Fair Employment (Northern Ireland) Bill

HL Deb 11 July 1989 vol 510 cc100-44

3.4 p.m.

Lord Lyell

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 Lyell.)

On Question, Motion agreed to.

House in Committee accordingly.

[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (BARONESS SEROTA) in the Chair.]

Clause 1 [The Fair Employment Commission]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Blease

I rise at this stage to ask the Minister's help in connection with the Bill. I welcome the inclusion in the Bill of Clause 1(2) which contains the phrase "promoting affirmative action". That is an amendment to the Fair Employment (Northern Ireland) Act 1976. In his Second Reading speech, the Minister said that the Bill was a complex and comprehensive piece of legislation; indeed, he went on to say that it was one of the most comprehensive pieces of legislation to be put before the House. I think that he meant that in terms of Northern Ireland. Certainly, the amount of consultation and discussion that has been devoted to the Bill in another place explains the fact that it is a complex piece of legislation.

I ask the Minister's help at this stage, first, because the government amendments were not available at an early date and, secondly, because of the speed with which the Bill is being presented to the House and the days allocated for debate. I want to be more positive in what I have to say. I wish to deal with a number of other aspects; however, I should be grateful if the Minister could help us with regard to the procedural arrangements for discussion by explaining various aspects of the Bill. Naturally, we shall deal with matters on which the Government have presented amendments.

As I said, I welcome the proposal for affirmative action. I should be grateful if the Minister could tell the Committee whether, among the general duties of the Fair Employment Commission, an obligation is set out in the Bill for the commission to keep its operational arrangements and procedures under review and to suggest to the Secretary of State from time to time reforms that appear wise and necessary. I do not see anywhere in the Bill an obligation and a duty on the commission to keep the operation of the legislation under review.

Lord Lyell

I should say that, if there is any confusion at the outset about the procedural arrangements for dealing with the Bill, the arrangements have been made through the usual channels. I should perhaps preface my remarks by making a slight apology in that there is a commendable amount of speed—but, I hope, not haste—in dealing with each stage of the Bill. I hope that the noble Lord will accept that the matter has been agreed through the usual channels. He will be aware that the tabling of many of the amendments, both by the Government and by his noble friends, was dependent upon negotiations that have taken place between my honourable friend the Minister and the noble Lord's honourable friend. I hope that we have managed to fulfil most of our obligations in this particular respect, ensuring that we put down the amendments as I indicated them at Second Reading.

With regard to the specific point raised by the noble Lord about the commission, the Fair Employment Agency created by Section 1 of the Fair Employment (Northern Ireland) Act 1976 will be known henceforth as "the commission." Clause 1(2) adds to the duties of the commission that of promoting affirmative action. We shall be discussing that matter in considerable detail at a later stage. It is defined, I think, in Part IV of the Bill. Certainly, if the noble Lord wishes, we shall discuss that matter, but I do not think that we should plunge immediately into a discussion about affirmative action. He has tabled an amendment in his own name.

We believe that the Fair Employment Commission is part and parcel of this programme. It has cross-party support and a great deal of support in Northern Ireland. It is supported by the noble Lord, Lord Blease, himself and all his associates with whom he has been working so illustriously through the years.

I believe that the duties as set out in Clause 1 provide the Fair Employment Commission with the flexibility to review any of its own actions or activities as it sees fit. The Bill provides the commission with the flexibility that it feels it will need to carry out its duties, including the duties laid down in subsection (2).

Lord Monson

Before the noble Lord sits down, may I ask whether or not he agrees that there are other people to be taken into consideration besides the Government Front Bench and the Opposition Front Bench? Six days is an extraordinarily short time between Committee and Report stages, and three days is a most unusually short time between Report stage and Third Reading of a Bill. I do not understand the urgency of this matter. It is still more than two weeks, indeed almost three weeks, before this Chamber rises for the Summer Recess. Is it not possible to have a little more time between each stage?

Lord Prys-Davies

I should very much like to support the plea that the Government should have another look at the timetable for this important Bill. My noble friend Lord Blease has made a very fair point. The amendments were tabled by the Government on Friday. I was not around on Friday to see them. Many of them are not merely consequential or technical amendments, but are of considerable substance. Many of the provisions of the Bill are technical; nevertheless, they go to the substance of the Bill.

I hope that we shall have adequate time to consider the response of the Minister in the course of today's debate and that the timetable will not be rushed.

Lord Dunleath

I should like to support what the noble Lord has said. I received just 48 hours' notice that the Second Reading had been advanced from Friday to Wednesday. Most unfortunately from my point of view, I was unable to attend that debate. Similarly, the Marshalled List of amendments was not available when I telephoned last week. I obtained it only when I called in this morning.

I honestly believe that this Bill is of too much importance to be rushed through in the way in which it seems to be being hustled at the moment. I entirely support the remarks of both noble Lords who have spoken.

Viscount Massereene and Ferrard

I too support the last three Peers who have spoken on this point. I have great connections with Northern Ireland. I know that certain action may be for the convenience of the Government and I appreciate that point, but I believe that this Bill is too important to be rushed through.

Viscount Brookeborough

I too would like to express support for that view. Especially from the point of view of someone with as little experience as myself, I believe that it would be much better if noble Lords had more time to prepare for the discussions.

3.15 p.m.

Lord Lyell

At the outset perhaps I may offer to the noble Lord, Lord Dunleath, the Latin words mea culpa. I have tried to make special arrangements for him. He has written to me and I know that he wishes to have communications sent to him in Northern Ireland. I have tried to ensure that that is done.

I take the point of the noble Lord, Lord Monson, and the thoughts on this matter put forward by the noble Lords, Lord Blease and Lord Prys-Davies, as well as my noble friend Lord Brookeborough, but I had understood that the timetable had been arranged through the usual channels. Certainly a very substantial Marshalled List of amendments was available on Friday morning. The noble Lords, Lord Blease and Lord Monson, may have a point in that respect. There were a number of amendments. Indeed the noble Lord, Lord Prys-Davies, and his noble friends may have a point in that they may have wished to see the Government's reply in respect of commitments that were given in another place.

Noble Lords opposite will be aware that those commitments were given throughout the various stages of the Bill in another place. Many of them were given at Report stage and Third Reading there. There were continual discussions outside this Chamber and the other place as regards the nature of these amendments and how the Government might fulfil the commitments given in another place at various stages of the Bill. I should have thought that two-thirds of the amendments that were available on the first Marshalled List on Friday morning were tabled in response to government commitments at various stages of discussion on the Bill in another place.

If noble Lords feel that there is a problem in this respect, I proffer my apologies; but certainly it was my understanding that all these arrangements had been made through the usual channels. As the noble Lords, Lord Prys-Davies and Lord Blease, and my noble friend Lord Brookeborough will know, the usual channels operate with a great deal of consensus. I conclude by saying that the largest number of amendments on the Marshalled List today, and indeed on the first issue of the Marshalled List, were tabled in response to commitments that we gave in another place.

Lord Blease

I thank the Minister for that explanation. However, I think that in the process of it we have lost the essence of the issue which I raised; namely, the writing into the Bill of the obligation of the Fair Employment Commission to keep its work under review and to suggest to the Secretary of State any necessary reforms. That would normally appear under the general duties imposed on any particular body at the commencement of the Bill. I fail to see it in any part of the Bill, either buried in the general text or elsewhere.

Perhaps I may ask the Minister to take that position away and clarify it for me at some later stage in the proceedings.

Lord Lyell

Perhaps I may try to do that right now. If the noble Lord will look at page 7 of the Bill he will see in Clause 10: It shall be the duty of the Commission to identify and keep under review patterns and trends of employment". I think that that is the main thrust of what we are discussing today, what we have been discussing before and what I hope we shall be discussing again. That is my first parry today to the noble Lord. If there is anything more in the queries that he has raised, I shall certainly look into the matter. However, if he looks at Clause 10, to which we shall refer at a later stage and which we shall be able to discuss then, he will see that that provides a fair basis for the commission to act. I hope that, with his knowledge, the noble Lord will accept that.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [The President]:

Lord Prys-Davies moved Amendment No. 1: Page 2, line 22, leave out ("Department") and insert ("Lord Chancellor").

The noble Lord said: Perhaps it will be for the convenience of the Committee if I speak to Amendments Nos. 2, 3 and 4. These amendments would remove the power of appointment of the president of the tribunal—a very powerful office indeed, operating in a sensitive area of policy—from the Department of Economic Development and vest it in the Lord Chancellor.

There are at least two very good reasons for the amendment. First, the office of president of the tribunal is a judicial and senior appointment. It is a senior appointment because there can be no appeal from the tribunal except to the Court of Appeal, and then only on matters of law. Clearly, the president must have an unbiased, questioning approach, good judgment, and an ability to translate this complicated law so that it is fully understood by the lay members of the tribunal. We submit—and I believe that the submission is supported by most of the Peers from Northern Ireland and the political parties—that only the Lord Chancellor's Department has the necessary knowledge of the ability and experience of barristers and solicitors to make the best appointment.

There is another reason for the appointment. It is important that employers and employees, prospective employees, and Catholics and Protestants should have the fullest confidence in the independence of the president. He must not only be independent of the local Department of Economic Development but must be seen to be independent of that department. Indeed, the local department may be seen by some people in Northern Ireland as being partisan. Some people will say that its track record is not all that good. But the president of this tribunal must be seen to be independent, impartial and completely outside the influence of Ministers and civil servants.

Those are the two main reasons for this amendment. However, I should like to add that this appointment would not be without precedent. I understand that the noble and learned Lord the Lord Chancellor appoints the president of the industrial tribunals for England and Wales. That is a good precedent. He also makes appointments to bodies whose remit is confined to Northern Ireland. Thus, the appointment of the president of the Social Security Appeals Tribunal for Northern Ireland is made by the Lord Chancellor.

Those who were present at Second Reading will recall that I indicated that we would be moving an amendment to this effect. The noble Lord, Lord Lyell, responded sympathetically—indeed, generously. Re-reading his speech at col. 824 of Hansard of 28th June, it seemed to me that the Minister accepted that the argument was valid, but that the department would have to consult with the noble and learned Lord the Lord Chancellor before he could respond to such an amendment.

I trust that this afternoon the Minister will be able to come to the Dispatch Box and confirm that it is agreed that this important appointment be made by the noble and learned Lord the Lord Chancellor. I beg to move.

Lord Bonham-Carter

I should like to support the amendment of the noble Lord, Lord Prys-Davies. We are talking about the standing and status of the commission. That is highly relevant to the remarks made by the noble Lord, Lord Blease, before this discussion took place. He spoke about the status of the commission. The commission will have an extremely contentious and difficult role to play. It needs to have all the authority that the legislation can give it. The noble Lord, Lord Lyell, says that its duties are found in Clause 10; that it is to identify and keep under review patterns and trends of employment.

I do not know whether the noble Lord, Lord Blease, agrees with me that such a commission needs wider authority than that. It needs the authority to say whether its powers and the legislation under which it is working are sufficient for it to do the duties which are imposed on it. By the same token, if the commission is appointed by the Department of Economic Development, for precisely the reasons that the noble Lord, Lord Prys-Davies, suggested, it looks as though it is an adjunct of a department of government, whereas it should be a free-standing commission responsible to the Government. It should report not to a civil servant but to the Secretary of State, or whoever it may be.

Therefore the amendment that the noble Lord, Lord Prys-Davies, has put forward and to which I have put my name, with that of the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Blease, is highly relevant and goes to the heart of the whole business. If this commission does not have real authority and standing, it will be unable to do the exceedingly difficult job which it is asked to do. The Department of Economic Development has a specific role concerned with employment. It is meant to encourage opportunities for employment in all directions in the Province, although that role may not always coincide with the role of the commission. The commission may have to do things which, in the short term, do not lead immediately to increased employment. The roles are different. It would be wholly wrong if it were seen to be an adjunct of a department and not an organisation appointed by the Government and responsible to the Government.

Viscount Brookeborough

In putting forward Amendments Nos. 1 to 4 we are endeavouring to strengthen the integrity and impartiality of the Fair Employment Tribunal, especially in the eyes of employers and employees in the Province. At present it would seem to me that the powers in Clause 3 to be held by the department leave all the cards in its hand. The department appoints the president. It may accept his resignation, revoke his appointment if it thinks he is unfit, and may nominate another person should he be unavailable. In addition to that, in Clause 42(1) a Northern Ireland department may refuse to give an unqualified person any financial assistance. Subsection (2) refers to, financial assistance by way of grant or otherwise". As Members of the Committee are aware, there are many people in Northern Ireland who have reservations about the impartiality of departments of government there. I do not agree with this feeling of mistrust; nevertheless, it exists. I have great admiration for the way in which various Northern Ireland departments operate in sometimes not very easy circumstances.

In the eyes of the employer, the department appoints and dismisses the very person who may be ultimately responsible for deeming it as unqualified for receiving government aid, which the department administers. I believe that this does nothing to improve the perception of integrity and impartiality of this legislation.

Clause 3(4) states: If, in the opinion of the Department the President is unfit to continue in office or is incapable of performing his duties, the Department may revoke his appointment". I believe that to the layman it means that the interpretation of the word "unfit' is left to the department. It is logical therefore in his mind that, if the department does not like the decisions of the tribunal, the department can sack the president and appoint another who may carry out its own bidding. In addition, the fact that the president will be a barrister or solicitor means that any undue interference by the department will result in the perception of unacceptable interference by government in the judicial system. I therefore ask the Minister to accept that these amendments are desirable.

3.30 p.m.

Lord Dunleath

I entirely concur with what has been said. It is of cardinal importance that this position should not only be completely independent of the department and of the Government, but should be seen to be independent. Having complete confidence in the competence and impartiality of the noble and learned Lord who sits on the Woolsack and secure in the knowledge that he bears no allegiance to the Free Presbyterian Church in Ireland, whose permanent Moderator is a friend of mine and sits in two other places, I entirely support and accept that it should be up to the Lord Chancellor to make this appointment.

Lord Lyell

We are particularly grateful for the eloquence with which the noble Lord, Lord Prys-Davies, has put his case both today and at Second Reading. This is not the first time that the suggestion has been made that my noble and learned friend the Lord Chancellor, rather than the Department of Economic Development for Northern Ireland, should have the say in this matter.

At the outset at Second Reading, I informed noble Lords that, in consultation with my noble and learned friend, we would consider the points so eloquently put forward this afternoon by both the noble Lord, Lord Prys-Davies, and other noble Lords. I am delighted to be able to inform him, my noble friend, the noble Lord, Lord Bonham-Carter, and the noble Lord, Lord Dunleath, that, as a result of consultation, my noble and learned friend has agreed to take the responsibility for making this appointment.

However, there are some drafting complexities in relation to which I shall not detain the Committee this afternoon. I am afraid that we cannot effect all the wished-for changes in the Bill simply by accepting the four amendments on the Marshalled List, though I hope that at the next stage I shall have firm news for Members that my noble and learned friend has taken on board and agreed to the four amendments set out by the noble Lords who have spoken so eloquently. With that in mind, I hope that the noble Lord, Lord Prys-Davies, will agree to withdraw his amendment because it is in the Government's interest and that of the Committee that we fulfil this obligation.

If my noble friend Lord Brookeborough can wait until Clause 42, I may be able to allay his concerns. I am grateful for his thoughts on the integrity of government departments. My own department, the Department of Agriculture, will note his comments. That excellent newspaper, the Impartial Reporter, will also note the comments of my noble friend. Given that, I hope that the noble Lord, Lord Prys-Davies, and the Committee will accept that our undertaking to meet the amendment will be fulfilled as soon as possible.

Lord Prys-Davies

I am sure I speak on behalf of all noble Lords who have supported the amendment. We are grateful to the noble Lord, Lord Lyell, for responding so favourably to the amendment. We are content to rely on his words so that, by the time we come to Report stage, we shall have an amendment, or a series of amendments, which will be acceptable. We rely on the words of the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Tribunal procedure.]:

Lord Blease moved Amendment No. 5: Page 4, line 11, leave out ("substantial") and insert ("proven").

The noble Lord said: I wish to deal with two matters: the first is the amendment and, on the second, I invite the Minister to explain an aspect of the clause to me. Clause 5 deals with tribunal procedures. The substance of my amendment is concerned with Clause 5(5) (b) (iii) and (iv). I am particularly worried about the word "substantial" and the context in which it is placed. In my view the word "substantial" is too subjective a term to use in legislation. We are dealing here with the giving of evidence either by a complainant or someone who appears before a tribunal and is invited to give evidence. Such people could be deeply concerned about the matters on which they are providing information.

The weighing up of that type of information cannot, I believe, be wrapped up in the word "substantial". We are dealing with the essence of fear: fear in a personal situation or fear for family, friends or fellow workmates. I had thought that the word "proven" might better indentify what I was attempting to convey for insertion into the legislation. But, on reflection, perhaps the word "proven" is equally difficult to interpret, particularly in legislative terms. I shall withdraw the word "proven" and invite the Minister to consult his Northern Ireland ministerial colleagues and the parliamentary draftsmen about the removal of the word "substantial". I believe it will be difficult for tribunal members to adjudicate on these matters. They are expected to give an opinion. The clause provides various grounds upon which the tribunal may hear evidence in private if in the opinion of the tribunal, those grounds are present. That opinion will be conditioned by many aspects of the evidence and also by conditions that pertain in employment factors that occur from time to time.

I suggest to the Minister that this once again puts the onus on the tribunal to give weight to some kinds of information, evidence that cannot be weighted in terms of legislative procedure or in terms of an individual's concept of what he may be suffering. He may be suffering mental anguish. He may be in agony when he gives information against his friends or he may be suffering from fear of what may happen. It is difficult unless one is in that kind of position and knows all its aspects to assess it in any accurate manner. I ask the Minister whether, if I withdraw the amendment, he will take it away to consider rephrasing it or bringing forward an amendment of his own.

Secondly, Clause 5(3) states: The tribunal shall give reasons for its decisions. Can the Minister explain how it is proposed that the tribunal shall give reasons for its decisions? Will they be publicised through Her Majesty's Stationery Office or conveyed directly to the applicant or other interested persons? Will they also be conveyed to the commission? It is not clear in what way it is proposed. It could simply be a written notice sent to the applicant without any reference to the commission which is expected to monitor the events. Also the general public could build up a consensus of how the tribunal is operating. With those remarks I shall withdraw the amendment.

The Principal Deputy Chairman of Committees (Baroness Serota)

An amendment must be before the Committee. Is the noble Lord moving his amendment?

Lord Blease

Yes, I beg to move.

Lord Lyell

The noble Lord will see that Clause 5(5) states "Without prejudice" and it will enable the tribunal to sit in private. That is the man thrust of subsection (5). I hope that the Committee will accept the fact that proceedings before the Fair Employment Tribunal will normally take place in public. However, the provision in subsection (5) gives sole discretion to the tribunal—which I am sure the noble Lord will accept contains experts in this area—to decide whether it is appropriate for evidence from any person to be heard in private session. We intend that the discretion will be exercised rarely. That is clear from the constraints which Clause 5(5) places on the tribunal's exercise of that option.

It is similar to existing arrangements for hearings before industrial tribunals in Northern Ireland and Great Britain. The question of providing proof of potential for harm is an unnecessary constraint on the working of the tribunal and could itself be difficult and cause damage to business in Northern Ireland.

I am sure that the noble Lord will accept that the provision in subsection (5) is the equivalent to Article 59(7)(c) of the Industrial Relations (Northern Ireland) Order 1976, with which he will be familiar, as well as to paragraph 1(5)(c) of Schedule 9 to the Employment Protection (Consolidation) Act 1978.

The noble Lord raised a query about Clause 5(3) which provides that the tribunal shall give reasons for its decisions. That merely requires reasoned decisions. The registration of proof of determinations, including any publicity, will be covered by the regulations under Clause 5(2)(m).

I shall examine what the noble Lord has said. I hope that I have satisfied him as regards his concern about the words "proven" and "substantial". The whole thrust of subsection (5) relates to circumstances in which the tribunal shall sit in private.

Lord Blease

I thank the noble Lord for the manner in which he has dealt with my amendment. I shall read what he has said with great care. I also thank the Principal Deputy Chairman of Committees for her help. In my enthusiasm to get ahead with the Bill I jumped two hurdles at once. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Monson

I should like to ask the Minister one question in relation to Clause 5. He will be aware that in the Bill as originally drafted Clause 5(8)—which is now subsection (9)—provided for a maximum fine of £400. That was a scale 3 fine. Obviously it was the maximum which the Government thought fit and proper after due and careful deliberation.

It has been altered upwards not by one but by two stages to a staggering £2,000. That is an increase of five times. That is not all, because an additional fine of £200 per day can be imposed for each day that the requirements are not met. What has pushed the Government into altering their original judgment, which appeared to be sound enough, and raising the maximum penalty by a multiple of no less than five?

Lord Lyell

The noble Lord will be aware that subsection (9) sets out the penalties which apply following a conviction for any of the offences set out in subsection (8). A person found guilty on summary conviction of either offence is liable in the first instance to a fine. That is the maximum fine provided by Article 5 of the Fines and Penalties (Northern Ireland) Order 1984.

In addition, someone who without reasonable excuse fails to comply under Clause 5(8) becomes liable on a second or subsequent conviction to the additional fine for each day on which the failure continues after the preceding conviction. Let us not forget that these are not mere points of order. They are fairly serious offences which have already been through the commission and the tribunal. The level is a maximum but we believe that the scale set out in subsection (9) meets the requirement. We take this aspect seriously and we believe that subsection (9) meets the case in this area.

Lord Monson

I am grateful to the Minister for that explanation. Having made up their minds as to what is a right and proper fine, it is unusual for the Government to raise it by a factor of five, but there we are!

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7 [Code of practice for the promotion of equality of opportunity]:

Lord Blease rose to move Amendment No. 6: Page 5, line 36, after ("to") insert ("advise and").

The noble Lord said: The noble Lord, Lord Mottistone, has an appointment which clashes with the Committee but I understand that he will be available shortly. I have undertaken to—

Viscount Long

I point out to the noble Lord that neither the Minister nor I were informed about the matter with an apology. We should have been informed of this intention beforehand.

Lord Blease

I apologise to the Minister and to the noble Viscount. I understand that the noble Lord, Lord Mottistone, informed the Chief Whip that I had undertaken to move the amendment. However, having made those comments I do not propose to do so.

[Amendment No. 6 not moved.]

[Amendment No. 7 not moved.]

Clause 7 agreed to.

Clauses 8 and 9 agreed to.

Clause 10 [Survey of employment etc., patterns]:

Lord Monson moved Amendment No. 8: Page 7, line 20, after ("employment") insert ("and of unemployment").

The noble Lord said: The purpose of my amendment and that of the noble Lord, Lord Mottistone, is self evident. The amendment in the name of the noble Lord, Lord Mottistone, is equally good; and it is probably better than mine but, unfortunately, he is not here to move his amendment so I must proceed with my own.

For the commission only to review patterns and and trends of employment might result in the emergence of a distorted and misleading picture. First, there is the danger that the public here and in Ulster may be deceived into thinking that Northern Ireland's endemic structural unemployment affects one religious group only, which of course is very far from the case.

Secondly, there is an obvious necessity to establish the truth about official unemployment statistics. For example, in the 1971 census the number of people who claimed to be unemployed on the census forms was 30 per cent. higher than the number actually registered as unemployed. That is too large a difference to be accounted for by statistical error. That suggests the existence of a very large black economy. How large is that black economy, and to what extent is it spread between the different groups in Northern Ireland? If it is larger than generally imagined and confined more to one group than another, might not the true employment patterns be different from those which are generally supposed to be the case?

Are factors such as alcoholism more prevalent among one group than another? If so, that would help to explain to some extent the unemployment patterns. To what extent does family size contribute to unemployment patterns? One academic survey suggests that families with more than five children tend on balance—and there are many individual exceptions—to be under-achievers compared with families of five children or less. To what extent will this Bill increase unemployment among certain religious and political groups? It is bound to do that, as you cannot increase employment prospects among one group without decreasing them among another; that is a mathematical impossibility. All those questions need answering. I beg to move.

Lord Prys-Davies

I should like to support Amendment No. 8 and, really for the same reasons, to support Amendment No. 9. In order to promote equality of opportunity of employment, surely the commission should be studying and analysing the up-to-date statistics of unemployment. Without that sort of information constantly before the commission, how can it form a view, an assessment, of what is needed and where it is needed?

It can also be said that only by studying unemployment trends can the commission assess whether or not it is achieving results. Indeed, we are constantly reminded that the 1976 Act was a relative failure because it failed to make an impact on the ratio of unemployed between Catholic and Protestant males. Therefore, we on this side of the Committee very much welcome this amendment and hope that the Government can see their way clear to accepting it.

I also agree that, if it is accepted, that will have some resource implications for the commission; but surely that is something which must be met. Therefore, I support the amendment.

Lord Bonham-Carter

I should like to support the amendment of the noble Lord, Lord Monson. As he rightly said, and as I said on Second Reading, there are many different reasons for unemployment, some of which he mentioned. One reason—and only one—is discrimination. It is because we believe that that particular element which causes unemployment can be tackled by means of the law that the Bill is being introduced.

Of course, the effectiveness of this law must be monitored to see whether it is working. As the noble Lord, Lord Prys-Davies, mentioned, one reason that we know that the 1976 Act did not work is because it had no impact on the differential levels of employment between Catholics and Protestants. Therefore, I believe that this amendment is constructive and helpful.

There is only one remark which I thought I heard the noble Lord, Lord Monson, make with which I disagree. I may have misheard him, but I thought he said that it was difficult to increase employment in one group without decreasing it in another. Of course, that is only if you take as fixed the level of unemployment in any given society. If the general level of unemployment goes up, you can increase employment in both groups at the same time. That is highly desirable in the Province, where levels of unemployment in all sections of society are notoriously far too high. Therefore, I am happy to support this amendment.

Lord Blease

Perhaps I may speak to Amendments Nos. 8, 9, 12 and 13. Two amendments in the name of the noble Lord, Lord Mottistone, are included in that grouping. I believe that we have overcome the earlier misunderstanding concerning my speaking to amendments on behalf of the noble Lord, Lord Mottistone. As I understand it, when amendments are left they become the property of the Committee, and that resolves the situation. I thank the Deputy Chairman for her help and I am sorry to add to her burdens.

Perhaps I may say that I support what has been said in connection with unemployment. Equally, let us look at Amendment No. 9. Locations of employment and unemployment are very important. I consider that those should also be part of the information tabulated by the commission.

Lord Lyell

I believe that we have overcome the problem. I was rather startled when I did not find my noble friend in his usual place. I understand that he is at another event. Perhaps I may say to the noble Lord, Lord Blease, that as regards an apology, he will do what many of us in Northern Ireland do; that is, look at the good book. Perhaps the noble Lord will look at St. John, chapter 8, verse 7, which I use very frequently. He can disregard the part about the woman taken in adultery, but if he looks at the rest of that chapter he will find that it is particularly relevant to the noble Lord, Lord Mottistone, and myself, as I attended two such events last week.

May I address myself briefly to Amendments Nos. 8, 9, 12 and 13, and to the general thrust of the amendment put forward by the noble Lord, Lord Monson. I would ask all Members of the Committee who have spoken in this debate to glance at Clause 10 because, as presently drafted, it repeats Section 11 of the 1976 Act, except that the word "commission" is substituted for "agency". The amendments moved on behalf of my noble friend Lord Mottistone and by the noble Lord, Lord Monson, would require the commission to survey patterns and trends of unemployment as well as employment in order to reveal the existence or otherwise of equality of opportunity, as well as to assist the commission in forming an opinion on such equality.

If Members of the Committee glance at paragraphs (a) and (b) of Clause 10 it can be seen that they refer to the existence or absence of equality of opportunity. That is the thrust, the main drive, of this clause and the Bill. I should like to emphasise three aspects. The crucial objective of equality of opportunity is first, to create such an opportunity in employment; secondly, to secure fair participation in employment and, thirdly, to ensure a more representative distribution of jobs between the communities. That very positive objective is what we are discussing in this clause and in the entire Bill.

The aim of the clause and the Bill is not to ensure some equality of disadvantage between both communities. That would be a negative objective and would be inequitable to both communities. It is for that reason that we take the definition of equality of opportunity in Clause 20(1). That repeats what is in Section 3 of the 1976 Act. It concentrates on employment. It does not mention unemployment. The provisions in Clause 10 properly and ideally complement the positive drive and thrust. I think it is appropriate that they should continue to do so.

We must bear in mind that employment and unemployment are not necessarily reverse images of one another. They are separate indices. The dynamics of any labour market mean that an increase in employment does not necessarily reduce unemployment. For example employment might go up as a percentage or in numbers because more jobs become available, but unemployment may well go up in numbers or as a percentage because many young persons or others come on to the job market. That can happen. At the end of the day what matters in Northern Ireland in economic and fair employment terms is more jobs for the Province and more representative distribution of increased employment opportunities between both communities.

Given that fundamental objective, which is shared by all members of the Committee, it is appropriate that Clause 1 should require the commission, like the Fair Employment Agency, to keep under review patterns and trends of employment. I hope that the Committee will accept the positive thrust of Clause 10 in particular of Clause 10(a) and (b), and that members of the Committee will see fit to withdraw this series of amendments.

4 p.m.

Lord Bonham-Carter

I find that to be an unsatisfactory answer. It is exactly the answer that the noble Lord's right honourable friend gave in another place. To say that it sounds better that the thrust of the Bill is in favour of employment and not unemployment and that therefore unemployment is not mentioned, is a slightly ludicrous proposition for anyone to put forward.

This is not a Bill about propaganda; it is a Bill which is intended to help deal by practical means with a situation of some importance in Northern Ireland. It may be the case in exceptional circumstances that when employment goes up, unemployment can go up at the same time, but on the whole that is less common—when employment goes up, unemployment tends to go down.

The whole basis of the Bill is argued from the fact that unemployment in the two communities in Northern Ireland is disproportionately high in the Catholic community. That is what we have to watch. That is one of the things that the commission has to watch. That is why this amendment makes sense and assists the commission in doing its job, and assists others in monitoring that the commission is doing its job effectively.

Lord Monson

I am grateful to all noble Lords who have spoken in support of this amendment, in particular to the noble Lord, Lord Bonham-Carter, for his second intervention. I listened carefully to the Minister. He made the point that unemployment is not a mirror image of employment. Sometimes it is and sometimes it is not. To the extent that it is not, an amendment of this kind is all the more important because one cannot deduce one from the other.

I am not wholly satisfied with the Minister's answer. In some respects I should like to test the opinion of the Committee, but as no other noble Lords' names are down, I am a little hesitant to do so at this stage. It may be that when I beg leave to withdraw the amendment some noble Lords may disagree. If they stay silent, we shall leave it until the next time round, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 and 10 not moved.]

Lord Lyell moved Amendment No. 11:

Page 7, line 28, at end insert— ("(2) It shall also be the duty of the Commission to keep itself informed about proceedings on complaints under Part III of the Fair Employment (Northern Ireland) Act 1976.").

The noble Lord said: I should like to speak also to Amendment No. 14. These two amendments are designed to further increase the effectiveness of provisions in the Bill in respect of individual complaints of discrimination under Part III of the 1976 Act, as amended. The purpose of these amendments is straightforward. The main thrust of the Bill is for employers to provide equality of opportunity in employment. Strong emphasis is also laid on dealing with individual complaints of discrimination. This is the complementary thrust that might be of interest to the noble Lord, Lord Bonham-Carter, and that he was looking at in a different form. It reflects the philosophy behind the Bill, which has obtained a great deal of support in this Chamber as well as throughout Northern Ireland.

These amendments are intended to cover a situation where a complaint may have been brought before the tribunal which irrespective of the outcome of the case, the evidence given, or the decision of the tribunal indicates that action could be taken by the employer to promote equality of opportunity. Provision has already been made for regulations in Clause 5(b). Clause 5(b) provides for regulations to enable the tribunal to send copies of its decisions and the relevant documentation to the commission so that the latter body can keep itself fully informed about proceedings in discrimination cases. Amendment No. 11 extends that provision and makes it a positive duty of the commission to keep itself informed about such matters.

Amendment No. 14 makes more explicit an obligation which already existed in the Bill. Clause 13(1) empowers the commission in a wide range of circumstances to inform any person of its opinion that equality of opportunity was not being afforded. It allows such a person to give a written undertaking that appropriate action would be taken to redress this situation. Amendment No. 14 now makes it explicit that one of the circumstances in which the commission may so act is that to which we have been referring; that is, where a complaint of discrimination gives rise to the commission forming an opinion that equality of opportunity could be better afforded. The two amendments are very much complementary. I beg to move.

Lord Prys-Davies

The noble Lord, Lord Lyell, has rushed us through these amendments. We shall have to study what he has told the Committee.

Amendment No. 11 places a duty on the commission to keep itself informed of tribunal proceedings. As the noble Lord has indicated, that is associated with a weakness in the definition of "indirect discrimination", but I shall not anticipate that argument at this stage. As far as it goes Amendment No. 11 is acceptable. However, I should like to ask the Minister one or two questions.

If the commission is to be given this duty, what correlative rights will the commission enjoy to enable it to discharge this duty? If we are imposing a new duty on the commission, then we need to know what rights are invested in the commission so that it can exercise that duty.

For example, will it have the right to receive advance notice of the cases to be heard by the tribunal? Will it have the right to the discovery of documents before the tribunal? Will it have the right to demand the notes of evidence presented to the tribunal? Will it have the right to seek advice from the tribunal? We need to know the answers to those questions. I believe the noble Lord touched on some of the answers, but not all of them.

Then we need to know what this duty means. Does it mean that the commission will be under a duty to ensure that it is represented at every hearing of the tribunal? Will it have the right to be represented if the hearing is in private—in camera? Will this additional duty be accompanied by extra resources to enable the commission to carry out this function that was not anticipated when the Bill was first published?

To the extent that this amendment meets adequately the weakness in the definition of indirect discrimination, then it is an inadequate response. The Minister explained the relationship between Amendments Nos. 11 and 14. The core of Amendment No. 14 is in paragraph (b). Paragraph (a) is virtually already in the Bill, but the other paragraph is new. It is addressing the problem that can arise when an individual case of discrimination is presented to the tribunal. The tribunal finds that it is not discriminatory within the definition contained in Clause 48, but at the same time it is satisfied that the practice or the behaviour of the employer is inconsistent with the requirements of equal oppportunity, and therefore the situation should be looked at and remedied by the employer. That is the situation that Amendment No. 14 is really addressing.

We are glad that the Government acknowledge that there is a difficult area posed by inadequacy in the definition. But we say that the best way of dealing with that problem is to refine the definition of indirect discrimination so that the problem will not arise. Our amendment to Clause 48 we shall come to later on today, and that deals with the problem. If the Government have set their face against refining the definition, then we say that the second best way of dealing with the problem is to amend Clause 49 in order to give the tribunal itself the power to attach a recommendation to its decision; namely, a recommendation that the employer should seek to remedy the practice or the behaviour complained of. I accept that that would be a compromise because it could not be enforced.

We believe that the Government's amendment, relying on a combination of Amendment No. 11 and Amendment No. 14, is the third best way and not the second best. The government solution is to give the commission the power to exercise an opinion, on the basis of the evidence presented to the tribunal that it should invite the employer to give an undertaking under Clause 12. In this situation the commission would be unable to enforce its undertaking. In that event it would have no choice but to fall back on the launch of a full-scale inquiry under Clause 11. We say that that is a very poor compromise.

We accept Amendment No. 11 as far as it goes, but we want to know more about the correlative rights invested in the commission. So far as it is intended to address itself to the weakness in the definition, then we say it is inadequate. The best solution would be to redefine indirect discrimination; the second best method would be to invest power in the tribunal to make a recommendation.

4.15 p.m.

Lord Lyell

I look forward to a detailed and erudite discussion on Clause 49. I meant no discourtesy to the Committee in brevity. I shall expand a little more on my opening remarks. I hope the Committee will bear with me concerning the way in which I presented my case, especially at this particular stage of the Bill. I hope that it was not in a de minimis area. I wished to provide the Committee with something to go on. The noble Lord, Lord Prys-Davies, has replied fairly and I shall attempt to answer most of his questions.

I believe that the noble Lord was a little concerned about the notes of evidence made by the chairman of the tribunal. The commission has no standing to require written notes of evidence made by the chairman of the tribunal. However, I believe the noble Lord will agree that it is not necessary in order to enable the commission to form an opinion, because such an opinion can be based on the reasoned decisions of the tribunal. That may be required in regulations under Clause 5(3) as well as on hearings before the tribunal. I believe that the noble Lord himself, in the light of the other profession that he practises, will recognise that it is inappropriate for the commission as a lay body to call for the notes of the legally qualified chairman of the tribunal. We believe that would inhibit the work of the chairman. In addition, it is against all precedent in this area. We also believe that it would be seen as compromising the significant judicial status as well as the independence of the tribunal for which the Bill provides. I also have in mind the four amendments moved earlier by the noble Lord, Lord Prys-Davies.

The noble Lord will also be aware that Clause 5 provides the enablement for the proposed Fair Employment Tribunal (Rules of Procedure) Regulations (NI) 1989. It contains express enablement for documents that can be sent to any person or body which is so specified. If Members of the Committee were to look at Clause 5(6) that will be seen on page 4 of the Bill. I shall not read it out.

We had in mind providing in the Fair Employment Tribunal (Rules of Procedure) Regulations (NI) 1989 that copies of the following documents would be sent to the commission. First, there would be the originating application; secondly, the notice of appearance by the respondent and, thirdly, the copies of decisions that will of course contain reasons. We believe that this series of three documents should be sufficient for any monitoring that the commission shall carry out on any individual cases.

In addition, the commission will be advising on or supporting many of the cases that go to the tribunal and will thus have access to all the documents that come into the possession of the applicant. These documents may take several forms. They may be letters, documents obtained under discovery or witness orders. The applicant will have all the documents which go to the Fair Employment Commission.

The noble Lord also referred to the commission. Under Amendment No. 14 the commission may seek a voluntary undertaking from an employer but it has no power to require an undertaking without first having undertaken an investigation under Clause 11.

Lord Prys-Davies

That is what we say is the defect in the procedure. The commission will not be entitled to ask for an undertaking which it can enforce. If an employer decides not to give an undertaking, the commission will have to launch a full-scale inquiry under Clause 12, assuming that it has the facilities and resources available to undertake that investigation there and then. If the tribunal finds an unsatisfactory state of affairs and puts out a marker about the practices of the employer to which the employer does not respond, a year will be lost before an investigation can be set in train and then completed. That is a weakness in the procedure which the Minister is asking the Committee to accept.

Lord Lyell

I do not think that it is quite the weakness the noble Lord perceives. He occupies himself in a world where legally qualified persons operate. The chairman of the tribunal will certainly be a legally qualified person. The three groups of documents which I set out should be sufficient for the commission—let alone the chairman of the tribunal—to adduce an opinion. I do not necessarily accept the point set out by the noble Lord that there would be a delay. Amendment No. 14, coupled with Amendment No. 11, will strengthen the powers of the commission as well as the powers of discovery and so on of the tribunal. That is why I believe that Amendments Nos. 11 and 14 should be, part of the Bill.

Lord Prys-Davies

Let us assume that the commission receives from the tribunal evidence which persuades the commission to exercise an opinion that it should now ask the employer for an undertaking. The employer refuses to give an undertaking. Where then does one go? What power does the commission have to persuade the employer to change his practices there and then? The commission has no power except to launch a full-scale inquiry which may take 12 months or more to conclude.

Lord Lyell

That is the main purpose of the Bill. In serious cases there should not be an instant reply. I do not believe that the commission should have instant access and be able to take instant action. That is why we say that there should be two separate stages. The noble Lord says that an inquiry will take up to a year. We do not necessarily believe that it will take that long. If the commission wishes to ask for an undertaking which is not forthcoming, the machinery will operate as it is set out in the Bill. We believe that that is the best way of operating.

Viscount Massereene and Ferrard

No Act of Parliament can be 100 per cent. foolproof, no matter how well it is drawn.

Lord Prys-Davies

The weakness flows from the inadequacy of the definition of "indirect discrimination". If the Government were to see their way clear to refining the definition, the problem would not arise. The Minister has referred to the regulations and to the contents of the regulations. Can he say whether the regulations are already in draft form and whether we may have sight of them?

Lord Lyell

I am not aware that the regulations are in draft form but I shall certainly inquire about that. The noble Lord asked about indirect discrimination. We should wait until we come to the relevant definition in the Bill of "indirect discrimination". We think that the definition given in Clause 48 is the same one that is used elsewhere. An employer in Northern Ireland will be aware of his responsibilities in this area, as indeed he will be in the area of undertakings that we are discussing at this moment. We should wait until we come to Clause 48 before we move deeply into indirect discrimination. It is not germane to the delay to which the noble Lord referred at an earlier stage.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Investigation of employment etc., practices]:

[Amendments Nos. 12 and 13 not moved.]

Clause 11 agreed to.

Clause 12 agreed to.

Clause 13 [Voluntary undertakings]:

Lord Lyell moved Amendment No.14:

Page 9, line 16, leave out from ("him") to end of line 18 and insert—

1. ("(a) that, in exercising its functions under this Act, the Commission has formed the opinion that he ought to take action for promoting equality of opportunity, or
2. (b) that it appears to the Commission from any decision of the Tribunal in proceedings under Part III of the Fair Employment (Northern Ireland) Act 1976, or from any evidence given in such proceedings, that he ought to take such action.").

The noble Lord said: I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 agreed to.

Clause 15 [Appeal to Tribunal against directions under section 12 or 13.]:

Lord Bonham-Carter moved Amendment No. 15: Page 10, line 32, leave out ("Tribunal") and insert ("High Court").

The noble Lord said: With this amendment we return to the status of the commission and the tribunal and to their practices. We want to substitute an appeal to the High Court for one to the tribunal because we are most anxious that the commission and the tribunal should have parity of esteem. If one appeals from one body to the other, the body to which one appeals should be superior to the body which appeals. That would give the tribunal an authority and a standing more important than that of the commission. We think that that is undesirable and that is one reason why the amendment has been put forward.

However, there are other reasons why we believe this to be a reasonable amendment. The commission is subject to judicial review. The Commission for Racial Equality, which is in a similar position, has found it an impediment to its work that judicial review can be used to obstruct and delay its activities. If appeals are made direct to the High Court, this would restrict judicial review on the ground that the ultimate appeal would be to the High Court itself and therefore there would be no reason to duplicate its work.

I should like to reassure Members of the Committee that what is proposed here does not seek to infringe in any way upon the right of employers to seek judicial review. It concerns a simplifying procedure, and simplicity in the law is, I think, generally agreed to be desirable. It is also a proposal which has the support of the SACHR in Northern Ireland which recommended this course.

In general, it is more satisfactory that appeals from one tribunal do not go to another tribunal, but go to a court. It is for all those reasons—namely, the standing of the commission; the simplicity of procedure; and the obstructive way in which judicial review can be used—that I commend this amendment to the Committee.

Lord Prys-Davies

The noble Lord, Lord Bonham-Carter, has advanced the arguments for this amendment admirably. I should only like to say in support that it is also based on the recommendation of the Standing Advisory Commission on Human Rights in Northern Ireland which is, of course, the Government's own advisory body in this field. Therefore we are especially anxious, for the reasons which have been well advanced by the noble Lord, Lord Bonham-Carter, that the Government should look sympathetically at this amendment.

Lord Lyell

I should love to be sympathetic; indeed, I think that the noble Lords, Lord Bonham-Carter, and Lord Prys-Davies, will accept that we are now treading over familiar and very eloquent ground. However, the issue of the appropriate forum to hear appeals from employers against directions of the commission was discussed exhaustively in another place, at considerable length. I shall not, therefore, open my remarks this evening by going over much of that ground. The issue was raised, quite rightly, a fortnight ago by the noble Lord, Lord Prys-Davies. But, in replying to his comments, and the thoughts put forward by the noble Lord, Lord Bonham-Carter, I am afraid that I do not think I can add a great deal to what I said on that occasion, or indeed to what has already been said at the other stages of the Bill's proceedings.

It is a fact that the Government remain of the view that the respective roles of the tribunal and of the High Court as set out in the Bill are the right ones. To amplify the matter, the tribunal enforces the directions of the commission by the issue of an order of compliance and it also hears appeals against such directions, while the High Court is involved in the last piece of the enforcement machinery when it may in some circumstances exercise its contempt jurisdiction over an employer's failure to abide by an order of compliance of the tribunal.

The noble Lord, Lord Prys-Davies, raised the issue of the participation of the Standing Advisory Commission on Human Rights. He is strongly of the view, in common with SACHR, that appeals should go directly to the High Court; that otherwise there will be unnecessary delays in the enforcement procedure; and that the High Court will be involved anyway in applications for judicial review. But, as the noble Lord will be aware, we have begged to differ on that issue thus far in the Bill.

We on this side of the Chamber believe that the blend of judicial expertise and—something most important in what we are discussing—practical industrial experience, which will be found in the Fair Employment Tribunal, makes the tribunal the most obvious and most appropriate body to hear appeals against commission directions. As my honourable friend explained in another place, the kind of questions which the appellate body will be required to determine will involve, for example, such issues as whether the commission's directions were, in the circumstances of the employer, reasonable, appropriate and necessary.

The determination of those issues and the three baskets into which I put them require, first, a knowledge of the detailed provisions of this legislation; secondly, and even more importantly, close practical knowledge of what actually happens in the industrial and commercial world; thirdly, knowledge of what employment practices mean in practical terms on the ground; and fourthly, knowledge of the full implications of the action which the employer is being directed to take by the commission.

I would be the last to suggest that the High Court would not be competent to deal with such issues. However, for the reasons which I have given, I wonder whether it has the right kind of expert and swift knowledge which is so necessary at this stage of the enforcement process. Moreover, unlike the tribunal, it would not have the opportunity to develop a consistency of judgment which we feel sure that the tribunal will do, with beneficial effects for all concerned.

I must say that the Government are still of the opinion that the tribunal is the most appropriate, most reasonable and most excellent forum to hear appeals against directions of the commission. It is for that reason that I ask Members of the Committee not to accept the amendment now before us.

Lord Prys-Davies

If it is the Government's case that the High Court judge may be too divorced from the world of industry and practice, have they considered whether it would be appropriate for a High Court judge to sit with two assessors when the court is considering an appeal?

Lord Lyell

No. I hope I gave no indication that the High Court, let alone the judge, would be divorced from reality. The main tenet of my argument is that we believe that the tribunal already has the relative and relevant legal knowledge, and we felt that the combinations of that legal knowledge and status, together with the practical experience, would be the proper and the best forum to take these particular actions and that it would be best to proceed in this way. Certainly I would never suggest that the judge would be divorced from reality. It is just that we believe the tribunal is the best and most expeditious forum. Of course, the appeal function can be carried out by the tribunal. The Bill also provides a role for the High Court in the enforcement proceedings at a more appropriate stage, if necessary.

The High Court in Northern Ireland, as I am sure the noble Lords, Lord Prys-Davies, Lord Blease and Lord Bonham-Carter, will be aware, is under increasing pressure. It is for that small additional reason that I do not believe it would be in anyone's interest, especially those concerned in this area of the equality of opportunity and industrial tribunal affairs, to increase the substantial case load in the High Court; or, in doing so, to cause delays which were referred to at an earlier stage by the noble Lord, Lord Prys-Davies, in the hearing of appeals against commission directions. We believe that the tribunal will provide a satisfactory and excellent forum for appeals to be heard.

Lord Bonham-Carter

I listened carefully to what the noble Lord, Lord Lyell, said in defence of the Government's clause. I find it a rather odd argument. I say that because having argued persuasively that the tribunal was admirably equipped to deal with such cases, and indeed rather better equipped due to its industrial expertise than the High Court, he went on to say that he was the last person to suggest that the High Court was not perfectly well equipped to deal with such a case.

Therefore, the first argument is balanced: the High Court is just as well placed, according to his own argument, as the industrial tribunal; but he then falls back on the case that there would be delays. I find that a rather unsatisfactory argument. It does not tackle the first argument I put forward regarding the parity of esteem between the two bodies; namely the tribunal and the commission.

However, in the light of what he said, and although I regret the position he has taken, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 agreed to.

Clause 17 [Failure to comply with order of Tribunal]:

[Amendment No. 16 not moved.]

Lord Monson moved Amendment No. 17: Page 13, line 2, leave out ("£30,000") and insert ("£15,000").

The noble Lord said: This is a probing amendment. The £30,000 seems a quite draconian maximum fine for what, to most people, seems only a mildly heinous or possibly even a technical offence. It would hardly be recognised as a crime by most people. I have in mind, for example, a firm advertising a job vacancy in newspapers read by the community at large although the commission wished the company to target a particular group by advertising purely in newspapers read largely, or almost exclusively, by a particular group. Such a high maximum fine for such a trivial flouting of the commission's promptings seems to many people very much like overkill. I beg to move.

Lord Prys-Davies

It may be of some comfort to the Minister that once again I come to his support. We cannot support the amendments. We think it is important that the tribunal should have effective enforcement powers. It seems to us that to accept the amendment would weaken the enforcement powers of the tribunal and, to that extent, would undermine the Bill. For those reasons, we cannot go along with the amendment.

Lord Bonham-Carter

I support what the noble Lord, Lord Prys-Davies, has said. I do not regard the offence for which this fine is the suggested punishment as a trivial one. It is very important that when the tribunal gives an order that order should be obeyed. It is very important that people should treat those orders with respect. It therefore seems to me that a fine of up to £30,000—it need not always be £30,000—gives precisely the discretion to judge between the more trivial and the more serious offences.

Lord Lyell

I wish to thank the noble Lord, Lord Monson, for the way in which he presented the amendment. He referred at the outset to what he called draconian penalties. I preface my remarks by saying that this is a maximum figure which we have in mind in Clause 17. I do not see it being used in every case: indeed, we hope that it will never need to be used.

I think that the noble Lord will understand—and it has been clearly taken on board by the noble Lords, Lord Prys-Davies, and Lord Bonham-Carter—that the Bill provides, in the event of non-compliance determined by the tribunal as a whole, that the president can then elect either to certify the offender to the High Court or to require the respondent to pay a monetary penalty of up to £30,000. We believe these powers—particularly the president's power to impose a penalty—to be necessary. This gives the enforcement procedure strength, it gives it a great deal of flexibility and it also gives it the benefit of immediacy. The thinking of the Government on this point originally envisaged the courts being used for enforcement purposes. However, on reflection, we became concerned that such a process might be unnecessarily protracted. For a small firm, the penalty of £30,000 would certainly not be reasonable and we do not see this penalty being used in anything but the most extreme circumstances. We believe that it is essential that a penalty for breach of these aspects of the Bill should carry a maximum sufficient to serve as a deterrent.

In the interests of equity and fairness to employers, there is provision in Clause 18(1) for appeal to the Court of Appeal on a point of law against the determination of the tribunal and provision for a separate appeal, subject to the leave of the Court of Appeal, to the Court of Appeal against the amount of the penalty. Members of the Committee will find that in subsection (3).

I make these two points in order to emphasise to the Committee that the Government are aiming for an appropriate balance in this clause as in others. In that spirit, I ask the noble Lord, Lord Monson, to reflect and possibly not to press his amendment.

Lord Monson

I did not expect to get very far with this amendment, nor indeed have I. I am grateful to the Minister for explaining that in his view it is extremely unlikely that a fine of £30,000—whether it be applied to very small firms or not—will be used. To some extent, that is reassuring. I still think that the maximum is on the high side but we shall have to see how things work out in practice. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clauses 18 and 19 agreed to.

Clause 20 [Meaning of "equality of opportunity"]:

4.45 p.m.

Lord Monson moved Amendment No. 18:

Page 15, line 24, at end insert— ("( ) For the purposes of subsection (2) above, a person is not to be treated as not having the same opportunity as another person has or would have by reason only of failing to be offered employment because he lacks a particular religious belief, affiliation or training, where such factors are of genuine relevance to the duties or context of the job in question and where the employer is a church or religious body).").

The noble Lord said: The problem which this amendment was designed to cope with was discussed, with some considerable vigour, in another place. As the Bill stands, where a job application is concerned, a religious body can express a preference for someone of its own religious persuasion only if the applicants are clergy. This is plainly ridiculous. The Government's answer was that religious bodies should not worry about the religious beliefs of their gardeners. There may be something in this, although one can think of at least two religious groups which would be highly offended if their gardeners brought ham sandwiches to eat in their lunch break, another religious group which would be equally offended by the presence of beef sandwiches and two or three more which would not take it at all well if their gardener brought a bottle of beer to drink with his sandwiches at lunch time, irrespective of the filling in those sandwiches.

However, we are not really talking about gardeners, but about much more central and sensitive posts, of a secretarial or managerial nature. As the Bill stands, as I interpret it, a Moslem imam would have to employ as a secretary or PA, if he (or indeed she—there is a thought!) were otherwise the best qualified person for a job, someone who was a passionate supporter of Mr. Salman Rushdie. A member of the Church of Ireland, the Methodists or the mainstream Presbyterians would have to employ fervent supporters of the Free Presbyterian Church, as indeed would a Roman Catholic Archbishop if the individual were the best qualified person for the job. Conversely, the head of the Free Presbyterian Church—who I imagine to be the honourable Member for Antrim, North—would have to employ a passionate supporter of Archbishop Lefebvre if he were the person best qualified for the job. Members of the Committee may consider this an entertaining prospect, but progressive liberal Roman Catholic bishops would also have to employ fervent supporters of Archbishop Lefebvre and that might lead to even more acrimony than in the previous example that I gave.

The problems I have posed are not fanciful ones. There has already been one case in 1984 where a Protestant church group declined to engage for a managerial post a man who happened to have been brought up a Protestant but who had allowed his faith to lapse and had become an atheist. The man who failed to get the job took action against the church under the 1976 Act and won. Any law that forces devout religious believers—whatever their particular religion may be—to employ militant atheists in sensitive positions is an ass of a law indeed. I beg to move.

Lord Blease

The Minister will be aware that out of all the various aspects of the Bill this provision on employment by religious bodies has given rise to more controversy and perhaps more misunderstanding than any other part of the Bill. I think it is important at this stage that we should do something to clear up the Bill's intention in this regard. I shall attempt to give what I consider are the arguments being presented in Northern Ireland, and to express the feeling of unhappiness that exists among many religious bodies in connection with this Bill.

At the outset I should say that I do not carry a brief for any church. I can declare my church membership. I am a member of the Presbyterian Church in Ireland. As this argument also involves political parties in connection with employment, I should say that I have been a member of the Labour Party since the start of my early working life. I have been involved in employing people in the Labour Party. I have been a member of a parliamentary Labour Party for 11 years. I think I am able to reflect something of the general practices within the Labour Party and, I hope, those of other political parties of whose general workings I am aware.

There seems to be a misunderstanding of the Bill's intentions. In my opinion a big part of this Bill in this respect is based on the Fair Employment (Northern Ireland) Act 1976. Some parts of that Act have been withdrawn; they are listed in the back of the Bill. I wish to quote from the 1976 Act. Looking at the list of exclusions in the Bill, I understand that the part of the Act that I wish to quote still stands in this legislation. I shall quote from Section 37(3) of Part V of the Act which deals with excepted employments. It states: Parts III and IV, so far as they relate to discrimination on the ground of religious belief, shall not apply to or in relation to any employment or occupation, other than one mentioned in subsection (1), where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief; nor, so far as they relate to discrimination on the ground of political opinion, shall they apply to or in relation to an employment or occupation where the essential nature of the job requires it to be done by a person holding, Or not holding, a particular political opinion". The noble Lord who moved this amendment made reference to various church organisations in Northern Ireland. I wish to quote from correspondence I have received concerning this dilemma. I have received correspondence from representatives of the two mainstream churches —that is the Protestant and Catholic Churches—but I shall quote from correspondence I received from the Presbyterian Church. I wish to read it out as I think it presents the argument more succinctly than I can at this stage. It states: As political parties expect or require from their employees sympathy and support for the political aims and objectives of the Party so the Churches have a right to require from their employees sympathy and support for their mission and outreach, and that this should be acceptable within the law. The Presbyterian Church feel strongly that this right should be made explicit in the legislation in a way that it has not been made explicit in the 1976 Act. An amending clause to this effect would not weaken the overall authority of the legislation. The Fair Employment legislation in the United States of America exempts the Church's work in mission and outreach, as the Church here understands it. The Church would also expect in addition that the Minister in submitting the Bill to Parliament would direct attention to Section 37(3) of the 1976 Act, the exemption clause, explaining precisely the special position of the Church in the matter of fair employment. If the Government speak from conviction when they say that the law should not detract from the valuable work being done by Churches and Christian bodies, then there is no good reason why this work should not be protected by legislation.… The aim of the legislation is summed up in the White Paper as published and is as follows:—'Measures to promote fairness must themselves give fair treatment to all who are affected by them, or else they will fail their own test'. The Presbyterian Church hold that the proposed law could be unfair to Churches and Christian bodies. It would be unfortunate, if not disastrous, if the Fair Employment Commission were obliged by law unilaterally to classify certain aspects of Church employment as secular, and therefore open to all applications on the basis of merit in the secular sense, while for its part the Church was sincerely convinced that such employment required religious commitment and Christian faith. It would be contrary to the whole 'merit principle' if the law forbids the taking into account of religious conviction, experience and training in cases where these are of direct relevance to the job in question". I have deliberately put that quotation on record because I understand that the Government are in possession of that note from the Presbyterian Church. However, I am informed that other churches are equally concerned about this matter and support the approach that has been made. I now speak of the Protestant and Catholic faiths collectively. They have stressed the point that they continue to be unhappy about the way in which the proposed legislation will apply to churches and I may add, to party political organisations in Northern Ireland.

I do not wish to table an amendment, but I ask the Minister to consider the matters that have been presented to him in the context of this amendment and the remarks that I have made. It is equally important that exceptions should apply in the realm of political organisations. I cannot for the life of me understand that the legislation would operate so that a member of the Unionist Party—I shall be blunt about this—in Northern Ireland would be obliged to employ a member of the SDLP, or even a member of the Democratic Unionist Party. That applies equally to the other political parties. I am not saying that that applies only to the Unionist Party by any means.

When the Labour Party was functioning in Northern Ireland—my noble friend Lord Fitt will understand the point I am making—it would not have considered employing even a typist who was not aware of the organisational commitments and the political aspirations of the Labour Party. I do not make those remarks specifically as regards this amendment, but I hope that the Minister will take my remarks away and examine them and bring back something that will clear the air in this respect.

Lord Dunleath

The noble Lord, Lord Monson, has raised some pertinent points. The noble Lord, Lord Blease, very nearly said what I was going to say. If one has lived and been brought up in Northern Ireland one must be conscious that one very often looks at matters from a Northern Ireland perspective. I have tried to stand back and look at this matter from the perspective of England, Scotland and Wales. I tried to transpose the situation into that context. The nearest I can come to it is to suggest the following situation.

Suppose there were fair employment legislation in Great Britain but it was based not on religious but on political affiliation. How would the chairman of the Minister's party feel if it were obligatory for him to employ a minimum number of Labour supporters in Conservative Central Office? Similarly, how would the chairman of the party of the noble Lord, Lord Prys-Davies, feel if it were obligatory for him to employ a minimum number of Conservative supporters at Transport House? I do not think either of them would take a very favourable view.

During an interview the personnel manager might think that it would be indelicate to inquire about the political affiliation of the aspiring recruit. He would therefore say to himself, "I shall not ask a direct question; I shall ask about the applicant's background". If he discovered that the applicant's father lived in Cheltenham and was an active member of the Church of England, then the applicant would be a Conservative. If, by contrast, the father turned out to be a trade unionist from Tyneside, that would be easy; he would be a Labour supporter. That is the bluntness of the instrument that it is proposed should be used.

I fully appreciate that monitoring is cardinal to the Bill. However, as the noble Lord, Lord Monson, has said, it is only reasonable that just as Conservative Central Office or Transport House would want employees who were broadly sympathetic to their point of view and the objectives of management, the same would be true of the Churches.

For example, the major Roman Catholic charity of international proportions is the St. Vincent de Paul Society. It deals in very large sums of money indeed. Would Her Majesty's Government expect it to employ Protestants, perhaps even members of the Free Presbyterian Church of Ireland? It would hardly be reasonable to expect it to do so. Similarly, would the Protestant Orphan Society, the Church Missionary Society, the Society for the Propagation of the Gospel—all Protestant charitable organisations—be expected to employ Roman Catholics who would not be in sympathy with their objectives? I hardly think that that is reasonable.

Therefore, I believe that the noble Lord, Lord Monson, and the noble Lord, Lord Blease, have very valid points. I support the amendment.

5 p.m.

Lord Fitt

I feel that I must rise to support what has been said by the noble Lord, Lord Blease. I have very vivid recollections of spending hours in Committee in 1975 debating the original Fair Employment (Northern Ireland) Bill. It is depressing, after 13 years, to find that many of the elected representatives still oppose this legislation. They do so from a sense of fear. They feel that this legislation will in some way operate to the detriment of their religious supporters.

Although on the face of it this legislation is meant to take account of the great divide between Roman Catholicism and Protestantism in Northern Ireland, minor wars are taking place between the different Protestant sects in Northern Ireland. I was a member of Belfast Corporation Education Committee, which at that time was responsible for appointing primary school teachers. I was a Catholic, and it did not appoint Catholic school teachers but only Protestants. There were ecclesiastical representatives on the Committee from the Presbyterians, the Methodists and the Church of Ireland. There was a great deal of canvassing by the Ministers sitting on the education committee to ensure that people of their religion got jobs in preference to members of other religions. I was in the position of being a focus for the canvassing because I did not have any personal or constituency axe to grind.

During the debate that took place prior to the enactment of the original fair employment legislation all the Unionists voiced the same arguments as they have voiced on this Bill. They have voted against this legislation. They do so because they feel in some way that their constituents are a little more privileged than the minority Catholic community. Undoubtedly there are firms in Northern Ireland which are situated geographically in either a Republican or Unionist district which find it well nigh impossible to employ people of a different religion. I believe that that is the situation which the Bill is primarily intended to tackle.

I believe that it would be a very foolish man who would believe that, whatever is said in this place and in another place, they can legislate people of different religions in Northern Ireland into employment in an adversarial religion. One has only to look at what will happen in Northern Ireland tomorrow and what will happen on the streets of Belfast tonight, 11th July. To illustrate how rigid religious attitudes are, the Pope may be in Rome but he will be kicked up and down a great many streets in Belfast tomorrow. A great many unpleasant things will be said about the Pope in speeches by so-called responsible elected representatives who should be wiser and should give a lead to some of their more bigoted followers.

What the noble Lord, Lord Blease, has said is quite true. There is concern in Northern Ireland among the Churches which feel that, out of spite, people will take part of this Bill to try to embarrass certain Churches and force them to take on people of a different religion.

As the Minister will know, religion is a very, very sensitive issue in Northern Ireland. He will hear a great deal about that tomorrow. Any suspicions and fears that exist on the part of the representatives of the various churches will have to be taken into account. No attempt should be made to try to impose legislation on the Churches which they would find it very difficult to deal with.

Lord Prys-Davies

Perhaps I can help. We have listened with great attention to the contributions of Members of the Committee to the debate on the amendment. It had been my impression that Section 37 of the Act was working pretty well in Northern Ireland. Can the Minister help the Committee? Does he know how well Section 37 has worked in practice? For example, has there been any application to the commission to review the exemptions under Section 37? Can he explain how Clause 20(2) will assist? It is my understanding that it will reinforce the exemption in Section 37.

The worry must be that the amendment, if it is accepted as drafted, may narrow considerably the coverage of the Bill. Can the Minister give the Committee any indication of the extent to which the amendment, if accepted, would narrow the coverage of the Bill? We want to emphasise that point because the major Churches are heavily involved in ACE schemes. Unless the Minister can reassure us, the worry must be that the extension in the terms of the amendment before the Committee will lead to a major narrowing of the coverage of the Bill.

Lord Lyell

I was about to launch into a diatribe of happiness when the noble Lord, Lord Prys-Davies, brought me down with a cold shower of reality. So far as I am aware, Section 37 is working well so far, but I shall comment later on one particular church—the Free Presbyterian Church—where there was a somewhat awkward incident a number of years ago which I hope has been resolved. I hope that what I say will indicate the great sympathy that the Government have in this area.

All Members who have spoked have drawn attention to the fact that religion is—in my belief, for the better—a great factor in Northern Ireland. One has only to be in the Province on a Sunday to see church attendance and how seriously everyone in Northern Ireland takes their profession of faith. That is something that distinguishes the Province from perhaps even my homeland of Scotland. For better or for worse, religion plays a large part in the life of everyone in Northern Ireland.

Perhaps I may thank the noble Lord, Lord Monson, for the amusing though, I hope, serious way in which he presented his amendment. I enjoyed his allusion to gardeners in sundry establishments, and to their luncheon breaks. I wonder whether he will accept that an imam would be allowed to employ a woman as a secretary, but I shall not delve into that area. As for the honourable Member for Antrim North employing one of Archbishop Lefebvre's more rabid flock, perhaps that might come about. I must say to the noble Lord, Lord Fitt, that miracles occur. Looking at some aspects of today's sports pages, he will be aware of one particular event in my homeland the results of which in October and throughout winter and spring of next year I look forward to. However, perhaps I should not be diverted too far down that particular avenue.

I wish to put on the record one or two points to reply to the serious issue that has been raised by the noble Lord, Lord Monson. First, the Government's appreciation of the tremendous efforts made by churchmen and women in Northern Ireland to provide equality of opportunity in work and of their great generosity in that respect is very genuine.

The noble Lord, Lord Fitt, referred to events tonight, and above all tomorrow, in Northern Ireland. He will be aware of the annual disturbances and arguments among participants in tomorrow's marches when it it discovered that the main beneficiaries of the refreshment stalls at those events tend to a large extent to be members of the Catholic Church. I understand that at least 10 per cent. of the bands taking part are members of the Catholic Church—at least, that is my advice—so the situation in Northern Ireland may not appear as the noble Lord, Lord Fitt, always presents it. But the Government and, I believe, everyone greatly respect the efforts made by persons concerned with the Church to meet the proposals in the Bill and the efforts that everyone connected with the Church make to tackle discrimination.

The second point that we wish to emphasise, because we consider it relevant to the arguments that we adduce on this amendment, is that the public lead given by churchmen and women i n Northern Ireland of promoting equality of opportunity is of paramount importance to Northern Ireland. We have always stressed—I took time out at Second Reading to do so—that the promotion of equality is a collective obligation involving all responsible and farsighted organisations in society. We place the Churches in the vanguard of such organisations. They have extremely valuable and considerable influence in the Province within both communities. It is helpful to the Government when that constructive and positive influence is exercised in the courageous promotion of fair employment and equality of opportunity.

Perhaps I may turn more specifically to the amendment presented by the noble Lord, Lord Monson. First and foremost, there is nothing in the Bill, let alone the 1976 Act, which would require any Church to recruit an employee whose views, opinions or beliefs—religious or otherwise—are such that he would be unable properly to fulfil the duties of the post in question.

The second specific point that I should make at this stage is to remind noble Lords that Section 37 of the 1976 Act, which remains in force, excepts from the anti-discrimination provisions of fair employment legislation those jobs whose essential nature requires them to be done by a person holding—or perhaps not holding—a particular religious belief.

We know that arguments have been advanced for widening and broadening that exception, but the exception is a narrow one—rightly so, I think—and it does not provide any Church with the scope generally to employ only staff who belong to that Church; nor, as I have said, does it force any Church to employ a person whose religious beliefs, or religion, are such that he could not do, or felt that he could not do, a particular job when the essential nature of the job—that is the crux of the argument—requires it to be done by a person of a specific religious belief.

However, the legislation—in this case, Section 37—requires that an individual's beliefs and opinions, in so far as they are related to religion or politics, are not taken into account where they have no bearing on the performance of those duties. Quite where it comes to cutting the grass around the church or cleaning the church, I am not too sure. I have a note here which states that Mammon comes first. I do not necessarily think that members of the Church or the great Church leaders are particularly fussy about where they seek financial advice concerning the considerable sums of money available to the Church. I do not believe that there is any discrimination in seeking advice.

However, posts in any Church organisation which require the undertaking of, for example, evangelising or preaching duties will fall clearly within the scope of the exemption in Section 37. Any Church which employs staff should be clear, when drawing up a job description or considering an appointment, about whether the duties of that particular post are such that the job needs to be performed by someone of a specific religious belief.

In the debate in another place, my honourable friend said: that is the current position; it has operated over the last 13 years; it relates to all churches; it applies the exemption test specifically and precisely to the job in question; and there is nothing in the new legislation which will make it more difficult to apply such a test in future". I am pleased to let noble Lords know that, in order to give explicit guidance to the Churches in the Province on this matter, specific reference will be made to it when the new code of practice is issued later this year.

Lord Dunleath

Perhaps the Minister will forgive me if I intervene for a moment. Is he aware that the Presbyterian Church has taken legal advice about the matter and has been told that the wording of the new legislation, if taken literally by a court, could lead the Churches into considerable difficulty? I am not sure whether that point has been drawn to his notice.

Lord Lyell

If the noble Lord will be patient, I shall come to that matter in a moment, but I am grateful for his intervention.

I believe that I have so far explained why we are reluctant to widen the test and the exemption beyond the anti-discrimination provisions of the legislation.

The noble Lord, Lord Dunleath, tried to pre-empt my remarks with a particular problem about the Presbyterian Church. Our legal advice has consistently and strongly counselled against widening Section 37 of the 1976 Act. We believe that it would be exceptionally difficult to draft any exemption that would not be open to abuse by others who are less well intentioned than the Presbyterian Church.

However, I think that the key point—and it is the point that concerned the noble Lord, Lord Dunleath—is that the present exemption covers jobs, the essential nature of which is that they must be done by persons of a particular religious affiliation. I think that the onus is on any Church that employs staff to be quite clear about those aspects of its work which are very much involved with preaching and those which are not.

What the legislation requires of Church employers is clear management decisions on this point rather than the ambiguity which probably prevails at present. The fact that there have been so few difficulties with the existing legislation weakens the case for any change. I am not aware of the exact legal difficulties to which the noble Lord, Lord Dunleath, referred but I shall certainly take on board the points that he made.

However, in general I would ask the noble Lord, Lord Monson, to consider that Section 37 operates in a fair and reasonable way and that the legislation that we have, especially as set out in Clause 20, should not present any difficulty to the Churches in any particular aspect. I hope that I shall not be tempted to go down the route of the imam or any of those mentioned in the more colourful examples with which I commenced my remarks. I apologise if I diverted from the central issues at the beginning of the debate but I felt that that was perhaps in accord with the tenor of the discussion on the amendment.

Lord Monson

This has been an unusually interesting debate. I turn first to the noble Lord, Lord Prys-Davies. If I interpret him correctly, he suggested that this amendment or something similar to it but perhaps better drafted would drive a large hole through the Bill. I really do not think that that is the case. I doubt whether acceptance of this amendment would affect more than 500 or 600 people in the whole of Northern Ireland.

I am grateful to the noble Lords, Lord Blease, Lord Dunleath and Lord Fitt, for their support and especially to the noble Lords, Lord Blease and Lord Dunleath, for pointing out that political parties may also be caught by this Bill. That is something that I had not appreciated. If that is indeed the case, perhaps I may enlarge on the remarks of the noble Lord, Lord Dunleath, who suggested that should this legislation apply in the United Kingdom the Labour Party would have to employ a substantial number of Conservatives, because they represent about 40 per cent. of the electorate, and the Conservative Party would have to employ probably 40 per cent. of Labour supporters in their central office and elsewhere. However it goes further than that, because in London at any rate both parties would also have to employ a certain number—a small number it is true—of National Front and Socialist Workers' Party supporters. That is possibly something to consider at the next stage of the Bill, if indeed it is the case that political parties in Northern Ireland are obliged to employ people who are totally opposed to their views.

I must say that I am only partially convinced by the Minister's contention that Clause 37 is working perfectly satisfactorily, bearing in mind the 1984 case which I cited in which a former Protestant won an action because he was refused employment by virtue of his atheism; and the Churches are certainly not convinced, as we heard from a number of noble Lords.

It hinges, I think, on the phrase "essential nature", which was repeated by the noble Lord, Lord Lyell. Of course it is perfectly possible for an efficient secretary to type letters and answer telephone calls conscientiously for someone whose religious views she utterly detests. But I suggest that the employer would be extremely uncomfortable in her presence and it would hinder the smooth functioning of the office in question.

As someone who disapproves on principle—and I mentioned it at Second Reading—of social engineering measures such as this Bill, I am tempted to leave the matter as it is because the status quo will help to make a laughing stock of the Bill as a whole. However against that one should perhaps take a more responsible view and try to get this aspect of the Bill right. In either case there is no point in trying to go any further at this stage and so for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clauses 21 and 22 agreed to.

Clause 23 [Employers to apply for registration]:

Lord Monson moved Amendment No. 19: Page 17, line 2, leave out ("ten") and insert ("fifteen").

The noble Lord said: This is a much more low key amendment than the one that I previously moved. It is a probing amendment. Its purpose is to exclude from the scope of the Bill firms employing between 11 and 15 people. I should have liked it to have been more than a probing amendment but I fully realise that, since firms employing more than 10 people are already subject to the restrictions imposed by the 1976 Act, it is almost certainly too late to expect any reversal of policy at this stage.

I should however like to establish one point in particular that arises from the Bill. Let us suppose that in a particular region of Northern Ireland 67 per cent. of the population are Protestant and 33 per cent. are Roman Catholic; in other words the ratio is two to one. Let us also suppose that there are two firms in that region, each employing 12 people. Firm A employs nine Protestants and three Catholics, which is a slight bias in favour of Protestants. On the other hand firm B employs seven Protestants and five Catholics, which is in turn a very slight bias in favour of Catholics. Presumably the Fair Employment Commission will expect firms of that size in this area to employ as an ideal eight Protestants and four Catholics.

I should like to learn from the Minister whether the Fair Employment Commission will expect firm A automatically to replace with a Catholic the first Protestant who leaves the firm and firm B to replace with a Protestant the first Catholic who leaves, so as to retain the ideal ratio of two to one. I beg to move.

Lord Bonham-Carter

One point that the noble Lord has raised with this amendment was also apparent in some of the things he said about the previous amendment. I should be grateful if the noble Lord, Lord Lyell, when replying would clarify this point. It is my understanding of this Bill that there is no question whatsoever of quotas in it. Both in what the noble Lord, Lord Monson, said about the previous amendment and in speaking of this one he seemed to be talking in terms of quotas. That is not the thrust of the Bill. I think that it should be made absolutely and abundantly clear at this point that we are not talking about quotas but about judging and appointing people on their merit and on their merit alone, irrespective of their religion. That is my understanding of the Bill. I should be grateful if the Minister would confirm it.

Lord Lyell

At the outset I am happy to confirm exactly what the noble Lord, Lord Bonham-Carter, said. There is no question of quotas. We shall have to wait until we come to goals, timetables and so on at a later stage.

In reply to the noble Lord, Lord Monson, I must say that in framing the legislation that the Committee has before it today and considering the impact of the registration, monitoring and review obligations of employers, we gave particular regard to the position of the smaller private sector employers. Public sector employers are automatically registered under the Bill. The act of registration is required of private sector employers, but we take a progressive approach to that. On commencement employers with 25 or more employees will be required to register. Two years after commencement the threshold will reduce to 10 and what the noble Lord, Lord Monson, is seeking is to lift that threshold to 15.

Above all, I do not think that in Northern Ireland there would be consensus on what constitutes a small employer. What is regarded as a small employer in one region of a country, let alone in Scotland, England and Wales, may not be so regarded in another. That may also apply to various areas in Northern Ireland. It is an important consideration, because in the Province a substantial amount of employment is provided by small private sector employers. Such employment is important, in particular in specific urban and rural localities. Given the unfortunate tendency in the Province for each community to recruit its own, and for some recruitment procedures to be relatively informal and possibly casual, we think that it is all the more important that smaller private sector employers are brought progressively within the ambit of the Bill's registration, monitoring and review procedures.

I hope that the noble Lords, Lord Monson and Lord Bonham-Carter, will accept that all employers—every one of them—are under a duty not to discriminate either directly or indirectly. We think it appropriate that the registration and related duties should be phased in progressively to the private sector. For that reason, we decided to set the registration threshold initially at more than 25 employees and two years after commencement of the Act at more than 10 employees. This seems to be a reasonable and, I hope, a sensible approach. I hope that the noble Lord, Lord Monson, will see it, as we do, as a sensible and reasonable approach and will not seek to press his amendment.

Lord Blease

Can I have a commitment from the Minister that he will listen to what I have said and come back at Report stage? He has given me no commitment whatsoever.

Lord Lyell

On which aspect?

Lord Blease

I made some very pointed remarks about the Government having representations made to them by the Churches. The letter indicated that there was still confusion in some areas about the application of the 1976 Act. I would welcome some indication from the noble Lord.

Lord Lyell

I shall certainly take that point on board. I was speaking to the amendment referring to smaller employers. We are not necessarily thinking of the Churches now. I apologise if I missed anything earlier. I shall certainly consider it. I have a note here to consider the point. The answer which I have been giving to the noble Lord, Lord Monson, was on Amendment No. 19. With regard to Amendment No. 18, I shall take that consideration on board.

Lord Monson

Perhaps I may first reply to the noble Lord, Lord Bonham-Carter. He stressed that there are no formal quotas in the Bill. That is true. But "goals and timetables"—the phrase in the Bill—inevitably lead to informal quotas. If a firm is found to employ more of one group and fewer of another than the religious balance pertaining in an area of the Province indicates, the firm will be heavily leant upon, for example, to advertise job vacancies only in those newspapers read largely by members of the unrepresented group, and so on, until such an informal quota is attained. It will take longer but the end result will be the same.

The Minister has had no notice of the way in which I was going to introduce this amendment. I did not expect him to reply to my question about whether a balance will be achieved. However, I still wonder whether the two firms that I mentioned, each of which employs 12 people, would not not be pressurised to achieve a total balance in employment. However, it is a matter on which the noble Lord can write to me, or inform me about at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Lyell moved Amendment No. 20: Page 17, line 42, leave out ("35") and insert ("36").

The noble Lord said: For the convenience of the Committee I speak also to Amendments Nos. 21 and 22. These are purely drafting amendments which make it clear that the provisions of Clause 26—to which we shall come in a moment and which deal with the power of the commission to secure further undertakings or to issue further directions in respect of goals and timetables and which were added to the Bill during Report stage in another place—extend to the public sector as well as to the private sector. I beg to move.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 [Rectification of the register]:

Lord Lyell moved Amendment No. 21: Page 18, line 24, leave out ("35") and insert ("36").

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 agreed to.

Clause 26 [Certain public authorities to be treated as employers]:

Lord Lyell moved Amendment No. 22: Page 19, line 16, leave out ("35") and insert ("36").

The noble Lord said: I spoke to the amendment earlier. I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 [Monitoring returns]:

Lord Lyell moved Amendment No. 23: Page 20, line 5, leave out from ("return") to end of line 19 and insert ("(in this Part of this Act referred to as a "monitoring return") in a form provided by or on behalf of the Department. (1A) A monitoring return shall contain such information about the employees of the employer as may be prescribed. (1B) For the purpose of enabling the composition of those applying to fill advertised vacancies for employment in Northern Ireland in any concern of a person who is a public authority for the purposes of this section to be ascertained, the employer shall include in a monitoring return such information as may be prescribed. (2) For the purpose of enabling the composition of those applying to fill advertised vacancies for employment in Northern Ireland in any other registered concern in which more than 250 employees are employed there to be ascertained, the employer shall include in a monitoring return such information as may be prescribed; and for the purposes of this subsection where, at the beginning of or at any subsequent time in any prescribed period, more than 250 employees are employed there in the concern, that condition is to be treated as satisfied for the whole or, as the case may be, the remainder of that period.").

The noble Lord said: For the convenience of the Committee perhaps I may speak also to Amendments Nos. 52 and 53. The purpose of Amendment No. 23 is quite simple. Basically it is designed to clarify the responsibilities of those employers who are required to monitor the composition of the persons who apply for employment.

The amendment has three effects. First, it clarifies what we mean by an applicant for employment. Secondly, it extends the duty to monitor applicants to avoid evasion. Thirdly, it changes the definition of a monitoring return.

The reason behind the basic requirement to monitor applicants is straightforward, and I shall not detain the Committee on that. Monitoring of workforce composition gives a picture of the situation in the concern at the time when the return is made. However, to obtain an impression of how the employer's practices are impacting on the local community which is what will determine the future shape of his workforce—he must look at the religious composition of those who apply for employment. In order to minimise the burdens on employers, the Government are initially placing this responsibility only on the public sector and on the largest private sector employers.

Given the importance of this provision, the Committee will appreciate the necessity of ensuring that the Bill is clear about what is expected from employers in regard to monitoring applicants. In Clause 27(2) as it stands reference is made only to "those applying for employment" and no attempt is made to define the form or circumstances constituting an application. Since monitoring duties are underpinned by criminal penalties, it is important that both employers and the commission should be clear about what constitutes an application. There is an obvious danger in ambiguity and uncertainty on this important matter.

The new form of wording introduced by Amendment No. 23 makes it clear that an applicant is a person applying to fill an advertised vacancy. By virtue of the later amendments, a fairly wide definition will be given as to what constitutes an "advertised" vacancy; and I think that the Committee will appreciate the prudence of adding greater definition and wording to the Bill through this amendment.

However, the overall effect of the amendment, together with Amendments Nos. 52 and 53 which we shall be moving in due course and which I draw to the attention of the Committee, is to make more explicit the very important obligation on employers under this Bill. I beg to move.

Lord Prys-Davies

The Minister described this as quite a simple amendment. In fact it is a worrying amendment. It is worrying because it limits the provisions for the monitoring of applications to those situations where the vacancies have been advertised. That is completely unacceptable to these Benches. Of course the monitoring of applications is invaluable in determining whether equality of opportunity is taking place and in assessing whether an employer should be making more efforts to attract applications from the under-represented community. But the amendment restricts the monitoring of applications to those posts which have been advertised.

To the best of my knowledge, there has been no reference anywhere up to now that one would monitor merely the replies to advertised posts. Before I look at the definition of "advertisement" in the 1976 Act, I should mention that so often in Northern Ireland recruitment is by word of mouth. That method is severely criticised in a series of reports.

I should like to ask the Minister whether to advertise a post means also a post which is advertised by word of mouth? If it does not include a post which is advertised by word of mouth, the amendment is unacceptable. We ask the department to consider the amendment again to see either that the definition of "advertisement" is adequate or that the term "advertised" is removed from the amendment.

Lord Bonham-Carter

I agree strongly with the noble Lord, Lord Prys-Davies. I greatly appreciate and applaud the importance which the Government have attached to monitoring in matters of discrimination. If monitoring is so important in Northern Ireland, as I said on Second Reading, I wish to goodness the Government would apply the same rules to race relations legislation in this country.

The point about advertising is crucial. I should like to give the Committee an example of the importance of what the noble Lord, Lord Prys-Davies, was saying. Years ago when I was at the Race Relations Board we found that in the BBC there were no black secretaries. That was in the 1960s. The BBC had no difficulty recruiting secretaries and never advertised appointments. When there was a vacancy the secretaries there were simply asked, "Do you know anyone who would like this job?" The secretaries were all white; so the secretaries continued to be all white. That is why advertising is absolutely crucial. The way one recruits is at the heart of all discriminatory policy.

If a works or a firm has an unbalanced labour force, the first thing to discover is how it recruits—by advertising, through the hereditary system as used to apply in the motor car industry or by word of mouth.

It is essential that in this clause and elsewhere in the Bill we have a satisfactory answer to the relevant questions put by the noble Lord, Lord Prys-Davies.

Baroness Seear

I should like to add a further comment. One is not concerned only with advertising by word of mouth. Some recruitment, especially where there is unemployment, is done by people dropping in when, from the point of view of the employer, there has not been any question of a job being available. Somebody on the street can come in and ask, "Is there a job?" It could not be said that the job had been advertised in any sense. It is equally important to know what happens to such people. Word of mouth is not the only way in which people get to know of vacancies.

5.45 p.m.

Lord Lyell

The question of advertising seems to have excited the Committee considerably. The Committee will see that there are further amendments—Amendments Nos. 50 and 51, I believe—with which we shall be dealing later. I wonder whether the Committee wishes me to deal with those amendments now. At the outset I can say that the definition of "advertisement" in the sense of advertising for a job is given in Section 57 of the 1976 Act. It includes every form of advertisement whether to the public or not and irrespective of whether it circulates among a small group or in the mass media, be it in newspapers, on the radio, through films or on television. Therefore, it is not a definition which will inhibit the employer in any way, either when he is seeking to attract applicants or when he is monitoring applications where he is required to do so.

The definition will be helpful both to the employer and to the commission in making it clear what constitutes an application for monitoring purposes. The Committee will see this in Section 57. We believe that that is a satisfactory definition which should be in the Bill. I hope that my explanation will assist the noble Lords, Lord Bonham-Carter and Lord Prys-Davies.

If there is any other aspect apart from advertising for a particular vacancy I shall endeavour to answer the questions. However, that is as far as I want to go concerning Amendment No. 23 and advertising.

Lord Prys-Davies

I am grateful for the support of the noble Lord, Lord Bonham-Carter. Does the Minister get the point that because the amendment is confined to advertising in publications it provides an employer with an incentive not to advertise posts? That is what we are getting at.

I have referred to Amendment No. 52. That merely refers to the definition in the 1976 Act. That Act does not include in the definition of "advertisement" the words "advertisement by word of mouth". It is a long definition. It includes advertisements in some permanent form, such as a document or a television advertisement so that one can produce evidence of it. Will the Minister consider either amending the amendment so that it will refer specifically to advertisement by word of mouth or else delete the word "advertised" from this amendment and from other amendments to which the Minister will be speaking at a later stage?

Lord Bonham-Carter

That would be an improvement, but it does not cover the point made by my noble friend Lady Seear. The point we are making here is that every person who applies for a job must be monitored. If that is not done one is not covering the field properly. This is a matter of some importance.

Lord Lyell

I apologise to the noble Baroness for not referring to her as I always do. I am so grateful when she takes part in our debates on Northern Ireland matters. She quite rightly raised an important point, but she mentioned somebody advertising by word of mouth. If they did that there would certainly be a record—

Baroness Seear

Those were not my—

Lord Lyell

If I may finish my sentence I shall certainly concede to the noble Baroness. I believe she had in mind people dropping in. There would be some tangible, or as the noble Lord, Lord Prys-Davies, defined it, some permanent record for the commission to work on. In Clause 27 we are seeking each year to prepare for monitoring for the commission. I give way to the noble Baroness.

Baroness Seear

Years ago I was employed in this kind of game. In conditions of unemployment a great many people come to the door and say, "Any chance of a job?" The reason behind their coming may be because of word of mouth, advertisement or anything else. Often they are interviewed and employers keep their application in case there is a job. There is no question of the employer having taken the initiative to advertise or telling the workforce that there is a job. Frequently people come in in that way. One would be interested to know what happens to the application of a Catholic who goes uninvited—and that is my point—to a Protestant firm. I guess that in many cases those cards would be torn up. That is what we want to know.

Lord Prys-Davies

I support the point which has been made by the noble Baroness. Surely the definition must be such that it also catches the individual who takes the initiative to go knocking at a factory door and is offered employment. That also must be monitored.

Lord Lyell

I shall return to the point made by the noble Lord, Lord Prys-Davies. However, I am trying to take on board the point made by the noble Baroness. I have just received advice which may be of use to her. I stress the fact that people dropping in, looking for a casual vacancy, would make an application in a permanent form. That would be of interest to the commission. In monitoring they would ask the employer, "What are you doing about applications coming in?". I cannot see how the employer can be proof against every allegation that someone came in and presented an application which was inadvertently lost. I am sure that if the commission found a deliberate policy such as the noble Baroness has hinted at—that applications had been wilfully destroyed or that there had been malpractice—it would be able to take action in that respect.

We believe that it is necessary to exclude from the duty of monitoring applicants those who have applied in the hope that there is employment but without knowledge of any such vacancy. That goes with the application. An employer can hardly write back to say that he cannot provide employment, but that he must ask the person information about himself or herself and the background, even though there is then no vacancy or any future likelihood of one.

I hope that the point made by the noble Baroness will be covered by Clause 27 and the commission will swiftly discover whether there has been deliberate malpractice by employers in respect of the type of applications to which she referred.

I am sorry that I missed the point made by the noble Lord, Lord Prys-Davies. Perhaps he will remind me of it.

Lord Prys-Davies

Do we have the Minister's assurance that he will review the amendment in the light of the contributions which have been made in the debate? Do we have his assurance that he will look at it again?

Lord Lyell

I shall not give an assurance that I shall look at the question of advertising as raised by the noble Lord. We shall deal with that matter in respect of Amendment No. 50. However, I take note of what has been said. I can give no assurances tonight, but I shall take the matter on board. If the noble Lord and the noble Baroness wish to raise it at a later stage we may then be a little further forward. However, I shall give no assurances tonight.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 24: Page 20, leave out lines 38 to 42 and insert ("in the case of each year at the end of the first four months of the year").

The noble Lord said: The purpose of the amendment is simple and straightforward. The explanation is a little complicated but I shall attempt to be courteous as always to the Committee. It relates to the important issue of monitoring. One of the great advantages of the regular monitoring of returns is that the commission will be able to identify from that information the patterns and trends over time in composition and associated employment practices. But for it to be able to do so authoritatively, the information in respect of an individual concern needs to relate to a consistent and regularly repeated period of time, particularly as regards the monitoring of applicants. The amendment is designed to ensure that this happens.

The amendment has two effects. Its first effect is that returns become due each year on the same date, four months after registration or the anniversary of registration. That replaces a system under Clause 27(7), as drafted, where the first return is due four months after registration and the second return is due one year and two weeks after registration. Subsequent returns would have been due on the anniversary of the latter date.

The new system is thus simpler for employers and commission alike. It has a further useful effect. Those employers required to monitor job applicants will submit information on those applying for employment during certain periods. Under the Bill as drafted, it would take over three years from the date of registration before the commission would receive two returns each containing a full 12 months' data on applicants. By introducing the amendment we will shorten that lead time from over three years to less than two years. That will be a significant benefit to the commission. Employers will also find it easier to adjust to a system which from the outset seeks details of job applicants for a consistent period each year.

I shall give an example of an employer registering. Let us assume that he registers with the Fair Employment Commission on 1st March 1990. He is then required to monitor the composition of his workforce as it stood on 1st March 1990 and to submit his return to the commission before 30th June 1990—that is, before the four-month period has elapsed. This exercise has to be repeated in subsequent years.

We then turn to applications. The registered employer is required in his first year of registration to monitor the applications he receives between 1st March 1990 and 30th April 1990 and, as with his workforce return, to submit the results to the commission by 30th June 1990. Thus, for the first year of monitoring, the commission will receive returns in respect of applicants for a period of two months. In the second year of registration, the employer must submit to the commission, by 30th June 1991, a return in respect of applicants covering the months from 1st May 1990 to 30th April 1991, and this process is repeated in subsequent years.

Without this amendment, the tasks of both the employer and the commission would be considerably more complicated. The acquiring of consistent year on year information especially as regards applicants, would be delayed, and there would be three completely different periods of time in respect of which the commission would receive returns from employers in respect of their applicants.

There is clear advantage in trying to keep monitoring as simple as possible, for both employers and the commission: That is the basic purpose of the amendment. I beg to move.

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

6 p.m.

Clause 28 [Regulations as to monitoring]:

Lord Lyell moved Amendment No. 25: Page 21, leave out lines 20 to 24.

The noble Lord said: For the convenience of the Committee I shall also speak to Amendments Nos. 34, 67 and 68. I believe that Members will be pleased if I do so. This group of amendments extends the Bill's existing provisions in respect of monitoring applications for employment.

These amendments arise directly from the fact, which I have already emphasised in my earlier comments, that monitoring applications for employment is an extremely important element in determining the extent to which an employer is providing equality of opportunity.

The Bill, as drafted, already contains provisions bearing on this important matter. At Clause 28(2)(c) we had provided that regulations might be made which would oblige any registered employer to keep such records as might be helpful to the commission in its inquiries into the composition of applicants. Amendment No. 25 removes that provision but only to make way for a new and more extensive scheme.

The basic rationale of the new clause is the same as for the provision it replaces. It ensures that, in the case of employers who monitor applicants, the commission will be able to check the validity of the employer's determinations; and in the case of employers who are not required to monitor applicants, the employer will be obliged to retain a data base to which the commission can gain access. When the commission, under Clause 31, is inquiring into an employer's review of practices, it will evidently be helpful if corroborative evidence is available to it. Under the new clause, regulations could, in effect, oblige all registered employers to retain in respect of job applicants all the information which they might use for monitoring, for determining the community background of individuals, and the community affiliation of individuals.

The regulations will specify the length of time for which such information is to be retained, but we may assume that it will be at least three years, so that it can be used in association with an employer's periodic review. It may be noted that these regulations will be made by the Department of Economic Development only after the commission has been consulted.

In addition, the new clause creates offences for failure to retain such information, and in connection with its deliberate falsification. Those offences are largely self-explanatory. I would only point out that the offence of failure to retain the prescribed information is amenable to a reasonable excuse defence which may be familiar to the noble Lord, Lord Prys-Davies. If an accident of some description occurred which destroyed the information, or which made its retention impossible either in whole or in part, the commission would obviously take account of such circumstances in considering whether to bring a prosecution. The scale of the penalties, I might also point out, is consistent with that which applies to offences in other parts of the Bill. I beg to move Amendment No. 25.

Lord Prys-Davies

Amendment No. 25 is connected to Amendment No. 34, as the noble Lord, Lord Lyell, pointed out. It is unacceptable for the same reason that Amendment No. 23 is unacceptable; namely, because it refers to advertised vacancies. We very much welcome the emphasis on monitoring, but we fear that by insisting on the vacancies being advertised the Government are chipping away at the principle of monitoring and are therefore undermining the Bill.

On Question, amendment agreed to.

Lord Denham

Following consultations through the usual channels, I should like to move that the Committee stage be adjourned and that the House do now resume in order to take the Transport (Scotland) Bill. The Committee stage of this Bill will continue thereafter. I hope that the Committee will agree to these extraordinary measures in view of the present transport difficulties. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.