HL Deb 26 June 1975 vol 361 cc1603-34

5.17 p.m.

Report received.

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

The PARLIAMENTARY UNDERSECRETARY of STATE, NORTHERN IRELAND OFFICE (Lord Donaldson of Kingsbridge) moved Amendment No. 1: Page 2, line 33, after ("any") insert ("material")

The noble Lord said: My Lords, with the permission of the House I should like to speak to Amendment No. 3 as well. In Clause 3(4) there is a definition of "difference in suitability" and, on reflection, we have come to the conclusion that a positive definition of anything as wide as this is rather dangerous. So we have removed the positive definition under Amendment No. 3, and under Amendment No. 1 we have put in before the word "difference" in Clause 3(2) the word "material". This has the effect of changing the present wording from: due allowance being made for any difference in their suitability. into: due allowance being made for any material difference in their suitability. We feel that this is clear, and we will put the onus for deciding what is material and what is not on the courts where we think it properly belongs. I beg to move.

On Question, Amendment agreed to.

5.20 p.m.

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 2: Page 2, line 37, after ("have") insert ("and hold")

The noble Lord said: My Lords, this Amendment inserts after the word "have", the words "and hold"; in other words, the sentence will read: to have and hold it on any terms,". This is a perfectly clear extension of the idea of having, and I hope noble Lords will think it is a useful clarification.

On Question, Amendment agreed to.


My Lords, I have already referred to subsection (4) of Clause 3 which this Amendment deletes. It is a consequential Amendment. I beg to move Amendment No. 3.

Amendment moved— Page 3, line 16, leave out subsection (4).—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.

Clause 4 [The Fair Employment Appeals Board]:

5.22 p.m.

Lord BELSTEAD moved Amendment No. 4: Page 3, line 25, after ("Department") insert ("and one of whom shall be legally qualified").

The noble Lord said: My Lords, the effect of this Amendment would be to require the Fair Employment Appeals Board to have one legally qualified member on the Board. At the previous stage of this Bill, the Government pointed out that Part II is constructive in that it seeks to promote equality of opportunity, and that the Agency must try to achieve this by sensible discussion, conciliation and agreement. I entirely agree with the point of view the noble Lord, Lord Donaldson of Kingsbridge, put forward. This Amendment concerns the occasions—let us hope they will be few—when agreement is not reached, and the Agency has to give directions, and then the person concerned lodges an appeal. I think that the Agency, as well as the person concerned, will feel that justice has been done only if at least a member of the Appeals Board is legally qualified.

Clause 14 makes it clear that the Board can decide for or against not just the person lodging the appeal, but the Agency—both parties are involved. In Clause 14(4) the Board has the power to quash the Agency's directions or substitute other directions. With powers like that, it is going to be essential from the Agency's point of view that the Board should have its full confidence. The Board can also dismiss the appeal. Once that has happened, the person concerned can be taken to court under Clause 15. I do not think people in industry and commerce will understand why, if they can be taken to court subject to appeal, the appeal cannot be heard by a Board which has at least some legal qualification. I have discussed this matter with the Government since the Amendment was put down at a previous stage, and I have slightly altered the Amendment. I hope that, in its new form, it will appeal to the Government. I beg to move.


My Lords, we always go as far as we can to meet the noble Lord's suggestions. I was hostile to insisting that the chairman of the Appeals Board should be legally qualified. I thought it was tying it down too much. Though I have not quite the noble Lord's faith in the effectiveness of lawyers, nevertheless, I can see no objection to insisting on some legal expertise on this Board. We are therefore prepared to accept this Amendment in principle. I should like the noble Lord to withdraw the Amendment on the understanding that I put down something of the same kind later, because there is a technicality which we want to look at. In other legislation, a "legally qualified" person is more closely defined, and is described in some Acts as meaning a barrister or solicitor of seven years' standing. We think it may be preferable to make this more specific. In principle, I will accept the Amendment, and I hope with that the noble Lord will feel able to withdraw the Amendment.


My Lords, I am most grateful. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

Lord BELSTEAD moved Amendment No. 5:

Page 9, line 2, at end insert— ("but, in order to secure action to ensure equality of opportunity, the Agency shall not impose any form of employment quota upon the person concerned").

The noble Lord said: My Lords, this Amendment was one of an original group of Amendments and it remains because it seems clear, having read the Report of the previous stage of the Bill that, despite assurances from the Government, the Bill will allow the Agency to impose employment quotas after carrying out investigations under Clause 12. The idea of quotas was rejected by the Working Party on Discrimination in the Private Sector of Employment. It was similarly criticised by the Government in strong terms in Committee. The problem, as I see it, remains that if the Agency discovers an imbalance between denominations which cannot be accounted for on grounds of suitability, then it might give directions that the imbalance must be rectified, and as soon as it took that line then, in effect, a quota wuold be imposed.

I accept absolutely that the Agency ought not to go about its work in this way, and that if an investigation leads to the conclusion that equality of opportunity is not being provided what the Agency ought to do is work out with the person concerned the methods by which the position can be put right. This would entail such things as improving the advertising methods of the firm concerned, or interview procedures or improving training arrangements, but certainly not just laying down employment quotas. If the Government can show that the wording of the Bill prevents the imposition of quotas, I shall be absolutely satisfied. Otherwise, I hope that this Amendment, or a declaratory provision along the same lines as this Amendment, may be considered for a later stage of the Bill.


My Lords, I must repeat what I said on Second Reading. The Government agree 100 per cent. with the noble Lord's intentions. We have absolutely no doubt that this Bill not only does but must outlaw quotas as a solution to the problems with which we are trying to deal. As a rule, if something is already clearly implicit in a Bill, it is very dangerous to say it again in one place. For example, the statement that it applies to this clause suggests that it may not apply to other clauses. If an Amendment of this kind were to be made, the Bill would have to be gone through from the beginning to the end and the point would have to be mentioned again and again.

I do not want to argue this at great length, because it is rather a waste of the time of the House in that we agree completely over the intention. One possible alternative might alleviate the noble Lord's anxieties. We are to have a guide to manpower policy and practice and I should be happy to undertake that this point will be made unequivocally therein. I do not know whether that would satisfy the noble Lord. If not, I am so anxious that there should be no doubt about what he wants done that I will look at it again. We have looked at it closely and we are quite clear that the Bill outlaws the quota system by its definition of "fair employment ". So we are not really worried about it. I put that forward as a proposition. If the noble Lord will not accept that, I shall have to go over the arguments we had before and see whether I can convince him in that way.


My Lords, I should be happy if this were specifically put into the guide to manpower policy and practice. Whether the final words of the noble Lord make it clear to the House that it is implicit in the definition that quotas will be outlawed, I do not know. It is clear to me, because the noble Lord has been kind enough to write to me and he made that point and one or two others which also encourage me in this matter. Although this is a matter to which I attach the greatest importance, it would be a disaster—as, indeed, I think both sides of the House agree—if quotas were to be imposed. Despite that, even though this has seemed to be a very short exchange, I am happy to accept the noble Lord's assurance and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

5.32 p.m.

Lord BELSTEAD moved Amendment No. 6: Page 11, line 32, at end insert ("due allowance being made for that other person's suitability.")

The noble Lord said: My Lords, in Committee a good deal of this Bill was explained, and I should like to express my gratitude to the noble Lord, Lord Donaldson of Kingsbridge, for the help which he and the Northern Ireland Office have given in clarifying various details in a Bill which I do not find at all straight forward. Having said that, I am bound to say that there is one aspect of the Bill which concerns this Amendment which causes me some misapprehension. That is the enormously wide discretion which is to be left to the Agency. In Clause 3 of the Bill, at least, there is some general guidance given to the Agency; namely, that equal opportunities shall be subject to the suitability of those concerned. It is this provision which this Amendment would also seek to write into Part III. I am rather surprised that it is not there already. All we had in Clause 16, which introduces Part III of the Bill, is the definition of "discrimination", which is: on the ground of religious belief or political opinion … in any circumstances. Those are the words of the Bill—"in any circumstances".

The Government may be ready to say that this Amendment is unnecessary, because if the question of suitability arises there will be no discrimination on grounds of religious belief or political opinion, because we are talking about suitability. But the difficulty arises if the suitability of the applicant depends partly or wholly on his religious beliefs or political opinion. In Committee, on the debate on the Question, Whether Clause 16 shall stand part of the Bill, I sought to put to the Government the point that an employer will be in a very difficult position indeed if he or she is confronted with an applicant who may, so the employer believes, cause trouble of a grave sort. It may be that the applicant has a record of violence, or is possibly still involved in violence. If the employer genuinely believes that those two criteria are fulfilled, how can he do other than wish to reject an applicant?

When my noble friend Lord Brooke-borough was speaking in the same debate, he gave some telling practical examples which included the case of an applicant for employment who could, my noble friend was advised, very well be subverted by violent men. My noble friend asked how he could reasonably have employed such a person. In replying to that debate, the noble Lord, Lord Donaldson, said, 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".—[Official Report, 17/6/75; c. 809.] This Amendment is an attempt to lay it down in a firmer way—an attempt to lay down what I believe was the noble Lord's very reasonable interpretation of the way in which this Bill should work. This Amendment does no more, in essence, than repeat the word "suitability" which is already used in Clause 3. In this clause it would make the definition of "discrimination",subjecttoan employee's suitability.

Following the Government's Amendment No. 1, I should, of course, be only too ready to alter the wording of the Amendment to "material suitability ". If we do not have a form of words which make it clear that if a person's religious belief or political opinion affects his suitability for the work in question then that person can be refused employment without discrimination, we are asking for trouble. I do not necessarily ask the Government to accept this Amendment here and now; it could very well be defective. But I ask that the Government will consider this very difficult problem further, and possibly return to it at a later stage, perhaps with an Amendment of their own. I beg to move.


My Lords, in many ways, this is the nub of the Bill. To some extent the noble Lord anticipated my reply, although I think he understated it. You cannot do better than give a positive instruction here. Clause 16(2) makes discrimination on the grounds of religious belief or political opinion, or by way of victimisation, unlawful. This means that discrimination because of the colour of a man's hair, or because you like his wife or any other reason, does not come under this Bill. It is simply confusing the issue to talk about suitability. This is talked about at the beginning on the question of fair employment practices. This is a definition of the ways in which the Bill forbids one to discriminate against an employee. It seems to me that this is as clear as it can be. The detailed working out, as a result of arguments put forward, will clearly be difficult.

If somebody complains to the Agency he is being discriminated against on religious grounds, and the Agency takes it up with the employer who says that it is not because he is a Catholic but because he is a very bad worker, then the answer, if true, is complete. Of course, one can challenge whether or not it is true. This is where the difficulty arises. There is no difficulty in law or in theory; the difficulty is in practice. By writing something in here, we will not get away from the difficulty. Anybody who belongs to a religion which produces emotional overtones of the kind which exist in Northern Ireland will say, as we found under the Race Relations Act in many cases, that he is being discriminated against for those reasons. The employer has to show to an impartial and educated body that there are other reasons which stand up, and one cannot put this into legislation. One has to give a very long list defining all the different meanings of "suitability". Suitability is not enough. As I have said it will be quite legal to discriminate against a Catholic because he has red hair, if you can make this stick, but it is illegal to discriminate against the person simply because he is a Catholic. I do not think this will help us at all.

The van Straubenzee Working Party said, in paragraphs 80 to 86 of their Report, that employers and others have a duty to stand up for fair employment principles and the law should encourage them to do so. This, it seems to me, is exactly what the clause does. In the end an employer has to be prepared to say: "My reason for not employing this man is as follows"—and that has got to stick with the Agency. If it does not stick, then the Agency will reasonably conclude that it is not true, that the defence is an inadequate one and that there is religious discrimination. But this sentence, with the best will in the world, in my opinion and in the opinion of my advisers, adds absolutely no further strength here, and carries some possibility of confusion.

I think this is a very important Amendment and I do not want to treat it cavalierly. But I do not think that talking about it any more will make any clearer my objection to it. I hope I have convinced the noble Lord. I am quite prepared to talk about this further, but I do not think that my mind is likely to change, and I hope that in view of my explanation—which I think is very clear—he will not find it necessary to press the Amendment.


My Lords, I should like to support my noble friend Lord Belstead. This is a very difficult problem indeed and the noble Lord really has not answered the question which may arise in this "grey area" where somebody is not a bad worker and not actually involved in violence but is in a position where to employ him in a certain capacity would put the employee at a disadvantage and render him liable to be subverted. I think this is only a matter of opinion. It cannot stand up in law. So you then get to the question: is this the right time in the present state of Northern Ireland for this sort of thing to occur and for this Bill to be passed? I should like to ask the noble Lord whether he would look further at this matter to see whether it would be possible to accommodate my noble friend's intention and still pass the Bill. I am behind the principle absolutely, but I feel that this is a very difficult area, because at the present moment there is no confidentiality and no guarantee, when discussing these matters with the Board and the Agency, that the correspondence or statements involved will not in fact be available to the public. It seems to me that we are on very difficult ground here.


My Lords, if I may speak again, by leave of the House, I am a little depressed that the noble Viscount thinks this is the moment to discuss whether we should have this Bill at all—


No, my Lords; I did not say that.


—because that was really the burden of his speech. If the noble Viscount is saying that there are some cases where it would be right to differentiate on the grounds of a person's religious belief—and I am not sure that this is not at the back of his mind—then of course Clause 34(3) enables the employer to discriminate where the essential nature of the job requires it. That, combined with what I said in my first answer, really makes things perfectly clear. I do not think one could go further.


My Lords, may I, with the leave of the House, say one further word? I should like to make it clear that the purpose of this Amendment was not to breach the intention of the Bill. I am interested that my noble friend Lord Brookeborough, who lives in Northern Ireland and has to deal at first hand with matters of this sort, has intervened on this Amendment.

My intention in moving this Amendment was not to breach the intention of the Bill in order to allow somebody to discriminate against somebody else in certain circumstances because of their religious beliefs or political opinion. My intention was very much the same as that voiced by the noble Lord, Lord Donaldson, in Committee. Perhaps I may just give another brief excerpt of what he said at that time. Replying to several points which have been raised, the noble Lord said, at column 808 of the Official Report of 17th June 1975: 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 has 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 Amendment was an attempt to put those views, which were spoken by the noble Lord from the Dispatch Box, into the Bill. I feel very strongly that when the noble Lords says that the employer has to show, when he is taking a decision, that there are reasons that stand up, other than the discriminatory reasons referred to in the Bill, the difficulty we have to contend with is that to be absolutely practical some of those reasons may flow, as the noble Lord himself showed in the excerpt that I have just quoted, because of a person's religious belief or political opinion.

I tried to make it clear in moving the Amendment that I was in no way set on the wording of my particular addition to the draft. I am not convinced by what the noble Lord has said; what I am convinced of is that this is the most difficult part of the Bill and the part of it which will give people more trouble than anything else. We still have a few days before Third Reading and I should like, if I may, to take it away and ask advice about it, because I am not a lawyer. If then I feel that the noble Lord really is wrong, with great respect, then if the House will allow me I shall put it down again and if there was still disagreement I think we should have to divide on it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

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

5.47 p.m.

Lord MONSON moved Amendment No. 7:

Page 12, line 34, at end insert— ("( ) Subsection (1)(a) shall not make it unlawful for an employer to give preference to members of his family when offering employment.")

The noble Lord said: My Lords, I beg leave to move Amendment No. 7. This was inspired by a lengthy discussion in Committee regarding the problems which might be created by the Bill for small employers. It appears that the Government are totally opposed to deferring for longer than the three years which the Bill already provides, the application of this Bill to the really small employer; in other words, the employer who employs less than ten persons other than those in his private household. I am not entirely sure that the noble Viscount, Lord Brookeborough, and I believe this to be wise, but we accept that this is the Government's position. Therefore I submit to your Lordships that this Amendment No. 7, together with Amendment No. 16, which briefly provides that any failure on the part of a small employer to advertise publicly offers of employment, shall not in itself constitute discrimination, may possibly go a long way towards removing part of the threat which small employers may feel this Bill poses for them, without in any way weakening or watering down the Bill.

The noble Lord, Lord Donaldson, said in Committee that he thought it was perfectly reasonable for people to employ their friends. Anticipating possible Government objections, I have not included the word "friends" in this Amendment. I have confined it to members of the family, and I am advised that such a phrase is preferable to using the word "relations", because this includes common law wives, adopted or foster children, family retainers, farm labourers who live in the same house as the farmer and his wife, and so on. I think it is desirable that the provisions of the subsection ought to apply to such people.

I have also confined it specifically to subsection (1)(a) of Clause 17; in other words, it will apply only to people seeking employment. Once they have been employed, they are then on a par with all other employees and will have no preference so far as dismissal, and so on, is concerned. I feel sure that all of us on all sides of the House believe in encouraging family firms. By the nature of things, this will apply only to small shopkeepers who are worried about whether they can safely employ their son-in-law without advertising, and so on. By the nature of things it cannot apply to very large firms, and I hope therefore that the Government will accept this Amendment. My Lords, I beg to move.


My Lords, may I support the noble Lord. Lord Monson, on this matter.

5.50 p.m.


May I, too, say a word in support of the noble Lord. I am not particularly keen on Amendment No. 7, for reasons which no doubt the Government will give, but I think that Amendment No. 16, without much further discussion, is self-evidently a sensible Amendment. May I ask the noble Lord, Lord Donaldson, one question which perhaps he can deal with in replying. If the Government are going to resist the noble Lord, Lord Monson, on Amendment No. 16, doubtless they will make the point that if other people must advertise in a proper way so as to avoid discrimination, so should the small employer. But does this mean going to the full extent on the matters which were referred to in the van Straubenzee Report? I should like the noble Lord to address himself to a small farmer, for instance, who employs three men. A complaint occurs and an investigation ensues, and then the Agency feels that it must make some recommendation to that man. Is that farmer then going to be told not only that he must advertise widely but also that he must contact local training establishments and even go around the local schools to make sure that to some extent he is going to mix up his labour force? This is a reasonable question and certainly relates to a problem which the noble Lord's Amendment would solve.


My Lords, we are deeply involved in two Amendments which are widely separated. I take it that your Lordships would like me to address myself to them both. If this is what is wanted, I would point out that the noble Lord, Lord Monson, has not moved Amendment No. 16 but the noble Lord, Lord Belstead, has been speaking about nothing else—


My Lords, with permission I would say that the noble Lord asked whether the two Amendments might be taken together, and I think that silence meant consent.


My Lords, with respect I do not think that the noble Lord did ask that, but in any event my few words meant acceptance; consent is with you and we need not worry about that. The noble Lord, Lord Belstead, is quite right about Amendment No. 7. It is supererogatory. It is suggesting that if one gives a reason other than a religious or political reason—in other words if I say. "This man is my first cousin once removed"—this must nevertheless create a religious or political objection. There is no suggestion of any kind of this; it does not arise anywhere. You will leave the position much more safe if it is left alone. There is a case against somebody which can be put up to the Fair Employment Agency if it can be shown that he is discriminating against a man on his religious or political opinions. But if one says, "I have taken on this chap because he is my uncle and the other chap is not", it is a complete answer. Noble Lords need not go any further. It seems to me as clear as a bell. Unfortunately, on the last Amendment I did not carry Lord Belstead with me, but I hope I can carry him on this. I certainly would want to reject Amendment No. 7 on the grounds that the position is already perfectly well dealt with in the Bill.

When we come to Amendment No. 16, this is confusing because the Bill does not expressly demand advertising as a condition which must be met to produce equality of opportunity. Certain kinds of firms in certain districts may not advertise, or advertise only in the Protestant and not in the Catholic newspapers, or whatever the publication may be, and part of a direction from the Fair Employment Agency to them might cover this. But as a general principle it does not arise anywhere. We are here considering firms of fewer than ten. A small farmer may have one or two employees—of course in Northern Ireland a farmer with three men is a large farmer. They would almost certainly be members of his family, but if they are not, exceptionally, nobody would suggest that the farmer should advertise if he did not want to. To suggest otherwise is, if I may say so without meaning to be offensive, looking for trouble which does not exist. I am not worried about this position at all.

However, the noble Lord opens the whole question of the small employer and, while I am on my feet, it might be as well to make one or two remarks about it. This concerns a large part of the working population of Northern Ireland. There are 30,000 establishments there, of which 24,000 employ fewer than ten people. So the Bill is already going gently. It applies initially to less than a quarter, or at any rate to only a small proportion of the total number of establishments. The number of establishments with fewer than five employees is 18,000. So we are speaking about the main group of employers in Northern Ireland, although of course we are not speaking about the greatest number of employees because the big firms employ very large numbers. However, in general, discrimination is not I think alleged only against large firms. The large firms will I think respond far more readily to legislation of this kind, and will be far more willing to do so, than many of the small firms. So one cannot start ditching the principle at this stage. If we do not want to have it at all, we should throw the whole thing out. But if we are going to have a Fair Employment Bill for Northern Ireland we cannot exclude employers who employ fewer than ten men.

I hope I have cleared the point about advertisements. In any event, this Amendment would not do as it stands. I know that the noble Lord had in mind the whole problem of the small employer. I suggest that by giving three years before this Bill applies to the small employer the Government have gone as far as they reasonably can while keeping good faith with those people who are the complainants—on both sides—but mostly I think on the one side—by doing something to put right this very disagreeable wrong which we all admit exists. I do not feel at all inclined to budge on this point.


My Lords, with the leave of the House I would say that I am very pleased with the reassurance of the noble Lord, Lord Donaldson, that the small employer who wants to employ a member of his family is better protected by leaving the Bill as it is rather than accepting Amendment No. 7, and there fore I will not pursue that matter any further. It is perhaps my fault for not making myself clearer, but I did not in fact move Amendment No. 16; I merely touched upon it. I am not entirely in agreement with what the noble Lord says in that connection and believe it would be better to leave the matter until we reach that Amendment. I entirely accept what the noble Lord says about the Bill's applying to the small employer generally, but I wanted to refer to one or two exceptions. However, I beg leave to withdraw Amendment No. 7.

Amendment, by leave, withdrawn.

Clause 21 [Investigation of complaint of unlawful discrimination]:

5.59 p.m.

Viscount BROOKEBOROUGH moved Amendment No. 8: Page 14, line 13, leave out ("has died or").

The noble Viscount said: My Lords, I beg to move the Amendment which stands in my name. I understand that for the purpose of this clause the Bill could have provided one of two methods: one by creating a tort and the second by providing a statutory wrong. The Government have decided to provide a statutory wrong. I am told—I have taken advice on it—that, normally speaking, with a statutory wrong the whole proceedings cease. Had it been a tort, they could in fact have continued. The similar kind of statutory wrong which I quoted previously would make this Bill comparable with the Race Relations Act and the Sex Discrimination Bill.

In neither case did the Government consider that it was necessary to provide that the right of action should not cease at death. It is also interesting that in the Trade Union and Labour Relations Act they felt that it was unnecessary to create this statutory wrong in the case of unfair dismissal. I shall be interested to know—I have given the noble Lord warning about this—why the Government have decided to act differently in this matter.


My Lords, if I may clear up the question of tort—I hope that I do not get it wrong—action by the Fair Employment Agency on a, to them, proved discriminatory action; in other words, a dismissal or a refusal to employ somebody under Part III, is an action in tort in the county court. I hope I am right in saying that, but it does not affect the general principle. The Acts that we are keeping in line here are not Sex Discrimination or Race Relations but the Parliamentary Commissioner Act (Northern Ireland) 1969 and the Commissioner for Complaints Act (Northern Ireland) 1969, both of which are analogous to this Bill in that they are concerned with complaints. Therefore I reject the analogy argument. This is a better analogy than Race Relations or Sex Discrimination. However, in our discussions during Committee it was the noble Lord—if not, somebody else—who said that it should not be possible for people to go on for ever suing others after death. I entirely agree with this, but if one looks at the Bill with some care one finds that by subsection (3) of this same clause there is strict limitation to prevent stale claims from being pursued long after a person's death; so this is not a reasonable accusation.

The case one must visualise is the case of a man who, quite frankly, has been victimised—who has been sacked from a good job and who has been trying for three months, for example, to get his case established. Finally, he gets his case established by the Fair Employment Agency, and the Fair Employment Agency is about to bring a case in tort against the employer, having failed to reach agreement, through the courts, when the man dies. This man has lost the compensation to which he would have been entitled if he had not died and the case had been proved to the satisfaction of the Fair Employment Agency. We maintain that the wife and children are entitled to the court's verdict in a case of this kind, and this is all that the "has died "does. I ask noble Lords not to take out these words, because it would be the greatest possible mistake. It is not liable to abuse in any way. It would be the greatest possible mistake to limit something which was so nearly already proved and agreed just because a man had died. I see no justice in it and I hope that the noble Lord will not press it.


My Lords, I rise to support my noble friend Lord Brooke- borough. The noble Lord, Lord Donaldson of Kingsbridge, has cited the case of a man who has been victimised, and I see his point; but a man who is victimised because of his race, or a woman who is discriminated against because of her sex, or someone who appeals under one of the provisions of the Trade Union and Labour Relations Act are surely in exactly the same boat, and yet it appears that they do not have this remedy.

The noble Lord may consider that this Bill is analogous to the Parliamentary Commissioner (Northern Ireland) Act, but other people may, with equal good faith, consider that it is more analogous to these other Acts which we have been discussing. It would be most unfortunate to give the impression that the provisions of Acts of this kind will apply more harshly in Northern Ireland than in the rest of the United Kingdom because it will lessen the chance of widespread voluntary acceptance. However, as other noble Lords do not appear to feel very strongly about it I suppose we had better withdraw the Amendment.


My Lords, with the permission of the House may I say that I am thankful to the noble Lord for his remarks. I do not think that the noble Lord mentioned in Committee the analogous Acts—at least, not in the columns of Hansard that I have here. The noble Lord has been very helpful and I should like to have a look at what he has said. While I am on my feet, may I also say that every single clarification that the noble Lord has given of all of these clauses has been very helpful. When we have dealt with all the Amendments, may I ask the permission of the House to make a run for the aeroplane in order to get back to Northern Ireland, because I want to get back there tonight if I possibly can.


My Lords, with the permission of the House may I say that the noble Viscount does not require the permission of the House to do that.


My Lords, then it is out of courtesy that I ask for permission. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

6.5 p.m.

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 9: Page 19, line 12, at end insert ("and").

The noble Lord said: My Lords, I beg to move Amendment No. 9. We agreed in Committee to remove the clause which made injury to feelings relevant to the assessment of damages. It is Clause 28(1)(c) which has been removed. In order to make that fit into the rest of the clause we need to add "and" to the end of paragraph (a), and to remove "and" from the end of paragraph (b). I hope that this will be acceptable to your Lordships.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 10.

Amendment moved— Page 19, line 16, leave out ("and").—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 11.

Amendment moved— Page 20, line 18, leave out ("or the injury mentioned in subsection (1)(c)").—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.

6.13 p.m.

Lord MONSON moved Amendment No. 12: After Clause 29, insert the following new clause: . Any testimony given to the Agency or to a county court under the provisions of this Part shall be privileged.

The noble Lord said: My Lords, I beg to move Amendment No. 12 which stems from what I believe to be an extremely valid point which was made by the noble Earl, Lord Onslow, in Committee. He cited the case of an employer who said to the Fair Employment Agency, "I have reason to believe that this man is a dangerous IRA man", and he asked whether that man could sue for libel if he heard about it. The noble Lord, Lord Donaldson of Kingsbridge, replied: 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!"—[Official Report, 17/6/75; col. 808.] The corollary of that is that some of them do think that it is libellous.

I tabled the Amendment with some trepidation, because I drafted it without the benefit of legal advice. However, I was subsequently advised that legally it makes sense, the only doubt being whether it is necessary in view of the fact that testimony in a county court and before tribunals is normally privileged, anyway. Obviously, however, the noble Lord, Lord Donaldson of Kingsbridge, did not think so, otherwise he would not have made the reply that he made in Committee. Furthermore, the question of privileged testimony presumably refers to testimony given in a tribunal or in court and would not cover written evidence in the event of a letter going astray and falling into the wrong hands. There would be a danger there. It may be that this Amendment is in some way either defective or possibly unnecessary, in which case I shall certainly withdraw it, but perhaps the noble Lord will advise me on that point.


My Lords, I think it is a relevant Amendment, but it is unnecessary and I hope to show why. However, it is a perfectly sensible point to raise at this stage. If we are considering defamation—and I think this is the main point of the Amendment, although it could apply to confidentiality in general as well—the general law applies in the ordinary way. Any proceedings in the county court will attract absolute privilege; that is, all witnesses will have complete immunity from any proceedings in connection with anything they have said in court. So far as proceedings before the Agency and the Appeals Board are concerned, they are not courts of law and therefore proceedings before them will probably not attract absolute privilege. However, parties to proceedings and witnesses will have the protection of what is called "qualified privilege", which is a legal term to define the fact that they will be protected against proceedings for defamation, unless it can be shown that they acted maliciously, which is a reasonable defence for this kind of thing. I hope that that answers the noble Viscount. If he would like me to say anything more about confidentiality on this Amendment, I am quite prepared to do so. But I do not think this is the point in the noble Viscount's mind.


My Lords, I am very grateful indeed to the noble Lord for explaining this matter, because it seems to me that if the Agency is to work properly it must create confidence between the employer and itself. It seems to me that there ought to be a time in the communications between the two when they can speak with complete and absolute frankness, both on paper and verbally. The fact that the noble Lord has explained the position in that way goes a long way towards meeting the problems that we raised.


My Lords, I thank the noble Lord for his reply which certainly satisfies me as a layman, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 39 [Acts done to safeguard national security, etc.]:

6.12 p.m.

Lord MONSON moved Amendment No. 13: Page 24, line 33, leave out from (" security ") to l" if ") in line 34 and insert (" , protecting public safety, public order or the safety of individuals or preventing unlawful damage to property").

The noble Lord said: My Lords, this Amendment was inspired by, one might say, the problems on the ground raised by the noble Viscount, Lord Brooke-borough, in Committee. He cited a number of cases at considerable length from his own experience, where it was found dangerous or risky to employ people and where the Bill as it stands might make it difficult if they were to be denied employment. As Clause 39 stands, the provisions of the Bill do not apply to actions for the purpose of safeguarding national security or protecting public safety or public order.

These are rather vague terms. For instance, public safety in particular has a totally different meaning in French from any one of the possible meanings in English. One associates "public order" with the 1936 Act designed to prevent clashes between the Mosleyites and the Communists. Certainly, to a layman, it does not appear to include protection for private individuals against death or injury, such as kneecapping, and that sort of thing, nor does it include protection for private property. That is why I have inserted the words "the safety of individuals" and "preventing unlawful damage to property ", the word "unlawful" being inserted to prevent any action being taken against councils who wish to demolish property for reasons of road widening, or anything of that sort and also accidental damage. I hope that this Amendment will prove acceptable to the Government. I beg to move.


My Lords, I should like to say from this Bench that I have a great deal of sympathy with what my noble friend is trying to achieve, particularly because I had hoped that when we came to it I should be able to say, that as Amendment No. 6 had been accepted this Amendment would not be necessary. Amendment No. 6 was most certainly not accepted and I feel very strongly that this central difficulty in the Bill will prevail. People will not be sure whether the suitability of a person for a job, which stems from their political opinion or religious belief, is something which will, make them liable to be complained against for discrimination. But having said that, I feel I ought to say that I really cannot believe that in practice this Amendment will work. I am surd that the noble Lord, Lord Donaldson of Kingsbridge, will be able to explain much better than I can the reasons for this, but I thought it might be helpful to the Government, and also fair to my noble friend, if on the one hand I said that in principle I have sympathy with him, but on the other hand, in practice, I do not think that this Amendment is a practical proposition.


My Lords, I prefer the noble Lord's practice to his principle. The clause as it stands exempts employers who can plead the protection of public safety, et cetera, from the duties imposed by the Bill. If you are manufacturing on the order of the Government some secret weapon or something of that kind, under this clause and with written authority from the Secretary of State, you can say, "I am not making any pretence at fair employment. I am going to choose people who have a certain security rating, irrespective of anything else." It gives you the right to ignore the ordinary rules of fair employment for a very special, very secret and—from the national point of view—very important reason which has to be verified by the Secretary of State. Clearly, any Bill of this kind must have that sort of provision in it.

But if you are going to extend that to private individuals, to private damage, to risks of kneecapping, then goodness knows!—the Secretary of State will be writing letters all day. I really do not think this was the intention of this clause, nor do I think it should be used in this way. I believe there is a confusion in the noble Lord's mind as to what happens. This suggests that a man says, "I have an absolutely splendid factory here. I cannot afford to employ the ordinary fair employment rules, because it is too valuable. I want to be excused from the ordinary rules and to have nothing but a Swiss Guard, like Louis XIV." This would be totally unacceptable in relation to one man's personal affairs, and it seems to me that there is no intention of covering that kind of situation with this Board.

I must ask the noble Lord to withdraw the Amendment, because I believe it would make the whole Bill unworkable. This clause is intended to give a very special exception to very special matters of the highest State importance, where it is reasonable not to exercise the kind of fair employment practices which this Bill is demanding. This does not apply to any private individual or to private affairs, and cannot so apply. I hope the noble Lord will be convinced by what I have said and will feel that he can withdraw the Amendment.


My Lords, with the leave of the House I must say that I am rather dismayed by the noble Lord's reply, because the definitions of "public safety" and public order "are evidently much narrower than even I had feared. I am thinking not necessarily of factories, but of people's houses, their haystacks, their Land-Rovers or whatever it might be and while they are not equally important, they ought to be protected. I see the dilemma cited by the noble Lord on the question of the Secretary of State; obviously he would be signing things the whole time. I had not realised that Clause 39 applies specifically to questions of high national security, so it is obviously not a suitable clause for an Amendment of this sort. For that reason, I ask leave to withdraw the Amendment but I think we must consider it again before Third Reading.

Amendment, by leave, withdrawn.

6.19 p.m.

Lord MONSON moved Amendment No. 14: Page 24, line 34, after second ("the") insert ("prior or subsequent").

The noble Lord said: My Lords, this is a simple Amendment and is self-explanatory. It simply makes it clear that if an employer has to make a snap decision he can get the approval of the Secretary of State after he has made the decision rather than beforehand. The words "prior or subsequent" will cover that, and I hope it will be acceptable to the Government even if the wording as it stands automatically covers that point. I beg to move.


My Lords, this Amendment is an attempt to allow the national security and public safety and public order exemption we have just been talking about under Clause 39 to apply to an act if the written authority of the Secretary of State was given after the act was done. We think that a person is entitled to know at the time when the act is done whether or not it is lawful, and it would be wrong in principle for an employer to be able to obtain retrospective exemption for his acts. But in any case, under the clause it is possible to obtain a general authorisation. For example, where there are categories of employment where security is of obvious importance and where there may be special risks, an employer could seek an authorisation, thus obviating the need for last minute application to deal with a particular case. In our opinion, this should meet the vast majority of cases, bearing in mind that the application of Clause 39 is, as the noble Lord pointed out in his last remarks, really very limited. I hope that will satisfy the noble Lord, and he will withdraw the Amendment.


My Lords, I am not very happy with the noble Lord's reply. It seems to me one ought to provide for exceptional cases. But in view of the fact that Clause 39 is so narrow in the number of people to whom it will apply—for that reason alone—I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 54 [General Interpretation]:

Lord DONALDSON of KINGSBRIDGE moved Amendment No. 15: Page 36, line 9, leave out from ("supposed") to the end of line 10 and insert ("religious belief or political opinion and to the absence of any, or any particular, religious belief or political opinion.")

The noble Lord said: My Lords, I can now yield to the noble Baroness, Lady Bacon, to whom I tried to yield on the wrong Amendment earlier. We agreed that we would alter the definition of "religious belief or political opinion" in Clause 54(2) and this Amendment is to do so. It is to insert in place of part of the definition in Clause 54(2) religious belief or political opinion and to the absence of any, or any particular, religious belief or political opinion". The point of this, as your Lordships will remember, was to include the Atheist or Agnostic as well as the believer in any particular faith. I am quite sure the House will support this Amendment. I beg to move.

Baroness BACON

My Lords, I should like to thank my noble friend for keeping his promise to me made during Committee stage, and for putting down this Amendment at Report stage. It meets completely the points that I made during Committee stage. I am sure it will give great pleasure to those people in Northern Ireland who made representations to me. I am pleased that the Amendment I moved has had the effect it has. Incidentally, it has not only produced an Amendment to the Bill but it has produced a very amusing misprint in the Belfast Newsletter of Wednesday, 18th June. It will be remembered that my noble friend Lord Brockway supported me in this Amendment and paid tribute to the part being played by the Humanists in Northern Ireland. But according to the Belfast Newsletter my noble friend Lord Brockway said: The humourists in Northern Ireland were now contributing greatly towards conciliation between the opposite sides. Everybody has had a go in Northern Ireland and it seems it is now the turn of the humourists, and perhaps they might be a bit more successful. Again, I should like to thank my noble friend; I appreciate his action.

On Question, Amendment agreed to.

6.25 p.m.

Lord MONSON moved Amendment No. 16:

Page 36, line 16, at end insert— ("( ) For the purposes of this Act any failure on the part of an employer who employs not more than ten persons in addition to any employed for the purposes of his private household to advertise offers of employment publicly shall not in itself constitute discrimination.")

The noble Lord said: My Lords, I did refer to this Amendment briefly earlier, and the noble Lord, Lord Donaldson, was kind enough to give his views on it at that point. I am bound to say I find it very hard to agree with him. This Amendment really is tantamount to the kind of clause in a legal document that starts with the words, "for the avoidance of doubt", and I do not see that it can do any harm.

Immediately preceding the new subsection, if it is agreed in Clause 54, are two subsections; subsection (3) is concerned with unintentional failure to provide equality of opportunity, and subsection (4) says that a person is seeking employment for the purpose of this Act, if he is available for employment, whether or not he is aware of the existence of an opportunity for any particular employment". So if without any advertising or notification—I do not mean necessarily a paid advertisement; I am using the word in the old-fashioned sense of putting a notice on a notice board or anything else—an employer wishes to tell somebody he happens to know personally in his village, "I have a job going in my garage; would you like to come, Bill?", he may feel inhibited from doing this by the existence of Clause 54(3) and (4). I really do not see that this subsection, which is for clarification, need do any harm. I would ask the noble Lord to think again about this. I beg to move.


My Lords, we have already had some discussion of this Amendment when we discussed Amendment No. 7. As it stands, the Amendment is really not acceptable at all. There is no obligation, either in the Bill or anywhere else, to recruit his employees by advertising. It is clear that this may be the subject of a direction by the Fair Employment Agency under Part II, they may say that by not advertising in a certain paper or in a certain area you are not giving equality of opportunity. But there is no obligation to advertise, and when it comes to small employers I do not think anyone would expect them to do so. I really do not think one can press this at all. I have already said that the small employers are 24,000 out of the 30,000 establishments in the Province, so it is a very big item. In any case, it would be entirely confusing to bring in suddenly a special rule about their not having to advertise when nobody else has to. I am not really clear what the noble Lord is trying to get at. Whatever it is, this Amendment does not do it.


My Lords, with the leave of the House, perhaps I may explain what I am trying to get at. I am trying to relieve the potential anxieties of small employers, who may feel, as a result of the presence of Clause 54(4), that if they happen to be in a village which contains 50 able-bodied males and they want one particular man they nevertheless have to go round and knock on every door and tell everybody that there is a vacancy on the farm or in the workshop or factory. This Amendment would make it clear that they do not have to do this. If I had had any support I would have been sorely tempted to press this Amendment, but it may be that, in any case, it is technically defective in some way. Therefore, I beg leave to withdraw the Amendment.


My Lords, with the leave of the House I should like to add that the three years' run will make clear whether or not there is any substance in the noble Lord's fears. We have this as a protection, so that I do not think that these fears which, in the noble Lord's mind, the small man is suffering from have any reality at the moment, nor need they have. He has three years to get over them.

Amendment, by leave, withdrawn.

Schedule 1 [The Fair Employment Agency for Northern Ireland]:


My Lords, this is a drafting Amendment which, unusually, removes seven words because they are thought by the drafting counsel not to be necessary. I hope that this will be acceptable to your Lordships. I beg to move.

Amendment moved— Page 38, line 6, leave out from ("corporate") to the end of line 7.—(Lord Donaldson of Kingsbridge.)

On Question, Amendment agreed to.

Schedule 3 [Declaration of Principle and Intent]:

6.31 p.m.

Lord MONSON moved Amendment No. 18: Page 42, line 14, leave out ("or political opinion")

The noble Lord said: My Lords, I beg to move Amendment No. 18, and with the leave of the House I will speak also to Amendment No. 19. I should like to start by emphasising that they are alternative Amendments; that is to say, if Amendment No. 18 were agreed I would not press No. 19, and vice-versa. We did not directly discuss Schedule 3 in Committee, although I voiced my reservations about it on Second Reading. It was pointed out by both my noble friend Lord Brookeborough and the noble Lord, Lord Kilbracken, in Committee, that Parts II and III of the Bill refer to different things, and prior to their noticing this I do not think that this was generally recognised. The noble Lord, Lord Donaldson, said that so far as Part II was concerned it would be wrong to insist in a blanket way on political opinions being ignored; Part II being a question of morals rather than behaviour.

Schedule 3 is specifically related to Part II. It is mentioned directly in Clause 6 and indirectly in Clauses 7 and 10. It is nowhere mentioned at all in Part III or in any other part of the Bill. Therefore, it would seem that the words "or political opinion" had crept in one would think by accident. That is not in itself an adequate reason for moving this Amendment. Obviously there must be another reason, and it is this. When we talk about political opinion in Northern Ireland, we are not talking about somebody who wants to reduce the standard rate of income tax by 2p in the pound, or to reduce the speed limit on all roads to 60 m.p.h., or bring in family allowances for a first child. We may be talking about these things, but we also may be talking about violence, arson, mass murder, and one thing and another.

In Committee the noble Lord made the point that a person who had been in prison ought to be given a chance, and that a person's past record ought not to tell against him provided that he was no longer a security risk, and I quite agree. I am not saying that that is not right, or that employers should not employ such people, although I should like to point out that in West Germany, following the deliberations of a committee headed by Willy Brandt—and I think he is admired on all sides of the House as a great liberal—a law was passed that people with extreme political views opposed to the existence of the State could be dismissed. The results of this committee's deliberations are only at an early stage, but so far 300 people have been dismissed from their jobs—schoolteachers, policemen and the like; about two-thirds of them for extreme Left-Wing opinions and one-third for extreme Right-Wing opinions. There are more to come.

I am not suggesting that in Northern Ireland we should emulate West Germany in this respect. I accept with some reservations the idea that such people should be employed. However, I think it is going too far to require an employer to get up and make a rather melodramatic statement saying that he has an absolute moral obligation to employ such people. Certainly it is quite acceptable to say, "You have a moral obligation to employ people on religious grounds ", but political grounds may include people who have done terrible things. By all means let them be employed quietly and without fuss, but to push employers into getting up and having to say this is quite wrong.

If the Government feel, for whatever reason, that the words "or political opinion" ought to be left in, then I suggest as an alternative Amendment No. 19 which in effect suggests that the words "social justice" be replaced by "social harmony ", thereby making it perfectly clear that such a declaration has been made on purely pragmatic grounds rather than moral ones.


My Lords, for rather different reasons from those put forward by the noble Lord, Lord Monson, I hope that the Government will look once again at the drafting of the Bill in connection with this Amendment. I do not object in any way to the wording of the declaration so far as the purpose of the declaration is concerned. But the point which I think this Amendment brings to light is that it is a declaration to be subscribed to by equal opportunity employers under Clause 6 declaring their commitment to the principle of equality of opportunity. The problem is that equality of opportunity is clearly defined in Clause 3 as referring only to religious beliefs.

There are reasons for this, as the noble Lord has sought to explain to me by correspondence between the last stage of the Bill and this, but I think it is going to cause some perplexity if employers, seeing that equality of opportunity relates in Clause 3 to religious beliefs only, find themselves then asked to subscribe to a declaration which includes political opinions also. It is a narrow point, and the noble Lord may be able to direct us on to the right path over it. It is possible that it is just a drafting matter, and if it is I should be grateful if the Government would look at it again.


My Lords, I do not think that it is a drafting matter at all. It is a very important point which we have discussed at length in Committee, and I am prepared to discuss it at length again. The position is that this Declaration of Principle and Intent is taken from the van Straubenzee Report, which was agreed by the employers and the unions, so that it is an important area of agreement and we should be very loath to alter it without very good reason. What it says is: … affirm and declare without reservation my/our commitment to the principle of full equality in all aspects of employment opportunity … That is the positive side of Part II, which says in effect: I will furnish full and equal opportunities to my workpeople in engaging them, in keeping them on, and in dismissing them. The Declaration goes on to say: and utterly reject discrimination on the ground of religious belief or political opinion. When we discussed this we explained—and the van Straubenzee Report has gone into this in some detail—that in a Province as religiously divided as Northern Ireland you may get somebody saying, "I am not discriminating against this man because he is a Catholic. I am discriminating against him because he is a member of the SDLP ", which is a perfectly good political reason for doing so, and we want to catch him for doing that. On the other hand, over the general positive declaration of Part II we are simply saying that the object of this Bill is one, and one only; to stop people discriminating against others in giving jobs, taking jobs, keeping jobs or dismissing people from jobs on religious grounds. They are two different things. When it comes to the result of the employer's action, it is then perfectly reasonable to say, "You cannot get out of it by saying that he is a member of a political Party." This is the object of the exercise.

If this is to be altered, then we should have altered it when we discussed it in Committee. We should certainly not alter it here, because that would be interfering with the laid down agreed statement which comes out of the van Straubenzee Report, and I should be most reluctant to do so. Nor do I believe that it needs altering at all. It is a slightly complicated position in that one has the positive demand for the employer to be fair, and one also has the results of his fairness, or unfairness, which are taken down in an action, in the end, in tort, for doing something which is against the law, and I think it reasonable that political opinion can come into that in a way it does not come into the first. I have been over this time and again. It is not an easy matter and I do not think I should spend longer on it now, but I am certain that we could not accept the removal of these words.


My Lords, I really do not feel that the van Straubenzee Report is tantamount to Holy Writ. Surely the purpose of Parliament is to examine and, where necessary, rectify legislation if it is considered to be imperfect. I have been into the moral arguments and I will not go into them again, but it seems to me, on the fact that the trade unions and employers have supported this declaration in these terms, that maybe the larger unions and larger employers did so, but I wonder how many trade unionists on the shop floor or small employers, taking Northern Ireland as a whole, would support these words? If I were to be asked—be it in Northern Ireland, England or anywhere else—to sign a declaration saying it is my moral duty to employ people whatever their political opinions, whether they be extreme Communists or enemies of the State in some way, I should refuse to do so. I should strike out the words and initial them, although I appreciate that that would perhaps invalidate me from being classified as an Equal Opportunity Employer. Very rarely this afternoon has the noble Lord given way, and I regret to say that I feel so strongly about this issue that I am unable to withdrawn the Amendment.

On Question, Amendment negatived.