords on both sides of the House have said that this is the case in both fields, and that is what we are trying to deal with. There will be difficult cases. If the Fair Employment Agency is well run, as it has to be, these difficult cases will be dealt with sensibly. The fact that one must hang on to is that to be a troublemaker is a reason for not employing a man, irrespective of whether he is a Papist troublemaker, or a Presbyterian, or a Communist, or a Fascist troublemaker. To be a troublemaker is a good reason for not employing a man.

I do not think that we can take it any further. It is the most difficult part of the Bill. I know that the noble Lord, Lord Monson, regards it as putting the Bill out of court. I do not agree with him, but I am not going to pretend that there are not very serious difficulties here. If we pass the Bill in more or less the form in which it is now, I believe that in about two years' time there will have been one or two difficult cases but that most of them will have been dealt with quite well. The noble Lord, Lord Belstead, asked me whether we had discussed this matter with the Security Forces. We have discussed it with the Ministry of Defence which is the correct thing for us to do.

4.48 p.m.


A little earlier people were saying, with justice, how good the industrial relations in Northern Ireland are, but in this clause the question of who is or who is not employed seems to be left entirely to the employer. Would it not be the case that when doubt of this type arose, the employer might be hauled over the coals for refusing to employ somebody because he believed, rightly or wrongly, that that person was dangerous? If I was in that employer's position, I would consult my employees before I made any move at all. It seems to me that on the question of who is to be employed and whom one refuses to employ, certainly in the industry that I know something about, not many employers nowadays would take it on their own shoulders to make such a determination. Especially where there is a large factory in which many people are employed, there is almost bound to be consultation with the employees concerned. Would it not be safer for the employer to say: "Possibly I could be hauled up for discrimination. So I should like to feel that on matters such as this we have regular consultations before any decision is made."

That would achieve a number of objects and it would assist. A lot of employees may well know the background of the person under discussion; in other words, it would not be confined to a general belief by the employer that he was a dangerous person. Especially in a trade or craft one tends to know many people in the same job and to know their background. Therefore, I should have thought that from the employer's point of view it would be far and away safer for him to consult with his employees on such a matter. In that event, if at the end of the day it was decided that a person was dangerous and not employable, the fact that the employer had consulted his employees would stand him in good stead when it came to the issue of whether or not he was prejudiced against someone.


May I answer that contribution now, as one becomes so confused if too many questions are raised?

The Earl of ONSLOW

May I first make a point on what the noble Lord, Lord Lee of Newton, has said. I am not trying to make the noble Lord, Lord Donaldson, sit down unnecessarily. I should have thought that in this context the noble Lord, Lord Lee, was arguing as a sensible English employer would, but in this case we are dealing with Ireland. For 800 years the English have made the fatal mistake of assuming that the Irish are English. Thank God for both of us, they are not!


I accept without the slightest reservation that they are not. My noble friend's point is of course valid in fact, but should it be included in the Bill? I think not. It seems to me that if the Fair Employment Agency is examining a complaint against a firm which has never taken its employees into consideration at all and whose relationships are distant, it will think twice before it believes what the firm says. The point is absolutely valid and I agree with every word of it, but it does not persuade me to make any alteration in the Bill, and I do not think my noble friend meant it to do so.


Before we leave this absolutely essential part of the Bill, I would revert to what the noble Viscount, Lord Brookeborough, said and say that in my opinion he is striking at the heart of the Bill by what he has said. After all, if a man is a member of a proscribed organisation, let it be on one side or the other, then of course he will be arrested—




—if he is known to be, and can be proved to be, a member of a proscribed organisation. The noble Viscount shakes his head. What are the security forces doing about it? The noble Viscount laughs. But if the security forces know that a man—they do not have to be able to prove it—is suspected of being a member of the IRA, they may take action. In the case of a Loyalist organisation they may well do nothing, but if he is known to be a member of the IRA he will be arrested and detained. It may be said of a man, "He comes from an area where he may come under IRA influence." After all, any Catholic, for example, will come from a Catholic area and it will be possible to say of him, "He may come under IRA influence", just as if a man comes from the Shankhill, it will be possible to say of him that he may come under UDA influence. If on a merest suspicion of that kind an employer is to be justified in refusing employment, then the whole Bill will break down. Surely the remedy lies in watching that man after he has been taken on.

If a Protestant firm—I do not like using a religious tag; it is a shorthand phrase—take on a number of Catholics it is up to them to take whatever steps they can, or feel necessary in surveilling them, to make sure that they are not subversive. If they are subversive or causing trouble, those would be perfectly good grounds for dismissing them. If there is a loophole, simply because an employer believes that someone who applies for a job may come under the influence of one of the extremist Parties on either side, then the whole purpose of this Bill will fall to the ground.

4.56 p.m.


The noble Lord is perhaps being a little severe in the interpretation he has put on what was said by my noble friend Lord Brooke-borough. I find myself leaning towards my noble friend a great deal more than the noble Lord does, and for two reasons. One is that this Bill will be applying to small employers within a period of three years. If I remember Clause 34 correctly—the noble Lord is nodding his head—it will apply to those employing not more than 25 employees within two years of the Bill's coming into effect, and to those employing not more than 10 employees within three years of the Bill's coming into effect. So within three years quite small employers will be within the scope of the Bill. One can imagine, particularly in a rural community—which is one of the great delights of Northern Ireland—a rather small employer who may be quite frightened by an applicant. It may be a woman employer, it may be a widow who is carrying on her husband's business and who, when an applicant arrives, is genuinely worried about what on earth she should do because she has reason, perhaps, to feel, or even only an intuition, that she is approaching disaster if she employs that person. That is one reason why I agreed with my noble friend.

The other reason was that I think it was a valid point about an applicant for a job being liable to subversion. I was interested that the noble Lord, Lord Donaldson, included this reason in one of the two examples he gave. I think he was speaking "off the cuff" when he said that he thought the Agency would be acting in a reasonable way if it could be absolutely sure that an applicant for a job—in that job and in that locality—would be liable to pressures which he could not resist. For those reasons I feel myself leaning towards what my noble friend said.

The Committee may be tempted to feel that, owing to a point which I originally raised, noble Lords and I myself in particular, have been deliberately attempting to raise reasons for trying to avoid the provisions of this Bill. I tried to refer to this matter in my opening words. I remember that my honourable friend Mr. van Straubenzee's Working Party referred to this point; they gave it as a warning in their Report. All I can say is that that was not my purpose in raising this point. My purpose was to try to meet the position of an employer who felt that he or she was being put on the spot. To do this I hoped that we might be able to write into the Bill the encouragement to talk to the Agency which the noble Lord, Lord Donaldson, says will be quite in order.

Before I finish may I make two further points? The noble Lord, Lord Donaldson, drew two points out of the air; one was about subversion, the other was about somebody whom the employer knew would cause trouble. He said, speaking "off the cuff", that he felt that the Agency would advise an employer that it would be perfectly proper to turn down an application if it was clearly obvious that this would happen. If this is the case it certainly meets many of my fears, although I still wish we could write into the Bill something to encourage the employer to talk to the Agency. My last point I hesitate to raise, but, the noble and learned Lord, Lord Gardiner, is here and, obviously, he has very wide knowledge of these matters, as has the noble Lord, Lord Donaldson, who is speaking for the Government. So may I simply ask a question?

Despite all the obvious reasons for trying to take on in employment, wherever one lives, anyone who has served a prison sentence is it going to be possible under this Bill to say, if it is a little old lady in an inaccessible part of the country, that she is frightened to take on someone who has either been a detainee or a convicted prisoner? Just to give the point a twist, shall we find ourselves running into difficulty when we have a special category prisoner who has been serving a term of imprisonment because he has been given special category status and his misdemeanour has been connected with politics? I simply put that question; I do not expect a reply to it but I do not think it would do any harm to think about it before the next stage of the Bill.


I certainly cannot resist replying to that. My position over discharged prisoners, whether they are political prisoners or otherwise, has always been the same; when they come out they must be treated as ordinary citizens. I do not think the fact that a man has been in prison for a political crime is a reason for not employing him, except as evidence of his likelihood to continue with political crime. The thing which matters about the man is whether he is associating with men of violence, whether he is known to be or suspected of being mixed up with violence, and this would be true whether or not he has been in prison. I do not admit that past imprisonment or detention is relevant, except as evidence of his state of mind today which may be quite different. So in every case I think the Fair Employment Agency would excuse an employer from his duty to employ, or not to sack, a man who was known to be mixed up in affairs of violence, whether political or otherwise. I think the fact that he had been in prison would be only a piece of evidence leading one to look further, and by itself would certainly not be sufficient reason.


Something has to be done; some Bill has to go through. This Bill has been very carefully thought out so let us put it through.

Clause 16 agreed to.

Clause 17 [Discrimination against applicants for employment and employees]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 12:

Page 12, line 31, at end insert— ("(2) It shall be unlawful for a person who is empowered by virtue of an enactment to select or nominate another person for employment by a third person to discriminate against a person, in relation to employment in Northern Ireland—

  1. (a) by refusing or deliberately omitting to select or nominate him for employment, or
  2. (b) where candidates are selected or nominated in order of preference, by selecting or nominating him lower in order than any other who is selected or nominated.")

The noble Lord said: The point about this Amendment is a simple one. There are some institutions, not only in Northern Ireland, but I think everywhere else, where selection is made by a professional or expert body and the appointments are made by the employer. In other words, a selection is made, not by the employer but by a body which is advising him. I can think of various instances, but undoubtedly your Lordships can do it as well as I can. The object of this Amendment is to make certain that discrimination is just as much discrimination if all the doctors suggested for the local area boards are drawn from one side or from the other by an expert body, as if the Department of Health and Social Services was selecting them. It is a simple point, but a particularly important one and I hope your Lordships will agree to it. I beg to move.


I completely agree with the spirit of this Amendment, but it seems to me—and I think this is the correct moment to raise this point rather than on the Question, Whether the clause shall stand part of the Bill?—that it does not go far enough, because as Clause 17 stands it goes only as far as making it unlawful for an employer to discriminate against a person. Of course it happens in many cases, especially in big factories or when the State is the employer, that the employer himself has nothing whatsoever to do with either the hiring or the firing of employees, and I do not think this point is covered by my noble friend's Amendment.

It seems to me essential that after the words, "unlawful for an employer" there should be inserted the words, "or person acting on behalf of an employer". If your Lordships will turn to page 6 of the Bill, it will be seen in Clause 10(1)(b) that there it is found necessary to specify not only art employer but also a person acting on behalf of such an employer. The Bill as it stands at present means that if an employer has a man, one of whose duties it is to select and employ or dismiss employees, he is not bound by Clause 17. The clause refers only to the employer himself and, as I have said, the employer may have no say in the matter. If it is a State-owned concern, I suppose the employer is the Queen, although I am not quite clear about that. Surely there has to be an Amendment, and I hope my noble friend will consider putting it in at a later stage, to make sure that not only the employer but also the employee—and possibly this is the point that the noble Lord, Lord Belstead, is getting at in his next Amendment, although I am not certain—who is responsible for employing a man is covered by the clause.


This is fully covered by Clause 32, which makes employers or principals liable for acts carried out by their agents or employees. I think that entirely covers the point raised by the noble Lord, which is a valid one.


I have not had time to read Clause 32, but I am sure my noble friend is right; he nearly always is and I am prepared to accept what he has said.

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

5.9 p.m.

Lord BELSTEAD moved Amendment No. 13: After Clause 17 insert the following new clause

Discrimination on grounds of religious belief or political opinion

"( ) It shall be unlawful for an employee to discriminate against a person in relation to employment in Northern Ireland on the ground of religious belief or political opinion".

The noble Lord said: There is a practical reason for this Amendment and I sought to mention it on Second Reading. What will be the answer under the Bill as drafted if employees at a place of employment refuse to work with other employees for reasons which could lead to a complaint being made under Clause 21, if the person being complained against were an employer, a vocational organisation or a person who could confer authorisations, qualifications or recognition?

In the Irish Times on 11th June, there was an article headed, "Loyalist Workers down tools as student priest gets factory job". This is the sort of story which could happen in a different context. I simply picked it out because it was in the paper very recently. It would be wholly improper for me to draw any conclusions from reading a newspaper report, particularly as the strikers, so the Irish Times reported, who were the Loyalist workers' committee of that factory, insist that the strike was called not for denominational reasons but for other reasons. However, I make two assertions; first, that a situation of that sort could be grounds for a possible complaint under Part III of the Bill. I assert also that such a strike places the employer in an impossible position.

Clause 32, to which the noble Lord has just referred, makes an employer responsible for an employee's actions whether or not done with the employer's knowledge or approval, with the defence that the employer took such steps as were reasonably practical to prevent the employee doing what he had done. In writing to me on the subject, the noble Lord, Lord Donaldson, has been so good as to draw my attention to Clause 31 which provides that any person who induces another to do an unlawful act shall be treated under this Bill as if he had done the act himself. The noble Lord has concluded in writing to me that therefore where employees apply pressure within the meaning of Clause 31, they could be cited as respondents as well as the employer.

But what if, as I have said, the employer has nothing whatever to do with the unlawful act which is going on? Let us say that the employer is an equal opportunity employer, he is on the register, he has made it clear frequently that he will not have any form of discrimination at his place of work and when an incident occurs he condemns it and calls for reconciliation and a return to work. What is to happen then, under the Bill as it is drafted? Surely the employer could not be found to have discriminated unlawfully because he is wholly covered by Clause 32(3) which deal with taking such steps as were reasonably practicable. I would hope that what I have suggested the employer would be doing would certainly be taking such reasonably practicable steps. If the employer cannot be proceeded against then neither, presumably, can the employees; because I should have thought that under Clause 31 on the grounds that they induced, there could be no grounds and they had so induced. We are therefore left with a most unsatisfactory and, what is most worrying, a totally unresolved problem.

I hope that I have got this wrong. If I have not, then I would hope that the Bill, which is gravely deficient on this problem, could be put right. I beg to move.

5.13 p.m.


I do not think the noble Lord has got it entirely wrong. I think his drafting of this new clause is much too wide and I think we should have to look at it. But I think he has put his finger on a problem which I am not sure that legislation can deal with at all. We have two bits of this problem dealt with. The first is under Clause 31(1) where, if the employees force the employer to get rid of a man, to victimise a man, they can be caught for victimisation in that way. Equally, if they victimise a man themselves they can be caught under Common Law. What is difficult is to prevent a work force from behaving in this way if it is absolutely determined to do so. We have come across this in other areas of the world and usually, when legislation is passed to say that a thousand men should not do something, if they want to do so they will do it. It is rather unwise to go further in this Bill. In the case that the noble Lord quoted, it is clear that there was victimisation and the Common Law is available.

I am aware that there is a problem here. My advice is—and I have thought about it carefully and discussed it with my colleagues—that if we try to introduce some, as it were, industrial relations law into this Bill about how workers must behave, as workers, we shall be running into trouble. Possibly this could come into some industrial relations legislation later on. But we think that the two forms of victimisation: one, forcing the employer to victimise; or two, victimisation directly by themselves, are covered. I do not think that we can go further.

I am prepared to look at this again. We are aware that there is a real problem and that we have not found out how to deal with it. If we can make any progress, I will make some suggestions at Report stage; but I am inclined to think that we shall end by feeling and that it is best to leave ill alone.

The Earl of ONSLOW

While being totally sympathetic to the Amendment of my noble friend Lord Belstead because it seems just and reasonable, I should like to support what the noble Lord, Lord Donaldson, has said. We have had experience of the Industrial Relations Act in this country which, however good its intentions, did not always work in the way its authors wanted it to work. We have had experience in Ulster of the Protestant workers' strike where I believe what they quaintly call the Imperial Government was left slightly powerless in the situation. I am sorry to get up and speak; except that one is worried and one must express one's doubts. One cannot understand these two elements of justice. People should not be allowed to discriminate against their fellow employees because they are "Prots" or because they are "Micks", or whatever they call them over there. How can a reasonable, just and sensible Imperial Government "enforce that law? This is the difficulty. I wanted to say this because I think these doubts must be aired in this House—however much I agree with both my noble friend Lord Belstead and the noble Lord, Lord Donaldson of Kingsbridge.


I am inclined to think my noble friend's advice is good. I did not think that this Amendment would be accepted, but I did think, and I still think, that it was putting its finger on a point which really is a worry. May I say two things only. The first is that, of course, the Northern Ireland Committee of the Irish Congress of Trade Unions were most influential, helpful, and energetic members of the Working Party which produced the Report. I do not know whether, while this Bill goes through both Houses of Parliament, this would be something on which the Government would see fit to talk again to the NICTU about. I should have absolute confidence that under the leadership of Dr. Blease of NICTU good advice and a good response would be given if the Government felt it helpful to discuss this point again. Secondly, if nothing of this sort is to be done, then possibly the Government might just glance, between this stage and the next, at Clause 31. If the employer is going to be placed in the position that there is trouble at his place of employment, and if the employer is perhaps not the strongest of characters, he is going to be caught under Clause 31(1)(a) "knowingly aiding" when, in fact, the unfortunate man may not have had the backbone to have got up and said: "I condemn what is being done". In other words, I am gently suggesting the possibility of some quid pro quo on this. This is a little one-sided for the employer who is not perhaps the bravest of persons. For the good employer who is perhaps able to stand up and say that he will have nothing to do with it, there is nothing to worry about; except that it creates an anomolous situation, the situation which I sought to set out in my opening words. If the noble Lord will look at this point and anything else I have sought to say between now and the next stage, I shall be grateful.


Certainly; and in particular we will have further discussions with Dr. Blease and his boys; but these things arise usually not with union support of any kind; so that it has little to do with it.


I agree with the last words the noble Lord said.


If Clause 32, which I have now had time to read, is to remain part of the Bill, as I am sure it will, then Lord Belstead's Amendment is not extremely important; because if any employee indulges in discrimination, automatically under Clause 32(1) that discrimination is treated as having been done by the employer himself. Therefore, he is guilty of an offence of illegal discrimination and will take good care that none of his employees behaves in that way.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 18 to 20 agreed to.

Clause 21 [Investigation of complaint of unlawful discrimination]:

5.20 p.m.

Viscount BROOKEBOROUGH moved Amendment No. 14: Page 14, line 2, leave out ("has died or").

The noble Viscount said: I beg leave to move the Amendment which stands in my name and that of my noble friend Lord Belstead. I believe that a victim who has died should no longer have any claim to compensation for loss or hurt feelings. His right to complain should end on his death. This would be in keeping with the Race Relations Act and the Sex Discrimination Bill. I do not believe in this situation we should depart from the principles there laid down.


I am not inclined to accept this Amendment although it is not a question of fundamental philosophy. In a genuine case of discrimination it seems to me quite wrong that if the man concerned dies following the loss of his job, a remedy should not lie with his wife and family. It is a simple point, and noble Lords can take it either way. The Government take the view that it should remain. Damages have to be proved, and if they are proved why should they not go to the family? I should like to suggest to the Committee that this Amendment be rejected.

The Earl of ONSLOW

May I be allowed to ask the noble Lord, Lord Donaldson of Kingsbridge, two questions? First, if you sue someone for libel and then drop down dead, can you go on getting the libel damages? Secondly, in support of the Amendment of the noble Viscount, Lord Brookeborough, surely the Irish have such appallingly long historical memories that you do not want to allow them to go on sueing people after they are dead. I am sorry if this is a flippant way of putting it, but their enormously long historical memory has been a fundamental root cause of the Irish problem. If we accept the Amendment of the noble Viscount, it will go just one very small step towards not allowing them to take advantage of their historical memories.


Obviously there is a point in time when compensation has been decided on; that must go to the family. But if the case is being examined how can the employee who allegedly has been discriminated against give evidence if he is dead? However, I withdraw the Amendment.


In spite of that encouraging remark, it seems to me quite obvious that the case cannot be made if there is insufficient evidence. If the evidence is there and has been taken, it is reasonable that the wife and family who have been deprived should get the benefit. I am grateful to the noble Viscount for withdrawing the Amendment.

Amendment, by leave, withdrawn.

5.25 p.m.

Lord BELSTEAD moved Amendment No. 15: Page 14, line 11, leave out ("six") and insert ("three").

The noble Lord said: I think it is reasonable to look at other legislation with regard to time limits for a complaint to be made. The two-month limit in subsection (3)(a) is to be found in the Race Relations Act, but that Act does not include the six-month limit to which this Amendment refers, nor does the drafting of the Sex Discrimination Bill which has a three-month limit, which is the effect of this Amendment.

In moving to shorten this period, it is worth noting that under subsection (3)(b) the Agency may investigate a complaint after the time limit if it so wishes. There is one practical problem here. This Bill deals with cases of discrimination, not only in employment but in recruitment for employment. As employers may well receive hundreds of applicants for several different jobs—in some cases the applicants may just be personal inquirers—to ask for records to be kept of all the applicants so that the reasons for refusing employment might he read is to ask a great deal, even if the complaint period is to be three months, which is the effect of my Amendment. I hope that the noble Lord might look with some favour on the Amendment. In addition, I hope that the Government might consider whether, in cases referring to recruitment rather than employment, the complaint period should be even only one month. I beg to move.


Once again, I am not inclined to accept this Amendment. It is not a very fundamental point and it would not break the Government's heart if, in the end, we had to change our minds. When the noble Lord said that it is a good thing to keep in line with other legislation, the question is, "Which legislation?" The legislation with which we are keeping in line here is the Commissioner for Complaints Act (Northern Ireland) 1969, which is the legislation most parallel to this kind of problem. We have diverged a good deal from the two other measures quoted by the noble Lord. Lord Belstead—the Race Relations Act and the Sex Discrimination Bill. There are many differences between them and this Bill. We thought it better to keep to this period, which is the period during which one can make a complaint under the Commissioner for Complaints Act (Northern Ireland) 1969.

It is worth pointing out that the six-months period for making a complaint is not always to be allowed to a complainant. He has to make his complaint within two months from the day on which he first had knowledge, or might reasonably be expected to have had knowledge, of the act complained of, or six months from the day it was done, whichever first occurs. This is a considerable modification of the six months figure, and, as it is quite possible to modify it at a later stage, the Government feel inclined to start off with it. It need not be for ever if it is found unsatisfactory. However, my view is that this is the best way of doing it. In normal cases, people will know of the act of which they are complaining, and that they have to complain within two months. The six months is only for cases where there is obscurity which may take some time to sort out. I ask noble Lords not to support the Amendment, unless I can persuade the noble Lord, Lord Belstead, to withdraw it.


I should like to have a look at what the noble Lord, Lord Donaldson of Kingsbridge, has said. One of my worries, and I believe it is something which worries all noble Lords, is that in all legislation at this moment, whether in Northern Ireland, the United Kingdom, or anywhere, we must avoid putting extra burdens or expenses on industry and commerce. I see the noble Lord nodding his head, and know that he will agree with this. I should like to look carefully at what he has said, but for the moment I withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Further attempts at conciliation: recommendations]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 16: Page 15, line 33, leave out ("claimant") and insert ("complainant")

The noble Lord said: The word chosen by the draftsman was wrong, and it is here corrected. I beg to move.

On Question, Amendment agreed to.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 17: Page 15, line 41, leave out ("award of") and insert ("affording of access to")

The noble Lord said: This Amendment is to substitute the words "affording of access to" for the words "award of". This is technical, because it applies to a clause elsewhere. The definition of "affording of access to" is the one to which we wish this clause to apply, but the words "award of" mean exactly the same thing. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 23, as amended, shall stand part of the Bill?

5.30 p.m.


May I raise one point which I think is fairly fundamental. There is no provision in Clause 23 for appeal against recommendations which the Agency may make. At this stage think there ought to be a right of appeal. It is interesting to notice that paragraph 125 of the Working Party's Report said: The right of appeal after judicial review of the Agency's decisions should also be provided. While the Working Party has not examined the question specifically, its disposition would be to confine review to the remedies prescribed by the Agency rather than its findings". The Bill does exactly the opposite. Clauses 24 and 25 will provide for appeal to the county court against the Agency's findings after a complaint of unlawful discrimination, but there is no provision here for appeal against the Agency's recommendations.

It is not self-evident that the recommendations will always necessarily be the right recommendations. One has only to glance at the clause to see the sort of things it is suggested the Agency might recommend: that there should be reinstatement, that there should be the removal of any detriment from the complainant or conferment of any authorisation or qualification on the complainant. It may be that the Agency will get the right answer, or it may not. What is absolutely certain is that if the Agency does not get the right answer, woe betide the firm which has to put the recommendations into effect. If I may say so, this is even more curious in that under Part which we have already agreed, there is a right to appeal to the Appeals Board against the Agency's directions in equal opportunity cases, but no appeal, against the Agency's findings, the exact opposite of the provisions which I am complaining about now. I have not put down an Amendment and I do not think I gave the noble Lord notice of this, but if he would look at it I should be very grateful.


The noble Lord did give me notice and I am prepared to give a full reply. The main reason is that this Bill differs from the van Straubenzee Report in this particular point. The Committee envisaged that where the Agency investigated a complaint of unlawful discrimination and found that it had occurred, it would issue an administrative enforcement order providing for remedies. The Committee preferred direct enforcement by the Agency rather than enforcement through the court as a way of giving the public more confidence.

Because the administrative enforcement order gave such wide powers to the Agency, the Committee thought it particularly desirable that an appeal to the court should lie against the recommendations. Her Majesty's Government decided, however, that it was more appropriate that the practice of the Race Relations Act should be followed in this case, and it would be wrong in principle to give the Agency such wide powers. Thus the Bill does not provide for the Agency to make enforcement orders but rather recommendations as to remedial action to be taken. Enforcement action will derive from an action for tort in the courts, and, therefore, a separate appeal against recommendations which are not formally binding is unnecessary.

The finding of unlawful discrimination is, however, a judicial finding and forms the basis of the enforcement proceedings. We do not believe that it would be right not to provide for appeal against such a finding by the Agency. The Bill provides, therefore, that a respondent against whom the Agency alleges unlawful discrimination shall have a right of appeal against that finding in the county court. I hope the noble Lord will accept the desirability of providing for appeals to the county court against a finding by the Agency for unlawful discrimination, and that enforcement of remedies should lie with the courts rather than an administrative body. It is our view that these changes do not detract from the aims of the van Straubenzee Committee but provide a full legal protection for both respondent and complainant.


I think that meets my point, and indeed the noble Lord has given information about which was not aware. I am most grateful.

Clause 23, as amended, agreed to.

Clause 24 agreed to.

Clause 25 [Appeal to county court against Agency's finding on complaint of unlawful discrimination]:

5.35 p.m.

Lord BELSTEAD moved Amendment No. 19: Page 17, line 12, leave out ("21 days") and insert ("6 weeks").

The noble Lord said: The effect of this Amendment would be to extend the time limit for making an appeal under this clause from 21 days to 6 weeks. The Sex Discrimination Bill I think provides a six week period for making an appeal against a non-discrimination notice, and I cannot see any reason why the provisions of this Bill should not be the same. Just one word of warning, if I may. I realise that once the Agency has found that there is unlawful discrimination in a particular case, it is in everyone's interest to get the matter concluded. The Agency will not be a judicial body. This will be an appeal to the county court. It would be wrong to so curtail the time allowed for appeal that the process of appeal could be weighted against the appellant. I beg to move.


Once again I do not feel helpful over this Amendment. In the first place—I think this is the most important thing—the standard period for appeal in Northern Ireland is 21 days. The Northern Ireland County Court Rules 1965 allow 21 days for appeal from a tribunal to the county court, and in some other statutory provisions the periods are as short as 14 days. We think it important that the matter should be dealt with quickly and not dragged out. We feel that as 21 days is the normal period to which people are accustomed in this sort of case in Northern Ireland it would be better to leave it. It is not a point of principle between us. It is a question of which is the more convenient. I hope the noble Lord will be prepared to accept that.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 20:

Page 17, line 14, leave out subsection (5) and insert— ("(5) In an appeal under subsection (2) the parties shall be the respondent and the Agency and in an appeal under subsection (3) the parties shall be the complainant and the respondent.")

The noble Lord said: This is again a drafting Amendment to Clause 25(5), and its purpose it to ensure that when a complainant appeals to the county court against a finding that no unlawful discrimination was committed, the other party to the appeal will be the respondent to the complaint. At present the Bill provides that the parties are to be the complainant and the Agency. I do not know whether noble Lords get the point. Normally the parties do not act; it is the Agency which acts. But when there is an appeal against a finding it is thought better that the respondent should be given a chance to answer. It is an Amendment which I think improves the Bill. It is not entirely technical, but I think it is entirely desirable. I hope noble Lords will accept it. I beg to move.

On Question, Amendment agreed to.

Clause 25, as amended, agreed to.

Clauses 26 and 27 agreed to.

Clause 28 [Powers of court as to damages and injunction]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 21: Page 19, line 6, leave out ("act complained of") and insert ("unlawful discrimination").

The noble Lord said: This again is a purely drafting Amendment to Clause 28(1) which sets out the county's powers to award damages or an injunction, and to achieve consistency in the wording of the Bill. I do not know whether noble Lords want me to take it further. I could if required. I beg to move.

On Question, Amendment agreed to.

5.41 p.m.

Viscount BROOKEBOROUGH moved Amendment No. 22: Page 19, line 7, leave out paragraph (c).

The noble Viscount said: I feel that this subsection is going a bit too far. There are adequate means of compensation for any actual loss to an employee who has been discriminated against either in his job or else in his promotion for a job. These two items are quite easily assessable so far as damages are concerned, and if it is going before a county court I would have confidence that reasonable compensation would apply. To put it into the Statute, instructing the court to take into consideration compensation for feelings will, in my view, make it difficult for the courts to assess accurately the amount of damages that should be there, and the fact that it is in the Statute will make them feel that automatically they ought to be looking for some method of compensation. My experience of courts in Northern Ireland when dealing with either damages or insurance cases or matters like that, leads me to believe that damages are nearly always of a very high order. I believe that there are sufficient means of compensation existing without this. I beg to move.


The participants in this Bill have had their eyes on Protestants and Catholics all the time, but I have been thinking wider and considering how this clause would affect the Sikhs who are employed in Northern Ireland. If they want to travel on buses and keep their turbans on, it may be that the local authority will say, No, and then they will be able to claim compensation in the court. I do not think that this is right, in the same way as with practitioners of any other religions who may feel that they have been injured in their feelings by an act of some employer, or of course under this extraordinary Clause 32 by some fellow employee for whose actions the employer takes the blame. This is an extraordinary Bill, and it contains some of the worst clauses of the Race Relations Bill, which I think we made a great mistake in passing. This certainly needs looking at.


I think that it is about time that I gave way to another Amendment, and I am happy to accept this one. I must, in passing, say that I do not at all agree with the noble Lord, Lord Hawke, about the Race Relations Act.


I did not expect that the noble Lord would.


I did not think he would, but there is no harm in underlining the fact. I would however point out a subtlety of some interest which is that although the deletion of this paragraph removes the instruction that damages for injury to feelings can be given, of course in actions for tort the court is always able to take this into consideration and the omission of this will not remove that possibility. Even though we have agreed to take the clause out, there will still be cases which the judge may think deserve special treatment, and they can still get it.


I should like to thank the noble Lord. It was because it became almost a mandatory instruction rather than an option that I wanted it taken out.


I should like to thank the Minister and the Government for acceding to our point of view on this matter; first, because it will make the Bill a very much better Bill; secondly, because it will avoid a slap in the face for all those people throughout the United Kingdom who are suffering very real grief and distress, perhaps as a result of their child being knocked down by a motor car, and who are denied any financial compensation for the very much more severely injured feelings that they suffer.

On Question, Amendment agreed to.

Clause 28, as amended, agreed to.

Clauses 29 and 30 agreed to.

Clause 31 [Accessories and incitement]:

5.46 p.m.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 23: Page 21, line 19, leave out from ("threat") to the end of line 21 and insert ("was not made directly to the person in question").

The noble Lord said: The point of this Amendment is simply to tidy up. Clause 31(3) was rather clumsily put, and this puts it more shortly, more accurately, and loses nothing in the process. I hope noble Lords will accept that.

On Question, Amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Liability of employers and principals]:

On Question, Whether Clause 32 shall stand part of the Bill?


This is the clause to which I referred a minute or two ago. To a dispassionate observer I should have thought that it was grossly iniquitous in the particular circumstances of Northern Ireland to hold the employer responsible for acts of discrimination by his employees. Admittedly he has a defence in subsection (3), but if his employees definitely refuse to work with somebody he has been forced to take on against his will in order to avoid an act of victimisation, I do not see what he can possibly do. They of course will be had up for an offence. Is the court going to award damages against them? In that case, what are they to do? It is the most impossible situation. It is the Race Relations Act all over again.


I think that the noble Lord is making rather a fuss about this. The whole object of the Bill—with which I do not think the noble Lord agrees, but this is hardly the moment to bring that up—is to prevent employers discriminating in engaging their employees on grounds of religion. Any employer who employs a number of men and who leaves it to one of his employees to do that must take responsibility. If he has someone who says, "I would not employ a Catholic if you paid me to," he should not be in that job. It must be the employer's fault.

There can be no doubt that if you are to have a Bill of this kind the employer must be responsible for the people he engages himself, and, equally, for those people who are engaged by his proper agents or nominees. This is the normal legal practice in matters of contract or tort. There is nothing new about it. It is always the case that you are responsible for your agent's actions, and nothing other than that is said here. I really think that the noble Lord must let this go.


I do not disagree with the noble Lord. That is, of course, subsection (2), but I was talking more of subsection (1) where the wretched employer is treated as having performed this illegal act because his employees have. In the circumstances that prevail the situation might become quite impossible.


Only if the employer gives authority to the employee to engage labour. If he does not do that, it does not arise.


It is not only in that situation. The point which I thought to make earlier, and which comes under the matter which I think my noble friend is quite rightly raising at this stage, is that there may be a situation in which the employer is held to be aiding or inciting when in fact he is rather spineless and has not gone out on a limb and said "This shall not happen". This is something which the noble Lord has promised to look at, so that also comes under the point which my noble friend is making.


The employer is described by the noble Lord, Lord Hawke, as "wretched" and by the noble Lord, Lord Belstead, as "spineless". I suppose in those conditions if you have a Fair Employment Agency chairman who is any good, he will know where to make allowances. One speaks as if there will be no intelligent application of this Bill. In any case, we have discussed it and we must probably agree to differ. I hope that your Lordships will let the clause stand part.

Clause 32 agreed to.

Clause 33 agreed to.

Clause 34 [Excepted employments, etc. ]:

On Question, Whether Clause 34 shall stand part of the Bill?


I should like to say a word on this clause. I wonder whether the Government think it wise for the provisions of this Bill to apply to really small firms. I am looking at subsection (4) of Clause 34, which provides that after three years the provisions of the Bill will apply to firms employing fewer than 10 people. I am not suggesting for a moment that small firms ought to be given carte blanche to discriminate against people, or that they habitually do so. I am suggesting that when hiring staff the small employer often has to have regard to different considerations from the larger employers. Paper qualifications become less important, and how a person will slot into the firm becomes more important. If a small employer—perhaps not the man who employs 10 people but the man employing five or fewer—disregards paper qualifications and employs people for their ability to get on with him or with his family, it may be that over the course of the years most such people will be found belonging to a particular political group or having a certain religious affiliation. In this case, he could be got at by the Fair Employment Agency. I wonder whether the noble Lord will say what he thinks about this point.


The point which the noble Lord is making is a perfectly serious one. I would say in reply that we have three years to look at this provision. If experience shows that this kind of restriction is likely to arise from the necessity to advertise widely for workers, and if this appears to create some difficulty in the medium-sized firms, we can think again about the small firms. My own view is that it is just as necessary in small firms, but that there will be more cases where the wise Fair Employment Agency will not insist too stringently on certain changes. I think the point is a sensible one, but we cannot deal with it better than we have done now, and we should leave it for the three years.

Clause 34 agreed to.

Clauses 35 and 36 agreed to.

Clause 37 [Charities]:

On Question, Whether Clause 37 shall stand part of the Bill?


I merely want to ask whether Clause 37 covers charities which are registered with the Charity Commissioners in London. As I read it, the clause excludes from the provisions of this Bill charities, "which are exclusively charitable according to the law of Northern Ireland". I am wondering whether this covers a charity such as the Save the Children Fund, which I assume is registered with the Charity Commissioners in London. As I have not given the noble Lord notice of this question I am sure he will not be able to give me an answer off the cuff, but if he would be so good as to look at it so that I could have a reply at the next stage of the Bill I should be most grateful.


The noble Lord shall have the reply then.

Clause 37 agreed to.

Clauses 38 to 44 agreed to.

5.55 p.m.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 24: After Clause 44. insert the following new clause

Appeal from county court.

"44A. Without prejudice to section 2 of the County Courts Appeals Act (Northern Ireland) 1964 (appeal to Court of Appeal in Northern Ireland on point of law) and section 7 of that Act (different modes of appeal to be exclusive), the Agency or the respondent, if dissatisfied with a decree of the county court in an action under section 27, may appeal from that decree, notwithstanding that damages have been claimed or awarded apart from section 28(4), as if the decree had been made in exercise of the jurisdiction conferred by Part III of the County Courts Act (Northern Ireland) 1959 and the appeal were brought under section 1 of that Act of 1964."

The noble Lord said: This, again, is a highly technical Amendment. It concerns the appeal from the county court. It is rather long so I will not read it out. The point of it is to attract the provisions of the County Courts Appeals Act (Northern Ireland) 1964 relating to appeals in respect of proceedings brought by the Agency under Clause 27. Once again, if your Lordships want to hear it, I can tell you much more about it, but if that is enough for our purposes I should just like to move the Amendment.

On Question, Amendment agreed to.

Clauses 45 to 48 agreed to.

Clause 49 [Application of Act to the police]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 25: Page 29, line 36, leave out ("claim made") and insert ("complaint made or action brought").

The noble Lord said: This, again, is a drafting Amendment to clarify the effect of Clause 49(2)(b) which deals with the application of the Bill to the police. The Amendment will ensure that a chief officer of police who, with the approval of the relevant police authority, makes a payment to settle a complaint of unlawful discrimination or an action in respect of it, may have the sum defrayed as an expense of that police authority. Clause 49(2)(b) refers to a claim made under the Bill. It is not clear whether this covers both the complainant of unlawful discrimination before court proceedings are brought, and the court proceedings themselves. This Amendment is to clarify that point. I beg to move.

On Question, Amendment agreed to.

Clause 49, as amended, agreed to.

Clause 50 agreed to.

Clause 51 [Service of documents]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 26:

Page 31, line 39, at end insert— (", be served on the body.").

The noble Lord said: Once again this, too, is a drafting Amendment. Noble Lords will observe that this point has been referred to earlier. Under Clause 51(1) notice can be served on a person and 51(1) (b) refers to a body corporate or unincorporate and does not state that the notice or any other documents should be served on that body. This puts right that omission. I hope your Lordships will accept that as a reasonable addition to the Bill.

On Question, Amendment agreed to.

Clause 51, as amended, agreed to.

Clause 52 agreed to.

Clause 53 [General interpretation]:

6.0 p.m.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 27: Page 33, line 10, after ("(a)") insert ("subject to paragraph (aa) below").

The noble Lord said: There are other Amendments to follow Amendment No. 27, in particular Amendment No. 28, to which I should like to speak at the same time because they cover the same point. They are technical Amendments to that part of the definition of "complainant" in Clause 53(1) which relates to complaints made on behalf of a person who has died or is otherwise unable to act for himself. The Amendment is rele- vent to Clause 21(3). For the making of a complaint that subsection provides a limitation period of two months from the date when the complainant knew or might have been expected to have known of the act complained of. This is clearly a desirable addition which I hope your Lordships will accept.

On Question, Amendment agreed to.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 28:

Page 33, line 12, at end insert— ("(aa) in relation to the complainant's having, or being expected to have had, knowledge of anything, the person making the complaint or the person against whom the unlawful discrimination is alleged to have been committed, whichever of them first had, or might reasonably be expected to have had, that knowledge; and")

The noble Lord said: This is another drafting Amendment. It is a technical Amendment designed to remove unnecessary words from the definition of "employer" in Clause 53(1). I do not think I need say more to recommend it to the Committee.

On Question, Amendment agreed to.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 29: Page 33, line 36, leave out from ("has") to the end of line 37 and insert ("employment available")

The noble Lord said: This is a consequential Amendment. We discussed earlier the question of "organisation or other body", and instead of saying that we are saying "body corporate or body unincorporate". This deals with the same point. Perhaps I might add that Amendments Nos. 30 and 31 are made necessary by the Amendments which we made to Clause 10.


I have a clock at home and when it is one o'clock it strikes two, and when it is two o'clock it strikes three. The Amendment which the noble Lord, Lord Donaldson of Kingsbridge, actually moved is Amendment No. 29 but the one to which he has spoken is No. 30. Just before that the Amendment moved was Amendment No. 29, but the noble Lord spoke to Amendment No. 28. It is fun to follow the noble Lord in this way, but it is a little misleading.


I am not at all sure that the noble Lord is being fair. My recollection is of speaking to Amendments Nos. 27 and 28, and I recollect speaking to No. 29. If the noble Lord would like me to go through any of them again I shall be happy to do so.


That will not be necessary.


I am not sure where that leaves us. I am speaking to Amendment No. 29, which is a technical Amendment designed to remove unnecessary words from the definition of "employer". That is what I said. I am rather confused by what the noble Lord, Lord Belstead, said. I do not think he is correct.

The Earl of ONSLOW

I distinctly remember hearing the noble Lord, Lord Donaldson of Kingsbridge, talk about a body corporate or unincorporate, and that I read as concerning Amendment No. 30. I thought that perhaps the noble Lord in the Chair had got it wrong, but certainly we seem to be in a muddle. Are we dealing with Amendment No. 30?


My understanding was that the Committee had accepted Amendment No. 29 and that I had moved Amendment No. 30.


I have not got it wrong. We are discussing Amendment No. 29 and the Question I now have to put is whether the Committee agrees to that Amendment.

On Question, Amendment agreed to.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 30: Page 35, line 11, leave out ("organisation or other body") and insert ("body corporate or unincorporate").

The noble Lord said: May I repeat what I said earlier, that Amendments Nos. 30 and 31 are consequential on the Amendments to Clause 10 and they are concerned with the change from "organisation or other body" to "body corporate or body unincorporate". I therefore beg to move Amendment No. 30.

On Question, Amendment agreed to.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 31: Page 35, line 14, leave out ("organisation or").

The noble Lord said: This Amendment is designed to leave out the words "organisation or" for the same reason I gave when moving the last Amendment. I beg to move.

On Question, Amendment agreed to.

6.7 p.m.

Lord MONSON moved Amendment No. 32: Page 35, line 40, leave out subsection (3).

The noble Lord said: This Amendment provides for the deletion of subsection (3) of Clause 53. There are two specific objections to this subsection. The first might best be illustrated by citing the hypothetical case of an employer who would be highly regarded by the noble Lord, Lord Paget—someone who has never discriminated on the grounds of religion, who does not know what the religious composition of his employees is and who has never bothered to ask; in effect, a benign and tolerant employer. One day a friend, who has studied these things comes to him and says, "You realise, Jim, that 34.1 per cent. of the people in this area are Roman Catholics; yet you are employing only 29.7 per cent. If you are not careful the Fair Employment Agency will be down on your neck." To the small employer, who has all sorts of troubles to contend with nowadays—high National Insurance contributions, multi-rate VAT and so on—this would be the last straw. I am not a lawyer, as will be glaringly obvious, but I do not see how in equity a person who conducts his business in good faith, and without bigotry or discrimination can be held unintentionally to have contravened the law.

There is one proviso, and with the leave of the Committee I will go on to speak to my next Amendment, No. 33, which deals with the deletion of the following provision, subsection (4) of Clause 53. It would seem to me that the effect of these two subsections taken together would make it extremely dangerous for any employer to offer a job to a friend or relation by word of mouth, because if he were to do so, particularly in a small family firm, the chances are that the friends or relations would tend to be of the same religious faith or political affiliation as himself and he might therefore come gradually to contravene the provisions of subsection (3); and if he were to offer these jobs by word of mouth to his properly qualified son-in-law, cousin or whoever it might be, rather than by notifying the Labour Exchange or by advertising in the Press, a person who was equally well qualified would not be aware of the existence of an opportunity of a particular employment under subsection (4), and therefore the employer would be in contravention of that subsection as well. I hope the Minister can assure me that this will not be the case and that there is a way round the problem.


I think it very important that we should resist the Amendment. The point in both these Amendments is the unintentional aspect. The point of the Bill is that a man who wants work should not be discriminated against because of his religion. If an employer advertises only in Catholic papers and that man is a Protestant, that is a clear case of unintentional discrimination. There may be no harm in doing it but he will not know that there is a job available so he will not be able to apply. Nobody will get the employer who does this into trouble, but what they will do is to go to him and discuss the point with him and say that he ought to advertise more widely. If he does so, the thing will be over. It will be only if he says, No, he will not employ a Protestant in any circumstances, that the point will arise. We are set to catch exactly that situation, so I cannot give way on this.

Very much the same applies to the second Amendment. For example, one might advertise—I am sorry, I believe that I have got these Amendments the wrong way round. What I have just said applies to the second Amendment; an example of what would happen under the first Amendment is that an employer might notify vacancies only to schools of one religious denomination. Pupils at other schools would clearly suffer from this limitation on their opportunity for employment. The provision which the noble Lord is seeking to omit enables the Fair Employment Agency to consider and deal with such cases. I feel that we must reject both Amendments, as both subsections are fundamental to the whole point of the Bill.

The Earl of ONSLOW

Surely, if somebody advertises a post in a paper of one denomination only, that would be understood by most people to imply discrimination. At least, it would to me. That is one point which we should bear in mind. The second point is that there is some force in what the noble Lord, Lord Monson, is trying to do. It is very difficult to prosecute a person for something which is totally unintentional. I am back in exactly the same position as I have been with a number of Amendments today; that is, I understand both points of view with crystal clarity. How shall we get round the genuinely unintentional discrimination as well as catching the employer who advertises in only one paper, which is to me straightforward discrimination? Perhaps the noble Lord could enlighten us?


There is no problem at all. The job of the Fair Employment Agency is—and this is repeated again and again in the Bill—to proceed by conciliation. If the discrimination is genuinely unintentional and it is pointed out, presumably the employer will correct it. It is only if he is recalcitrant about correcting the error that one gets into the position where one would go to the county court.


I am not entirely happy about that reply. There are parts of Northern Ireland where most of the population tends to read one paper only. One is simply adding to the financial burdens of small employers by obliging them to spend more money on advertising where the number of people who are likely to see the advertisement is really very small. However, that is not my main point. My main point was that this would preclude people from offering jobs by word of mouth to friends and relations. That seems to me to be entirely wrong. Why should people not offer jobs to members of their family or to friends without having to advertise them?


moment. We have the Fair Employment BRIDGE: I do not accept that for one Agency. They are supposed to be sensible people and they will investigate whether or not an employer is providing equal opportunities for employment. Clearly, it is a perfectly normal thing to employ friends. There is nothing wrong with that. If one had 80 friends all from the same proscribed organisation, I suppose that eyebrows might be raised, but if one has four or five friends who are of one persuasion or the other this will not be something which any sensible body will say is wrong. If one is out to increase one's staff and there is a Catholic group within the same sort of distance as a Protestant group, I feel that the Agency would say, "These people can just as easily work for you; we think you should advertise for both." I believe that most normal employers would be quite happy to do so.

I believe that the noble Lord is chasing a will-o'-the-wisp. I certainly should not think it satisfactory if the Bill were to stop people employing their own friends. There is no intention to do that. There is no mention of it. I really do not believe that that is the conclusion to be drawn. On the other hand, the unintentional aspect of these two subsections is very important. If an unemployed man does not know of a job, he cannot apply for it. If a child leaving school does not hear about a job, she cannot apply for it, either. These are the things we are trying to get at. I hope, therefore, that the noble Lord will see how it goes. I do not believe that it will produce what he fears and, in any case, I urge the House to resist the Amendments.


The whole matter really surrounds the small firms. I should be very afraid that, if we gear the whole provision to small firms without having it on an Order in Council, rather than new legislation, we should be in trouble. It is in small firms where this will arise and with small employers.


If the noble Lord takes the newspaper analogy a little further, he will discover that the employer in Northern Ireland has to advertise in Catholic, Protestant, Punjabi and Hindu papers, because the Catholics and Protestants are not the only religious communities which may be discriminated against if they were not aware that a job was available.


I believe that, if there were a large Sikh population within reach of a factory which provided the sort of work that Sikhs were good at doing, this would apply. It happens not to be the case in most areas in Northern Ireland but, if it were, I believe that the noble Lord would be quite right.


I wish I could be as confident as the Minister that the Fair Employment Agency would always behave sensibly. After all, we all know the case of the Race Relations Board and the Scottish cook. It is by no means impossible that this will arise again. I am more worried about subsection (4) than about subsection (3). However, I should like to consider the point further before Report stage and therefore I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 53 shall stand part of the Bill?


I wonder whether victimisation ought to be included in the interpretation clause. I cannot see it there.


May I look at this? There is probably a good reason or perhaps it is defined somewhere else, but I shall certainly reply to the noble Lord about that.

Clause 53 agreed to.

Clauses 54 and 55 agreed to.

Schedule 1 agreed to.

Schedules 2 and 3 agreed to.

Schedule 4 [Conduct of appeals by the Appeals Board]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 35: Page 43, line 20, leave out ("investigation") and insert ("appeal").

The noble Lord said: This is the last drafting Amendment. It relates to appeals before the Appeals Board. The Schedule is concerned with appeals and not investigations, and the reference to an investigation is therefore inappropriate. We are correcting the word from "investigation" to "appeal".

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported with the Amendments.