Fair Employment (Northern Ireland) Bill

HL Deb 11 July 1989 vol 510 cc147-208

6.18 p.m.

House again in Committee on Clause 28.

Lord Lyell moved Amendment No. 26: Page 21, line 30, leave out from ("information") to ("for") in line 31 and insert ("to which section 29(1)(a) or (b) of this Act applies to be retained by the employer").

The noble Lord said: I also speak to Amendments Nos. 27 and 28. Amendment No. 26 arises from the provisions made for use of residuary monitoring methods involving a range of information other than that provided by direct or indirect questions.

Under Clause 28, for the purposes of monitoring either the workforce or applicants an employer may make use of a range of information which will be specified in regulations. The nature and extent of that information will be addressed in a later amendment. To understand Amendment No. 26 we need only be aware that a wide range of information will be available for an employer for the purpose of monitoring. The purpose of Amendment No. 26 is to allow regulations which could oblige an employer to retain such information for a prescribed period of time. Under Clause 31 the commission is empowered to inquire into the periodic reviews and practices which will be undertaken by an employer into his most important personnel procedures. That includes monitoring.

Therefore, we believe it is appropriate that the employer should be obliged, if required, to retain all the information on which his review and his monitoring returns are based. This will enable the commission to assess the accuracy of the return and to check the determination reached by the employer as the result of his review. The existing wording of Clause 28(2)(e) was framed when the monitoring provision made by the Bill did not expressly cover use of the residuary method and the information necessary for it. Amendment No. 26 brings the monitoring requirements more fully into line with the new provision and I recommend it to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 27: Page 21, line 39, leave out ("and the form of the returns").

The noble Lord said: I spoke to this amendment with Amendment No. 26. I beg to move.

Lord Prys-Davies

We are uneasy about Amendment No. 27 because it will remove the power of the department to fix by regulation the form in which the monitoring returns should be made. The Minister rushed through Amendments Nos. 25 and 26 and prepared to go on to Amendment No. 27. He may say that this amendment is merely of a technical nature, but it is far more important than that. If the department is not entitled to fix by regulation the form in which the returns are to be made then we on these Benches believe that opens the way for wrecking tactics.

Although the employers will still be required to submit prescribed information they will not have to submit it in a standard form. It is essential for the commission that all the employers, wherever they are in Northern Ireland, should be submitting their returns in a standard form. Otherwise it will be that much more difficult for the commission to compile and interpret the statistics and to decide whether or not we are comparing like with like.

In another area this matter has been the subject of criticism by the Comptroller and Auditor General, who has been pressing the department in certain areas to ensure that the returns are in a standardised form. I refer the Minister to the report. From these Benches we cannot go along with this amendment. We ask the Minister and his department to have a very careful look at it in the light of the report from the Comptroller and Auditor General. I cannot recall precisely the date of the report, but it has been referred to once before in the debate.

Lord Bonham-Carter

It seems to me that this is not a matter of principle but of practice. It is much simpler and more efficient if we follow the advice of the noble Lord, Lord Prys-Davies. If a form is universally used it will be more useful and more easily monitored.

Lord Lyell

I ask the noble Lord, Lord Prys-Davies, to look at Amendment No. 23 referred to earlier. He will see that the monitoring return will be taken on a form to be provided by the department. Amendment No. 23(1A) gives a broad definition of the form that will be used by the department. The information in that form and included in the return will be prescribed by regulations that we shall see fairly soon once the Bill leaves this Chamber and possibly another place. I have little more to say as regards Amendment No. 27. I shall take on board the points raised by the noble Lord concerning the Comptroller and Auditor General, but I still believe that this amendment meets the needs of monitoring and the form.

Lord Prys-Davies

I am very grateful to the noble Lord for his response. I point out that the significance of this particular amendment is that it leaves out the words "form of the returns".

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 28: Page 21, line 44, leave out ("in the prescribed form") and insert ("does not contain the prescribed information").

The noble Lord said: I spoke to this amendment with Amendment No. 26. I beg to move.

Lord Prys-Davies

I shall not detain the Committee. The criticism that we have levelled at the previous amendment applies with equal force to this one.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 29: Page 22, line 5, leave out paragraph (h).

The noble Lord said: The CBI of Northern Ireland, who advised me on these matters, questioned whether Clause 28(1)(h) should be part of the Bill. It also questioned whether subsection (3)(a)(i) of that clause should be worded as it is. Accordingly, I am speaking to Amendments Nos. 29 and 32, with which are grouped Amendments Nos. 30, 31 and 33 in the name of the noble Lord, Lord Blease.

The CBI has advised me that the question of classifying employees by schools is getting out of hand. The original idea was to classify people by the religious affiliation implied by their primary schools. Now it seems that every school is to be classified to the dismay of some mixed secondary schools and integrated schools. Surely the whole schools' exercise is unnecessary in view of the other requirements of Clause 28. Accordingly, I suggest that subsection (2)(h) should be left out, and also that my Amendment No. 32 should be agreed to. I beg to move.

The Deputy Chairman of Committees (Lord Alport)

I have to advise the Committee that if this amendment is agreed to, I shall be unable to call Amendments Nos. 30 and 31.

Lord Blease

I believe that we should stop for a moment and examine what we are attempting to do here. We are dealing with Clause 28 which states, The Department shall, by regulations made after consultation with the Commission, make provision for the purposes of section 27 of this Act. The regulations may …". A fair amount of this Bill is dependent on regulations being compiled, and also on the issue of a code of practice. I believe that much requires to be cleared up in the text of the Bill, if not by amendment then certainly by a considerable amount of explanation. My amendment deals particularly with the issue of collecting information from schools as regards applications for employment and how schools are listed on a document issued by the Northern Ireland department.

We have been waiting for this legislation for a number of years, and although the Committee will be detained for a certain time we should spend a few minutes contemplating what we are really doing, which might help to clear the air so far as Northern Ireland is concerned.

I shall quote from the Notes on Clauses. The notes on Clause 28 refer to paragraph (h). The notes state: Paragraph (h) allows the making of regulations which would require the commission to maintain a list of every school in Northern Ireland for the purposes of monitoring and to publish the list from time to time. The existing list"— to which the noble Lord, Lord Mottistone, referred— was published by the department in consultation with the Department of Education for Northern Ireland. The schools' list is intended as a reference document by which employers can discover whether for purposes of monitoring the school attended by an employee is categorised as Protestant or Roman Catholic or is unclassified. The list sets out categories "P", "RC" and "unclassified".

Because most schools in Northern Ireland are attended mainly by Protestant or Catholic pupils the classification of the school can provide a sufficiently accurate guide to the community to which each employee should be treated as belonging. Since it is envisaged that monitoring exercises may be carried out by reference to different classes of schools—primary, secondary or according to the type of management—the regulations may also allow for the possibility of lists being published in respect of any particular class of school specified by the department.

That list has been sent to employers. It is a subjective list. It has been criticised by many schools and employers as it contains references to Protestant and Roman Catholic schools. They refute the subjective classification that pupils in such schools are either mainly Catholic or mainly Protestant. Some schools have a mixture of religious affiliations. The purpose of my amendments—Amendments Nos. 30, 31 and 33—is to ensure that only a classification which is known to the Department of Education, is listed by the Department of Education and which is scrutinised by auditors and by the Controller and Auditor General and others is used. It is a classification which schools themselves use. If Amendment Nos. 30 and 31 were accepted the Bill would read: (h) require the Commission to maintain for general guidance, a list of each school in Northern Ireland specified by the Department of Education—Northern Ireland as controlled, maintained or grant-aided, for the purposes of monitoring and to review and publish the list from time to time". If Amendment No. 33 were accepted the Bill would read: (a) where an applicant— (i) has stated that he attended a particular primary school, being a school named in a list maintained by virtue of subsection (2)(h) above as a school attended mainly by members of a particular community". I hope that this will make the record appear reasonable to the people of Northern Ireland who are to examine the list. It will be not an arbitrary list of schools drawn up by civil servants, draftsmen or by others in consultation with the Department of Education. The department has only three categories listed in its returns for educational purposes. That is unfair to parents who attempt to send their children to schools that cater for all and other denominations.

The Government have given considerable support to the setting up of integrated schools. I applaud that, as many noble Lords have done. I applaud them on this occasion for the support that has been given by the department and the Minister. Many schools cater for children of all religious denominations. However, in this respect the Bill is going down a road contrary to the declared object of promoting integration, understanding and harmony in the community. In this clause the Government are erecting a barrier to understanding and they are countering the objective of promoting integration, understanding and the elimination of discrimination in employment. My amendments seek to produce a better understanding of the educational needs of Northern Ireland.

Lord Prys-Davies

We have before us five amendments. Amendments Nos. 29 and 32 stand in the name of the noble Lord, Lord Mottistone. Amendments Nos. 30, 31 and 33 stand in the name of my noble friend Lord Blease. I shall deal with them in reverse order.

I have profound respect for my noble friend Lord Blease. He has served the people of Northern Ireland to the very best of his ability over many years. Those of us who are constantly on our feet in Northern Ireland debates always listen to him with great respect. I am pleased to be able to go along entirely with Amendment No. 31. It is a helpful amendment. It provides for the department to review the list of schools. That is perfectly acceptable. Oddly enough, it had not struck the civil servants or our colleagues in another place that there was a need to review the list from time to time. I am pleased to give our support to Amendment No. 31.

Amendment No. 30 seeks to modify the school's method of monitoring. It differs from the Bill in more than one respect. First, it attempts to create a less rigid classification system. The Bill refers to employers looking to the list for general guidance. However, I should have thought that experience since 1976 shows that we need more than general guidance. We need criteria which people will understand and regard as having significance. Therefore, I am uneasy about the opening words of the amendment; namely, "for general guidance". My noble friend's amendment goes on to provide for schools to be identified not by their religious status but by the nature of their relationship with the Department of Education. Clearly the categories suggested are to enable an employer to draw an inference because a school is a controlled school, a maintained school or a grant-aided school. However, bearing in mind the difficulties facing employers and the commission, we should have thought that direct guidance should be available to them. I believe that the clause as it stands gives that direct guidance. With the amendment we are in a grey area: this school is maintained; this school is controlled; this school is grant aided. What inference do we draw from that classification?

I believe that the amendment would include integrated schools. I know how my noble friend Lord Blease has been fully in support of such schools. We agree with him. However, perhaps I may suggest to my noble friend that it would be very surprising indeed if the published list did not take account of integrated education. I am sure that it would, because that is a growth area in Nothern Ireland and of particular significance in the context of the Bill.

Therefore, perhaps I may say to my noble friend Lord Blease that the major objection which we would have to Amendment No. 30—and I say this most kindly—is its imprecise use of language. I believe that the present version of the Bill provides a clear form of words and would leave the operation of this clause less open to challenge in the courts. We are in a difficult and sensitive area. We do not want to give people who are ill-disposed towards this legislation the opportunity to challenge the decision of the commission in the courts.

I turn now to the amendment tabled in the name of the noble Lord, Lord Mottistone. We are glad to see that the noble Lord is now in his place. Our worry about his proposal is that this single amendment knocks out one of the principal methods of monitoring. If we are knocking out a basic method of monitoring, will that not make monitoring that much more difficult? We must look to the day when employers and the commission are doing their best to put this legislation into practice. We need to give them guidance and feed them guidelines. To knock out this particular guideline would, in my view, weaken the Bill considerably.

6.45 p.m.

Lord Lyell

Perhaps I may start by replying to my noble friend Lord Mottistone and then, while I am still on my feet, I shall include in my remarks replies to some of the relevant arguments raised by the noble Lord, Lord Blease. I mean no discourtesy to either noble Lord, but I think it would be for the pleasure and the benefit of Members of the Committee if I were to reply to this series of amendments in the form of an omnibus reply. I think it will also be for the convenience of the Committee if I do so.

So far as concerns my noble friend Lord Mottistone, I appreciate that there are aspects of monitoring which some people may find distasteful. I appreciate and understand the reluctance of such people to see the place of a person's education used as a "proxy" for perceived religious affiliation.

However, I must urge the Committee to consider our view which is that these amendments would strike at one of the more successful methods of monitoring currently in use in the Province; namely, the attribution of perceived religious affiliation —not, I carefully draw the distinction, actual religious belief—on the basis of the name and address of the school attended. This method of monitoring is referred to in our Guide to Effective Practice as the indirect method, and it is one of the principal monitoring methods envisaged in the Bill.

First and foremost, we must consider the relative popularity and widespread use of the indirect method in both public and large private sector organisations. Secondly, the fact is that its relative popularity reflects the major advantage of this monitoring method. It is based on objective and factual information which can be checked. It is derived from the name and address of the school attended and involves classification by the employer on the basis of a list drawn up and supplied to him. Moreover, as I emphasised, it records not actual religious belief but perceived religious affiliation. The latter, in Northern Ireland terms, is an indication of community affiliation.

I appreciate, as mentioned by the noble Lord, Lord Blease, the integrated schools' movement and its value. I also appreciate how it is growing. I am sure that we wish it well; indeed, the Government are doing everything they can to encourage, support and stimulate the growth of integrated education. But the noble Lord, Lord Blease, will, above all, I believe, be realistic about this. It will be a long time before the educational system in the Province ceases to be divided, schools for the most part being attended mainly, but not exclusively, by one side of the community or another.

While that situation continues, there is every argument for maintaining the use of the indirect method, which we have before us, as a principal method of monitoring. Monitoring returns will be submitted to the commission. That will be the locus for advice and guidance on all practical matters relating to monitoring. Therefore it is essential that the commission should have the responsibility to maintain the key schools list. Obviously the regulations may require the commission to publish the list from time to time. In doing so, the commission will be able to reflect any changes in the composition and nature of certain schools that may have taken place in the meantime. I hope that my noble friend will accept that the Bill as drafted provides the best method of monitoring in this area.

Amendment No. 31, tabled in the name of the noble Lord, Lord Blease, does not necessarily meet the objectives for which he strives. If the commission is to be required to publish the list from time to time, it will be implicit that it is reviewed and altered. In any event, Clause 28(2)(h) is only an enabling power, popular or unpopular as it may be, and certainly the detail can and will be covered by regulation.

Therefore I ask my noble friend and the noble Lord, Lord Blease, not to press this series of amendments. I say that because we believe that the concerns which they have both raised are put at rest and are certainly covered in the Bill as it stands.

Lord Kilbracken

Before my noble friend or the noble Lord, Lord Mottistone, speak again, perhaps I may be allowed to voice my objection to the use of the word "community" to which the Minister referred when speaking to the last amendment. The word "community" is contained in Clause 28(3).

The noble Lord said that in Northern Ireland the words "community" and "religion" were practically interchangeable terms. That is simply not the case. The noble Lord has probably visited the Short Strand area of Belfast, as I have. It is a 98 per cent. Catholic and strongly Nationalist area. But, in that community there are Protestants. I do not suppose that they get into double figures, but there are Protestants. I remember that one of them had a fish and chip shop which was very popular; all his customers are Catholics; they go along to the chippie's. That man is most certainly a member of the community in Short Strand. It is the same all over Ireland.

I suggest to the Committee that by using the word "community" in the Bill it is proposed that members of a religious minority living somewhere like Short Strand, or in some small town or village anywhere, are not members of the same community but of a different community. I think that that is deplorable. If the Bill means "religion" then that is what it should say.

Lord Lyell

I meant no disparagement of the friends of the noble Lord, Lord Kilbracken, in Short Strand, let alone anywhere else. But we are using a generally accepted term in the context of monitoring the workforce in Northern Ireland. That is the thrust of the Bill which we were discussing at an earlier stage and today—equality of opportunity in employment for everybody in Northern Ireland.

However the noble Lord knows even better than I do that Northern Ireland is a divided society. I hope that we shall not have to define that. The main thrust of the Bill, let alone the monitoring under Clause 28, is designed to see that equality of opportunity is paramount as far as is possible in employment. We mean nothing defamatory or in any way disparaging in the term "community". It is a valid method whereby employers can monitor the composition of their workforce. That is all that the word "community" means.

Lord Kilbracken

I am not suggesting that the Minister is in any way disparaging any people in the community. I am saying that he is calling them different communities. I say that they are members of the same community and should be recognised as being members of the same community. There is no question of disparagement about it. To use the word "community" in that sense is most unfortunate.

Lord Mottistone

I am speaking now to Amendment No. 29. I wish to thank my noble friend for his remarks. Naturally I shall want to read them with great care to see whether his argument satisfies my advisers and myself. I am sorry that I missed the earlier amendments; I warned everybody about the situation, including my noble friend the Minister. I am surprised since I wrote to my noble friend about it last week. I am very surprised that the noble Lord, Lord Blease, was not allowed to move my amendments for me; he himself had told the Public Bill Office about it. However, the amendments have gone by default. All I am saying to the Committee is that I may well have to come back to them on Report. I say this very noisily so that perhaps the Government Chief Whip may hear and be prepared to allow a little more time on Report than he might otherwise think necessary because I shall have to make up for lost ground.

I am sorry if my noble friend the Minister has not received my letter, I sent him my briefs for all the amendments in order that he might give me a reasoned reply. If he has not received them, then I hope he will take his advisers to task for not passing them on to him. The situation being what it is, I shall read the debate carefully. At this stage I beg leave to withdraw the amendment.

Lord Lyell

Before my noble friend withdraws his amendment perhaps I may convey to him my apologies. I received some very kind communications from him but I am not aware that I obtained any information. My noble friend beside me on the Front Bench will confirm, as I understand it, that we did not receive any indication that my noble friend would not be here to move his amendments earlier on.

I shall make inquiries and if I should have received a separate communication, certainly I shall apologise to my noble friend. However when I came into the Chamber I understood that my noble friend would move his amendments. I made a comment about him in his absence and he may care to read it in Hansard. It was of a jocular nature and perhaps we might take it up on another occasion. That was purely out of courtesy. I received one communication from my noble friend for which I am grateful, but I do not recall receiving information from him that he would not be present to move his amendments.

Lord Mottistone

The latter point was in the covering letter.

Amendment, by leave, withdrawn.

Lord Blease moved Amendment No. 30: Page 22, line 5, leave out from ("maintain") to ("for") in line 7 and insert ("for general guidance, a list of each school in Northern Ireland specified by the Department of Education—Northern Ireland as controlled, maintained or grant-aided").

The noble Lord said: Perhaps I may reply shortly to the Minister's remarks concerning the earlier incident when I was reprimanded for moving the amendments of the noble Lord, Lord Mottistone. I have received an apology from the Government Front Bench stating that I was right and they were wrong. However, that has now gone the way of other matters and will be forgotten about.

I wish to thank the Minister for the manner in which he replied to these three amendments and particularly my noble friend on the Front Bench for his remarks. I always listen to his points of view with interest and great respect. I still maintain that the list is very arbitrary and that the evidence is that teachers were offended, parents were offended and employers were offended by the list and the way in which it was presented.

The Minister has indicated that the list will contain some qualification that it is set out in terms of perceived religion, if it should be widely publicised, not only to the employers, in a hole and corner method, but also to the schools concerned which have been identified on the list and the teachers concerned who are looking after the children. I shall read what the Minister has said and with those remarks I beg leave to withdraw the amendment in my name.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 33 not moved.]

Clause 28, as amended, agreed to.

Lord Lyell moved Amendment No. 34: After Clause 28, insert the following new clause:

("Monitoring applicants

.—(1) The Department may, by regulations made after consultation with the Commission, provide that the employer shall, for the purpose of enabling the composition of those applying to fill advertised vacancies for employment in any registered concern in Northern Ireland to be ascertained (whether or not section 27 (1B) or (2) of this Act has effect in respect of their applications), seek to obtain such information about them as may be prescribed.

(2) The regulations may—

1. (a) require information to which section 29(1)(a) of this Act applies to be retained by the employer for such period as may be prescribed,
2. (b) provide that a person who—
   1. (i) without reasonable excuse fails to comply with such a requirement, or
   2. (ii) knowingly gives any false information to another who is seeking to obtain information in pursuance of the regulations, or
   3. (iii) knowingly includes any false information in any records kept in pursuance of the regulations,
   is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale, and
3. (c) make different provision for different cases.").

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

On Question, amendment agreed to.

Clause 29 [Confidentiality of monitoring information]:

Lord Lyell moved Amendment No. 35:

Page 22, line 36, leave out from beginning to end of line 43 and insert ("This.section applies—

1. (a) to information about a person employed or applying for employment in a concern which might be used if any of the methods prescribed by regulations under section 28 of this Act for determining the community to which a person is to be treated as belonging for the purposes of monitoring were applied,
2. (b) to information as to the community to which a person employed or applying for employment in a concern is to be treated as belonging for those purposes, and
3. (c) to any other information from which that community might be deduced.

(1A) If a person discloses any information which—

1. (a) he holds or has held in his capacity as an employee in a concern or as the employer, and
2. (b) is information to which this section applies or has applied").

The noble Lord said: It might be convenient to the Committee if I speak to Amendments Nos. 35 and 37 together. These two amendments in no way weaken the provisions of the Bill governing the confidentiality of information which might be used for monitoring purposes. That is a particularly important point in the context of monitoring and I wish to emphasise it at the outset.

The disclosure of any information from which the perceived religious affiliation of an identifiable individual might be determined remains an offence. But the introduction into the Bill at Report stage in another place of the provision permitting in certain circumstances the use of the residuary method of monitoring needed a recasting of the clause before us, Clause 29.

Perhaps we may briefly remind ourselves that Clause 28 allows an employer who has attempted unsuccessfully to establish the religious affiliation of an employee or an applicant by means of one of the principal methods—in other words, the schools question or the direct question—to turn to the residuary method, the method whereby he may use other information known to him about the employee or applicant to determine from which community he comes.

Such information might be, if we take one example, a home address, knowledge by indirect methods of the church attended, identity of referees or even knowledge of membership of a particular sports or social club. Members of the Committee will be aware that such information within Northern Ireland can often be used to determine pretty accurately a person's background in the community. Such information may be and in some cases is likely to be common knowledge. The fact that an employee or applicant is a prominent member of a particular church, plays a particular form of sport or engages in a particular form of social activity may well be common knowledge and not confidential. If that is so, it is important to provide a defence for anyone charged with the disclosure of such information.

Amendment No. 35 provides a defence for anyone, whether employer or employee, charged with the offence of disclosure of information from which may be deduced the community to which a person is treated as belonging for the purpose of monitoring, on the grounds that he possessed that information otherwise than in his capacity as employer or employee. In other words, it is a defence to show that such information was derived other than through the monitoring process.

I hope the Committee will find this a sensible and reasonable amendment, given the nature of the information that could be used in the residuary method of monitoring. I beg to move.

7 p.m.

The Deputy Chairman of Committees (Baroness Lockwood)

I must remind the Committee that if this amendment is agreed to, I cannot call Amendment No. 36.

Lord Mottistone

I did not hear my noble friend speak to Amendment No. 36, though I find it grouped with Amendments Nos. 35 and 37. Will he be taking that point up later?

Lord Lyell

I said I was speaking to Amendments Nos. 35 and 37. I should not wish to speak to Amendment No. 36 without having heard my noble friend move it. I think the matter would be in the hands of the Committee. I suspect the Committee would wish to hear exactly what my noble friend has to say.

Lord Mottistone

As my amendment cannot be called if the amendment of my noble friend is agreed to, I think it is only right that it should be in this group. I expected to hear something about it.

I am advised that the FEA, which currently precedes the commission, generally tells employers with whom it becomes involved that one can tell a person's religion by his or her names and by his or her address. I therefore suggest that the existing Clause 29(1)(b) is too tightly drawn. With Amendment No. 36, I seek to remove from that clause the words: or information held by the employer from which that fact may be deduced". I believe it is going too far to include that sentence. Clause 29(1) is to be replaced by the provision in Amendment No. 35, but I am sorry to see that the part I want to see removed reappears as paragraph (c) of the proposed new subsection (1). So, clearly, my noble friend did not take the point in the notes I gave him on this subject. I should be most grateful if he will explain why he thinks that his proposed paragraph (c) should continue to be in the Bill.

Lord Kilbracken

I should like to say to the noble Lord, Lord Mottistone, with the very greatest respect, that it really is not the case that it is possible to tell somebody's religion either by their name or by their address. Of course, in general terms Catholics do tend to have Irish or Celtic names, but that is very far from being a rule. One finds the most ardent Catholics, the most ardent Nationalists, with names like Nixon or Young or Walker, simply because at some stage their grandfather or their grandmother married a Catholic. They may have been brought up as Catholics but they still have completely English names. That is the position so far as the names are concerned.

Regarding the address, there are ghettos in Northern Ireland and it is most regrettable that that should be so. But in all the towns and cities living in a particular street is no indication whatsoever of one's religious faith.

Lord Mottistone

I agree with what the noble Lord says, having been many times to Northern Ireland myself. However, the FEA is always bossing employers. If the noble Lord had been present on Second Reading he would have heard that the main burden of the grumble of the CBI in Northern Ireland in relation to this Bill, which it otherwise supports, is that its members are treated as second-rate employers compared with the public sector employers when they would like to be treated as partners. The FEA appears to say that one can tell a person's religion by his name. This provision is a protest against that kind of bossiness, rather than against the facts of life.

Lord Blease

I shall speak to Amendment No. 37, with particular reference to Clause 29 which concerns the confidentiality of monitoring information. I should be grateful if the Minister will assure me that the Bill imposes some duty upon employers as regards the confidentiality of this monitoring information. My view is that there is a lack of responsibility on employers to maintain a register of all the persons employed by them, and as regards dealing with the information compiled and its transmission. The situation is left open to the excuse that the liability for someone obtaining employment through some under-the-counter or backdoor method should be on the employer. Only certain members of the staff or personnel involved should have access to the records and to the correspondence that is required by this part of the Bill. I hope the Minister will consider the views I am expressing. I hope he can help me by indicating how this matter will be regulated as regards the law and the courts, and as regards the obligations to employees in particular instances.

Lord Lyell

I shall first try to answer the point of my noble friend Lord Mottistone. I was grateful for the communication he sent to me but, as he will have heard, I expected him to present his own amendment as it is in his name. He has made his case, but I think his amendment would certainly weaken what we see as the important confidentiality provisions in the Bill relating to the information from which the classification of individuals for monitoring purposes is derived.

In his comments at an earlier stage of the Bill, my noble friend stated that private sector employers should not feel they were being singled out. If my noble friend looks at the Second Reading debate on the Bill, he will find that both public and private sector employers are treated on an equal footing in all parts of the Bill, including monitoring.

In taking account of the confidentiality provisions, especially of Clause 29, we think the amendment of my noble friend would not be consistent with the provisions in our amendment on Clause 29, and, specifically, the substitution of new paragraph (c) into subsection (1). That was what my noble friend was particularly concerned with.

The introduction of what we call the residuary method—I think that is a lot more refined than what my noble friend has suggested—requires a recasting of Clause 29. The residuary method can be used as a fall-back option when the principal methods have failed to provide the necessary information. It can involve, but does not have to, the use of such information as home address, knowledge of the church attended, the identity of referees, or even knowledge of membership of a particular sports or social club.

We accept that that may well be common knowledge. So it is important, while maintaining the confidentiality of monitoring returns, to provide a defence for an employer who reveals that overt information. That defence is provided in our own amendment to Clause 29, and it is based on the grounds that, far from bossing anyone around, the employer came into possession of that information otherwise than in his capacity as employer. In other words, it will be a defence to show that such information was derived other than through the monitoring process; but if the information is obtained in confidence, then it is treated as confidential.

The provision of this defence is an important safeguard for employers. We believe that it is necessary, equitable and sensible. The divulging of such information in certain circumstances could conceivably place certain individuals at risk. The possibility of such information being divulged could compromise the effectiveness of the monitoring exercise.

I emphasise that voluntary monitoring is already under way throughout both the public and private sectors in Northern Ireland. At an earlier stage I referred to over 450 separate organisations. I imagine that the majority are within the organisation which has advised my noble friend. They are conducting voluntary monitoring without, it seems, any problems that cannot already be resolved swiftly and effectively.

Our success in stimulating voluntary monitoring in anticipation of the statutory obligation introduced by the Bill is due in no small measure to the emphasis placed on confidentiality in the Guide to Effective Practice, and the respect which employers have shown for that confidentiality in relation to the information that they have obtained.

I understood the noble Lord, Lord Blease, to be concerned about confidentiality and how the information would be treated. I think that he will see, particularly in relation to Amendments Nos. 35 and 37, that we treat the question of confidentiality between employer and employee particularly seriously. The amendments provide what we believe is a valuable defence to employers if an employee believes that the employer has obtained information as a result of a breach of confidence.

I hope that my noble friend will accept that paragraph (c) of Amendment No. 35 is necessary because information from which a person's community can be deduced may not be known at the workplace although it is common knowledge elsewhere. The defence provided by Amendment No. 37 will not remove an employer's obligation to silence if the fact is raised by others.

I hope that that explanation has been of some help to my noble friend. I stress once again that we have no intention of bullying. In this aspect the private sector is treated as a very valuable partner with the public sector.

Lord Mottistone

I thank my noble friend for his comments.

I shall read them with care.

On Question, amendment agreed to.

[Amendment No. 36 not moved.]

7.15 p.m.

Lord Lyell moved Amendment No. 37: Page 23, line 8, leave out from beginning to end of line 12 and insert ("It is a defence for a person charged with an offence under this section to show that he also obtained the information otherwise than in his capacity as an employee in the concern or the employer.").

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Periodic reviews by employers]:

Lord Lyell moved Amendment No. 38:

Page 23, line 36, leave out from ("made") to end of line 41 and insert ("towards fair participation by members of the community concerned—

1. (a) in employment in the concern in Northern Ireland or among those whose employment in the concern there begins after the determination, or
2. (b) among applicants to fill advertised vacancies for employment in the concern there.").

The noble Lord said: It may be for the convenience of the Committee if in moving Amendment No. 38 I speak also to Amendment No. 48. These two amendments are purely drafting amendments. They ensure consistency of expression in Clauses 30 and 35 with the definition of affirmative action which is given in the Bill. I beg to move.

Lord Prys-Davies

The noble Lord, Lord Lyell, has introduced two major amendments and has described them as merely drafting amendments. They are far more important than drafting amendments. Amendment No. 38, I regret to say, is another example of the Government chipping away at and eroding the existing provision in the Bill relating to the purpose of periodic reviews by employers to determine what progress has been made towards providing equality of opportunity. Far from being just a technical amendment, the amendment has worrying implications for the scope of affirmative action and of the reviews.

The amendment is unacceptable for two reasons. We have already come across this form of wording earlier in Committee. The first reason is the restriction of the review to advertised vacancies. That is to be found in paragraph (b). We have rehearsed the argument and I do not intend to take up the time of the Committee in repeating it. However, it is equally valid and applies with equal force to this amendment.

The second objection is that Clause 30(3)(b) is weakened by the substitution of the words "fair participation" for the word "composition". The composition of a workforce is something that can be measured and progress towards equality of opportunity can be measured in terms of the correspondence between the religious composition of the workforce and that of the available pool of labour. Fair participation—the term that is now being introduced—is a much more nebulous term. The term "fair", unless I have missed it, is left undefined in the Bill. So the concept of fair participation has no meaning in the Bill. It has no meaning except that given to it by a tribunal or a court. As a result, it has not been possible to say what any section of the Bill containing the concept means.

From our point of view this is an unsatisfactory position. We should be grateful if the Minister would have another look at the amendment in the light of the criticism which we have aimed at it.

Lord Lyell

I shall certainly take on board the points made by the noble Lord. However, I have nothing more to say this evening.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 39: Page 24, line 5, after ("promotion") insert ("or redundancy").

The noble Lord said: The purpose of this amendment is to ensure that redundancy policies too are considered in terms of equality of opportunity. Redundancy policy can affect the structure of a firm's workforce just as much as its:'ecruitment or promotion policy. The point is particularly applicable if the employer uses affirmative action programmes in order to rectify imbalances in the workforce but is subsequently forced to make employees redundant and bases his redundancy policy on the principle of "last in, first out": his attempt over the preceding years at securing equality of opportunity may be eroded and in some cases negated.

We mentioned that problem in the Second Reading debate and the noble Lord, Lord Lyell, told the House that the Government were considering an amendment in the area of redundancy to avoid any erosion of gains towards fair participation through redundancy practices. I therefore very much hope that the Government have now given the matter further consideration and that this amendment, or an amendment along these lines, will be acceptable to them.

Lord Hylton

As I understand it, when redundancies occur, trade unions in most parts of the world—certainly in England—have generally adopted the principle of "first in, last out". We know that over the last 20 years there have been a sad number of redundancies in Northern Ireland. I should like to know whether that principle has been applied until now and whether in future the Irish trade unions operating in Northern. Ireland will abandon it in favour of conducting redundancies in such a way as to balance the composition of the workforce.

Lord Lyell

Perhaps I may deal briefly with the point raised by the noble Lord, Lord. Hylton, in a moment. When I was first instructed, I had good news for noble Lords, in that I was able to accept the amendment in principle. Unfortunately, I cannot do so tonight, but we propose to table an amendment at a later stage—at the next stage, I hope—for your Lordships' consideration. That amendment will address the issue of redundancy.

It may help the noble Lord, Lord Hylton, if I briefly explain that in so doing we shall follow through the reasons underlying our amendment to Clause 52 which we shall consider later. We propose to afford protection against direct and indirect discrimination where a redundancy practice is followed by an employer, first, in pursuance of affirmative action, secondly, in accordance with agreed procedure—that will be of relevance to the point raised by the noble Lord, Lord Hylton—and, thirdly, where the practice does not involve the application of any condition or requirement framed by reference to religious belief or political opinion.

If those three criteria are met—namely, a redundancy scheme as part of affirmative action, a scheme that is concluded on the basis of an agreed procedure and a scheme that does not involve the application of any condition or requirement framed by reference to religious belief or political opinion—the scheme is protected from both direct and indirect discrimination, even if the proportion of employees of one community is smaller than that of another.

The purpose of our amendment will be to ensure that the progress made towards fair participation is not compromised by redundancy schemes which, for example, might result in those most recently recruited being selected first for redundancy. That is the reverse of the position that concerned the noble Lord, Lord Hylton, which I would call the "last in, first out" position. We believe that our amendment will give employers the flexibility to agree other redundancy arragements with their trade unions in order to safeguard progress which has been hard won towards fairer participation in employment by an under-represented group.

That is all that I wish to say on the subject this evening. I hope that it will be of some help to your Lordships. I am sorry that I could not accept the amendment tonight, but we shall certainly produce our own amendment at, I hope, the next stage.

Lord Prys-Davies

The Minister has been very helpful and we look forward with keen anticipation to the amendment to be tabled by the Government before we arrive at the next stage of the proceedings. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30, as amended, agreed to.

Clause 31 [Enquiries by the Commission]:

Lord Lyell moved Amendment No. 40: Page 24, line 7, at beginning insert ("The Commission may from time to time require the employer to give the Commission such information held by the employer, being information to which section 29(1)(a) or (b) of this Act applies, as the Commission may specify; but an employer who has been required on any date to give any information under this subsection shall not be required to do so again before the expiry of the period of six months beginning with that date. (1A)").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 41 and 47.

These amendments have the effect of extending the powers of the commission to require the disclosure of information by the employer. The existing power hinged on the employer's having submitted a monitoring return, and extended only to information supplementing that given in the return. We have released the commission from both those constraints. In that way the amendment provides that the commission can obtain from the employer any of the information that he might use for monitoring. For example, where under the new clause inserted by Amendment No. 34 which we discussed earlier an employer who is not required to monitor applicants holds information on job applicants, the commission will be able to gain access to that database, which will be particularly important.

The second effect of Amendment No. 40 is that the commission can exercise its powers whether or not a monitoring return has been submitted under Clause 27. That is to avoid an employer who has neglected to submit a return attempting to avoid disclosing information to the commission on the legalistic point that, under the Bill as drafted, its powers came into play only following the submission of a monitoring return.

However, the commission's powers of inquiry are not totally unrestricted because, in common with its rights of inquiry conveyed by other provisions in the Bill—for example, in Clause 31(6), which noble Lords will find at the bottom of the page, and in Clause 34(5)—we have restricted it to six monthly intervals. While it is right for the commission to have extensive powers to inquire into an employer's discharging of his obligations, it seems fair to provide that the employer is not needlessly inconvenienced thereby. If the commission thinks that further action is required, powers for full investigation under Clause 11 will still be available. We believe that the amendments enhance the commission's powers in that respect. I beg to move.

Lord Prys-Davies

We are extremely worried about the last line of Amendment No. 40. The amendment restricts the right of the commission to apply for information for a second time within six months of its original application. That part of the amendment therefore restricts the ability of the employment commission to require employers to supply information. We believe that that is another example of the Government attempting to restrict the role of the commission and as such is unacceptable.

Under the Bill as drafted, after a monitoring return has been received, the Government may require the employer to produce further information. For example, the commission could ask the employer for a breakdown of the composition of the workforce by grade. The commission could then go back and seek further details, perhaps to verify or clarify the information in the original return.

Once the initial request has been made, this amendment will prevent the commission from asking for supplementary information for a further six months. We all know of cases in which the respondent produces information but the plaintiff or the claimant has to go back for further and better particulars of that information. This amendment would prevent the commission from going back a second time until six months had elapsed.

The Minister says, "Well, this is not all that restrictive because the commission can resort to its powers under Clause 11". What a suggestion! Why should the commission have to launch a full-scale investigation because it cannot apply to the respondent for further and better particulars? Surely that is nonsensical.

It appears to me that this amendment deliberately introduces, or could be seen deliberately to be introducing, a delaying mechanism. All the employer needs to do is to give a vague, uncertain answer and the commission cannot go back and request further and better particulars. If we are concerned that this Bill should become effective law, surely what is required is that the commission should be given every opportunity to arrive at the truth with the minimum of delay. This amendment, if acceptable to the Committee and later on to the House, will make it impossible for the commission to get at the truth within a period of six months. I very much hope that the Government will have another look at this amendment.

7.30 p.m.

Lord Lyell

I shall reply instantly. Wimbledon has finished but perhaps I may give what I could call an instant volley reply to the noble Lord. I commend the noble Lord for his forbearance and patience, and my concluding remarks will consist of little more than two sentences.

While it is right for the commission to have extensive powers to inquire into an employer's discharge of his obligations, it seems fair to provide that the employer is not needlessly inconvenienced thereby.

Finally, if the commission for any reason considers that further action is required, then it has powers of full investigation under Clause 11. There is no question of any rogue employer weakening the powers contained in Clause 31. If the noble Lord's fears were to be realised and such cases became numerous, then the commission certainly has the powers given under Clause 11. I hope that it would use them and I think that the noble Lord believes that they would use them.

Lord Bonham-Carter

The noble Lord has not really answered the point, which is that if one asks for information and receives it then often that information leads to a need for further information. That is the first point.

The second point is that there is unnecessary delay if one has to wait for six months, and employers may use the device of giving inadequate information in order to obtain a delay.

Thirdly, the way round this difficulty which the noble Lord suggests is a full investigation; but that is a draconian measure which should not be necessary since all one needs to do is to ask for further information.

Lord Lyell

In reply to the noble Lord I think that he, partly at least, makes my case. He is a little worried that the power under Clause 11 is draconian. I do not think that it is necessarily draconian. It is there, it will be used and it will bite.

In the event, the noble Lord said that there may be an employer who was deliberately seeking to annoy or delude the commission. I believe that the amendment to Clause 31, backed up by the powers in Clause 11—draconian or not, they are there to be used—will be sufficient safeguard to satisfy the noble Lord and above all to protect the commission against recalcitrant employers.

Lord Prys-Davies

With the greatest respect I must say that the Minister has not met the edge of the criticism made by the noble Lord, Lord Bonham-Carter. Surely it is a waste of resources and undermines the legislation if the commission cannot go back with a request for further and better particulars. It is as simple as that. We do not know whether an employer is embarking upon delaying tactics. All we know is that the commission cannot come back for six months for further and better particulars.

We believe that that is totally unsatisfactory. We ask the Government to have another look at this amendment.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 41: Page 24, line 9, leave out ("information") to end of line 13 and insert ("as to the manner in which the return was prepared as it may specify,").

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

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 42: Page 24, line 33, leave out from ("and") to end of line 34 and insert ("assuming the action is taken, as to tae progress towards fair participation in employment in the concern, by reference to any period or periods, that can reasonably be expected to be made by members of that community.").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 43, 45 and 46. I think that the Committee will be pleased. This group of four amendments is intended to deal with a technical difficulty which we have identified in Clause 31.

As presently drafted, Clause 31 obliges an employer to disclose to the commission, on request, the findings of his periodic review of employment practices, and the decisions he makes in the light of those findings. The commission must, where a review reveals that fair participation is not being afforded, make recommendations as to the sort of affirmative action that the employer should consider taking, whether or not goals and timetables are appropriate, and if so the goals and timetables he might reasonably be expected to set.

Alternatively, the employer may, of his own volition, decide on a course of affirmative action and on the setting of goals and timetables and inform the commission of his plans. In that event, the commission is empowered to make further enquiries about progress. But under the existing provisions if an employer decides to take affirmative action only after it has been recommended by the commission following the completion of his review, the commission is not able to use its powers of further enquiry under subsections (5) and (6) of this Clause, which are only available when an employer has made his own decisions and determinations.

The amendments that we propose are designed to remedy this anomaly by widening and broadening the commission's powers so that it may ask an employer who has taken affirmative action and set goals and timetables following a recommendation of the commission rather than entirely off his own bat, for further information about the progress that his efforts are making.

The amendments remove this anomaly by providing for a slight but useful expansion of the commission's powers. These provisions are not burdensome. They make good sense. In that spirit I commend them to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 43: Page 24, line 35, leave out ("under this section").

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

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 44:

Page 24, line 44, at end insert— ("( ) The Commission shall treat the disclosure by the employer as confidential until the six month expiry date has been reached or until, if earlier, the employer decides to make the disclosure public.").

The noble Lord said: This clause is an important one. Employers should be given every chance to respond to the commission and to provide the information that it clearly needs and is seeking. My amendment is designed to give employers encouragement to provide that information.

There is nothing within Clause 31 as presently drafted to state that the information when provided should be treated as confidential. Amendment No. 44 therefore proposes a new subsection to the effect that: The commission shall treat the disclosure by the employer as confidental until the six month expiry date has been reached or until, if earlier, the employer decides to make the disclosure public. I should have thought it a very reasonable amendment and also rather important because, under the circumstances in Northern Ireland, every encouragement that can be given to the employers on such matters is important and this confidentiality would be such an encouragement. I beg to move.

Lord Prys-Davies

I have listened with great care to what the noble Lord, Lord Mottistone, has said. However, I fear that we cannot agree to this amendment. The noble Lord has explained very clearly that, if the amendment is agreed to, it would prevent the commission from disclosing the decision of an employer to take affirmative action until a period of six months has elapsed or unless the employer authorises him so to do. Notwithstanding the honeyed words of the noble Lord, Lord Mottistone, we have a fear that it would shackle the enforcement powers of the commission and thus tend to limit its effectiveness.

Lord Lyell

I am slightly puzzled by the amendment moved by my noble friend Lord Mottistone. He has moved it in his usual honeyed tones but the substance causes me some puzzlement. I am not entirely clear. I appreciate that an employer who has informed the commission of his intention to affirmative action or actions might not want the full glare of publicity focused on his efforts as they evolve. However, I wonder whether the amendment proposed by my noble friend will achieve this. Nor am I certain whether it is a desirable objective.

As the amendment stands, it applies the confidentiality rule only to a disclosure made by an employer to the commission in respect of the type of affirmative action that he proposes to take under subsection (5) of the clause. It does not apply to a similar disclosure made under subsection (6) of the clause, which relates to goals and timetables. We think that the effect of the amendment would be to prevent the commission from disclosing the actual action which the employer had decided to take, but not from disclosing the goals that he was aiming to achieve or the timescale within which he was hoping to achieve them. My noble friend would certainly have wanted to catch those two elements in his amendment. That is why it appears a little inconsistent. For that reason, my noble friend's amendment is unlikely to work with regard to the aspect to which he has drawn the Committee's attention.

Lord Mottistone

I appreciate that the amendment may not be perfect and may be placed in a wrong part of Clause 31. I shall therefore read with care what my noble friend and the noble Lord, Lord Prys-Davies, have said. I shall probably come back at Report stage with a tidier amendment, which may be more acceptable to noble Lords. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendments Nos. 45 and 46: Page 24, line 45, leave out from ("Commission") to ("the") in line 46 and insert ("a determination as to the progress towards fair participation in employment in the concern, by reference to any period, that can reasonably be expected to be made by members of a particular community"). Page 24, line 49, leave out from ("progress") to ("has") in line 1 on page 25.

The noble Lord said: I spoke to these amendments earlier. I beg to move.

On Question, amendments agreed to.

Lord Lyell moved Amendment No. 47: Page 25, line 12, after ("subsections") insert ("(1)").

The noble Lord said: I spoke to this amendment when I dealt with Amendment No. 40. I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clauses 32 to 34 agreed to.

Clause 35 [Notices about goals and timetables]:

Lord Lyell moved Amendment No. 48:

Page 27, line 46, leave out from ("made") to end of line 4 on page 28 and insert ("towards fair participation by members of the community concerned—

1. (a) in employment, or any class of employment, in the concern in Northern Ireland, or
2. (b) among applicants to fill advertised vacancies for such employment or any class of such employment.").

The noble Lord said: I spoke to this amendment in connection with Amendment No. 38. I beg to move.

Lord Prys-Davies

I shall not detain the Committee, but I must place on record that the objections that we have raised to the government amendments to Clause 30 apply with the same force to this amendment.

On Question, amendment agreed to.

7.45 p.m.

On Question, Whether Clause 35, as amended, shall stand part of the Bill?

Lord Mottistone

I have put down my objection to Clause 35. It seems to the employers in Northern Ireland that Clause 35, although it is worded in the way that it is, is the legalisation of quotas by another name—quotas being preconceived ideas of how many people of a particular type should be employed, regardless of their qualifications or their past record of doing their job well in the area in which employers need to employ them.

For private industry, and for public manufacturing industry also, it is very important that people should employ only those who can do the job best so far as possible within the area of the factory, or whatever it is. This is a fundamental point. It seems to the employers of Northern Ireland that this clause will box them into a corner to employ people who are not necessarily the best for the job.

Perhaps I may ask my noble friend a question. How is an employer to meet any goals and timetables without making any decisions on the basis of religion? How does he avoid being open to a misdemeanour when he does not achieve any goals and timetables? Perhaps my noble friend can elaborate. Perhaps he will also explain how this clause is not meant to refer to quotas and, if so, how he squares that with the misgivings of the employers in Northern Ireland; and how he answers the question that I have just put.

Lord Dunleath

Further to what the noble Lord, Lord Mottistone, has said, have Her Majesty's Government taken into account the number of small companies—I venture to suggest such as my own, employing some 32 people—where labour turnover is extremely low? The noble Lord would probably recognise from his experience in the Department of Agriculture in Northern Ireland that in small companies of this kind, where there is a really good relationship between management and labour, the turnover of labour is small. Therefore, opportunities to meet goals and timetables are very limited. Many years may pass before there arise vacancies which can be filled by persons of another religious persuasion. Indeed, when such a vacancy occurs the Bill emphasises that it should be on merit. I entirely support that. Have Her Majesty's Government taken full account of the difficulty of small companies which have a settled labour force meeting goals and timetables, as mentioned in the Bill?

Lord Monson

Further to what my noble friend Lord Dunleath has said, I wonder whether the noble Lord can explain precisely what the term "on merit" means. Does it mean purely academic qualifications? Does it mean length of service with another company? Or does it include those intangible qualities that most employers everywhere in the world look for in employees which may have nothing to do with academic qualifications and have everything to do with their good nature, their ability to get on with other people and so on and so forth?

Lord Hylton

I am inclined to think that my noble friend Lord Dunleath has a good point about small companies with a very low turnover of labour. Surely, the answer is that the goals and timetables that may be set have to be long-term and cannot be expected to come about quickly or take effect rapidly.

I ask the noble Lord, Lord Mottistone, whether he would not agree that it is better to have some goals and timetables set out rather than to find ourselves in a situation where, for example, the MacBride principles which have been so hotly debated in the States, are beginning to be applied in Northern Ireland? That might be a worse state of affairs.

Lord Lyell

I start by thanking my noble friend for the way in which he has set forth his objections to Clause 35. Perhaps the best I can do for him and for the noble Lords, Lord Dunleath, Lord Hylton and Lord Monson, is to try to answer their questions. Most of the points that they are worried about should come out when I explain why we believe that we need to retain Clause 35.

Clause 35 is an essential part of the provisions made by the Bill as a whole. We all believe that its removal would considerably diminish the effectiveness of what we are trying to achieve. Secondly, we do not believe that its removal is warranted in any way.

Let us be quite clear what we mean by goals and timetables. I stress to my noble friend that they are not quotas. Goals and timetables are simply targets or benchmarks which are established by the commission and against which progress can be measured. They respresent a degree of change which good faith efforts might reasonably be expected to bring about.

The fears expressed by my noble friend on quotas are entirely different. Quotas, as he will be aware, are a fixed number of proportion of jobs which the employer is obliged to allocate to a particular group. As such the only way these quotas can be met is by reverse discrimination. The Government have totally rejected such an approach in the past. I welcome the opportunity I have tonight of doing so again. We shall not countenance any measures which involve reverse discrimination. We would not include it in the Bill and we would not include any provisions for goals and timetables if we thought that they would have that effect.

We believe that the clause is important because it provides the mechanism whereby the commission may, if it thinks it is appropriate, serve on an employer a notice about the progress it thinks might be made towards the achievement of fair participation in employment by members of the under-represented community. Such progress and the time within which it may be achieved are not absolutes. It is recognised that there will be circumstances which may contribute to these goals and timetables not being fulfilled. That is why the clause contains no penal provision for failure to meet a goal.

I repeat to my noble friend, as well as to other members of the Committee who have spoken, that goals are not quotas and employers will have no reason to regard them as such. But what a notice about goals and timetables will achieve is to give an employer something to focus on when he is taking affirmative action. It is difficult to envisage how a programme of affirmative action could be drawn up if it did not contain some reference to an ultimate objective. In this respect the clause provides flexibility.

The commission is empowered to make inquiries from time to time about progress. That will be helpful both to the employer and to the commission. If an affirmative action is not achieving its objectives, it obviously is in everyone's interest that the reasons for the failure should be brought to light as soon as possible. That is why the clause makes provision for penalisation in respect of inquiries by the commission into progress. It is essential that the implementation of goals should be accurately monitored.

These goals and timetables are not an end in themselves. They are an integral aspect of affirmative action and it is affirmative action which is one of the fundamental provisions of the legislation. If we take away goals and timetables that affirmative action becomes less effective. It is as simple as that. We do not think that there is any good reason for removing Clause 35. As I have explained, there are very good reasons for retaining it.

The noble Lord, Lord Dunleath, asked about merit. That will be on the basis of ability and aptitude. Goals and timetables will be related and tailored to the circumstances of each individual company, let alone the small companies with which I would be familiar in my duties dealing with the Department of Agriculture and referred to by the noble Lord, Lord Dunleath. They are a measure of expectation; that and that alone.

For the reasons that I have outlined, the Bill needs Clause 35. I hope that my noble friend Lord Mottistone will accept my arguments for its continued inclusion in the Bill.

Lord Mottistone

I am most grateful to my noble friend for his explanation. I shall read it with care and see what might happen at a later stage.

On Question, Clause 35, as amended, agreed to.

Clause 36 [Power to secure further undertakings or issue further directions]:

On Question, Whether Clause 36 shall stand part of the Bill?

Lord Mottistone

I am advised that in the past the FEA has happily and frequently changed the goalposts. It has often recommended action to one employer but not to another in similar circumstances. In cases where things looked in order overall, it probed until it found something wrong. I suggest that that is not the way to gain the co-operation of employers. It is feared that Clause 36 is very much a cover-all clause giving the commission more or less unlimited power to call for any other information or action that it thinks fit. For example, could the Fair Employment Commission call for an employer to conduct training for non-employees? It would seem that within the terms of Clause 36 it could. It would be nice to be reassured about that.

If that is so, probably there is a necessity for something within the clause to restrict it within the bounds of what is practicable and real. Perhaps at another stage we shall go on to that. If my noble friend can reassure me, that would be helpful.

I should not be satisfied—I do not think any noble Lord would—to hear that of course the commission would not do anything. In real life that does not always prove to be the case with official bodies, I am afraid. With the very best intentions, if they are not restrained by the legislation in any way they can exceed and have exceeded in many other areas—nothing to do with Northern Ireland—the bounds of what people, when they passed a Bill, may have thought reasonable and at a later stage think is all right. There is a need for tightening up Clause 36; I should be grateful to hear what my noble friend has to say.

Lord Lyell

I am fascinated to hear my noble friend say that he wants the clause tightened up. His amendment seeks to eliminate it. I find that curious. I wonder where my noble friend feels that he is seeing what I can only regard as bogies in Clause 36. I do not see anything in the clause, let alone in subsection (2), which would give rise to what my noble friend believes. I believe that Clause 36 stands or falls with Clause 35.

I was fascinated by what my noble friend said. Already we have found that 450 private sector organisations, many of which must be members of the CBI in Northern Ireland, do not find that Clause 36 will present them with any major problems. They are happy with, trust and get on with the Fair Employment Agency which will soon become the Fair Employment Commission.

The reason for Clause 36 is clear. It will strengthen the provisions of the Bill for goals and timetables, and will complement the procedures which we have set out in Clauses 30 and 31 concerning the employers' period reviews of practice and the commission's inquiry into them.

I repeat what I said earlier. Failure to meet goals is not an offence. Any such provision would turn them into quotas. Again, I stress that the keynote in the clause is flexibility. The failure which is discovered may well be due to some change in circumstances over which the employer has no control. For example, anticipated vacancies in the workforce may not have occurred or a planned expansion may not have been realised. The failure may be due to some default on the part of the employer. He may have recruited persons by means of advertisements which reached only one section of the community, or he may have used unnecessary job criteria which the under-represented section of the community found difficult to meet. Whatever the reason for the failure, Clause 35 provides the means whereby it may be discovered and Clause 36 provides the means of remedying it. For that reason, we believe that Clause 36 is an essential adjunct to Clause 35 and a useful additional weapon in the armoury of the commission. We strongly support its inclusion in the Bill.

Lord Mottistone

I am grateful to my noble friend for that explanation. I shall take advice at a later stage.

Clause 36 agreed to.

Clauses 37 to 43 agreed to.

8 p.m.

Clause 44 [Additional powers of Commission to obtain information]:

Lord Mottistone moved Amendment No. 49: Page 34, line 38, leave out from ("scale") to end of line 42.

The noble Lord said: It appears that Clause 44 (4)(b) is excessively powerful by way of further punishment, and one wonders whether it is necessary. I should be grateful if my noble friend could explain why he must be so punitive when trying to obtain the co-operation of others in regard to help. I beg to move.

Lord Monson

Before the noble Lord, Lord Mottistone, arrived this afternoon I expressed concern about a similar provision in Clause 5. I echo his worries about this provision in Clause 44.

Lord Lyell

As the noble Lord, Lord Monson, said, I stressed that the scale of penalties in the earlier amendment was necessary. The maximum scale I set out in the Bill is relevant and needed as a deterrent. Some penalties may appear to be draconian but they are intended to catch repeated offenders and infractions.

If the commission's powers are to be effective, they must be backed up with sanctions. So the clause provides that if the information requested by the commission is not provided by the specified time, the person from whom it was requested is guilty of an offence and liable to a fine of up to £2,000. That may be seen as a small price to pay for withholding information from the commission, particularly if the employer felt that its disclosure was likely perhaps to deny him public sector contracts. In order to cover this contingency the Bill provides that if a person is convicted of the offence of failing to provide the information requested, and after his conviction persists in failing to provide it, he is liable on a second or subsequent conviction to a daily fine of up to £200 for each day on which his failure continues.

We believe that the scale is necessary.

We do not believe that this is an unreasonable provision. The penalties provided in this clause are appropriate to the offences created. The provisions are precisely the same as those relating to the provision of information to the commission about the manner of monitoring or the conduct of the periodic review, let alone the goals and timetables.

My reply is the same as that which I gave to the noble Lord, Lord Monson, and to my noble friend Lord Mottistone in absentia, at an earlier stage. We do not see the penalties as being regular, but we see them as a necessary deterrent against repeated offences and continual infractions.

Lord Mottistone

I thank my noble friend for that explanation which I shall read with care. I shall decide what to do at a later stage. I beg leave to wihdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 agreed to.

Clause 46 [Interpretation of Part II]:

Lord Lyell moved Amendment No. 50:

Page 35, line 41, at end insert— (" 'advertised' shall be construed in accordance with the definition of "advertisement" in section 57 of the Fair Employment (Northern Ireland) Act 1976").

The noble Lord said: I should also like to speak to Amendment No. 51. They are consequential to Amendments Nos. 23 and 34 which we discussed earlier. They introduced the concept of a job applicant being a person who applies to fill an advertised vacancy in employment. It is necessary, therefore, to be clear about what constitutes an advertised vacancy, and the purpose of these amendments is to attract the definition of "advertisement" which already exists in the 1976 Act.

The definition of "advertisement", which is given in Section 57 of the 1976 Act, is wide-ranging. It includes every form of advertisement, whether the advertisement is to the public or not, and whether it circulates among a small group, or in the mass media of newspapers, radio, films and television. It is, therefore, 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 so do. Indeed, the definition will be helpful to both the employer and the commission in making it clear what constitutes an application for monitoring purposes. I beg to move.

Lord Prys-Davies

We have listened to the noble Lord, Lord Lye11, repeating an argument that we have already heard. If our arguments in respect of Amendments Nos. 23, 34 and 38 leave those amendments untouched, clearly the definition of "advertised" is not sufficiently compehensive. I wish to emphasise and repeat that point. The Government intend to give protection to advertisements by way of mouth so that they are monitored. If the action of a person calling at a factory on his own initiative and obtaining employment—as outlined by the noble Baroness earlier—is not monitored, then the definition is inadequate.

However wide-ranging—and those were the words used by the noble Lord, Lord Lyell—the definition may be, it is not sufficiently comprehensive. Therefore, we should be grateful if the department would have a careful look at this definition if it intends that Amendments Nos. 23, 34 and 48 should remain untouched by Parliament.

Lord Lyell

I shall take on board the points raised by the noble Lord, as I did at an earlier stage.

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 [Index to Part II]:

Lord Lyell moved Amendments Nos. 51, 52 and 53:

Page 38, line 1, at end insert— ("Advertised Section 46(1)").

Page 38, line 18, column 2, leave out ("27(3)") and insert ("27(1)").

Page 38, line 24, column 2, leave out ("Section") and insert ("Sections 26(3) and").

On Question, amendments agreed to.

Clause 47, as amended, agreed to.

Clause 48 [Meaning of "discrimination"]:

Lord Prys-Davies moved Amendment No. 54: Page 38, line 40, after ("condition") insert (", policy or practice").

The noble Lord said: When we discussed Amendment No. 14 I had in mind both Amendment No. 54 and Amendment No. 57. It may be for the convenience of the Committee if I now speak to both. These two amendments comprise an alternative approach to the problem which the noble Lord, Lord Lyell, identified when he moved Amendment No. 14.

The purpose of Amendment No. 54 is to tighten the provisions dealing with indirect discrimination so that the definition will accommodate the problems thrown up by developments in case law in anti-discrimination legislation. At present, as the Minister explained, a complainant can prove indirect discrimination only if he can establish that the barrier which has prevented him from securing the post amounts to a "requirement or condition". That is the critical phrase.

One could refer to the case of Mear or the case of Pereira, which are two well known and authoritative cases where the Court of Appeal held that the complainant must establish that the offending provision constitutes an absolute bar to the complainant's employment. Anything less is not indirect discrimination. For example, that means that an employer can, without being in breach of the Act, decide to exercise a preference in favour of people who are not resident in West Belfast. As long as that preference is not an absolute ban, it will be legal under the provisions of this Bill.

In the result, a tribunal decision may well uphold as lawful in an individual case something which patently does not meet the equality of opportunity standards of most reasonable people. Therefore, if we extend the definition so that it comprises not only "requirement or condition" but also "policy or practice", that will solve the problem identified by the noble Lord, Lord Lyell, when he addressed Amendment No. 14.

If that amendment is not acceptable to the Committee, we should fall back on Amendment No. 57. This amendment would allow the tribunal, if it finds evidence of failure to provide equality of opportunity but not, because of the current restrictive interpretation of the words "requirement or condition", of indirect discrimination as defined by the Bill, to make a recommendation that the respondent should refrain from an action where it—the tribunal—was satisfied that justice could only be done by making such an order. Clearly we would not be concerned with Amendment No. 57 if the Government were to redefine indirect discrimination to include "policy or practice". I beg to move.

8.15 p.m.

Lord Bonham-Carter

I very much agree with the sentiments expressed by the noble Lord, Lord Prys-Davies. However, I am concerned about one aspect of this definition of indirect discrimination to which I referred on Second Reading.

The fact is that indirect discrimination, which some people find a quite difficult concept or notion, is arising in a large number of different types of legislation. It first emerged in race relations and sex discrimination legislation. It now emerges in analogous employment discrimination legislation in Northern Ireland and is also emerging in the consideration of European directives on equal treatment for men and women as regards pensions and other benefits.

The problem is that the definitions of indirect discrimination differ in each of the different laws. I believe that it is the same in the Race Relations Act 1976 and the Sex Discrimination Act, but here we have a slightly different definition which the noble Lord, Lord Prys-Davies, would like to make even more different. In the case of the European Community, the definition of indirect discrimination is once again different. The definition reads: For the purposes of the principles of equality …indirect discrimination exists where an apparently neutral provision, criterion or practice disproportionately disadvantages the members of one sex … and is not objectively justified by any necessary reason or condition unrelated to the sex of the person concerned". I believe that the Government should think rather carefully about what they want to do on this notion and concept. It would be a great advantage to ordinary men and women if indirect discrimination always meant the same thing. If it is going to mean something different in each piece of legislation, I think we shall be very confused and it may be rather unfair. I should like to draw that to the attention of the Minister and I shall be interested in his comments.

Lord Lyell

Members of the Committee will not be totally surprised that I cannot agree with everything which has been said by the noble Lord, Lord Prys-Davies, this evening, let alone on this amendment.

As we see it, this amendment is designed to widen the existing definition of indirect discrimination. This is an issue on which the Government and certain Members of the Committee opposite hold different views and which was discussed in a comprehensive and lucid way in another place. The position taken in another place has not changed.

I should like to re-emphasise the views of the Government on this issue. I appreciate that I cannot say to Members opposite that the Government propose to repeat the current definition of indirect discrimination in sex and race legislation. I understand the disappointment of the noble Lord at the interpretation that the courts have chosen to place on the phrase "requirement or condition". That interpretation is a matter for the courts.

I should like to reiterate the basic points made during discussion in another place. In our view the current definition is fair, balanced, reasonable and does not bias the system too heavily one way or another. We think it right that a complainant should have to show that he was excluded from employment by the condition and nothing more.

I appreciate that the noble Lord, Lord Prys-Davies, wishes to see a broader definition introduced into the legislation to redress what he might consider to be the trend of the relatively recent Appeal Court decisions in the cases of Mear and Pereira. I do not share his view of this matter or that of his colleagues.

I should like to emphasise one of the central policy thrusts of the Bill. The problem lies not so much with the technicalities of the definition of indirect discrimination but much more with the unintentional and structural descrimination that occurs through slack and lax employment practices. That is why many provisions in the Bill are essentially practice centred; for example, compulsory monitoring and review, the provision for follow-up inquiries by the commission and the provision for the new commission to draw up a code of practice. These and associated provisions such as those dealing with goals and timetables, let alone affirmative action, will serve as the effective cutting edge in any struggle against discrimination. They will promote the best employment equality practice. For that reason I ask the Committee not to follow the line taken by the noble Lord, let alone that in another place, and not to accept the amendment.

Lord Prys-Davies

I should like to thank the noble Lord for his defence of the Government's position. He seems to suggest that it will be for the court to sort out the difficulties. I should mention that in the Mear case the court stated that this was a case which required Parliament to act. Here is an opportunity for Parliament to act.

I note the points made by the noble Lord, Lord Bonham-Carter. He was good enough to alert us at Second Reading to the fact that he saw merits in a common definition, and that is the position of the Government.

In this Bill we are addressing ourselves to a situation specific to Northern Ireland in the light of the experience which has been gained since 1976. I point out to the Minister that there have been many occasions in this Chamber when the Government have been content to introduce legislation which differs considerably from Great Britain legislation. I need only to refer to the erosion of the right of silence in the courts. I believe that the position taken by the noble Lord is consistent with what he has been saying over the years. However, I think that it comes ill from the Government to reject the amendment on the grounds that here we are differing from the UK legislation. If it is for the convenience of the Government to differ, they will differ; if it is not for the convenience of the Government, then they will not differ.

We will consider our position and decide whether we shall come back to this issue at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 55:

Page 39, line 11, at end insert— ("(2A) For the purpose of subsection (2) above, a person is not to be treated as discriminating against another person by reason only of refusing employment to job applicants who have

1. (a) been convicted of charges involving terrorism:
2. (b) openly supported terrorism, or
3. (c) openly supported a country or countries with which the United Kingdom was at the time at war or otherwise engaged in hostilities.").

The noble Lord said: Amendments Nos. 55 and 56 have been grouped together. However they cover different matters and therefore I shall speak to them separately. It would be quite possible for a Member of the Committee to support Amendment No. 55 and disagree with Amendment No. 56, or the other way round. I do not think that the wording of Amendment No. 55 requires much explanation.

The Government, broadly supported by the Opposition, not so long ago introduced what is now the Elected Authorities (Northern Ireland) Act because they rightly felt that it was wholly unreasonable to expect elected councillors to sit round the same table as supporters of terrorism, who were defined in the Elected Authorities (Northern Ireland) Act as people who publicly expressed support for or approval of a proscribed organisation or acts of terrorism.

Is it not equally unreasonable to expect people to work side by side at a factory bench, on a building site or in an office with people who openly support terrorism or, even worse, people who have taken part in terrorist acts which have resulted in the death or maiming of friends or members of their family?

Paragraph (c) of this amendment covers a different point. It is obvious that nobody would have considered it reasonable that employees in England, Scotland or Wales should have been obliged to work side by side with somebody who, for example, in the early 1940s openly supported Hitler or the German armies. The days when extreme Irish Republicans also supported the Germans and Hitler have passed, but we should remember that supporters of Sinn Fein openly and enthusiastically supported General Galtieri at the time of Argentina's invasion of the Falklands and rejoiced in the deaths of British servicemen.

It would have been quite intolerable to require by law that normal patriotic people in Northern Ireland should work alongside such individuals. If they had been prepared to do so of their own accord, fair enough; but they should not have been obliged to do so in the past and should not be obliged to do so in the future. I beg to move.

Viscount Brookeborough

I feel that I should support the noble Lord, Lord Monson, in this amendment or at least ask my noble friend the Minister to look at something similar. I shall not waste time by going into the details of the matter. They are obvious in the context of terrorism as it exists in Northern Ireland. I therefore support the noble Lord in thought and maybe in hope for the future.

Lord Mottistone

I should also like to support this amendment in principle, although I suspect that it could be worded differently.

Lord Hylton

I am sorry to say that I differ from the noble Lord, Lord Monson. I know a number of persons who have been convicted of charges involving terrorism. Some of them are remorseful and regret their involvement because it turned out badly for them; others go much further than that and are repentant and have had a total change of attitude and outlook. On moral grounds they are convinced that what they did earlier was wrong.

It would be most unfair to discriminate again against people in the category I have just mentioned. As regards paragraphs (b) and (c), this seems to be very much a question of opinion. I do not see how these things can always be clearly proved. On those grounds I think that the amendment goes too far.

8.30 p.m.

Lord Lyell

The noble Lord. Lord Monson, has moved Amendment No. 55 in an excellent manner and very clearly. I believe Members of the Committee will accept that we would have every sympathy with an employer who refused to offer employment to an applicant who had been convicted of an offence connected with terrorism in Northern Ireland, was known to be an active member of a paramilitary organisation or was known actively to support terrorism in other ways. I share that sympathy. I am pleased to be able to tell the noble Lord, Lord Monson, that Section 57(3) of the Fair Employment (Northern Ireland) Act 1976 which is a section unaffected by this Bill, already provides that, a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with Northern Irish affairs (including the use of violence for the purpose of putting the public or any section of the public in fear)". That is a direct quotation from Section 57(3) of the Act that is unaffected by the Bill.

The interpretation of this section would be a matter for the Fair Employment Tribunal if, in an individual case of alleged discrimination, a respondent used Section 57(3) as his defence. But I hope the noble Lord will see that at least two-thirds of his amendment is unnecessary. As regards paragraph (c) of the amendment, I believe it provides extremely difficult problems of definition. The noble Lord has alluded to one particular case as to what "otherwise engaged in hostilities" might mean or if we were at war on the occasion referred to by the noble Lord. I am not clear what the amendment might mean.

If an employer felt that to employ an applicant who actively supported a hostile power was likely to jeopardise national security, public safety or public order—and I stress here public order—the employer would be protected by the provisions of Section 42 of the 1976 Act which provides that acts done for any of these purposes may not be challenged under fair employment legislation.

I hope that that is sufficient to explain to the noble Lord, Lord Monson, that the existing provisions in the 1976 Act provide the kind of safeguards that he is seeking. What I have said also refers to the remarks of my noble friend Lord Brookeborough. As regards paragraph (c) of the amendment I hope I have explained the difficulties concerning definition. I hope that the noble Lord will accept my explanations and will not pursue his amendment.

Lord Monson

I am most grateful to the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Mottistone, for their support of the principles of this amendment. I am also grateful to my noble friend Lord Hylton for the first part of what he said. I understand what he is getting at as regards the question of repentance: perhaps one might look again at a later stage at a redrafted amendment in the light of what he said. However, I cannot agree with the second part of what my noble friend said. The difficulties of definition and subjectivity about which he spoke apply equally well to the Elected Authorities (Northern Ireland) Act. If he criticises this amendment then presumably he is equally critical of that Act.

I am somewhat reassured by what the noble Lord, Lord Lyell, said, but I do not believe it goes the entire way to meet my fears. As regards the wording of the amendment, the reason for including the word "hostilities" is that we were not actually at war with Argentina. We were most certainly engaged in hostilities and it may be that in a technical sense hostilities have not been officially ended. I am not quite sure on that point. I wish to study the matter again in the light of what has been said. I beg leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 56:

Page 39, line 11, at end insert— ("(2B) For the purpose of subsection (2) above, a person is not to be treated as discriminating against another person by reason only of giving preference in employment to job applicants who—

1. (a) have served for at least five years with the armed forces or the police, where such previous employment is relevant to the job in question, or
2. (b) are the close relations of existing employees with at least ten years' service.").

The noble Lord said: The wording of this amendment is also self-explanatory. It divides into two parts. There are many occupations where former service, ideally long service, in the armed forces is considered highly desirable, if not strictly essential. You only have to look around the Palace of Westminster to see what I mean. In a rather different sphere, the Corps of Commissionaires is, as I understand it, also recruited entirely from ex-servicemen, while former police officers are particularly sought after by security firms and private detective agencies.

It has been suggested that these sensible and long-hallowed preferences should be outlawed in Northern Ireland because members of one community are less likely to have served either in the police or the armed services. That is a nonsensical suggestion. I emphasise that the amendment deliberately does not specify a particular police force: former membership of a force in England, Scotland or Wales or indeed of the Southern Irish Garda would be just as acceptable as former membership of the RUC.

The second part of the amendment is also self-explanatory. For one family to have worked for another for generation after generation is considered by most normal people throughout the free world to be a commendable and admirable tradition. But we are told that Northern Ireland must be an exception to this rule.

At Second Reading I instanced the case of a Smith family. (The fact that the surnames that I used tend to be common surnames of English, Scottish or Welsh origin has no political significance.) I instanced the case of the Smith family who worked for the Jones family for many generations. Under the Bill it is quite likely that the younger Smith may be told that he cannot follow in the footsteps of his father, grandfather and great grandfather because young Robinson, who happens to come from a different religious community, has fractionally better 'O' levels than he has and therefore must be given the job, whatever the employer's preference.

Elsewhere in western Europe an employer would be able to take account of what might be called the intangible assets of a job applicant. He would not be bound to employ people purely on the basis of their slightly superior academic qualifications. The Conservatives claim to be the party of the family and the party of tradition. While this amendment may go slightly against the grain of abstract social engineering, it upholds the value of both the family and of tradition. Therefore I hope that the Government will accept the amendment, at least in principle. I beg to move.

Lord Lyell

I shall look first at paragraph (a) of the amendment that the noble Lord is attempting to introduce. There may well be job vacancies in Northern Ireland where experience of service in the security forces may be relevant. If the nature of the job is such that it cannot be done satisfactorily without that experience—in other words it is a requirement that is wholly justifiable for the job irrespective of the religious belief or political opinion of the applicant—then the employer is already on safe ground.

But there can be no doubt that an employer who persistently—I believe this to be the point at issue—demonstrated a preference for employing former members of the security forces would run the risk of a charge of indirect discrimination against the Roman Catholic community in Northern Ireland. As Members of the Committee familiar with Northern Ireland will know, the proportion of Catholic members of the security forces, is sadly low in relation to the overall numbers of Catholics in the community as a whole. The noble Viscount will know why, sadly, that is true. For that reason, and for the other reason I adduced, we think it is inconsistent with the spirit of the Bill, endeavouring to promote equality of opportunity for all, to include in it a provision which is clearly discriminatory in effect.

There could be great difficulty in determining in what circumstances security force experience was "relevant to the job". It is the role of the tribunal to determine when discrimination has taken place and of the commission to promote equality of opportunity and to advise employers to adopt employment practices consistent with it and to avoid those which are not. However sincerely the noble Lord has put forward his views, the amendment is wholly inconsistent with the promotion of equality of opportunity. For that reason I cannot advise the Committee to accept the amendment.

Lord Monson

The Minister has cenfirmed my worst fears. Of course there are few jobs in the world where former membership of the security forces is absolutely vital for the effective carrying out of the job. However, there are a great many jobs where former membership of the security forces is extremely useful and desirable, if not essential. It is obvious from what has been said that what applies everywhere else in Western Europe and in most of the world cannot be applied uniquely in Northern Ireland because of the overkill aspects of the Bill. So many aspects of the Bill represent overkill.

The same applies to the question of sticking with the family tradition of working for a firm. The Left in Britain believes in social engineering. I respect its sincerity. I do not agree with it myself—I have totally opposed it—but that is its practice. Conservatives normally purport to oppose social engineering and favour family values and traditions. Yet in this Bill they are going totally against the grain of their own traditions. It is late in the evening and I am sure that noble Lords are dying to get something to eat. For that reason I shall not pursue the matter further tonight but I may come back with a slightly revised version of the amendment at a later stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Clause 49 [Complaints of unlawful discrimination]:

Lord Prys-Davies had given notice of his intention to move Amendment No. 57:

Page 40, line 41, at end insert (", and (d) a recommendation that the respondent take such action for promoting equality of opportunity as appears to the Tribunal to be reasonable and appropriate in all the circumstances.").

The noble Lord said: I spoke to this amendment in connection with an earlier amendment.

[Amendment No. 57 not moved.]

Lord Lyell moved Amendment No. 58: Page 41, line 7, after ("may") insert ("(subject to the limit in subsection (4))").

The noble Lord said: Perhaps I may speak also to Amendment No. 59. The amendments are designed to remove any doubt that might exist about the amount of compensation which the tribunal may award to an individual complainant. Subsection (5) of the new Section 26 of the 1976 Act which is inserted by Clause 49 of the Bill allows the tribunal in certain circumstances to award a successful complainant increased compensation if, for example, the respondent has failed to pay an earlier award of compensation or has failed to take other action ordered by the tribunal to alleviate the complainant's difficulties. The amendment makes explicit what is already implicit in the clause—that in such circumstances the total amount of compensation awarded may not exceed the maximum of £30,000 provided in subsection (4) of Section 26 as inserted by Clause 49.

Amendment No. 59 is a declaratory provision which is included for the avoidance of doubt and for consistency with the Industrial Relations (Northern Ireland) Order 1976. I beg to move.

8.45 p.m.

Lord Prys-Davies

The Minister told the Committee that the effect of Clause 49 is to make it abundantly clear that the upper limit of compensation is £30,000. That is worrying. It is a movement away from the present position. At the moment the tribunal can make an award of up to £30,000 in compensation. The tribunal can also recommend that an employer takes further action to redress the situation. If he ignores that recommendation the tribunal can then make a further award over and above the original £30,000 to compensate for the employer's failure to act upon the tribunal's recommendation. This amendment ensures that the absolute maximum will be £30.000, irrespective of whether the employer follows the recommendation of the tribunal. This is another example of the Government eroding their original provisions and therefore chipping away at the effectiveness of the Bill. For those reasons, we cannot accept the amendment and we ask the Government to reconsider their position.

Lord Lyell

I shall take on board what the noble Lord has said. But even he would agree that the sum mentioned is certainly reasonable in such cases. It is a fairly large sum. It is not chipping away at anything. However, I shall consider what he has said.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 59:

Page 41, line 51, at end insert— ("(12) It is hereby declared that the limit imposed by subsection (4) applies to the amount which the Tribunal would, apart from that subsection, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 60: Page 43, leave out line 27.

The noble Lord said: I should like to speak also to Amendment No. 61. These amendments seek to reduce the powers of the commission in two respects. On page 43 of the Bill circumstances are set out in which the commission can obtain advice and assistance. Subsection (2) rounds itself off with a save-all, comprehensive sentence: or by reason of any other special consideration". Subsection (3) ends with the words: any other form of assistance which the Commission may consider appropriate". The sad point that I have determined both from the briefs I had at Second Reading and from talking as I have done to the CBI in Northern Ireland is that, for whatever reason, its trust in the FEA, the agency which currently exists, is minimal. It has found the agency to be oppressive and not respectful of private industry and what it tries to do. It advised me at Second Reading to inquire of my noble friend the Minister whether the new commission would be more professional in its approach. These two amendments are inspired by a doubt that the FEC can be trusted to have the more or less unlimited powers in any areas, especially in this part of the Bill. I find this distressing.

It would be helpful if my noble friend—perhaps not now, because I have not warned him that this is the way my thinking would go; and as I have studied all the amendments—could let me know what changes are being made as regards the personnel who will form the commission as opposed to those who formed the agency in the past. For example, is he in a position yet to tell the Committee who he has in mind for the commission? It would be helpful to know that because one may be able then to say to the CBI, "Well, this is a new bunch of chaps and they will probably be people who will not treat you in the cavalier fashion which the FEA did in the past".

Therefore the point of this amendment is basically to reduce the powers but also, in passing, to invite my noble friend to clarify the position with regard to the personnel of the commission. I beg to move.

Lord Monson

I fully support Amendment No. 60, to which I have added my name. Moreover, I think that there is also quite a lot to be said in favour of Amendment No. 61. The purpose of Amendment No. 60 is to put a very modest brake on the powers of the commission. The commission already has very wide-ranging powers granted to it by specific provisions under the Bill. Therefore to allow it still further powers—powers which would be very much resented on the mainland, let us not forget, were they to be applied here in respect of religion, race, sex, age, politics or anything else—under the vague category of "any other special consideration", is tantamount to giving the commission carte blanche to do virtually anything. For that reason I fully support the proposal put forward by the noble Lord, Lord Mottistone.

Lord Prys-Davies

I am rather saddened by the contribution of the noble Lord, Lord Mottistone, for whom I have every respect. I am especially saddened because I am sure that he does voice the view of a powerful section of opinion in Northern Ireland. I believe that all the amendments which have been moved by the noble Lord would weaken the effectiveness of the commission and therefore the effectiveness of the measure. If that represents and reflects the views of industry in Northern Ireland, then I am indeed saddened.

These amendments confine the range of potential complainants to whom the commission can offer assistance to present their case before the tribunal. The point should be made that the commission is not bound to offer assistance under Section 29(2). The potential complainant has no statutory right to receive assistance. We have been saying consistently since Second Reading that the commission will be a responsible body. I believe that we can rely upon the commission to exercise its discretion under the legislation responsibly.

I feel that the circumstances spelt out in subsection (2)(a) and (b) are most certainly adequate. That is my view. But, of course, in the school of experience one has learnt that one can never be certain that one has foreseen all the situations which may arise; neither can one be certain that all the situations in which it would be proper for the commission to give assistance have been foreseen.

Paragraph (c), which this amendment would remove, provides a fallback. It seems to me, on a practical level, that it would be very prudent to retain this sentence. For those reasons we urge the Government to stand by their position.

Lord Mottistone

I must point out that my amendments will not take away paragraph (c); they in fact take away one phrase at the end of subsection (2) and paragraph (e) of subsection (3).

Lord Bonham-Carter

I share the feelings of the noble Lord, Lord Pry-Davies, about the cumulative effect of the amendments which have been proposed in the course of this evening by the noble Lord, Lord Mottistone—even more so because they are, as he told the Committee, the opinions of the CBI in Northern Ireland. It is really rather depressing that a body of such importance should have such a negative view towards a measure which I think most of us in this Chamber feel is of the utmost importance in the light of history.

The effect of the accumulative amendments proposed by the noble Lord would be to emasculate the Bill almost totally. That can be their only purpose. As to the particular amendments which have just been proposed, it is my view that prospective complainants do need assistance. Further, it is my experience, having dealt with complainants, that what they really should have is legal aid. I think that the proposals in the Bill which give permission to render assistance to such people is highly necessary and therefore should be supported.

Lord Mottistone

I hasten to add in response to the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, that they have got the wrong message in this regard. If they would be kind enough to refer back to what I said on Second Reading, they will understand that the CBI in Northern Ireland is right behind the Bill and has been so from the beginning. However, in so doing, the CBI is saying that it has not found it easy to trust the FEA.

The other point that I should like to make is that all the amendments which I have tabled are probing amendments; they are not emasculating amendments. Moreover, they seek to obtain information from the Government. The most important information that we require is confirmation that the FEC will be a more trustworthy body than was its predecessor.

Lord Prys-Davies

I appreciate what the noble Lord, Lord Mottistone, says and indeed what he has said. However, I am still saddened that there is this lack of trust on the part of industry as regards the commission. It seems to me that the cumulative effect of these amendments, although they are only exploratory, at least creates the impression that the commission does not have the support of industry to the extent that I should like to see it enjoy such support.

In reply to the intervention of the noble Lord, Lord Mottistone, I must say that it is not paragraph (c) in Section 29; it is the third ground given in that section although it is not labelled (c).

Lord Lyell

It is on occasions like this that I am delighted to say that I hesitate to intervene. I have a small note here and it seems that the noble Lord, Lord Prys-Davies, was almost making the case of the Government in his defence of some of the Bill's provisions. It is perhaps an occasion for humour during our lengthy proceedings.

I have quite a long reply for my noble friend, but I think that he would be grateful if I were to shorten it somewhat. I worry about the problem which has been raised by my noble friend. He seems to think that the Fair Employment Agency has been, and the new Fair Employment Commission will be, oppressive. He seems to believe that, in this field of professional personnel management, the Fair Employment Agency, as it stands at present, is oppressive and not professional.

I stressed to my noble friend at an earlier stage of the Bill's proceedings that my door is open. However, with some hesitation, I suggest that his complaints are not necessarily relevant to the two amendments which he has put forward this evening. I shall nevertheless take on board the points he raised, although I have heard them before. As regards the composition of the commission, which is what concerns him and, no doubt, his friends in Northern Ireland, I should say, first, that arrangements are still in hand. Therefore it would be injudicious of me to give too many details at present.

Secondly, the commission will draw very largely upon the experience of the Fair Employment Agency. The staff and resources of the commission will be considerably increased and the post of chief executive has been advertised. I have no doubt that we shall receive many professional applications for it I shall take on board the points raised by my noble friend. I hope that in his usual robust way he is being fair because I do not think that the Fair Employment Agency, let alone the commission, would ever seek to be oppressive, let alone unprofessional. If my noble friend feels that he has a point perhaps we might be in touch later, but not as a result of the fascinations of Section 29, as amended by Clause 49.

Lord Mottistone

I thank my noble friend for his remarks. I quite understand that at this stage he cannot go as far as I should have liked. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

9 p.m.

Lord Lyell moved Amendments Nos. 62 to 64:

Page 43, line 45, after ("apply") insert ("(a)").

Page 43, line 47, after ("section") insert ("or (b) in relation to any act done before the commencement of this section in respect of which a complaint under section 24 of that Act could have been, but was not, made before that time or in relation to any such complaint made in respect of it.").

Page 43, line 48, leave out ("such a complaint") and insert ("any such complaint or act").

The noble Lord said: I am sure that the Committee will be pleased if I speak to Amendments Nos. 62 to 64 together and move them en bloc, if the noble Lord the Deputy Chairman agrees.

This group of transitional amendments is designed to deal with the unlikely but not impossible situation of an individual complainant making a complaint under the existing Part III of the 1976 Act after the commencement of the new Bill. Clause 49(2) already provides that a complaint made to the Fair Employment Agency and not disposed of before commencement of the new Act—that is, the Bill before us—is to be dealt with under the old Part III of the 1976 Act by the new commission.

The amendment provides that a complaint which could have been made before commencement of the new Act but which was not—that is to say, a complaint where the time limit for making a complaint runs beyond commencement—will similarly be dealt with by the commission's applying Part III of the 1976 Act. With that, I beg to move.

The Deputy Chairman (Lord Ampthill)

The noble Lord has spoken to and wishes to move Amendments Nos. 62 to 64 en bloc.

On Question, amendments agreed to.

Clause 49, as amended, agreed to.

Clauses 50 and 51 agreed to.

Clause 52 [Provision of training]:

Lord Prys-Davies moved Amendment No. 65: Page 44, leave out from beginning of line 26 to end of line 3 on page 45 and insert—

(" "Measures to encourage training from under-represented community.

37A. Nothing in Parts III or IV shall render unlawful any act done by—

1. (a) an employer,
2. (b) an employment agency,
3. (c) a vocational organisation, or
4. (d) a person providing services mentioned in section 22(1) in or in connection with affording members of the Roman Catholic, or members of the Protestant, community in Northern Ireland access to facilities for training which is not intentionally confined to members of the Roman Catholic or Protestant community as the case may be and which would help to fit them for employment, or for employment in a particular capacity or occupation. Where the act is done in pursuance of affirmative action (within the meaning of the Fair Employment (Northern Ireland) Act 1989)."").

The noble Lord said: Amendment No. 65 is an attempt to address the problem which Clause 52 of the Bill addresses and which the new Clause under Amendment No. 66, tabled by the Government, is intended to address. Clause 52 itself is complicated and technical and so is our Amendment No. 65, though possibly it is less complicated. Certainly the new clause tabled under Amendment No. 66 by the Government is extremely complicated.

It is crucial that the Government get Clause 52 right. The aim of that clause is to protect employers who are setting up affirmative action programmes under Clause 56 from a successful challenge that the affirmative action programme itself constitutes a violation of the prohibition against direct or indirect discrimination. If we cannot give that guarantee to the employer, employers will be extremely reluctant to set up schemes of affirmative action.

Obviously the Government have experienced great difficulty in drafting the clause because they have returned with a new version. I might mention that I received a letter yesterday from the chair of the Equal Opportunities Commission for Northern Ireland, expressing its concern about the Government's new clause and the Government's amendment to Schedule 2. I understand that those concerns have been conveyed to the Government.

It is vitally important that we get this clause right and certainly I shall not be pressing our amendment to Division. We are simply anxious to hear the Government's views on our amendment. However, if we do not get things right, the employers will simply not be prepared to run the risk of a prosecution by setting up training schemes in pursuance of affirmative action programmes because they fear that they will be challenged and will be found to be in breach of the law.

The difficulty is that our Amendment No. 65 meets or overcomes the weaknesses in the Government's amendment. In a sense, I apologise for referring constantly to the Government's amendment but it is only in the light of the perceived weaknesses in that amendment that one can see that there is a powerful case even for the Government's amended draft to be redrawn.

If we examine Clause 37A, a scheme which is for the benefit of a class which is framed by reference to a religious belief or a political opinion will be unlawful. So if the scheme is intended to be for the benefit of a religious group, that would be direct discrimination.

The following clause is more helpful because, if a scheme operates in a particular area such as the Falls Road, or in Shorts, for example, access to facilities by persons of a particular religious belief may be excluded or restricted. So that is a helpful clause. But in fact the scheme may have the effect of benefiting a religious group. But subsection (2) of the Government's amended draft only allows protection to the employer if his scheme satisfies paragraphs (a) and (b). What will happen in practice is that the person who wishes to challenge the lawfulness of the scheme will argue that the de facto scheme is having the effect of benefiting members of a religious group. Accordingly, if that is the effect, it will be argued that the intention is to benefit a religious group, and that will be in breach of the proposed subsection (I)(a). That argument would be reinforced by the fact that the employer has undertaken the scheme itself in order to ensure fair participation by members of one or other of the two communities. Therefore one can argue that that in itself shows an intention to benefit a religious group, which is not allowed by the proposed subsection (1)(b).

We claim that the Government have worked hard at these amendments but that they are still defective and will not provide the protection that is required. A person who claims that a scheme is unlawful will almost certainly succeed. The essence of our amendment is that we acknowledge that schemes which are specifically religious, in other words, which would have the effect of benefiting a religious group provided they are not intended to be confined exclusively to that religious group, will be lawful.

This is a complicated and technical argument. I have probably not done justice to the argument, but I should be pleased to hear the Government's response, if not today, between now and the next stage. I beg to move.

Lord Hylton

I am glad this amendment has been tabled because it gives me an opportunity to raise a point which may be unnecessary. However, I cannot be sure of that and I shall be glad if the Minister can tell me whether or not it is unnecessary. I need to declare an interest because I am currently the president of the Northern Ireland Association for the Care and Resettlement of Offenders, which is perhaps better known as NIACRO. The association, in parallel with various other voluntary bodies, provides training for released prisoners, ex-offenders and young persons at risk of offending.

Given the location of the workshops where the training takes place and given the supply at any moment of people within these categories, it may well be that the intake of a given workshop is unbalanced in one direction or the other. I hope the Minister can confirm that the Bill will not make present practices unlawful.

Lord Dunleath

I am on rather difficult ground here because, quite frankly, I do not know what I am talking about. Nonetheless I was much relieved to hear two things from the noble Lord, Lord Prys-Davies; first, that he too acknowledged that this was a complicated matter and, secondly, that he had had contact with the Equal Opportunities Commission.

It seems to me that there are some difficult legal implications regarding the new Section 37A. I wonder whether Her Majesty's Government have thought them through. I fully acknowledge that I have not thought them through as I received my brief only this afternoon, and anyway I. am no lawyer. However, it seems there are some possibilities for conflict, for contradiction and for inconsistency.

In selecting persons for training two possible criteria can be used: one is gender and the other religion. It seems possible for some women to be disadvantaged through being targeted by both criteria, thus bringing about an imbalance. Length of service is another criteria for women. I am not sure that the broken service of certain women due to maternity leave or domestic matters has been taken fully into account. That is an anomaly which, if it exists, ought to be addressed.

I understand, arising from that situation, that claims of unlawful discrimination could be made under the sex discrimination legislation. It could also possibly contravene the EC equal treatment directive.

The noble Lord, Lord Prys-Davies, will understand the issue. I am afraid that I am not fully briefed on it. All I ask of the Minister is that he takes those possible difficulties into consideration. I am sure that if he were to ask his staff to get in touch with the Equal Opportunities Commission the commission would let him have copies of the briefing papers which I received today. Perhaps he would be prepared to give them careful consideration because I think that they contain material which may not have been taken fully into consideration in the preparation of these clauses of the Bill.

9.15 p.m.

Baroness Seear

I should like to ask the Minister two questions on this issue. The first is whether, in regard to training, this Bill is on all fours with the Sex Discrimination Act for the UK. Under that Act it is perfectly legitimate to provide training for a member of a sex which is substantially under-represented in a particular job. That is not regarded as discrimination. People will not automatically get a job as a result of the training, but the argument is that the training brings them up to a level starting place to enable them to compete for the job. Is that the intention in this legislation? If it is the intention there is no problem about providing training for the under-represented group. That group can quite openly be provided with training and that is not regarded as discriminatory.

The noble Lord, Lord Prys-Davies, raised another point. I have forgotten what he said. Perhaps he could repeat his point.

Lord Prys-Davies

The point that I made was that under paragraph (b) siting a training centre in a certain area, say the Falls Road area, will benefit a certain community. It could therefore be argued by those who are hostile to the legislation that, because it favours that community, it is in breach of paragraph (a), which prohibits benefiting a class of beneficiaries framed by reference to religious affiliation.

Baroness Seear

I thank the noble Lord. If the point that I made about the Sex Discrimination Act is correct that problem does not arise. One is allowed to discriminate quite openly in training matters. It is when it comes to giving a job as a result of the training that the issue of discrimination arises.

Under our legislation—I do not know whether it is the same in this case or not, and perhaps the Minister could make that clear—it is not illegally discriminatory to remove a discrimination. It is discriminatory to discriminate in favour of a group, but it is not discriminatory to help a group which is discriminated against. I hope that Members of the Committee follow what I am saying.

Lord Lyell

Just‡

Baroness Seear

It is late at night, but there is an important difference. Removing an existing discrimination is not the same as discriminating in favour of a group of people. One is removing a discrimination which operates against a particular group. That is not discriminatory under our legislation.

Lord Prys-Davies

Perhaps I may respond. As I understand it, an affirmative action scheme designed to increase the proportion of females securing promotion could also, in the circumstances of Northern Ireland, lead to a rise in the number of Catholics securing promotion. As the clause stands, in our submission that would be unlawful because it would be discriminatory. That is why we say that we have to work hard on this clause to get it right.

Lord Lyell

Again I hesitate to intervene in a lively debate between the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady Seear. I think that I just understood the second point raised by the noble Baroness. I may have some help for her, if not in relation to this particular amendment but certainly in relation to my own amendment which follows this one.

Perhaps I may begin by stressing two particular points. The first is that both the Government and the Opposition have agreed, following helpful discussions in another place, that Clause 52 should be amended in order to do two things. First, it should make it clear and explicit on the face of the Bill that affirmative action training is protected from both direct and indirect discrimination. Secondly, it should remove explicit reference to the criteria of age, unemployment or length of service which, if used as the basis of selection for such training, could in certain circumstances give rise to legal challenge under both UK and European Commission sex discrimination legislation.

The second point is that the Government have tabled their own amendment, to which I shall refer in a few moments, to deliver those two objectives. A third point follows from the first two; namely, that what is, as I understand it, basically at issue between ourselves and noble Lords opposite on this matter is not a difference of opinion about policy but rather a difference of view of how that objective can best be achieved.

The principal effect of the amendment moved by the noble Lord, Lord Prys-Davies, would be that affirmative action training to remedy under-representation would not be regarded as either directly or indirectly discriminatory, provided that the employer could prove that it was not intentionally confined to members of either the Catholic or the Protestant communities. So, bearing in mind that it is illegal to select for training on the basis of religion, if it transpired that an affirmative action training course, in which the participants were not selected on the basis of religion, turned out to be composed exclusively of either all Catholics or all Protestants, a charge of direct or indirect discrimination could not be sustained against the employer concerned, if he could prove that he did not intend to operate a course exclusively recruited from either Catholics or Protestants. Here, the test at issue is one of intention.

The Government considered that aspect deeply. We took legal advice at all levels and hold to the view that no test based on intention will be satisfactory. Indeed, we believe that a test based on intention is the wrong test, for three reasons. First, in the case of an employer who takes affirmative action, it is possible to infer an intention to treat members of the majority community less favourably. Which community was the majority would depend on the circumstances of the case and—although I hesitate to say it—on the geography of Northern Ireland. It could be either one or other of the two main communities in Northern Ireland.

Secondly, that inferred intention, coupled with the less favourable treatment, may amount to direct discrimination. Thirdly, it follows that it would be possible to infer an intention—we are now getting into somewhat marshy ground with which I am sure the noble Baroness and the noble Lord, Lord Bonham-Carter, will be familiar—to isolate members of the majority community from the fact that training is part of affirmative action. But such an intention should not preclude the training from benefiting from the exception provided. That legal circularity creates rather than solves a problem. For that reason, we have adopted in our amendment the objective test which does not present the difficulties of proof for the complainant and the respondent which are an integral part of the subjective intention test.

In effect, we believe that, for the reasons that I have tried to set out, our amendment will provide a clearer, cleaner and more objective test than that of intention proposed in this amendment. I believe that I have been rather destructive. I have produced no reasons for not accepting the amendment of the noble Lord, Lord Prys-Davies, but have not set out our own amendment. If the Committee will bear with me, I shall do so as briefly and as soon as possible. However, I can assure the noble Lord that there is not much between us. We believe that our amendment, which I shall move and explain as soon as possible, is the best, cleanest and clearest method of achieving that objective.

I see that the noble Lord, Lord Bonham-Carter, would like to make a quick point.

Lord Bonham-Carter

Perhaps the noble Lord will allow me to ask one question. I find the argument fascinating in its complexity and in its obscurity. However, I cannot fully understand why the Government do not use the same formula as that used in the race relations and the sex discrimination legislation. This is a deliberate act because when this matter was raised in another place the answer was that it was not considered appropriate. The word "appropriate" covers a multitude of sins and I do not understand why it is not appropriate.

Lord Lyell

With the utmost politeness perhaps I may counsel patience to the noble Lord. I have only given one side—the dark side—of the argument and explained why I think that the amendment of the noble Lord, Lord Prys-Davies, does not meet the case; I have not yet expounded our case. I shall do so briefly and quickly in due course.

In reply to the noble Lord, Lord Hylton, who raised one query, it is highly unlikely that the NIACRO (the Northern Ireland Association for the Care and Resettlement of Offenders—I hope I have it right) training schemes will fall foul of the legislation. Although they may be attended by young people from only one religious group, they are not intended to exclude members of the other community. Such schemes would be protected from any charges of indirect discrimination. Certainly the schemes are not selected on the basis of religion and therefore there is no discrimination.

I hope that that explanation will be of some help to the noble Lord, Lord Hylton, and that the noble Lord, Lord Prys-Davies, will agree that our amendment will meet the objectives that he seeks.

Lord Prys-Davies

I shall be very brief indeed. I think that the significance of the argument this evening is that it shows that there is immense uncertainty about the validity of the Government's amendment. I agree with the noble Lord, Lord Lyell, that we seek common aims. However, we do not think that the Government's amendment will attain the desired result.

One has to be frank about this. We believe that the best approach is to draw a distinction between schemes which are religious exclusive and therefore unlawful and schemes which are religious specific—in other words, one targets a community and, provided that it is not intended to exclude all other members of the other community from benefiting from the scheme, that would be lawful. I believe that it is far better to face up to that dilemma rather than seek a roundabout way of achieving the desired end and fail to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 66: Page 44. line 26, leave out from beginning to end of line 11 on page 45 and insert—

(" 'Provision of training in pursuance of affirmative action.

37A.—(1) This section applies where, in pursuance of affirmative action, persons are afforded access to facilities for training which would help to fit them for employment, for employment in a particular capacity or for a particular employment or occupation, but—

1. (a) the facilities are provided only at a particular place in Northern Ireland or the training is confined to persons of a particular class, not being a class framed by reference to religious belief or political opinion, and
2. (b) by providing the facilities only there or by so confining the training, access to the facilities by persons of a particular religious belief or political opinion is excluded or restricted.

(2) For the purpose of determining whether any act done in, or in connection with, affording those facilities is by virtue of section 16(2) unlawful under any provision of Parts III and IV. the fact that, by providing the facilities only there or by so confining the training, their access to the facilities is thereby excluded or restricted is to be disregarded.' ").

The noble Lord said: My putative remarks commence with telling the Committee that this is a most significant government amendment, relating as it does to the crucial area of affirmative action training. That is the gist of my earlier remarks. The new clause which we propose in this amendment replaces the existing Clause 52. Certainly I want to pay tribute to the discussions we have had earlier this evening as well as those in another place. We are dealing with training measures and, in the terminology current in fair employment, we usually refer to that as "outreach" training. These training measures are essential weapons in the armoury of affirmative action. We believe that providing access to training for an under-represented group is one of the classic ways in which competitive disadvantages, such as the lack of particular skills, abilities or aptitudes, which are all familiar to noble Lords, can be overcome.

We certainly think that such training is important not only to individuals who may be at a disadvantage and to the under-represented group; we believe that it is also important to both employers and the new Fair Employment Commission. In view of the overall importance of affirmative action training, it is not in the least surprising that at earlier stages of the Bill as well as today there should have been considerable discussion about how best to provide for it. It is true to say that the discussions have produced many valid points.

However, in bringing forward our amendment, as against that of the noble Lord, Lord Prys-Davies, the Government sought to address two special difficulties associated with the old clause and one central priority. The first difficulty was the need to provide protection for employers taking affirmative action training from both direct and indirect discrimination. While there was considerable room for debate and discussion about how far the existing clause provided such protection, the Government accepted the general proposition that the greater the degree of clarity in this area the better.

The second difficulty that we felt we had to overcome was that the criteria for selection suggested in the existing clause as a basis for constituting a training group—I referred to them a little earlier in the previous amendment: age, unemployment or length of service—could in certain circumstances have left employers open to charges of indirect sex discrimination under both United Kingdom and European Community legislation.

The new clause proposed in this amendment is designed to address these difficulties. It is also designed to address the central policy objective in the Bill; namely, that while affirmative action training is to be protected against both direct and indirect discrimination, it is not to permit religion specific or religion exclusive training. In other words, in selecting a group of people for training, an employer should not be permitted to select on the basis of religious belief or affiliation. That policy imperative is central to fair employment; indeed to depart from it would allow individuals to be turned away from, or refused entry to, training opportunities simply because of their religion.

There is unemployment and disadvantage in both communities in Northern Ireland. Jobs and training—which are what we are discussing this evening—are needed by both Catholics and Protestants. That emphasises the sound reasons why we hold fast to this central policy objective of selection for both employment and training irrespective of religious belief or indeed political opinion.

This new clause is a considerable improvement on existing Clause 52. We believe that it is more objective. We think that it will be clearer, will avoid the potential difficulties associated with the existing clause and will prove easier for both employers and the commission to operate. I commend the clause to the Committee. I beg to move.

9.30 p.m.

Lord Mottistone

Can my noble friend tell me how this training under the altered Clause 52 will be paid for? Will it be paid for by the Government or will there be a hidden charge on industry?

Lord Lyell

It will be existing training either by government and possibly also by private sector employers. That would be a matter for discussion. I had probably better not give my noble friend detailed answers this evening. So far as I am aware most of this training would be from the public sector but I am sure that there would be participation from the private sector.

We are still considering this aspect. Perhaps I shall be able to give my noble friend some detailed answers. I doubt that it will be before the next stage in the proceedings on the Bill. However, I shall take his points on board and reply to him either in the Chamber or by letter as soon as possible.

Lord Prys-Davies

I shall not detain the Committee except to emphasise once again that this is a core provision. It is probably the most important provision in the entire Bill. For the reasons that I have given, we believe that the Government's amendment is flawed. I have a feeling that after studying the words of the Minister we shall still have to return to this clause at a later stage.

Lord Bonham-Carter

I believe that the Government are making matters unnecessarily difficult for themselves. The idea behind the training schemes is to bring people who are under-qualified up to a level at which they can compete. The classic example in the race relations field is that of Asians who cannot speak English. It was clear that until they spoke English they could not compete on equal terms for a job. It was totally Asian-directed, therefore, and Asian-specific, but it was not regarded as discriminatory because discrimination in training did not apply. Where the discrimination applied was in the allocation of jobs. Once that Asian boy applied for a job in competition with a white boy then it had to be on the merit of the person in question.

I cannot believe that it is necessary in training to eschew religious training. If, as the noble Lord, Lord Prys-Davies, said, a training scheme in the Falls Road is de facto religious specific because no one from the other community will go to be trained in the Falls Road, is that or is that not allowable under the Government's amendment? I simply do not know. It would seem to me that it probably is not. Therefore I should have thought that, if the formula that has been established in the Sex Discrimination and Race Relations Acts which allows race-specific and sex-specific training is followed, that would enable the Government to overcome the difficulty with which we have been struggling for this past half hour.

Baroness Seear

I should like briefly to add to what my noble friend Lord Bonham-Carter has said. On a number of occasions I have taken part in women-only management training programmes for companies where there has been a dearth of women in management so that, to redress the balance, women-only courses have been put on. That is totally illegal. In an organisation in Northern Ireland which has no supervisors of a given faith, such as no Catholic supervisors. It would, by analogy with the English situation, be perfectly proper to put on religious specific Catholic only supervisory training programmes. This is the exact analogy with what has been done for women —religious specific supervisory training programmes for Catholics because they are under-represented. What is wrong with that?

Lord Hylton

I am reading Amendment No. 66, incorporating new Clause 37A(1)(a). The words are: the facilities are provided only at a particular place in Northern Ireland". I should have thought that that covered the example recently given of a training scheme in the Falls Road. Then we go on to read: or the training is confined to persons of a particular class". I should have thought that covered my earlier example of NACRO's ex-offender training.

Lord Lyell

The noble Lord, Lord Hylton, has made a valid point. I shall attempt to take on board the points that have been raised by the experts—the noble Baroness, who is expert in sex discrimination, and the noble Lord, Lord Bonham-Carter, who draws attention to some aspects of race discrimination. I wish them to remember that we are talking about Northern Ireland, where there is a third and more insidious form of discrimination. There is much to be learned which is being learned as a result of both sex and race discrimination measures in Great Britain.

The main thrust of what I and the noble Lord, Lord Prys-Davies, have been trying to put across—I hope that I have it right and that we are on common ground—is that we are looking for a method whereby affirmative action and specific training will leave the employer unable to discriminate on grounds of sex, race or, certainly, religion. Where the employer is seeking affirmative action under the Bill, he should not be found guilty of discrimination under other aspects which have been raised by the noble Baroness, Lady Seear, and by the noble Lord, Lord Bonham-Carter. That is the main thrust of Amendments Nos. 65 and 66. I hope that we have improved Clause 37 by our Amendment No. 66. It is for that reason that I ask the Committee to accept the amendment.

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clauses 53 and 54 agreed to.

Clause 55 [Regulations and orders]:

Lord Lyell moved Amendments Nos. 67 and 68: Page 45, line 37, leave out ("or 28") and insert ("28 or (Monitoring applicants)"). Page, 45, line 41, leave out ("or 28") and insert ("28 or (Monitoring applicants)").

The noble Lord said: I spoke to these amendments when speaking to Amendment No. 25. I beg to move.

On Question, amendments agreed to.

Clause 55, as amended, agreed to.

Clause 56 [Meaning of "affirmative. Action]:

Lord Monson moved Amendment No. 69: Page 46. line 8, leave out from ("of") to ("in") in line 9 and insert ("all religious denominations and none").

The noble Lord said: The effect of the amendment would be to alter Clause 56(1) so that it read: In this Act 'affirmative action' means action designed to secure fair participation in employment by members of all religious denominations and none in Northern Ireland by means including".

Clause 20 declares that: 'equality of opportunity' means equality of opportunity between persons of different religious beliefs". How strange and contradictory, therefore, is the fact that Clause 56 specifies that affirmative action should apply only to members of the Protestant or Roman Catholic communities. It thereby discriminates against Quakers, members of the Orthodox Church, Jews, Moslems, Hindus, Buddhists, agnostics and atheists. I am interested to note that Amendment No. 70, tabled by the noble Lord, Lord Blease, approaches the same problem in a slightly different way.

One suspects that the truth is that the clause is not aimed at religious affiliation but at political affiliation. Few people in Northern Ireland care whether English, Welsh, Italian or German people working in Northern Ireland are Protestants or Catholics. Either way they constitute no threat to anyone. Similarly, there is no discrimination by Protestants against Roman Catholic members of the UDR or RUC, although they may be discriminated against by a few members of their own community.

It must be emphasised that a large part of the problem that we are addressing in the Bill is due not to deliberate discrimination but to other factors. I should guess that such discrimination as exists is 70 per cent. political, 20 per cent. cultural and only 10 per cent. purely religious. It would be more honest if the Bill spelt that out. I beg to move.

Lord Hylton

This amendment and Amendment No. 70, tabled by the noble Lord, Lord Blease, raise an important principle. I should like to see the Government accepting either one or the other. If they cannot do so they should produce their own improved version at the next stage.

Lord Lyell

I hope that the noble Lord, Lord Monson, will accept that the effect of his amendment would be to compromise the main political objective behind affirmative action in Northern Ireland. That objective is to encourage a more proportionate distribution of jobs and employment opportunities between the two main communal religious or political groupings in the Province.

That is why monitoring and affirmative action relate to both the Protestant and Roman Catholic communities. Everybody in the Province, regardless of their religious beliefs, is covered by the anti-discrimination and equality of opportunity provisions of the Bill. However, I believe that in this context the key issue in fair employment is the more proportional distribution of jobs between both major communities. I am afraid that in Northern Ireland and in Northern Irish terms that means the Protestant and Roman Catholic communities. For that reason, I believe that Clause 56, as drafted, meets the needs and the main thrust of the Bill, which I believe we are all agreed is particularly necessary in Northern Ireland. I hope that the noble Lord, Lord Monson, will accept that we do not believe that his amendment is particularly helpful in that regard.

Lord Monson

I am grateful to my noble friend Lord Hylton for his support. What the Minister said confirms my supposition that the essential thrust of Clause 56 is political and not religious. In a way it is curious that Amendment No. 70 is not grouped with this one. There were some misgroupings earlier, when amendments were grouped together which should not have been, and now these two have not been grouped together when they should have been. However, it may well be that the amendment of the noble Lord, Lord Blease, is superior to mine in various other respects and I look forward with interest to what he has to say. For the moment, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Lord Blease moved Amendment No 70:

Page 46, line 13, at end insert— ("(1A) Affirmative action under subsection (1) above shall not be to the exclusion or discrimination of members of the Northern Ireland community who are not professed or classified for the purposes of this Act as members of the Protestant or of the Roman Catholic community.").

The noble Lord said: Before I speak to this amendment perhaps I may say that I admire the stamina of the Minister. He has now sat for seven and a quarter hours, sometimes for lengthy periods alone, which shows the confidence which his parliamentary colleagues have in him to deal with this Bill. My flagging concentration compels me to be brief in what I have to say, although I must do justice to the arguments which I believe this matter deserves.

The purpose of Amendment No. 70 is to attempt to write into the legislation a reference to members of the Northern Ireland community other than Protestant and Catholic members. I could put forward arguments and reasons why I believe that is justified. There is a tendency in this Bill to present Northern Ireland as consisting of only two communities: the Protestant and Catholic communities. I believe that that is false and completely misleading and does a disservice to the situation in Northern Ireland.

The problem in Northern Ireland is looked upon and seen throughout the world as a religious problem. I believe that it is the absence of religion which is to blame, and that is not by any means just a throw-away line. I believe that the values placed on religious persuasion mean that reconciliation and working together is something to strive for. The problems in Northern Ireland are confused. There are political and social divisions and issues in the Northern Ireland community as there are similarly in other communities. What rather compounds the problem in Northern Ireland is the blatant politically-motivated terrorism. That is what we must tackle. I am afraid that, while I fully support this Bill, it slants completely away from that desired objective of promoting reconciliation and understanding.

The citizens of Northern Ireland are not throwing Bibles and rosary beads at each other. They are not trying to crash each other's skulls, and they are not standing on corners debating theology and the Westminster "Confession of Faith". In Northern Ireland there are a number of communities which could be categorised along the lines set out in this Bill. There is the working class community, the professional community, the upper class community, the disabled community, the deprived community, the unemployed community, and the homeless community among many others, including the farming community of which the Minister will be aware.

I am glad to say that there are many Catholics, Protestants and others—the peace loving community—who carry out much voluntary and caring work with a sense of justice and fairness. I do not want to labour the point. The Bill tends to higher the sectarian walls by creating misconceptions and more misunderstandings. There is almost a strengthening of the myths about religious differences. Therefore, although I fully support the Bill, I should like to see some adjustment to that concept.

Lord Prys-Davies

I have listened with great sympathy to my noble friend Lord Blease who has, by his own example, sought to work in partnership with members of both communities in Northern Ireland. This amendment intends to ensure that non-Protestants and non-Catholics are not damaged by the affirmative action programmes.

With great respect to my noble friend, I believe that the amendment is misconceived. First, it is contrary to the whole thrust and philosophy of the Bill, which is designed to deal with inequality between Catholics and Protestants. Indeed, it is to provide a basis for a legal attack on the existence of discrimination and of inequality of opportunity. Secondly, we believe that it is unnecessary, to the extent that neither the government nor the opposition amendments make provision for religious exclusive affirmative action of the kind we have been talking about with regard to Clause 52.

It would be of assurance to my noble friend Lord Blease if the Government could get the affirmative action under way. All the people of Northern Ireland would stand to gain from that. If it takes place effectively the benefits will accrue to the entire population of Northern Ireland.

Lord Lyell

I should like to thank the noble Lord Lord Blease, for his opening compliments. He should know that my duties in Northern Ireland take me around the Province. I assure him that the night is young. If the noble Lord has attended any agricultural dinners, as I have, he will know that the Minister never speaks before one o'clock in the morning, and that is only the first speech. I shall not follow that example this evening.

The effect of the amendment would be to compromise what I referred to earlier in replying to the noble Lord, Lord Monson; that is, the main political objective in Northern Ireland behind the affirmative action in the Bill. The objective is to encourage at all times a more proportionate distribution of jobs and employment opportunities between the two main communal religions or political groupings in the Province. That is the problem which we are trying to address in the Bill. It is for that reason that both monitoring and affirmative action relate to the two main communities. Everybody in the Province is covered by the anti-discrimination and equality of opportunity provisions in the Bill.

In the political context the key issue in fair employment is a more proportional distribution of jobs between both communities. I think that the noble Lord will accept that that means Protestant and Roman Catholic communities. That position certainly applies as regards monitoring obligations placed upon employers, followed through with the important area of affirmative action measures.

At the heart of the Bill the fundamental problem that we are addressing is the distribution of jobs and employment opportunities between members of the two main communities. It is important that the monitoring and affirmative action provisions of the Bill in particular relate specifically to the Protestant and Roman Catholic communities. To attempt to give them a wider and more diffused focus would make life exceptionally difficult for employers and would draw attention, resources and effort away from the main issue.

Let us not forget that it is the commission that is going to be given the duty to work for the elimination of discrimination and to promote equality. We believe that the Bill provides comprehensive coverage in the area of discrimination and equality of opportunity.

It is for that reason that we ask the noble Lord to withdraw the amendment because we believe that the Bill, especially as it is drawn in Clause 56, covers affirmative action as it should be covered in Northern Ireland.

Lord Hylton

I expect we have all heard the stories of atheists living in Belfast who have been immediately classified as either Protestant or Catholic. There was even the story of a GP in Derry who became so fed up with the carry-on of the two main religious communities that he became a Baha'i. I cannot vouch for the authenticity of that story but it is indicative of the background.

I believe that the merit of the amendment moved by the noble Lord, Lord Blease, is that it is framed in negative terms. It states, shall not be to the exclusion or discrimination". I believe that is a strong point in its favour. It would be a terrible pity if this Bill succeeds in its main objective of ending employment discrimination between the two main religious and political groupings only to allow or encourage discrimination against others. I hope that we have not heard the final word from the Government on this point.

Lord Blease

I thank particularly my noble friend on the Front Bench for his remarks and the points he made. I am not convinced that he has got the real meaning of my intent in tabling the amendment. I believe that the Minister has dealt with it in a manner which is not helpful to the general need of the Northern Ireland community. There are areas where training, employment and reinvestment are all required. If people are to be treated purely in terms of Catholic or Protestant blocs then we are in for more trouble than we have ever envisaged. I propose to return to this matter at another time. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

10 p.m.

Lord Prys-Davies moved Amendment No. 71: After Clause 56, insert the following new clause:

("Repeal of certain provisions of Fair Employment (Northern Ireland) Act 1976.

Subsections (2) and (3) of section 42 of the Fair Employment (Northern Ireland) Act 1976 (certificate that act done for the purpose of safeguarding national security, or of protecting public safety or public order to be conclusive evidence of that fact) shall cease to have effect.").

The noble Lord said: The effect of this amendment is to allow judicial review of the national security notice issued by the Secretary of State. Members of the Commitee will know that the effect of the national security notice under Section 42 is to prevent an investigation by the commission into the merits of a case of alleged discrimination on the ground of national security. That is an issue to which we drew attention during the Second Reading debate.

We pointed out that there is no provision in the 1976 Act or anywhere in this Bill for any form of judicial review to prevent the abuse of the certificate procedure. There is in fact an anomaly between this Bill and the Sex Discrimination (Northern Ireland) Order since a national certificate issued under that order is subject to judicial review. Moreover, there is an anomaly within the Bill itself. Part II of the Bill deals with contractor compliance. A contractor who is deemed by the Secretary of State to be an unqualified person to hold a contract on the grounds of national security can apply for judicial review.

We also believe that in this respect the Bill may be in conflict with the European Convention on Human Rights, which requires the individual citizen to have a right of redress against the arbitrary use of power. We say that individuals should not be denied access to employment on the pretext of national security. Of course we fully accept that the Secretary of State must have the power to issue a Section 42 certificate, but at the very least an individual who believes that he has been discriminated against unlawfully by the issue of the certificate should have the right to call for a judicial review. We do not say that he should have the right to have the reasons for the decision. We are asking that he should be entitled to the right of judicial review of the decision. By removing subsections (2) and (3) of Section 42 that would be possible.

At Second Reading the Minister assured the House that the department was considering how this procedure could be improved. I hope that by tonight he is in a position to accept the amendment. I beg to move.

Viscount Brookeborough

In putting my name to this amendment I show support for it to the extent that yet again we are trying to improve the public's perception of the impartiality of this legislation. It is not that we would doubt the job that the Secretary of State is carrying out, his willingness to provide certificates or anything else. From time to time the Secretary of State may change, and indeed after an election the government may change. It must not be seen by the public of Northern Ireland to be a Conservative or Labour decision to grant or not grant a certificate. We should like to improve the impartiality of the legislation and to improve what the public think of it. In that sense it follows along the lines of Amendments Nos. 1 to 4 which were moved earlier this afternoon.

Lord Lyell

The noble Lord, Lord Prys-Davies, raised this point at an earlier stage. During the Second Reading debate I explained that we believe that the issue of a certificate under Section 42 of the Fair Employment (Northern Ireland) Act 1976 is an inseparable part of the national security safeguard which that section provides and which all noble Lords, especially the noble Viscount, will agree is absolutely necessary. To permit wider scrutiny of the reasons for the issue of such certificates would be to jeopardise the sensitive information on the strength of which such certificates are issued and in so doing to do potential harm not only to the efforts of the security forces in Northern Ireland to gather valuable intelligence about terrorist organisations but quite possibly to the safety of individual people.

Applications for Section 42 certificates are not treated lightly. They are subject to the most detailed scrutiny. They are considered personally by my right honourable friend the Secretary of State. I know that he makes his decision only after the closest and most thorough deliberation. Certificates are not issued in haphazard ways. It is significant that, since the passing of the 1976 Act, the Secretary of State for Northern Ireland has issued Section 42 certificates on 17 occasions. To dismantle the certification process would undermine the entire and vitally important purpose of the safeguard for national security. To do this would not only be irresponsible but could be dangerous.

We take on board the strength of feeling which this matter has aroused as well as the genuine concern that has been expressed about the way in which the certificate procedure is operated. The whole process is, by definition, concerned with sensitive information and its analysis and assessment and the whole procedure itself is confidential. I realise that this is one of the reasons why the issue of Section 42 certificates is regarded with considerable suspicion. I hope that it is not a cloak to cover up lack of discrimination or even something which can be used by unscrupulous employers. That is not the case; but, certainly genuinely held anxieties do exist.

Members of the Committee may be aware that we have examined for many months how we might introduce an independent element into the procedure. We have not yet been successful in discovering how we can achieve that aim. However, we are looking at the administration process which we undertake. It is important that that process should be as straightforward and efficient as possible, and that when papers are submitted to the Secretary of State for his consideration, the advice and information they contain should be clear and wholly accurate. I must stress that everything possible will be done to eliminate the possibility of injustice in the issue of these particular certificates under Section 42.

I do not think that what I have said will satisfy the noble Lords who have moved this amendment, but I am afraid that it demonstrates the determination of the Government to see that the Section 42 system operates fairly. I ask noble Lords who have spoken to this amendment to accept that explanation in the spirit in which it is offered. I ask them to withdraw the proposed new clause, which would seriously damage the national security safeguard which the section provides.

I am sorry that I cannot go further than that tonight, but 17 certificates issued in 13 years is perhaps 17 too many. It must show Members of the Committee that this is not something which is carried out lightly, or without any thought. From my own knowledge of such matters, I know that these papers are read very thoroughly by all authorities, right up to my right honourable friend the Secretary of State, and very searching questions are raised upon them. Further, the certificates are not granted without full and, I believe, justifiable reasons.

Lord Prys-Davies

I am sure we accept that the certificate is only issued after the most careful consideration. Our amendment is not based on any evidence that that is not so. But, concern arises on the part of individuals who believe that they have been discriminated against. It is their case that the certificate should be open to scrutiny by an independent third party. We suggested judicial review because that is the procedure which applies in the case of certificates issued under the Sex Discrimination (Northern Ireland) Order 1976.

It seems to me that if a certificate issued under the sex discrimination order can be the subject of judicial review without threatening national security, then a certificate issued under the 1976 Act should also be capable of review.

The Minister has moved some way to meet us in this respect. However, does he anticipate that at the next stage of the Bill the Government will be tabling an amendment which will introduce an independent element into the Section 42 procedure?

Lord Lyell

I am most grateful for the reply given by the noble Lord. As we speak tonight and knowing, as I putatively put it, the scheduled commencement of the Report stage of the Bill in this Chamber, I think that it is extremely doubtful that we shall have an amendment by that time. However, I shall make a careful note of what the noble Lord said and will be in touch with him before the next stage, I hope as early as tomorrow. But I really cannot give the guarantee he requested at this time. I hope that I shall have further news before the completion of the consideration of the Bill in this Chamber; but, certainly not by the next stage of the proceedings on the Bill.

Lord Prys-Davies

Again, relying upon the Minister's words, and with the leave of my colleagues whose names were tabled in support of this amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 57 and 58 agreed to.

Schedule 1 agreed to.

Schedule 2 [Minor and consequential amendments]:

Lord Lyell moved Amendment No. 72:

Page 51, line 38, at end insert— ("23A. In paragraph 6(1) of Schedule I to that Act for "Schedule 5" there is substituted "Schedule I to the Fair Employment (Northern Ireland) Act 1989".").

The noble Lord said: This is a drafting amendment, because the existing reference in paragraph 6(1) of Schedule 1 to the Fair Employment (Northern Ireland) Act 1976 to Schedule 5 to that Act is, I have to tell the Committee, in error. It is in error since Schedule 5 to the 1976 Act has been replaced by Schedule 1 to this Bill. That provides the necessity for the drafting amendment which I propose. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 73: Page 52, line 6, at end insert—

("The Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I.15))

27A. At the end of Article 49 of the Sex Discrimination (Northern Ireland) Order 1976 there be added— (4) Any act which by virtue of this Article or Article 48 could not be unlawful under Parts III to V (or, in the case of an act falling within paragraph (3), under Article 15) is not by virtue of 16(2)(b) of the Fair Employment (Northern Ireland) Act 1976 (indirect discrimination on the grounds of religious belief or political opinion) unlawful under any provision of Parts III and IV of that Act."").

The noble Lord said: I think that this is where Lyell's luck tends to hold since, with Amendments Nos. 65 and 66, it was the turn of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter. However, at this stage my amendment has been called by the noble Lord the Lord Chairman before the competing amendment—if I may call it that—of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter.

The amendment honours a commitment made in another place to provide protection against indirect religious discrimination for what we call the "positive action" or gender specific training permissible under Articles 48 and 49 of the Sex Discrimination (Northern Ireland) Order 1976. Both the Opposition—that is noble Lords cpposite—and the Equal Opportunities Commission raised concerns about this matter. We are pleased to be able to try to meet their representations.

The positive action or gender specific training permissible under Articles 48 and 49 is a useful tool in the promotion of sex equality. Obviously the Government would not wish to see its progressive use potentially inhibited by the new provisions in the Fair Employment Bill before us this evening. As the Committee will appreciate, one of the most significant new features of the Bill is the outlawing of indirect religious discrimination. Direct discrimination is illegal under the 1976 Act.

Given the new prohibition on indirect religious discrimination in Clause 48, new Section 16(2)(b) of the 1976 Act, concern was expressed to us that employers who genuinely seek to implement gender specific training under Articles 48 and 49 of the Sex Discrimination Order 1976 could quite inadvertently find themselves guilty of indirect religious discrimination.

There are of course three tests that have to be satisfied before indirect discrimination can be proved. First, adverse impact; secondly, unjustifiability; and thirdly, detriment. While it may be difficult in practical terms for an individual to satisfy all three tests in alleging indirect religious discrimination, as a result of gender specific training programmes—especially when an employer should be able to show that such a programme is justifiable, irrespective of religious belief or political opinion—we hope that we can provide the protection which is requested by the Equal Opportunities Commission and Members of the Committee opposite. Indeed, we are satisfied that such protection is necessary because the indirect discrimination element is a new feature of our fair employment legislation, above all the Bill before us this evening.

I hope that that explanation will bring about the approval of the amendment which stands in my name before the Committee. I beg to move.

Lord Bonham-Carter

I do not wish to detain the Committee long on this penultimate amendment in such a long day. The objects at which both amendments are directed are the same. It is simply my contention that the amendment in my name and that of the noble Lord, Lord Prys-Davies, is better than the one tabled by the Government. This is for a simple reason. As I understand it and read it, the amendment tabled by the noble Lord, Lord Lyell, covers only indirect discrimination. The point of the amendment which I and the noble Lord, Lord Prys-Davies, have tabled is that it covers both direct and indirect discrimination. It is for that reason that I prefer our amendment to that of the Government.

10.15 p.m.

Lord Prys-Davies

I very much wish to support what the noble Lord, Lord Bonham-Carter, has told the Committee. Our amendment, in our view, is far superior to the Government's amendment because it addresses both direct and indirect discrimination. I mentioned earlier in the day that I had received a letter from the chair of the Northern Ireland Equal Opportunities Commission. I was told by the chair that the commission itself was hesitant about endorsing the terms of the Government's amendment because it fails to address both aspects of discrimination under Section 16 of the Fair Employment (Northern Ireland) Act 1976 but is confined solely to indirect discrimination. As it is confined to indirect discrimination, there will be scope for legal challenges to gender specific training unless this amendment is more widely drafted so as to cover both direct and indirect discrimination.

Lord Lyell

I shall reply to the very delicate way in which the noble Lords, Lord Bonham-Carter and Lord Prys-Davies, placed their amendment in competition to mine. I think both of them would accept that in my opening remarks I pointed out that the 1976 Act already makes direct religious discrimination illegal. We have ensured that that is covered in our amendment. I hope that will also cover the query that was raised by the noble Lord, Lord Bonham-Carter.

For many reasons, I shall not go into a lengthy explanation tonight. We believe that our amendment should be satisfactory and will meet the queries that have been raised by the Equal Opportunities Commission in Northern Ireland.

Lord Bonham-Carter

If the Minister can give me and the noble Lord, Lord Prys-Davies, an assurance that direct discrimination is covered, I shall be happy not to move my amendment.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Lord Lyell moved Amendment No. 75:

Page 52, line 10, at end insert— ("28A. In Article 32(3) of that Order at the end there is added— (c) a dismissal which is an act of discrimination (within the meaning of the Fair Employment (Northern Ireland) Act 1976) which is unlawful by virtue of Part III of that Act."").

The noble Lord said: The Committee will be pleased to know that this is a technical amendment to the Industrial Relations (Northern Ireland) Order 1976. It covers a complex but relatively minor issue. It is suggested that I explain the provision briefly. If the Committee wishes me to do so I shall, but it may wish to leave this as a technical amendment to the Industrial Relations (Northern Ireland) Order 1976.

The main purpose of the amendment is that it provides that compensation payable under the order in a case of alleged unfair dismissal on the grounds of religion is the same as that payable in a case of unfair dismissal on the grounds of sex. That might be of some relevance to the work of the noble Baroness, Lady Seear. We hope that the amendment will bring the Bill into line with the provisions of the 1976 order. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Remaining schedule agreed to.

House resumed: Bill reported with amendments.