Fair Employment (Northern Ireland) Bill

HL Deb 17 July 1989 vol 510 cc623-82

6.25 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received.—(Lord Lyell.)

Lord Bonham-Carter

My Lords, I did not intend to intervene at this stage but I wish to make one or two comments to your Lordships about the way in which this Bill has proceeded. It is an extremely complex Bill of considerable importance, with 55 clauses. The Government and the Opposition tabled 75 amendments at Committee.

We were told in Committee that the stage would last for about two hours. In point of fact it lasted for seven hours. Naturally we did not receive the Hansard for that debate, which ended at 10.20 p.m., until Friday morning, which was the deadline for amendments to be tabled. On Monday—this evening—we have the Report stage, for which there are 69 amendments. Finally we shall have Third Reading at dinner time on Thursday. It seems to me that with so complex a Bill and one which involves the definition of certain ideas or notions which are extremely difficult—ideas such as indirect discrimination, in all its manifestations—we require a little more time in which to consider the amendments after we have received those tabled by the Government. I say this as a preliminary only because I believe that we have not really had the opportunity to give the Bill the proper consideration which it deserves.

Lord Mottistone

My Lords, I strongly endorse what the noble Lord, Lord Bonham-Carter, has just said. I think what is being done is quite extraordinary, since there is already a system of fair employment in being. It is not as though it were a new concept and had to be rushed through and brought into force before the Summer Recess for any reason that I can see in the Bill itself.

So far as I am concerned, I have been unable, because of the pressure, to follow up several of the points which I made at Committee stage since I could not obtain the amendments in time to put them down. I think it is quite disgraceful of the Government to rush a Bill of this nature which could well have gone through to the spillover period. They should have given us a chance to tackle this stage of the Bill early in October. That would have given us lots of time in which to get its measure.

I believe that the Government themselves cannot, when they allowed so little time for the Committee stage, have realised that there were so many points on which many Members on both sides of the House would have views which they would like to have inserted into the Bill to make it tidy and straight.

As I said earlier, if the Bill is not tidy and straight, it is, because of its nature, very unlikely to work as effectively as we all wish. I believe that the Government have probably made a very big mistake in trying to rush it through the House. I am extremely distressed that I have to say this to my noble friend the Minister; I know he is doing his best. It seems such a shame to make a mess of a Bill of this nature.

Lord Blease

My Lords, I rise in support of what the noble Lords have just said. The Minister may demur but I have an obligation to people in Northern Ireland. Perhaps I may say that, when he opened the debate on Second Reading, the noble Lord himself said that this was a most complex Bill. I find no fault with the noble Lord, but personally I am in an awful dilemma—and I know that other Members of your Lordships' House share that dilemma—in that we wish to give our full support to the Bill. We think it enshrines an important principle. We have supported the Secretary of State for Northern Ireland in the principles that he has announced on the Bill. We felt that by participating in it we could improve it and at least let the people in Northern Ireland see that we were paying attention to this crucial piece of legislation that is before this House. We have not had that opportunity and that is what I am protesting about.

6.30 p.m.

Lord Prys-Davies

My Lords, I wish to support the strong and dignified protest voiced by the noble Lords, Lord Bonham-Carter and Lord Mottistone, and by my noble friend Lord Blease. We fully appreciate that the timetable of this House is extremely tight and crowded at this time of the year. We accept that. However, this Bill is immensely important for the people of Northern Ireland and for the future of that Province. That Province presents this country with its most acute economic, social and constitutional problems.

This highly complex Bill has been on the way since last December. Surely it should not have been beyond the wit of the business managers to arrange for adequate time to be given to your Lordships to consider the amendments tabled by the Government between Committee and Report and, no doubt, between Report and Third Reading.

Some of the amendments are, of course, technical, but many are of great significance. I agree with my noble friends that we have not been given adequate time to reflect on the amendments and to consult upon them. Indeed I think it is fair to say that the noble Lord, Lord Bonham-Carter, and I were here on Friday so that we could have an exchange of views about the amendments, and so that we could consider what amendments we should table. I think it is also fair to say that we came along late last night in order to be here early today to attend to the amendments. In the difficulties we are now expressing lies the case for devolution of Government to Northern Ireland. I shall say no more except that, obviously, I support the protests which have been voiced by my colleagues.

Lord Lyell

My Lords, it falls to me to reply to the opening comments of all noble Lords who have spoken. I understood that the arrangements for the Bill we are discussing, and which have aroused fairly strong emotions in your Lordships' House, had been arranged through the usual channels. I am sure the noble Lord, Lord Prys-Davies, will accept that when I was in his position I rose exactly 11 years ago to make a powerful intervention. I was told that the arrangements had been made through the usual channels. I had a fairly lively conversation with my own Chief Whip.

However, if there has been inconvenience I apologise for my part. Nevertheless, I think that the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, and all noble Lords who have studied this Bill, which as the noble Lords, Lord Prys-Davies and Lord Blease, will be aware, started in another place last November, was discussed in considerable detail and took a fair time to go through another place, will realise that I mean no discourtesy to your Lordships' House when I say that many of the amendments I moved at an earlier stage, and which I shall be moving today, are reasonably technical. I think your Lordships will see there are quite a few amendments standing in the joint names of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, and myself. Many of the amendments which were moved by myself are in response to points which have been raised and to commitments which have been given both here and in another place.

However, the timing has been tight. It has also caused the Government considerable effort. We do not complain about that as that is entirely a matter for your Lordships' House. However, I am sure your Lordships would agree that this is a matter for the usual channels. I apologise to noble Lords who have spoken, but I cannot give a chapter and verse explanation of the negotiations that took place through the usual channels before the arrangements regarding the Bill that is before us this evening were agreed.

I know that there are a number of provisions still to be discussed. As regards my noble friend Lord Mottistone, we mean no discourtesy. But I believe that, thanks to the great amount of work that has been done in another place as well as in your Lordships' House, we have the Bill as near right as we can get it. The noble Lord, Lord Prys-Davies, may just give a hint of dissent, but this Bill goes back to and is still building upon an Act which was brought in by the Government supported by the noble Lord, Lord Prys-Davies. Indeed, I think it was the noble Lord, Lord Donaldson of Kingsbridge, who was in my position at the time. I shall refrain from referring to all that was done at the time. Nevertheless, we believe this is the time to act, and that there is urgency. Perhaps I can explain at a later stage, not necessarily in your Lordships' House, the good reasons why we believe it is important that this Bill should proceed to the statute book as swiftly as possible.

On Question, Motion agreed to: Report received.

Clause 2 [Constitution of the Tribunal]:

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

The noble Lord said: My Lords, this amendment would transfer from the local Department of Economic Development to the Secretary of State for Northern Ireland the power granted in Clause 2 of the Bill, which is a power to draw up regulations governing the constitutional tribunal. In the event of this amendment being acceptable to the House, the other regulation-making powers granted elsewhere in the Bill should also be transferred to the Secretary of State.

I believe that the case for this amendment rests on three main grounds. First, for reasons that we advocated in Committee and which have been partly accepted by the Government, the tribunal should be and be seen to be separate from and independent of the Department of Economic Development. Given the role of the DED in other spheres, it could well have a role which could be in conflict with the role of the commission and the tribunal, and could be in conflict with its duties within the field of equal opportunity. That being a possibility—some would say it is more than a possibility—it would be unreasonable to place the Department of Economic Development in the position where it had this role conflict. On the other hand, it would be equally unreasonable to expect the role of the commission and the tribunal to be compromised because of the relationship of the commission to the department. That is the first reason.

Secondly, the Department of Economic Development should not position itself between the Secretary of State and the commission. We believe that the commission should be directly answerable to the Secretary of State with direct access to him at any time the chairman of the commission wishes. Indeed, I should mention that the Fair Employment Agency and the Irish Congress of Trade Unions are already very critical of the excessive delegation of power to the Department of Economic Development in this area of policy.

Then there is a third reason. There is a considerable body of opinion which is highly critical of the basic attitude of the Department of Economic Development towards the fair employment legislation. I would add, from my short experience with this Bill, that the department's performance does not inspire any confidence in its capacity or its competency, let alone its commitment to the policy of fair employment.

We have seen that it is a department which on this issue speaks with many voices, and often with conflicting voices. We have seen that it giveth with some amendments and it taketh away with other amendments; and so one has very little confidence in the ability of the Department of Economic Development to give the steering, guidance and support that the commission will need. For those three reasons in particular—there may be others—we strongly urge the House to give its support to this amendment.

Lord Mottistone

My Lords, I wonder whether the noble Lord is fully seized, in introducing the amendment as he has, with the fact that transferring the oversight of the commission to the Secretary of State might be seen by some people in Northern Ireland as transferring control, as it were, from people in Northern Ireland to people in England. Certainly that view has been expressed to me. It would mean that the commission was even more independent and not under any more governmental control than it already is. This might mean that it was more difficult to deal with.

Your Lordships will know from what has been said in the earlier stages of this Bill that the agency has been under great stress from employers in Northern Ireland and they fear that conditions might be worse for the commission. They would prefer to have control, if it is to be governmental control, sited in Northern Ireland, rather than in Westminster. I am just saying that I am not at all happy with this amendment, but I cannot go any further at this stage.

Lord Bonham-Carter

My Lords, this amendment is really the logical extension of one moved in Committee, whereby the president of the commission was appointed by the Lord Chancellor rather than by the Department of Economic Development. The reason put forward by those of us who supported that amendment was our belief that the commission required the highest esteem possible. It needed to be independent of government.

There were also the precedents of similar bodies in this country that one could recall, such as the Race Relations Board, the Equal Opportunities Commission and even the BBC, among others. All these quangos, so called, in my experience, are responsible to a minister to whom they have direct access. They are not the creatures of a department or sub-departments

I cannot quite understand why the Government, who so wisely accepted our amendment in Committee and have taken on board the proposal to have the president and vice-president appointed by the Lord Chancellor, did not see that this particular clause has no logic in it. The obvious person to whom the commission should be responsible is the Secretary of State and it follows from the amendment which they themselves accepted. I very much hope they will follow the precedent set in Committee and will accept this sensible amendment, which is based on a long tradition.

6.45 p.m.

Lord Lyell

My Lords, I should like to thank the noble Lords who have spoken on this amendment with reason and good sense. But there are one or two elements, which have just been touched on by my noble friend Lord Mottistone, which are not central to the arguments put forward by the noble Lords, Lord Bonham-Carter and Lord Prys-Davies.

Under the system of direct rule, which is what we have at the moment in connection with Northern Ireland, all Northern Ireland departments, by virtue of the Northern Ireland Act of 1974, exercise their functions under the direction and control of the Secretary of State. Amendment No. 1 would thus make no practical difference in present circumstances, because of the manner in which direct rule operates.

Moreover, the amendment also contains the potential for some future confusion in the event of devolution because, by virtue of the Northern Ireland Constitution Act of 1973, the subject of fair employment is a transferred matter and, in the event of devolution, it would therefore become the responsibility of a devolved administration. This amendment would cut across that particular aspect and thus it would be constitutionally inappropriate for the Secretary of State to be given primary responsibility for the transferred matter.

The noble Lord, Lord Prys-Davies, also hinted that there was a lack of trust in the part of perhaps some of your Lordships and also of some people in Northern Ireland in the commitment, as well as the integrity, of members of the Department of Economic Development in Northern Ireland. That is, of course, the department which is responsible for this Bill. I am also aware that a considerable number of unjustifiable and, above all, unsubstantiated suggestions have been made in another place that the Department of Economic Development had been less enthusiastic about this legislation than they might perhaps have been.

I should like to put on record that these suggestions are wholly without foundation, because the entire Northern Ireland Civil Service sets a fine example of an active policy of equal opportunity in its own field, and has shown the way to others by its very excellent system of monitoring. Above all, the Department of Economic Development, in particular, has spared no effort to ensure that a comprehensive and effective piece of legislation was prepared for consideration not only in your Lordships' House but also in another place.

I cannot accept suggestions that there has been any sort of problem over the integrity of a large number of competent and energetic officials in any Northern Ireland department, who have worked extremely hard to assist my right honourable friend in another place, let alone myself in piloting this Bill through your Lordships' House. I want to pay my tribute to all members of the department of Economic Development and their colleagues in the Northern Ireland Civil Service, as well as in the Northern Ireland Office, for the commitment, the determination and the industry with which they have pursued the legislation which is now before us.

I believe that the tone of my remarks is shared by those of your Lordships who believe that the Bill before us now is particularly important: it is timely and it is very necessary for Northern Ireland. Given the thrust of my second argument, in addition to what I have said about the constitutional position in the first place, I have to tell your Lordships that I fear we cannot accept this amendment.

Lord Blease

My Lords, I rise to comment on one of the matters that the Minister has explained; namely, that the legislation is under the direct rule arrangements. The Standing Advisory Commission was set up under a Bill from the Westminster Parliament. While the Minister has explained some of the constitutional problems arising out of that, he went on to infer that in the House there was some severe criticism of the department and other departments of the Northern Ireland Parliament.

Certainly I am aware that there is criticism generally in Northern Ireland about all Ministers and departments, but those are political stances taken by particular people. I have not heard from this side of the House criticism of the way in which the Minister echoed it—if that is the proper word to use—in his statement from his Benches. If there were anything with that inference displayed, mentioned or portrayed in the remarks, I have not come across it by any means in the manner in which matters concerning the Bill have been debated in this House.

Notwithstanding the constitutional matters mentioned by the Minister, I believe that there is room for the argument put forward by my noble friend Lord Prys-Davies, that it should not be the Minister for the department but the Secretary of State. I think that that would be in keeping with the legislation that is enacted in Northern Ireland in terms of the present constitutional arrangements in the statutes.

The Lord Privy Seal (Lord Belstead)

My Lords, if the noble Lord, Lord Blease, would just forgive me, there is a rule that on Report one does not speak after the government spokesman has replied. I thought that it was important for us to hear what the noble Lord had to say. His knowledge of Northern Ireland is pre-eminent in this House and it was right that he should intervene. However, if the House will forgive me for intervening, I thought that I ought to make that point as we are at the beginning of the Report stage. There is an exception in our Standing Orders to that rule; namely, when a Minister rises and says that he believes that it is for the asistance of the House to intevene early. Otherwise, there is the rule not to speak after the government spokesman. I hope that the noble Lord will forgive me for making that point.

Lord Blease

My Lords, I stand corrected. However, on other occasions I have heard the Minister respond by leave of the House and I expected that he would do so on this occasion.

Lord Lyell

My Lords, very briefly, with the leave of the House, I think that the noble Lord, Lord Blease, will have heard his noble friend mention that there had been disquiet about the Department of Economic Development. That is why I gave the reply that I did. However, I am not able to add anything more to my comments about the constitutional position. There is that snag over the constitutional position and that is one of the main reasins why we cannot accept this amendment.

Baroness Seear

My Lords, is it in order for me to say at Report stage "Before the noble Lord sits down"?

Lord Belstead

My Lords, it depends on how skilfully the noble Baroness does it. She generally intervenes very skilfully.

Baroness Seear

My Lords, before the noble Lord sits down, perhaps I may say that he really did not reply to what I think was a very important point made by my noble friend Lord Bonham-Carter. I know that the noble lord will realise that he speaks as one with very considerable experience of commissions. It is a very great help to someone who is responsible for a commission to have direct access to the Secretary of State. It has nothing to do with criticism of officials. It is simply that, when running a commission, it is a great help to have the right to go direct to the Secretary of State. My noble friend found that to be the case when he was running the Race Relations Commission. It is not a political point; it is an administrative point, so to speak. Perhaps the noble Lord would comment?

Lord Lyell

My Lords, with the leave of the House—I suspect it will be for the last time—perhaps I may briefly reply. My noble friend on my right, who is the Leader of your Lordships' House, is at the moment making kind noises but I would not wish to push his tolerance, let alone that of your Lordships, much further. I mentioned the second part of my comments. I am sure that the noble Baroness heard the noble Lord, Lord Prys-Davies, make one or two points on comments that he had heard about the effectiveness of the Department of Economic Development. Otherwise, I should not have taken up your Lordships' time n making that point. I listened very carefully to the remarks made by the noble Baroness's noble friend. However, I have to say that, important though the points raised by the noble Baroness are, I am afraid that it is the constitutional argument that precludes acceptances of this amendment.

Lord Prys-Davies

My Lords, I am very grateful to the noble Lord, Lord Bonham-Carter, and my noble friend Lord Blease for having supported the amendments as they did. It occurred to me that if this amendment were acceptable to the House it would go a long way toward enhancing the status of the legislation and that of the commission, since there would be a commission which is directly answerable to the Secretary of State.

I am gratified that the Minister has not attempted to resist the amendment on the grounds advanced by the noble Lord, Lord Mottistone. He rejected the amendment basically because it would pose problems in the event of an assembly being established in Northern Ireland. That is something that may happen at some time in the indefinite future. From these Benches we would welcome very much an assembly being established at an early date.

But that is for the future. Our immediate task is to ensure that this legislation is working effectively in Northern Ireland. If this function is to be transferred to the Secretary of State, it will be for the government of the day to consider in a transfer order whether or not that function should be transferred to the Northern Ireland assembly. That is a matter which has to be considered if and when an assembly is established. It is not an issue that presents itself to the House today. Therefore we say from these Benches that the Minister's reply is misconceived.

We come back to our amendment. We think it important that the commission should be seen to be answerable to the Secretary of State. This is a sensitive area of policy and, at the end of the day, we believe that some of the issues that call for political judgment should be ultimately the responsibility of the Secretary of State and not the Civil Service head of a local department in Northern Ireland.

We have many hours of work ahead of us this evening. I do not think that I can add to the arguments that have been advanced in support of the amendment. We believe that this is a valid amendment and we invite the House to support it.

6.58 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 75.

DIVISION NO. 3
CONTENTS
Airedale, L.	Kirkhill, L.
Ardwick, L.	Lloyd of Kilgerran, L.
Barnett, L.	Lockwood, B.
Blackstone, B.	Longford, E.
Blease, L.	Macaulay of Bragar, L
Bonham-Carter, L. [Teller.]	Mason of Barnsley, L.
Bottomley, L.	Molloy, L.
Brooks of Temorfa, L.	Morris of Kenwood, L.
Carmichael of Kelvingrove, L.	Mountevans, L.
	Murray of Epping Forest, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Ponsonby of Shulbrede, L. [Teller.]
Cocks of Hartcliffe, L.
David, B.	Prys-Davies, L.
Davies of Penrhys, L.	Rea, L.
Donoughue, L.	Rochester, L.
Dormand of Easington, L.	Russell, E.
Elwyn-Jones, L.	Seear, B.
Ewart-Biggs, B.	Serota, B.
Falkland, V.	Stedman, B.
Gallacher, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Taylor of Gryfe, L.
Grey, E.	Taylor of Mansfield, L.
Grimond, L.	Tordoff, L.
Hampton, L.	Turner of Camden, B.
Harris of Greenwich, L.	Underhill, L.
Irving of Dartford, L.	Walston, L.
Jay, L.	Whaddon, L.
Jeger, B.	White, B.
Jenkins of Hillhead, L.	Williams of Elvel, L.
Jenkins of Putney, L.	Wilson of Langside, L.
John-Mackie, L.	Winterbottom, L.
Kilbracken, L.

NOT-CONTENTS
Allenby of Megiddo, V.	Long, V.
Arran, E.	Lyell, L.
Ashbourne, L.	Macleod of Borve, B.
Beloff, L.	Merrivale, L.
Belstead, L.	Mersey, V.
Blatch, B.	Monk Bretton, L.
Borthwick, L.	Morris, L.
Boyd-Carpenter, L.	Mottistone, L.
Brabazon of Tara, L.	Mowbray and Stourton, L
Braye, B.	Munster, E.
Butterworth, L.	Nelson, E.
Caithness, E.	Norfolk, D.
Caldecote, V.	Orkney, E.
Campbell of Alloway, L.	Orr-Ewing, L.
Carnegy of Lour, B.	Peyton of Yeovil, L.
Carnock, L.	Platt of Writtle, B.
Clitheroe, L.	Rankeillour, L.
Colwyn, L.	Reay, L.
Constantine of Stanmore, L.	Redesdale, L.
Cowley, E.	Saint Albans, D.
Craigton, L.	Saltoun of Abernethy, Ly.
Davidson, V. [Teller.]	Sanderson of Bowden, L.
Denham, L. [Teller.]	Sharples, B.
Elles, B.	Shrewsbury, E.
Elliot of Harwood, B.	Skelmersdale, L.
Elliott of Morpeth, L.	Stockton, E.
Faithfull, B.	Strathclyde, L.
Fraser of Carmyllie, L.	Swinfen, L.
Greenway, L.	Teviot, L.
Henley, L.	Thomas of Gwydir, L.
Hesketh, L.	Trafford, L.
Hives, L.	Trefgarne, L.
Home of the Hirsel, L.	Trumpington, B.
Hooper, B.	Westbury, L.
Hylton-Foster, B.	Wise, L.
Johnston of Rockport, L.	Wyatt of Weeford, L.
Kinloss, Ly.	Wynford, L.
Lindsey and Abingdon, E.

Resolved in the negative, and amendment disagreed to accordingly.

7.7 p.m.

Clause 3 [The President]:

Lord Lyell moved Amendment No. 2: Page 2, line 18, leave out from ("be") to ("by") in line 20 and insert—

1. ("(a) a President of the Industrial Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as "the President"),
2. (b) a Vice-President of the Industrial Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as "the Vice-President"), and
3. (c) a panel of chairmen of the Fair Employment Tribunal, who shall each be appointed by the Lord Chancellor and shall exercise the functions respectively conferred on them").

The noble Lord said: My Lords, in moving this amendment it may be relevant to speak to a number of others. I move the amendment in reply to a promise that I made to the noble Lord, Lord Prys-Davies, during the Second Reading in your Lordships' House. At that stage he expressed the view—which had already been canvassed in another place—that because the tribunal is independent of the Government, it was inappropriate for its president to be appointed by a government department. Since there are a number of amendments touching on this point, perhaps I could take this opportunity to set out their general background.

The reasons why the Bill as drafted vests this appointment in the department was largely pragmatic, in that industrial tribunal appointments are made in this way. The existing president of Industrial Tribunals is appointed by the department, and since this post forms the basis for the new combined office of president of both tribunals, there was a practical argument for continuing the arrangement. There was also the fact that, in the event of a devolution of powers to a domestic administration in Northern Ireland, fair employment would pass to local control. It seemed appropriate, therefore, that arrangements for such an important issue as appointments to the tribunal should be subject to some degree of continuity.

Having made the decision that the president of the Fair Employment Tribunal should be appointed by my noble and learned friend who sits on the Woolsack, it was logical to carry this through to the subordinate appointments. The vice-president of the tribunal and the panel of chairmen will also be drawn from a background of legal experience, and their appointment by my noble and learned friend will confirm their independence, and enhance the status and authority of these posts. I beg to move.

Lord Prys-Davies

My Lords, we very much welcome Amendment No. 2 and the subsequent amendments. They give effect to the promise made by the Minister in Committee that this power to appoint the president should be transferred to the Lord Chancellor. We are satisfied that this amendment, and the others in the same vein will strengthen and improve the Bill.

Lord Lyell

My Lords, I am very grateful to the noble Lord. I saw a sign of assent from the noble Lord, Lord Bonham-Carter. I commend the amendment.

On Question, amendment agreed to.

Lord Lyell moved Amendments Nos. 3 to 15:

Page 2, line 22, leave out from beginning to ("a") and insert ("A person is not qualified for appointment under subsection (1) above unless he is").

Page 2, line 24, leave out ("may") and insert ("and Vice-President may each").

Page 2, line 25, leave out ("Department and shall") and insert ("Lord Chancellor and shall each").

Page 2, line 27, leave out ("Department, the President") and insert ("Lord Chancellor, the President or Vice-President").

Page 2, line 28, leave out ("Department") and insert ("Lord Chancellor").

Page 2, line 29, at end insert— ("(4A) A person appointed under subsection (1)(c) above to a panel of chairmen shall hold and vacate office as provided by or under regulations under section 2(1) of this Act.").

Page 2, line 30, after ("President") insert ("or Vice-President").

Page 2, line 32, leave out ("Department") and insert ("Lord Chancellor").

Page 2, line 34, after ("President") insert ("and Vice-President").

Page 2, line 36, leave out ("in accordance with the regulations") and insert ("under subsection (1)(c) above").

Page 2, line 37, leave out ("this section") and insert ("subsection (1)(a) above").

Page 2, line 39, leave out ("In") and insert ("For").

Page 2, leave out line 41 and insert ("there is substituted— (a) the President and Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;" ").

The noble Lord said: My Lords, these amendments and as series of others confirm what I set out when I spoke to Amendment No. 2. Briefly they deal with the president, the vice-president and the chairman to be appointed to the tribunal. They follow Amendment No. 2 and fulfil a number of different purposes.

Your Lordships would not wish me to go on for too long. If there are any individual queries that noble Lords might wish to raise, I should be happy to answer then. I beg to move.

On Question, amendments agreed to.

Clause 4 [Remuneration and allowances]:

Lord Lyell moved Amendment No. 16: Page 2, line 43, after ("President") insert ("and Vice-President").

On Question, amendment agreed to.

Clause 6 [Complaints involving matters within the jurisdiction of industrial tribunal]:

Lord Lyell moved Amendment No. 17: Page 5, line 22, after ("President") insert ("or Vice-President").

On Question, amendment agreed to.

Clause 12 [Undertaking following investigation under section 11]:

7.15 p.m.

Lord Prys-Davies moved Amendment No. 18:

Page 9, line 19, at end insert— ("(6) This section applies—

1. (a) to a minister of the Crown or a government department or a person acting for purposes of such a Minister or department; or
2. (b) a member of Her Majesty's armed forces acting as such; or
3. (c) any other person acting on behalf of the Crown being a statutory body or a person holding statutory office; or
4. (d) the police authority for Northern Ireland or the Chief Constable of the Royal Ulster Constabulary,

as it applies to any persons.").

The noble Lord said: My Lords, the purpose of the amendment is to ensure that the public bodies named in it are subject to the provisions of the Bill in the same way as private employers. It is fair to say that the need for the amendment was made out by the noble Lord, Lord Mottistone, at Second Reading when he argued persuasively that the solution to the problem is as much the responsibility of the public as of the private sector.

As the law stands, the commission can investigate any of the bodies referred to in the amendment. At the conclusion of the investigation, if the evidence so warrants, the commission can decide that further action is required on the part of the organisation or body to promote equality of opportunity. However, if that body or organisation fails to give an undertaking or to comply with an undertaking which it has given, the commission has no power to bring that body before the tribunal. In other words the commission has no enforcement mechanism available to it.

The amendment will not establish a precedent. Under the race and sex discrimination legislation in Britain, public and private sector employers are treated in this respect on the basis of equality. It is rather significant that the Department of Economic Development, which is the body responsible for drafting the legislation, has allowed an extension for itself by failing to amend Section 50 of the 1976 Act. We thought that the department should apply to itself the medicine that it rightly prescribes for others. That is the case for the amendment.

It will make it possible for the commission to enforce any undertaking which it has obtained or to require an undertaking from the public bodies which play a dominating role in the economic and social life of Northern Ireland. I beg to move.

Lord Bonham-Carter

My Lords, I shall not repeat the arguments which have been so clearly put by the noble Lord and which I am sure will convince noble Lords of the need for the amendment. However, there is nothing more important in making this kind of legislation effective than for the Government to set an example. If the Government set an example, they can bring pressure to bear on others—either industries in which they have an influence or unions with whom they have daily dealings—to bring them into line. If the Government fail to set an example, one can hardly expect other people to do likewise.

Without the amendment, one is hardly setting an example. If the amendment is included, there is an instrument for making the Government set an example. Therefore, for both these reasons the amendment is wise.

Lord Mottistone

My Lords, while while I welcome the underlying theme of the amendment, I am a little doubtful about the specific areas which have been picked for inclusion. I was talking about the public sector—of the industrial public sector in particular. It does not seem to me that a nationalised industry or a public undertaking would necessarily be covered by this. I should like to see them so covered.

I also feel that it is perhaps not appropriate in this Bill to include subsections (6)(b) and (d). Whereas I like the idea behind it because it matches what I was saying earlier, I should like to see it phrased differently.

Lord Lyell

My Lords, I am grateful for the comments of my noble friend and am interested in the points raised by the noble Lords, Lord Prys-Davies and Lord Bonham-Carter. They will be aware that the amendment repeats several other amendments which were moved in another place. We did not find it possible to accept them then, and I am afraid that I do not see that we can change our position this evening.

I stress for the benefit of my noble friend and for the two noble Lords that the Bill already provides satisfactory enforcement procedures against Crown bodies, which I think your Lordships will agree is appropriate to their status. Where an undertaking has been requested of a Crown body and not given, or it has been given and not complied with, it will be for the commission to report on its investigation to the Minister concerned, and furthermore to recommend action.

I hope that the noble Lord, Lord Bonham-Carter, will accept that, as for setting an example, if we follow what happens after the commission has reported to the Minister and recommended appropriate action, the Minister is then required to lay the report before both Houses of Parliament. That is a very suitable example, if the noble Lord was looking for one.

In the event of devolution, where the report related to a Northern Ireland department, it would be laid before the devolved assembly. But in the event of continued direct rule, which is our present system, reports relating to Northern Ireland departments are referred to my right honourable friend the Secretary of State, who is obliged to lay them before Parliament. Furthermore, these arrangements were provided by the 1976 Act. We believe that they are entirely satisfactory. I am sure that there is no good reason to change them. For that reason, we do not believe that the amendment should be accepted.

Lord Prys-Davies

My Lords, in reply to the noble Lord, Lord Mottistone, I should like to emphasise that we did not think of this amendment in terms of four paragraphs—(a), (b), (c) and (d)—without following a precedent. We were following the precedent to be found in the 1976 Act. But the procedure in that Act is defective. It does not allow for enforcement proceedings to be taken against the bodies referred to in the amendment.

The Minister tells the House that this is working out very well in practice; the way one deals with the situation is to present a report to the Secretary of State, who then presents it to Parliament. That is presumably in a debate during a dinner hour adjournment. I am not aware of a single instance in which the authorities have had to resort to that mechanism and it has been effective.

The Minister said that this area was traversed in another place and I accept that. I do not propose to press the matter further and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [Directions under sections 12 and 13]:

Lord Mottistone moved Amendment No. 19:

Page 10, line 38, at end insert— ("(6) Nothing in any undertaking or direction under sections 12 and 14 above shall compel an employer to place an employee in a situation where their personal safety may be at risk.").

The noble Lord said: My Lords, the Bill allows the commission which it creates wide discretion in demanding undertakings and imposing directions on a company in pursuit of equal opportunities. However, nowhere in the Bill is the scope of such directions and undertakings laid down.

My amendment deals with a special problem which has been suggested to me by an insurance company. There may be cases in which companies employ representatives to call on customers door to door. It is conceivable that in certain areas of Northern Ireland it may be dangerous for Protestant employees to be in a Catholic area and vice versa. The kind of people we have in mind are insurance salesmen, debt collectors and so forth.

In the event that, probably unwittingly, the commission overdoes its demanding of undertakings and imposing of directions, the subsection which I propose to insert in Clause 14 is a safeguard for such people. It is useful to have it in the Bill so that the employer can fall back on it if he believes that his employee will be in danger if he must follow his job in a particular place. It is merely a safeguard and I hope that the Government will find it easy to accept. I beg to move.

Lord Lyell

My Lords, we are grateful and understand the sensitivities and concerns that have prompted my noble friend to table this amendment. All noble Lords who work in Northern Ireland will know that sectarian harassment and intimidation can take most unpleasant forms within some workforces there. We all recognise that depressing reality. However, thanks to the courageous attitude displayed by many employers, trade unionists and individuals, for the largest part there are positive indications that traditional forms of harassment and intimidation are being progressively eradicated from the workplaces of Northern Ireland. The Government's Guide to Effective Practice strongly recommends that employers and trade unionists co-operate together in drawing up Joint Declarations of Protection. And the Engineering Employers' Federation and the Confederation of Shipbuilding and Engineering Unions recently published just such a joint declaration. I commend all those involved in both the federation and the CSEU for their positive and constructive initiative. If other employers and unions were to base similar action on this template for tolerance and mutual respect in the workplace, part of my noble friend's fears might be lessened.

The amendment would require that nothing in an undertaking or direction shall compel an employer to place an employee in a situation where personal safety may be at risk. None of us would wish to see any such consequence follow from a direction or undertaking. Indeed, it is important that all directions and undertakings are reasonable, appropriate and, above all, necessary. That is why the Bill provides grounds for appeal against both directions and undertakings in Clause 15(2). There are three such grounds. First, that in the circumstances it is unreasonable to comply. Secondly, that in the circumstances the directions or undertakings are inappropriate. Thirdly, that equality of opportunity is already being afforded and action taken to promote equality. In that case the directions are unnecessary. It follows from these appeal provisions that, if an employer felt that a direction or undertaking contained any requirement which the employer considered unreasonable, inappropriate or unnecessary he could appeal to the tribunal on the relevant grounds.

It is likely that, if an employer felt that a direction or undertaking contained a requirement which involved placing an individual's personal safety at risk, he would be disposed to appeal against that requirement to the tribunal. It would then be for the tribunal to determine the matter in accordance with the circumstances of the case. Moreover, it is most unlikely that the commission would seek to include such provisions in its directions or undertakings. While the commission has extensive and incisive enforcement powers, it will be seeking to effect progress, for preference, through co-operative action with the employer. Indeed, it is in the interests of the employers and the commission that both parties should ensure that undertaking and directions are reasonable, appropriate and, above all, necessary.

Given the appeal provision in Clause 15(2), the essential professionalism of the commission, the encouraging signs of an improving atmosphere in the workforces in Northern Ireland, and the constructive work being done by employers, trade unions and individuals, the fears expressed by my noble friend are not as powerful as he sets out. For that reason we believe that safeguards exist in the Bill to meet those fears and I ask him not to proceed with the amendment.

Lord Mottistone

My Lords, I am grateful to my noble friend for spelling out in considerable detail exactly the safeguards which employers have. I am satisfied that they can use them under the circumstances which they fear.

As regards the question of whether the commission should give a direction which had the unfortunate result of putting a person's life in danger, I have no doubt that they would not do so deliberately. However, with the best of intentions, official bodies are not as close to the ground as perhaps they should be. It is quite easy to issue a direction which has repercussions that people never anticipated. That is exactly what is worrying the CBI, because it fears that, with all these powers, the commission—not in the dangerous sense that we have been discussing but in all kinds of other areas—will be cut off from the grass roots of life and will make all kinds of decisions which it would not make if it did not have so many powers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Lyell moved Amendment No. 20: Page 13, line 9, after ("President") insert ("or Vice-President").

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 20 and 21. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 21: Page 13, line 13, after ("President") insert ("or Vice-President").

On Question, amendment agreed to.

7.30 p.m.

Clause 19 [Confidentiality of information]:

Lord Prys-Davies moved Amendment No. 22: Page 15, line 12, leave out subsection (5).

The noble Lord said: My Lords, we attach importance to this amendment. It removes the power of the Department of Economic Development to require the commission to furnish it with information in its possession. We appreciate that that power is contained in paragraph 12(3) of Schedule 5 of the 1976 Act. However, today there is considerable concern that the department should continue to reserve to itself the statutory right to call for that information.

The amendment rests on three main arguments. First, if the department has access to all the information in the possession of the commission, it could use that information to hinder the work of the commission. Having found out what is or is not being done, and if the department does not like that one bit, will it not be in a position to make known its displeasure to the commission and thus hinder its work? Is that being fair to the commission?

Secondly, is not the commission being put in a position where it might be in breach of confidence in disclosing the information? We anticipate that the commission will come into possession of a great deal of information in the course of its work and some of that information will be given to it in confidence. Should the department be entitled to receive confidential information? If the commission, in order to comply with the requirements of the department, discloses that information, will employers trust it in the future with confidential information? I ask again whether that is being fair to the commission, to the employer or to this legislation.

Thirdly, the day may come when the commission summons up its courage to investigate the department itself. However, at any stage in the preparation of the case against the department, the department could demand of the commission all the material in its possession and therefore hinder an investigation into its own employment practices. Again, I ask whether that is being fair to the commission or to the legislation. Is it being fair to the requirements of public policy in Northern Ireland?

It appears to us that by reserving or continuing to reserve to itself this power, the Department of Economic Development is putting itself in a position where it can influence an investigation. In our view, that is plainly wrong. Employers must have confidence in the commission and must have confidence that it is independent of the department and that information handed to the commission in confidence will be treated in confidence. Those are the three main reasons for this amendment.

Lord Bonham-Carter

My Lords, the last argument deployed by the noble Lord for this amendment is the clinching one. A commission like this must be seen, as we have said before on several occasions, to be free-standing and independent. It must be able to talk to its clients, whether employers or other people, on the basis of professional confidentiality and expertise. It must not be thought by those to whom it talks that what they say to it is open to the Government. They may not want it to go to the Government. Why should the Government want this information? I cannot imagine the circumstances in which the Department of Economic Development would or should need to force the commission to reveal to it information which it did not want to disclose voluntarily. I hope that the Minister might describe the circumstances he envisages in which this power would be useful, constructive and helpful to the commission's work.

This seems to me an unnecessary clause which undermines the authority of the commission, and that is the last thing which we should do at this moment. Nor have I known, in any other case, of a government department having this power over a quango which it appointed. I do not believe that the Government can demand that the BBC should give them all the information it possesses, or that the Equal Opportunities Commission is open to similar treatment. If a government were to ask, I very much hope that the chairmen or chairwomen of those bodies would resolutely refuse to be bullied in that way. I regard this amendment as important in principle and very important in practice: in principle because it seems to me illegitimate; in practice because it undermines the commission, and no good reason for the existence of that power has so far been given.

Lord Lyell

My Lords, we have certainly appreciated the pungent and excellent remarks of the noble Lord, Lord Bonham-Carter, together with the accurate attack of the noble Lord, Lord Prys-Davies, in moving this amendment. Of course, they are quite right that discretion and confidentiality are at issue in this area.

However, in spite of the eloquence with which the arguments have been put forward this evening, your Lordships will be aware that arguments were debated in another place equally forcefully. I stress that the Government are firmly committed to evaluating the impact of the legislation on a continuous basis and formally to reviewing it after five years. The provision of information will be most important in that context. Without implying that the commission would be in the least uncooperative about providing the department with information, it seems preferable that the matter of its supply should not be left on a grace and favour basis.

There is a wider point at issue in this area. It is very important indeed that both the Government and the commission should work together in the fair employment field. There should be, and I believe there will be, a two way flow of information. The Government and the commission will not be performing the same functions of course, and the integrity and independence of the commission must be carefully protected and respected. But in an area such as developing availability estimates, we must assume that there will be an exchange of information and a development of mutual expertise. The commission, initially at least, will rely on the Government's experience in the field of the statistics. By the same token, the commission in a short space of time will have compiled a unique database covering all aspects of the employment market. The development and use of such a key statistical resource are again far too important to be left to chance, let alone on a grace and favour basis. The information almost certainly will have a significant impact across a range of policies. Certainly all noble Lords, and I believe all sides in another place, have consistently urged the importance of government addressing the dimension of employment equality in implementing overall policies.

I repeat assurances given in another place that the department will not misuse information requested under this provision. Certainly there has been no question of that happening over the past 13 years and no government department will be permitted by its Ministers to hinder the operations of the commission, let alone to compromise its independence. In reply to a discussion on this matter in another place, my honourable friend the Parliamentary Under-Secretary has written to the honourable Member for Kingston-upon-Hull, North with a commitment that the department will discuss with the commission at an appropriate time the drawing up of guidelines for the operation of Clause 19(5). This will clarify the circumstances under which the department will exercise the powers set out in the clause. We also believe that these guidelines will remove any misunderstandings that may exist about the relationship of the department and the commission in this context.

This commitment has been given by my honourable friend to the honourable friend of the noble Lord opposite. I believe that it is a worthwhile commitment and that it will work. Therefore, I ask the noble Lord to withdraw the amendment.

Lord Prys-Davies

My Lords, I listened carefully to the noble Lord's response, but he did not respond to the three specific arguments which I advanced in support of the amendment. He did not explain to the House whether the commission would be in breach of its duty of confidentiality if it disclosed information from the department which had been delivered to the commission in confidence.

The Minister has told the House that there will be discussions between the department and the commission. However, the department, now that it has this power in its grasp, will be in a position to dominate those discussions with the commission. We shall have to read very carefully what the Minister said and will have to consult collegues and advisers to decide whether this is an issue again to bring back to this House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 21 [Interpretation of Part I]:

Lord Kilbracken: moved Amendment No. 23: Page 16, leave out lines 15 and 16.

The noble Lord said: My Lords, I regret that my four amendments—one of which, Amendment No. 54, I do not intend to move—were tabled rather late in the day and therefore bear the dreaded asterisk, but the usual channels did not give very much time.

I regard this as being purely a drafting amendment. I do not think that it will present the Minister with much difficulty because I cannot see how he can possibly oppose it, though I bet he will. The lines I want to delete are in Clause 21(1), which states: 'equality of opportunity' has the meaning given by section 20 of this Act". However Clause 20 begins: In this Part of this Act 'equality of opportunity' means equality of opportunity between persons of different religious beliefs". The clause heading in the margin reads: Meaning of 'equality of opportunity'". The following subsections elaborate on that original definition. If equality of opportunity has been fully defined in Clause 20, why do we have to go on and say in Clause 21 that "equality of opportunity" has the meaning given by the preceding clause? I cannot help feeling that those two lines, which are completely pleonastic and redundant, have been inserted in error. Therefore, I beg to move that they be omitted.

Lord Lyell

My Lords, the noble Lord took me back a number of years to when he used this excellent word "pleonastic". I believe that it was used in connection with foreign language teaching and he used it validly this evening.

The noble Lord is worried about the definition of "equality of opportunity". As I understand it, he wishes to disapply from Part I of he Bill the definition of "equality of opportunity" given in Clause 21 but wishes it to remain in Clause 20. Far from being pleonastic, I am not entirely clear as to what the noble Lord intends in that respect.

It is necessary to have a reference to distinguish "equality of opportunity" from the use of words in the 1976 Act. It is also standard drafting practice to leave no room for doubt. The definition of "equality of opportunity" in the 1976 Act, repeated in this Bill, is wide and comprehensive. It means equality of opportunity between persons of different religious beliefs and is not limited to the two major religious traditions in Northern Ireland; namely, the Protestant and Catholic traditions. It includes all persons of different religious beliefs, including, for example, the different religious beliefs within the Protestant tradition.

The amendment, as I understand it, seeks to limit that definition, but it would go further and limit the duty of the commission to promote equality to its promotion only between members of the two main communities. We believe that it is important that the new commission should continue to have the duty to promote equality of opportunity for individual persons on the basis of their religious belief—as it has by virtue of Section 1 of the 1976 Act and Clause 20 of this Bill—rather than having that broad duty limited only to the two main religious communities within the Province. In that respect the definition of "equality of opportunity" reflects the provisions of the 1976 Act in its basic prohibition of discrimination against individuals. That is what lies at the heart of the Bill. I believe that the amendment, however eloquently moved by the noble Lord, Lord Kilbracken, will not assist in that basic thrust.

Lord Kilbracken

My Lords, I really cannot understand the noble Lord's argument. He seems to have completely missed the point of what I said. As a matter of fact, I do not care at all what is in the 1976 Act and I do not see its relevance. I used the word "pleonastic", to which the noble Lord drew attention, which simply means that this is a pleonasm—in other words, that the phrase is completely unnecessary because it has already been stated. For some reason or other the draftsman has decided to define "equality of opportunity" twice over—once in Clause 20 and again in Clause 21. Both are identical. I do not see any reason for repeating the definition.

Naturally, I do not intend to press the amendment or to take the matter further, particularly in the absence of any support. However, the Minister might care to look at the matter when he returns to his office and consider deleting the lines on a subsequent occasion. I am not looking for an undertaking.

When the definition has been given in Clause 20 why is it necessary to say in Clause 21 that equality of opportunity has just been defined in the previous clause? It is totally unnecessary and a waste of two lines in the Bill. I knew I was being far too sanguine in believing that the Minister would have no alternative but to accept the amendment. However, in view of the reply that he has given I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 24:

Page 16, line 20, at end insert— (" "the Vice-President" means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;").

The noble Lord said: I spoke to this amendment when I moved Amendment No. 3. I beg to move.

On Question, amendment agreed to.

Clause 27 [Monitoring returns]:

Lord Lyell moved Amendment No. 25: Page 20, line 10, leave out ("advertised").

The noble Lord said: My Lords, I hope that it might be for the convenience of your Lordships and especially of the two noble Lords whose names are coupled with mine concerning some of these amendments, that I speak also to Amendments Nos. 26, 31, 32, 35, 52 and 55.

It was made very clear to me last Thursday when we discussed a government amendment that introduced what are now subsections (2), (3) and (4) of Clause 27, that your Lordships felt it insufficient to oblige employers to monitor only those applications that they had received for advertised vacancies. It could have the adverse effect of encouraging employers not to advertise vacancies. It is in the light of those representations that I move the amendment before us this evening and speak to those grouped with it which remove the word "advertised" on the five occasions it appears together with its now otiose definition in Clause 47.

The effect of the amendments is that public sector employers and those in the private sector with more than 250 employees will now be required to monitor all applications that they receive, whether they are in response to an advertisement or as a result of a continuous recruitment campaign or situation. I hope your Lordships will agree that this meets many if not all of the concerns which were expressed at an earlier stage, particularly and very eloquently by the noble Lord, Lord Prys-Davies, who indeed suggested the deletion of the word "advertised" in his contribution to the debate.

We are concerned to ensure that employers do not encounter insuperable practical difficulties in monitoring. For example, to monitor on the basis of information contained in an application form is likely to be straightforward enough, but to do so on the strength of a casual telephone call or a personal approach at the factory door is quite another matter. Those casual applicants who either turn up at the factory door or make a telephone call and who are lucky enough to be offered jobs present no problems for monitoring purposes. They will be monitored as part of the workforce. But those casual applicants who are told that there are no vacancies cannot be satisfactorily monitored.

I believe that your Lordships will agree that it is impossible to oblige personnel managers to say to such a casual caller who telephones, "Sorry, we have no vacancies but, by the way, are you a Catholic or a Protestant?". For the personnel managers then to try to obtain from the caller some indication of community application is rather difficult. I believe that it would be more than that and that it would bring all this legislation into disrepute. It is for these reasons that the regulations on monitoring which the department will make, after consultation with the commission, will make it clear what an employer is to do to ensure that as many as possible of those seeking employment with him are monitored. The code of practice will in any case give plenty of advice on recruitment practices including discouraging casual practices and encouraging employers to suggest to casual applicants either that they apply in writing or they await formal notification of vacancies in the future.

I hope that explanation will be of some help to those of your Lordships who spoke earlier and who are particularly interested in this aspect. I beg to move.

Lord Prys-Davies

My Lords, we are extremely grateful to the Minister for moving the amendment to delete the word "advertised" from the Bill. The Minister went on to consider the situation of casual applicants who turn up at the factory and who are not offered employment. As I understood him, this is a matter that will be dealt with in regulations that we have not seen. For my part I am content to support the amendment on my understanding that the mischief will not find its way back into the regulations. I wish to make that abundantly clear. On that understanding I welcome the amendment.

Baroness Seear

My Lords, I believe I was the person who raised especially the question of the casual applicant. While I see the point that the noble Lord is making, I know very well that, regarding women's equal opportunities and race relations, casual applicants have often been turned away because they were what they were. A great deal of discrimination has gone on as regards the casual applicant. I am not at all sure that one is safe in saying that one does not have to monitor the casual applicant.

I do not know enough about the Irish labour market to know whether it would be obvious which community an applicant comes from. If the address was known the employer would know at once. Is that not the case? In many cases the prospective employer would be aware of that. The Minister said the applicants would be encouraged to apply in writing. That seems to be totally unreal. A great many of the kind of people who drop in will never apply in writing. One will never get rid of the casual applicant; nor does one want to. I am not sure that the Minister's confidence that this problem has no implications for equal opportunities is quite well founded.

I can see the difficulties that he has raised. It is much easier when one is dealing with the question of colour. The person seeing the applicant knows at once which category the applicant is in. I accept that it is more difficult when it is a question of whether the applicant is Protestant or Catholic. A great deal of discrimination has taken place as regards casual applicants.

Lord Kilbracken

My Lords, perhaps the noble Baroness will allow me to say that I mentioned at Committee stage that it is not possible to tell a person's persuasion from their address. In many cases it will be possible, but in many others it will not.

Lord Lyell

My Lords, with the leave of the House perhaps I may briefly express to the noble Baroness the hope that I had not said necessarily that applications had to be in writing. I believe the noble Baroness will accept that it is extremely difficult. I mentioned that there are almost insuperable and serious problems for employers, for example, as a result of applications by members of job clubs who are encouraged to make 10 calls every day to various employers. That is putting a heavy load on employers to do as I suggested. A voice on a telephone is very difficult to identify even for someone like myself who is studying the provenance of persons in Northern Ireland in order to discover where they come from let alone identify their community affiliation or application.

It would be extremely difficult to monitor each and every one of these applications. I hope that the commission is able to find some way of avoiding the problems that the noble Baroness mentioned. She said that one such problem was race. Sex discrimination is quite clear. However, when someone makes a telephone call, which is the example we had in mind, a fair burden is put on the employer.

We are at one with the noble Baroness and the noble Lord, Lord Prys-Davies, and, I hope, with the noble Lord, Lord Bonham-Carter, in wishing to see employers following proper practices in recruitment. If someone makes a casual inquiry by telephone, the employer should suggest that he go to the Jobcentre. That would probably meet the noble Baroness's point. And it is the proper channel for good practices. I think that the noble Baroness would agree that casual telephone calls are virtually impossible to monitor. One has to obtain full details and then ask the question.

Baroness Seear

My Lords, I fully understand the difficulty. The noble Lord is being a little optimistic if he thinks that that is how recruitment will happen. However, I see the problem.

On Question, amendment agreed to.

8 p.m.

Lord Lyell moved Amendment No. 26: Page 20, line 15, leave out ("advertised").

The noble Lord said: My Lords, this amendment is connected with Amendment No. 25, to which I spoke. I beg to move.

Lord Blease

My Lords, will the noble Lord repeat the reply that he gave to my noble friend Lord Prys-Davies? Did he say that the regulations will contain some reference to the manner in which the applications will be tabulated, or will there be directions to employers for written and casual applications? This is important to the way applications are made for employment in Northern Ireland and throughout the whole of the United Kingdom. However, as the Bill applies to Northern Ireland, it is important that the regulations should be clear and amenable both to employers and to those seeking employment.

Lord Lyell

My Lords, I stressed that the monitoring regulations will make it clear what an employer is to do to ensure that as many as possible of those seeking employment with him are monitored. The code of practice will give plenty of advice on recruitment practices, including encouraging casual practices and encouraging employers to suggest to casual applicants that they should either apply in writing or that they await notification of vacancies in the future. The code will clarify the definition but will not change it.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 27:

Page 21, leave out lines 2 and 3 and insert— (" "community" means the sum total of persons adhering to the Protestant faiths, or to the Roman Catholic faith, or to other religious faiths or to no religious faith, as the case may be, in Northern Ireland.")

The noble Lord said: My Lords, in Committee I intervened briefly to object to the use of the word "community" in this part of the Bill. I was under the misapprehension that the Bill referred to a community in a town or a part of a town and assumed that all the members of that community belonged to one faith or another. I had not noticed the definition of "community" in Clause 27(11). The draftsman can given any meaning he likes to any word he chooses, and then that is what it means in that part of the Bill. I now see that "community" is defined as meaning, the Protestant community, or the Roman Catholic community, in Northern Ireland".

It appears that the intention here is to imply that in Northern Ireland there is something called "the Protestant community" which consists of all the people of all the Protestant faiths who happen to live in Northern Ireland, and that that constitutes a community; and that similarly there is another community in Northern Ireland comprising all the people in Northern Ireland who belong to the Roman Catholic faith; and that is it—they are all either Catholics or Protestants. That is not the way that it is. There are no such communities.

The Protestants themselves are divided into three or four different faiths—the Presbyterians, the Methodists, the Wee Frees and so on—all comprising what in the Bill is called "the Protestant community". Somehow the amendment tries to avoid facing the fact that individuals are Protestants or Catholics and instead says that they are members of a completely non-existent community. What the Bill is trying to say is what I have put in my amendment, although I am certainly not a parliamentary draftsman and I probably have the wording wrong. However, it seems to me that, when the word "community" is used in the Bill, it means the total of all the persons adhering, on the one hand, to the Protestant faiths, or, on the other hand, to the Roman Catholic faith; and finally to other religious faiths or to no religious faith.

The Bill as drafted does not admit the existence of such people. Noble Lords have probably heard about the British soldier who became involved in a political argument in Northern Ireland. He was asked, "What are you anyway, Catholic or Protestant?" He said, "I am a Jew". The reply was, "Well, that's your own business, but are you a Catholic Jew or a Protestant Jew?" Jews exist in Northern Ireland, as I am sure do Moslems and Hindus. There are certainly agnostics and atheists. Yet the existence of these people is not recognised because of a black and white divide—although I am not sure that "black and white" is quite the right phrase to use—with nothing outside it.

On reading the Bill more carefully it seems to me that the Government have not addressed this problem, which is a serious, difficult and delicate one. After all, the aim of the following clauses is to make it possible to identify an individual who applies for work or for any other reason as being a Protestant or a Roman Catholic. To find this out, instead of putting the direct question to the man concerned, "Are you a Protestant or are you a Catholic?", there is an indirect question—to ask which school he went to. That is to avoid asking that unpleasantly direct question. But, if you ask what school a person went to, you will not receive the right answer. I say that because, first, Jews or agnostics presumably went to schools which were predominantly Protestant or Catholic, and the fact that they went to a particular school does not indicate their faith.

Secondly, what about the non-denominational schools. We should all like to see more of these schools in Northern Ireland, or in the Republic of Ireland for that matter. But what of the adult who, as a child, went to a non-denominational school—some of which exist in the Province—who is asked, "Which school did you go to?" All that the people concerned will know is that the person went to a non-denominational school and ipso facto it does not reveal his or her faith. The whole object of this embarrassed questioning is to find out to which faith the person belongs.

We talk about Protestants and Catholic schools, but very often they are not 100 per cent. Protestant or 100 per cent. Catholic. When my little boy is in Ireland—the Republic, I admit; but it is the same from this point of view—he is the only non-Catholic in a Catholic school. He goes to that school because it is the nearest one. It is a jolly good school, I like the teachers and all his friends are there. That is why he is there. However, if that was in the North, which is only 10 miles away, and someone asked, "Which school did Seán Godley go to?" and the answer was, "Oh, Drumeela National School", people would assume that he was a Catholic.

My noble friend Lord Longford is certainly unique in that he is a Catholic, but when he was at school he was a Protestant. He was not just at a Protestant school; he was a Protestant. Therefore what is the good of asking to which school he went? It would give a completely erroneous impression.

I turn now to Clause 28(3)(a), and perhaps the most ludicrous part of all. It actually states that a Roman Catholic attending a Protestant school is to be treated as a Protestant. It provides that: where an applicant— (i) has stated that he attended a particular primary school … the employer may be required to determine that he is to be treated as belonging to the community concerned". Therefore this Protestant must be treated as a Catholic; or the Catholic has to be treated as a Protestant. That is nonsense. If you want to find out what a man's religion is, and that is really what you want to know, then you say to him, "Are you an RC or a Prod?" It is as simple as that. The present wording in the Bill is not good enough; it has not been thought through. The real implications and the real delicacy of the whole matter have not been fully appreciated.

If the necessity for such redrafting cannot be seen by the Government—because they are the only people who can alter it and put changes into the Bill at a later stage—then the best course, as I see it, is at least to accept the change proposed in my amendment. I beg to move.

8.15 p.m.

Lord Lyell

My Lords, I appreciate the point which has been raised by the noble Lord. He raised it with eloquence and with considerable passion. Of course I appreciate the noble Lord's wish that we should try to see that Northern Ireland is recognised as consisting of a single community. However, at all times we must look to what is defined in Clause 27(11). It is in Part II of the legislation that we are defining the word "community" for the purposes of the Bill. We have addressed this problem. Indeed, it has taxed most considerably my right honourable friend and my honourable friend as well as many of us involved in the legislation.

I must stress to the noble Lord, Lord Kilbracken, that we are addressing the problem of equality of opportunity and life in the workplace as it exists in Northern Ireland. Whatever words we apply to the situation, there are clear and long-standing differences between the employment experiences of the Catholic and the Protestant communities in Northern Ireland. I think that it may be fair to describe the two groups as two communities, or perhaps two sections of the same community. However, we have adopted the description of two communities in the interests of clarity. Nevertheless, I appreciate the points raised by the noble Lord.

The noble Lord also raised the issue of what would be done when monitoring applied to persons of the Jewish or Moslem faiths. In the event that persons indicate that they are not members of the Catholic or Protestant community, they will have their answer recorded as "non-classified". I can assure your Lordships that provision will be made by way of regulations for such persons who are not members of the Catholic or Protestant communities; in other words, measures will be laid out in regulations.

I must say that the amendment moved by the noble Lord would insert into the Bill a reference to something other than "community" which we think is the best yardstick. The noble Lord may be right, and indeed your Lordships may be correct. The definition may not be perfect, but we think that it is the best available yardstick as a basis for Part II of the Bill.

We think that to insert something other than the definition which we have would be complex and would blur the definition in the Bill. We also think that it would remove from the Bill, especially from Part II which, your Lordships will see, sets out the new duties for employers in respect of their workforce, the vital distinction which is essential to the working of the mechanism of monitoring, reviews, affirmative action, goals and timetables.

The definition may not be absolutely perfect in every respect. However, it is certainly the best one and we believe that it will be effective in dealing with the main thrust of the Bill before us tonight; that is, equality of opportunity in the workplace.

Lord Kilbracken

My Lords, I am grateful to the Minister for his words. He always shows a great understanding of the problems involved. The irony always strikes me of him being a Minister in Belfast when he is himself a member of the Roman Catholic faith. I am most grateful to him for his words about regulations. I am glad to know that those regulations will be effective.

I stand by everything I said. I was not convinced by what the Minister said, any more than he was sufficiently convinced by what I said. However, particularly in view of the little undertaking he gave, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Regulations as to monitoring]:

Lord Kilbracken moved Amendment No. 28: Page 21, line 48, after ("Department,") insert ("showing, in particular, to which community, if any, its members mainly belong,").

The noble Lord said: My Lords, this is no more than a drafting amendment. Clause 28(2)(g) requires: the Commission to maintain a list classifying each school in Northern Ireland". If we turn to Clause 29, it is clear that the purpose of that classification is to show to which section of the community, if any, its members may belong. However, in Clause 28 there is no instruction as to the way in which those schools will be classified; it merely states that they must be classified. There are all sorts of ways in which schools can be classified. Are they male, female or co-educational? Are they primary or secondary? What age groups are there? Are they basically Catholic schools, Protestant schools or inter-denominational schools?

Although it may be obvious to us that the Bill is talking about classification according to the denomination of those who attend, that is not stated in Clause 28. Therefore there is no obligation to include that detail in any classification. I propose that it should be stated in Clause 28 that among other things the classification should invariably show what it is there for—to which community its members mainly belong. It is to clarify that point that I propose to insert the two lines in Clause 28. I beg to move.

Lord Lyell

My Lords, the words, for the puposes of monitoring in Clause 28(2)(g) have the effect that the noble Lord, Lord Kilbracken intends. The amendment, and the previous amendment moved by the noble Lord, would broaden the scope of the monitoring returns beyond the present breakdown between Protestants and Catholics. That goes some way to reflect the perception that the effect of monitoring will be permanently to label persons as Protestant or Catholic, and thus perpetuate the problem caused by the religious divide.

The intention appears to be to require the department to classify each person attending a school in Northern Ireland according to the religious affiliation, or even the lack of it, of that individual. The detail is unnecessary for the purpose of school classification. It is enough for classification to know whether a school is attended mainly by Protestant or mainly by Catholic pupils. It is not necessary to specify the affiliation and still less the belief of each individual.

The noble Lord was kind enough to refer to my own known affiliation. My school was attended mainly by boys of the Protestant faith and so that would be no indication in my case. I suspect that it would be true of many people in your Lordships' House.

I stress that the words in Clause 28(2(g) have the meaning which the noble Lord intends them to have. For that reason, his amendment will not add to the Bill. We believe that Clause 28 should be left as it stands.

Lord Kilbracken

My Lords, I seem to be having some difficulty in getting my thoughts across to the Minister. Of course that is entirely my fault. I have found the reference for which I was looking. It comes in Clause 28(3)(a)(i) where we talk about: a school classified in any list maintained by virture of subsection (2)(g) above as a school attended mainly by members of a particular community". The list that is produced will show the members of which community may be attending. That is in that sub-paragraph. The point that I was trying to make was that there is nothing in the preceding sub-paragraph to insist that the information which has to be provided is given. It is not a major point. As I said before, I regard it as a drafting point. I think that it would improve and clarify the Bill. In view of what the Minister has said—again I appreciate the manner in which he said it—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 29:

Page 22, line 24, at end insert— ("(3A) The regulations may require compliance with any direction of the Commission to a particular employer to apply the prescribed methods for determining the community to which a person is to be treated as belonging for the purposes of monitoring in a manner different from that otherwise authorised or required by the regulations.").

The noble Lord said: My Lords, it may be for the convenience of your Lordships if I speak also to Amendment No. 30. Amendment No. 29 honours a commitment given in another place. It is intended to deal with the eventuality that a group of workers combine together in answering the direct or indirect questions in such a way as to supply false information; for example, by falsely declaring themselves to be either Protestant or Roman Catholic.

The amendment provides that the monitoring regulations may authorise the commission to require an employer to apply the prescribed methods in a manner different from that specified in the regulations. The effect of Amendment No. 29 will be to enable the commission to change the order of the monitoring methods set out in the regulations so that the residuary method can be substituted for the direct or indirect method when the commission is of the opinion that those methods have not provided a satisfactory return.

Accordingly, if there is evidence of collusion in the use of the direct or indirect methods, or—despite the criminal offences applying—the submission of false or misleading information, then the commission will be able to require the employer to use the residuary method and, to take one example, to determine perceived religious affiliation by reference to information contained in personal records. The overall objective is to obtain a monitoring return which will provide as accurate a basis as possible in determining the need for affirmative action if necessary.

The two amendments fulfil a commitment that we gave in another place. They are mildly technical, and, with that, I beg to move.

Lord Prys-Davies

My Lords, as the Minister has explained, the amendments resolve a difficulty which had been identified in another place and we are pleased to support them.

On Question, amendment agreed to.

8.30 p.m.

Lord Lyell moved Amendment No. 30: Page 22, line 25, leave out ("and (3)") and insert ("to (3A)").

The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 29 [Monitoring applicants]:

Lord Lyell moved Amendments Nos. 31 and 32: Page 22, line 29, leave out ("advertised"). Page 24, line 17, leave out ("advertised").

The noble Lord said: My Lords, I hope that it will be for the convenience of your Lordships if I move Amendments Nos. 31 and 32. I spoke to these amendments in the group with Amendment No. 25 dealing with the point on advertising. I beg to move.

On Question, amendments agreed to.

Clause 31 [Periodic reviews by employers]:

Lord Prys-Davies moved amendment No. 33. Page 24, line 36, leave out from ("specify") to end of line 39 and insert ("but nothing herein contained shall prevent or restrict in any way the right of the Commission to seek information supplementing the information contained in the return.").

The noble Lord said: My Lords, I should point out that there is a mistake in the wording of the amendment in the Marshalled List. The fourth word is "unlawful" but it should have been "contained". The amendment should read: but nothing herein contained shall prevent or restrict in any way the right of the Commission to seek information supplementing the information contained in the return.". I cannot explain why that mistake was made, except that we were probably racing against the clock.

Those members who were present at the Committee stage will recall that there was a long debate over a government amendment. The effect of that was to prevent the commission from going back to the employer to seek supplementary information. There was a ban of six months which prevented it from going back for the supplementary information.

That government amendment at Committee stage was criticised because it could lead to delay and could indeed encourage employers to file vague, imprecise and slender information. The effect of our amendment this evening is to limit the effect of the Government's amendment so that it would not prevent the commission from seeking information, supplementing the information contained in the return. I beg to move.

Lord Mottistone

My Lords, briefly, I think that employers would prefer the wording in the Bill as it now stands.

Lord Bonham-Carter

My Lords, that may be so. They may prefer it. However the question is whether they are right to prefer it. That is what is at issue. It seems to be very odd that we should lay down a regulation or, in this case, a law which says that a body is allowed to ask for information. If it receives totally inadequate information from the source of that information, it has to wait six months before the information is corrected. For the life of me, I cannot imagine that this is efficient, that it encourages people to provide information or that there are precedents where this kind of delay has proved useful, constructive or helpful to the inquirer or to those on whose behalf one is inquiring.

In Committee, the noble Lord said that it was quite all right because if the commission received an inadequate answer, or if the answer were patently trying to delay matters, it could institute a full scale inquiry. That is using a sledge hammer to crush a pea. All the commission wants to do is to be able to pick up the telephone and say, "Look, you didn't tell us all we wanted to know. Perhaps you don't know it, so let us know if you do not know it. If you do know it, then please tell us". That seems to me to be totally common sense. It is the point of asking the question. When we ask someone a question, we very rarely receive a complete answer the first time. That is ordinary human experience. I do not see why it should be different in Ireland or under this Bill.

Lord Lyell

My Lords, if all noble Lords have finished speaking, I am delighted to hear the words of the noble Lord, Lord Bonham-Carter. I shall have one or two words to say about his remarks later, but if he believes that everybody will get the answers right the first time and every time, we shall be most interested. I see that the noble Lord wishes to intervene, but I shall come to his point later when I make special reference to it.

I appreciate the concern of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, on the matter, as well as that of my noble friend. It arises from a number of associated amendments moved by myself at an earlier stage. I hope that I can set the amendment before us in the context of the previous amendments which were those that I moved at Committee stage. They had two primary effects. First, they extended and amplified the powers of the commission by providing that it can obtain from the employer any of the information which he might want to use for monitoring; and by providing further that the commission can exercise its powers whether or not a monitoring return has been submitted. As your Lordships may recall, the commission's former powers hinged on the employers having submitted a monitoring return and extended only to information supplementing that given in the return. To balance these important extensions of the commission's powers and in common with the rights of inquiry conveyed by Clause 32(6) and (7), we limited its powers of inquiry to six-monthly intervals. We think that that strikes the right balance between firmness and fairness, especially since we do not believe that this limitation will prove constricting.

Perhaps I may take an example to Illustrate the point. If the commission asks an employer for three specific pieces of information and only two are supplied, then the employer is committing an offence under Clause 32(10). Noble Lords will see that at the top of page 26. In that case, the employer must supply the remaining piece of information or he would, quite rightly, be liable additionally to the continuing offence in Clause 32(11)(b). In practice, the threat of prosecution for such a criminal offence, in the words of the noble Lord, Lord Bonham-Carter, is taking a sledge hammer. But the threat of prosecution for such offences means that the employer would provide the remaining information.

My reference to the criminal offences is important and I think we have to keep this in mind in relation to the issue. But the stiff criminal sanctions exist for employers who do not supply the requested information. When employers provide the information, we think that it is quite sufficient for them to do so and that they should not be unnecessarily harassed by, as the noble Lord has suggested, not just one but, as we see it, repeated inquiries for different information at less than six monthly intervals.

As I pointed out, we think that the amendment strikes a balance. We have already made some movement at an earlier stage and we believe that the amendment will provide adequate powers to the commission, as well as seeing that employers are not needlessly harassed. If it is a major point, then six months is not too long to wait. If it is a minor point, then perhaps it might be dealt with in the way suggested by the noble Lord, Lord Bonham-Carter. But we think that the amendment is reasonable and necessary. For that reason, I beg to move.

Lord Prys-Davies

My Lords, is the Minister adopting my amendment? Since he has moved my amendment, then I am pleased to accept the situation.

Lord Mottistone

My Lords, that is quite contrary to the procedures of the House. The Minister made an error. He was shooting down that amendment. He said it was his amendment. He did not say that it was the noble Lord's amendment. He got muddled. We are dealing with Amendment No. 33.

Lord Prys-Davies

My Lords, I shall be generous to the Minister and not press my point. I must say that I am not at all satisfied that the Government have fully recognised the mischief which their own amendment has created.

I am not at all surprised by the approach of the noble Lord, Lord Mottistone, to our amendment. There was nothing at all novel about that approach. It appears to me that whenever the noble Lord, Lord Mottistone, sees an opportunity to try to weaken the Bill, he grasps it.

We shall certainly read very carefully what the Minister has said in response to the amendment. We shall possibly return to it at Third Reading. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 34: Page 26, line 14, after ("and") insert ("in a case where it was reasonably practicable for him to comply with it after that time, to show").

The noble Lord said: My Lords, In moving this amendment, I wish to speak also to Amendments Nos. 36 and 50. The point of these amendments is to deal with one set of circumstances which is unlikely to arise but which might do so. Under Clauses 32, 36 and 45 the commission is empowered to request information from an employer. It is an offence to fail to provide that information by the specified time, but the Bill provides a reasonable excuse defence both in respect of the timing and the substantive offence. However, as drafted, the defence would not help an employer who could not provide the requested information even after the time specified because, for instance, his premises had been bombed or all his records had been destroyed by fire. It would clearly be unjust in such circumstances for the employer to be liable to the substantive and continuing offences when it was evident that he was never going to be able to provide the information requested.

Amendments Nos. 34, 36 and 50 are intended to deal with this exceptional contingency. I must emphasise strongly, however, that they do not alter the position of an employer who, while having an excuse for not providing the information on time, has no excuse for not providing it at all. He is still obliged to provide the information, and is committing an offence if he fails to do so. I hope that your Lordships will regard these amendments as fair and reasonable. With that I beg to move.

Lord Prys-Davies

My Lords, we have listened to the Minister's explanation for these three amendments. However, the amendments are not confined to the situations mentioned by the Minister. We would point out that the purpose of this group of amendments is to provide employers with yet another line of defence where they have failed to carry out the orders of the tribunal. It appears to us that, once again, the department is coming to the aid of the potential discriminator. For that reason, we are unable to support the amendment.

Lord Mottistone

My Lords, I believe employers will welcome the amendment as a very reasonable extra freedom for them. They have been boxed in by this Bill much more than is, in many cases, reasonable. My noble friend's explanation for the amendment is a very sound one. I hope your Lordships will agree to it.

On Question, amendment agreed to.

Clause 36 [Notices about goals and timetables]:

Lord Lyell moved Amendment No. 35: Page 28, line 34, leave out ("advertised").

The noble Lord said: My Lords, this amendment was part of a large group to which I spoke earlier. I beg to move.

On Question, amendment agreed to.

8.45 p.m.

Lord Lyell moved Amendment No. 36: Page 29, line 31, after ("and") insert ("in a case where it was reasonably practicable for him to comply with it after that time, to show").

The noble Lord said: My Lords, I spoke to this amendment a moment ago. I beg to move.

On Question, amendment agreed to.

Clause 38 [Employers in default: notice stating they are not qualified]:

Lord Lyell moved Amendments Nos. 37 to 44:

Page 30, line 34, after ("of") insert ("that section or").

Page 31, line 6, leave out from ("above") to ("by") in line 7.

Page 31, line 8, leave out from ("default") to end of line 12.

Page 31, line 15, leave out from beginning to end of line 20 and insert ("Where notice has been served on a person under subsection (2) above, the Commission shall, if it is at any time satisfied, whether on an application under subsection (6) below or otherwise—

1. (a) in the case of a notice served by virtue of subsection (1)(c) above, that he has served on it a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or
2. (b) in the case of a notice served by virtue of subsection (1)(d) above, that he is complying, or has fully complied, with the order concerned").

Page 31, line 22, leave out ("subsection (5) above") and insert ("this subsection may be made by the person on whom the notice under subsection (2) above was served but").

Page 31, line 25, leave out ("subsection (5) above") and insert ("this subsection").

Page 31, line 28, leave out ("(5)") and insert ("(6)").

Page 31, line 31, leave out from ("satisfied") to ("the Commission") in line 33 and insert—

1. ("(a) in the case of a notice served by virtue of subsection (1)(c) above, that the appellant has served on the Commission a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or
2. (b) in the case of a notice served by virtue of subsection (1)(d) above, that the appellant is complying, or has fully complied, with the order concerned").

The noble Lord said: My Lords, I beg to move Amendments Nos. 37 to 44 en bloc; that is, all the amendments in Clause 38. Under the provisions of Clause 38 as drafted, an employer who is in default of his obligations in respect of monitoring returns can be served by the commission with a notice that he is unqualified for access to public contracts or government grants. Once he had ceased to be in default, that notice would be cancelled. But the situation could arise where an employer who could not provide all the monitoring information required would remain permanently in default and permanently cut off from contracts and grants. This would occur, for example, if he failed to monitor applicants when required to do so and failed to submit a monitoring return. He would be subject to various substantial penalties for those failures; but, since his failure to monitor applicants in a particular year could not be subsequently remedied, he would remain permanently unqualified under Clause 38(4)(b), as drafted.

Amendment No. 37 therefore provides that where the commission has served a notice of disqualification on an employer, arising from his failures in compliance in regard to monitoring returns, it must cancel that notice where it is satisfied that the monitoring information which the employer has provided, though incomplete, is as complete as is reasonably practicable in the circumstances. This does not mean that the employer will escape penalisation under Clauses 27 and 28: it simply means that he is not permanently deprived of access to contracts and grants in circumstances when he is no longer able to comply with the requirements of those clauses. I beg to move.

On Question, amendments agreed to.

Clause 39 [Notice stating that connected and other persons are not qualified]:

Lord Lyell moved Amendments Nos. 45 to 49:

Page 32, line 16, after second ("notice") insert ("(a)").

Page 32, line 18, leave out from ("cancelled") to ("in line 21 and insert ("or (b)").

Page 32, line 22, after ("Commission") insert ("whether on an application under subsection (5) below or otherwise").

Page 32, line 24, leave out from beginning to ("before") in line 26 and insert ("An application under this subsection may be made by the person on whom the notice under subsection (1) above was served, but if he has previously made an application under this subsection may not be made").

Page 32, line 29, leave out ("(4)") and insert ("(5)").

The noble Lord said: My Lords, I beg to move Amendments Nos. 45 to 49 en bloc. These amendments tidy up the provisions of Clause 39. By virtue of Clause 39 notices of being unqualified for access to contracts and grants may be served by the commission on persons or bodies who are connected to an employer who is unqualified so that there is no possibility of the sanction being evaded by the unqualified employer using a subterfuge.

What these amendments do is to put an obligation on the commission to ensure that the validity of such notices is kept under review. The amendments do not alter the effectiveness of the regime whereby unqualified employers are debarred from contracts and grants. What they do is ensure that connected persons and bodies are not needlessly involved in the process of ensuring that the sanction is fully applied. I beg to move.

On Question, amendments agreed to.

Clause 45 [Additional powers of Commission to obtain information]:

Lord Lyell moved Amendment No. 50: Page 35, line 27, after ("and") insert ("in a case where it was reasonably practicable for him to comply with it after that time, to show").

The noble Lord said: My Lords, I spoke to this amendment earlier in connection with Amendment No. 34. I beg to move.

On Question, amendment agreed to.

Clause 46 [Procedure in case of default by Crown bodies]:

Lord Lyell moved Amendment No. 51: Page 36, line 3, after ("28") insert ("or 29").

The noble Lord said: My Lords, this is a minor amendment consequential on the insertion into the Bill at Committee stage of the new clause, now Clause 29, and ensures that the enforcement procedure for Crown bodies extends to such bodies in breach of their obligations. I beg to move.

On Question, amendment agreed to.

Clause 47 [Interpretation of Part II]:

Lord Lyell moved Amendment No. 52: Page 36, leave out lines 25 to 27.

The noble Lord said: My Lords, I beg to move Amendment No. 52. I spoke to this amendment in connection with Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 53: Page 36, line 30, leave out ("other than a contract which normally involves employment for less than sixteen hours weekly,").

The noble Lord said: My Lords, this amendment will bring part-time workers who work fewer than 16 hours a week within the scope of the Bill and in particular of its monitoring provisions. As the Bill stands, they are excluded from the definition of employee contained in Part II of the Bill. This amendment rests on two main arguments. The first is that in some industries such as retailing, distribution and also aspects of the public sector where the workforce is predominantly part-time, they would be exempt from the Bill's provisions on monitoring. In its response to the Bill the Fair Employment Agency considered that the exclusion of such employees from the definition was a major misjudgment and that it would have serious side-effects. I understand that that is also the opinion of the Irish Congress of Trade Unions.

The second argument is that the majority of part-time workers are women and that their exclusion from the definition might lead to a significant number of women being denied equality of opportunity in employment. Those are the two main arguments in support of the amendment. I beg to move.

Lord Bonham-Carter

My Lords, I should like to support the amendment. As the noble Lord, Lord Prys-Davies, has said, there are industries in which large numbers of part-time workers are employed and a very high proportion of those workers are women. Therefore, the exclusion of a substantial number of women from the scope of monitoring has been described not only as a classical example of the invisibility of part-time women, which it undoubtedly is—as though they did not exist in the employment field at all and needed no protection—but in addition it will also lead to returns from the monitoring which are extremely misleading.

I would add that this might be classified as indirect discrimination, since the people who would be largely affected are women. So because it is inaccurate, because it seems to me to disadvantage women in particular and because it disadvantages part-time workers in general, I think this error in the Bill should be corrected.

Lord Lyell

My Lords, the amendment standing in the names of the noble Lords, Lord Bonham-Carter and Lord Prys-Davies, would add significantly, as has been said in another place, to the burdens laid on business without any corresponding benefit, we believe, for the commission. In addition it is likely to make the registration and monitoring provisions very impracticable. It would mean that in connection with his registration and monitoring responsibilities an employer would have to count all persons employed in his concern. That, at least in the short term, would be unreasonable because he would have to include all those working part-time, whoever they might be, and all casual workers who might be working for him for very short periods.

Quite apart from the considerations of cost and practicality, we think there would be a risk that monitoring casual employees could easily mask trends in the employer's core, main workforce. What we are crucially interested in is access to permanent employment in the core workforces of public and private sector employers. We therefore decided to focus the monitoring on jobs for which an employer is required to give written terms of employment. That is defined as employment of 16 hours a week or more. So, although for monitoring purposes employees who work for less than 16 hours a week would be excluded from the statistics, this has to be balanced against the problems and burdens placed upon an employer by a more inclusive definition.

Furthermore, we think it is very important to bear in mind that following discussions on this issue in another place the Bill has already been amended, so that the department is empowered at the appropriate time to amend the figure of 16 hours a week so as to oblige employers to include in the monitoring returns employees who work fewer than those hours. I believe this is an appropriate reply to the concerns which have been expressed.

The noble Lord, Lord Bonham-Carter, had one further query about indirect discrimination. He mentioned women specifically and also part-time workers. Women comprise almost all the part-time workers covered in the Bill. Recent surveys of the labour force in Northern Ireland indicate that under 7 per cent. of employees in Northern Ireland—I refer to the total workforce—work for less than 16 hours a week. That figure is subject to sampling error. It could be somewhere between 6 and 8 per cent. However, a proportion of those employees will be employed in concerns which fall below the threshold for registration in any case. Therefore, as regards part-time workers and especially the most vulnerable ones—the women part-time workers —we believe that the number in question would be fairly small: it would not be very significant. We think we have got the figure right and, as I pointed out, there is machinery for altering the figure should it be necessary. We believe that 16 hours is the right benchmark and that the amendment is unnecessary.

Lord Prys-Davies

My Lords, we do not find the Minister's explanation to be totally satisfactory. Indeed, considerable dissatisfaction was expressed in another place. The Minister refers to the power which I think is found in Clause 47(2), which will enable the department to vary the limit of 16 hours. However, that power enables the department not merely to raise the limit but also to lower it, which we find amazing. I do not propose to press the amendment to a Division but we shall wish to consider what has been said by the Minister. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]

Clause 48 [Index to Part II]:

Lord Lyell moved Amendment No. 55: Page 39, leave out line 2.

The noble Lord said: My Lords, this is the last in the series of amendments to which I spoke with Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Clause 49 [Meaning of "discrimination"]:

9 p.m.

Lord Prys-Davies moved Amendment No. 56: Page 39, line 41, after ("condition") insert ("policy or practice").

The noble Lord said: My Lords, this is the first amendment addressed to the meaning of the term "indirect discrimination". This was the subject of a great deal of discussion in Committee. We believe it is important that we should get the definition right because it is by virtue of this definition that indirect discrimination becomes unlawful. We argued in Committee that the definition of indirect discrimination contained in Clause 49(2) is too narrow, because the criterion or barrier of which an unsuccessful applicant complains must be shown to be "a requirement or condition" which is not related to merit and which is not justifiable.

We drew the attention of the Committee to the fact that the Court of Appeal had now narrowly construed the phrase "requirement or condition". Indeed one member of the court, Lord Justice Balcome, in giving his judgment in the Mear case, indicated that there were strong arguments that the absolute bar construction of "requirement or condition" may not be consistent with the object of the legislation. He went on to suggest that the law might need reform. This is the place to reform the law.

The definition contained in Amendment No. 56 will broaden the concept of indirect discrimination. In Committee the Minister resisted the amendment, claiming that the problem was not one about the technicalities of the definition: but much more with the unintentional and structural discrimination that occurs through slack and lax employment practices".—[Official Report, 11/7/89; col. 177.] It seems to me that the Minister was making out the case for this amendment. Our amendment would address the problem of slack and lax employment practices as well as "requirement or condition", whereas the government definition will not address the problem unless the criteria complained of amount to a "requirement or condition".

Slack and lax employment practices will persist under the Government's definition, whereas they would be caught within the net of the amendment. That essentially is the argument for our definition. Broaden the definition and we shall catch the practices which do not come within the narrow construction of the terms of "requirement or condition". I beg to move.

Lord Lyell

My Lords, I have listened to what the noble Lord, Lord Prys-Davies, had to say about his amendment. I think he will agree that it concerns one of the tests which must be satisfied by a person who complains of indirect discrimination. As such it could have far-reaching implications for the entire Bill. As the noble Lord pointed out, we covered the same ground in our deliberations in Committee. I fear that I may have to go over it once more. This time I hope to be more concise.

The existing definition of indirect discrimination which we have included in the Bill is the same as that which is used in sex and race legislation. It is also basically a fair definition. It does not load the system too heavily on one side or the other. I believe that it is fair for a complainant to have to show that he was excluded from employment by the application of an absolute and exclusive condition. To broaden the definition in the way suggested by the amendment would open the way to complaints that any of an employer's policies or practices had led to an individual being discriminated against. The allegation would be less clear cut, and the tribunal would have difficulty in reaching consistent decisions. We think further that it would be basically unfair to open proceedings against an employer on such a basis.

That is not to say that the existing definition gives scope to an employer to continue with unsatisfactory practices. I have gone on record as stating, and it has been said also by my honourable friends in another place, that the real difficulty in Northern Ireland in practical terms is not necessarily with the technical definition of indirect discrimination but with unintentional discrimination brought about by informal and careless recruitment practices. The real attack on discrimination will be by means of the provisions in the Bill for employer reviews, commission inquiries and investigations, and agreed follow-up action. As your Lordships are aware, the basic thrust of the whole Bill is centred on the provision of equality of opportunity by means of good practice. If we can establish good practice as an accepted part of an employer's philosophy, then the incidence of discrimination will inevitably diminish.

That is why I believe the thought behind the amendment proposed by the noble Lord, Lord Prys-Davies, is somewhat misdirected. As we see it, the amendment seeks to use individual cases of discrimination as a lever to promote wider changes in employment practice. We have adopted the alternative approach, concentrating on the strong and incisive enforcement of good practice backed by both economic and criminal sanctions.

The other advantage of our definition is that it is common to sex discrimination also. As has been made very clear in our discussions on affirmative action training, it is necessary for an employer to be aware of his responsibilies in both areas of anti-discrimination law. It would complicate life unreasonably if one definition applied to religious discrimination cases and another to those of sex discrimination.

I go on record once again as stressing that we believe that the Government's approach to this issue is the most appropriate one and that the implications of changing the definition of indirect discrimination would not be helpful, least of all in this particular area of Clause 49. For that reason, I cannot recommend your Lordships to accept the amendment this evening.

Lord Prys-Davies

My Lords, I am disappointed that the Minister has been unable to see his way clear to accept this amendment. In support of the amendment I should tell the House that the weakness in the definition was spotted as long ago as 1987 by the Standing Advisory Commission on Human Rights in Northern Ireland, which is the Government's advisory committee on human rights in the Province. That was the commission's view in 1987, but the Government seem to have set their face against widening the definition. Therefore we believe that the Bill will not work as well as the Government hope. It is an issue on which we should take the view of the House.

9.8 p.m.

On Question, Whether the said amendment (No. 56) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 48.

DIVISION NO. 4
CONTENTS
Barnett, L.	Macaulay of Bragar, L.
Blease, L.	Mason of Barnsley, L.
Bonham-Carter, L.	Morris of Kenwood, L.
Brooks of Temorfa, L.	Murray of Epping Forest, L.
Carter, L.	Ponsonby of Shulbrede, L. [Teller.]
Donoughue, L.
Dormand of Easington, L.	Prys-Davies, L.
Gallacher, L.	Russell, E.
Graham of Edmonton, L.	Seear, B.
Hatch of Lusby, L.	Taylor of Gryfe, L.
Irving of Dartford, L.	Tordoff, L [Teller.]
Kilbracken, L.	Underhill, L.
Kirkhill, L.	White, B.
Lockwood, B.	Winstanley, L.
Longford, E.

NOT-CONTENTS
Ampthill, L.	Lyell, L.
Arran, E.	Mackay of Clashfern, L.
Barber, L.	Mersey, V.
Belstead, L.	Monk Bretton, L.
Blatch, B.	Morris, L.
Borthwick, L.	Mountevans, L.
Brabazon of Tara, L.	Munster, E.
Butterworth, L.	Orr-Ewing, L.
Caithness, E. [Teller.]	Oxfuird, V.
Carnegy of Lour, B.	Peyton of Yeovil, L.
Cowley, E.	Rankeillour, L.
Craigmyle, L.	Reay, L.
Davidson, V.	Rippon of Hexham, L.
Denham, L.	Saltoun of Abernethy, Ly.
Dundee, E.	Sanderson of Bowden, L.
Eccles, V.	Skelmersdale, L. [Teller.]
Elliott of Morpeth, L.	Strange, B.
Fraser of Carmyllie, L.	Strathclyde, L.
Henley, L.	Swinfen, L.
Hives, L.	Thomas of Gwydir, L.
Hooper, B.	Trafford, L.
Kinnoull, E.	Trefgarne, L.
Lawrence, L.	Trumpington, B.
Long, V.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.15 p.m.

Clause 50 [Complaints of unlawful discrimination]:

Lord Prys-Davies moved Amendment No. 57:

Page 41, line 47, at end insert— ("and (d) a recommendation that the respondent takes such action for promoting equality of opportunity as appears to the Tribunal to be reasonable and appropriate in all the circumstances, providing however that such a recommendation shall not be subject to subsection (5) hereof").

The noble Lord said: My Lords, this amendment would allow the tribunal in the course of a hearing, if it comes across evidence of failure to provide equality of opportunity but not of indirect discrimination within the restricted meaning of the Bill, to make a recommendation that the employer takes action to provide equality of opportunity.

Clearly this is a compromise in so far as it would be open to the employer to ignore the recommendation without attracting a penalty. However, we think that it would be a valuable power to give to the tribunal. It would be valuable for two reasons. First, the recommendation would be attached to the tribunal's verdict. It would therefore enjoy the status of a tribunal recommendation. Because it would enjoy that status, we believe that it could have a strong, persuasive effect on an employer.

Secondly, it would have the effect of harmonising the practice of the commission with the case law of the tribunal. The amendment would avoid a situation where an employer could violate the equal opportunities policies recommended by the commission, and possibly by the Government, and yet appear to receive the blessing of the tribunal for doing so.

The noble Lord, Lord Lyell, may argue that the amendment is not necessary because the tribunal has an implied power to make a recommendation, and therefore it is not required. We accept that the tribunal will have the implied power, but we believe nevertheless that by setting it out on the face of the Bill the tribunal and the parties will be aware of its existence. For that reason the tribunal may be more likely to make use of it.

We invite support for the amendment which would convert an implied power into a specific power. I beg to move.

Lord Lyell

My Lords, the amendment was superbly and eloquently argued by the noble Lord. However, I am still a trifle puzzled because it seems to be attempting to strengthen the role of the tribunal in regard to recommending action in individual cases. It also makes a confusing reference to an enforcement mechanism—that provided by subsection (5)—which applies only to recommendations made under another subsection and which is not applicable in the circumstances set out by the amendment.

Lord Prys-Davies

My Lords, with the leave of the House, I should like to explain the position. The amendment contains a reference to subsection (5). However, that is a mistake on our part. Earlier today we complained about being rushed into preparing our amendments on Friday. Afterwards I realised that there should be no reference in this clause to subsection (5) because it is to be a recommendation which is not accompanied by a penalty.

Lord Lyell

My Lords, in view of the rush, I mean no discourtesy. Nevertheless, the amendment makes a reference and I hope that with patience the noble Lord will bear with me while I try to explain our case.

We are discussing the definition of indirect discrimintion in the Bill. Since, for reasons which have been explained in our discussion of what is now Clause 49, the Government cannot accept a new definition of indirect descrimination, the noble Lord is seeking to give the tribunal a more interventionist role in individual cases of discrimination. The objective of the amendment, as I understand it, is that, where the tribunal finds a complaint before it to be well founded, it may recommend that the respondent takes whatever action appears appropriate to the tribunal to promote equality of opportunity.

The Government have already placed a duty on the commission—where they consider such a duty more appropriately rests—to follow the proceedings in individual cases, to form an opinion that there had been a failure to afford equality of opportunity and to accept written undertakings from employers on the remedial action to be taken. If undertakings are not forthcoming, the commission can proceed to full-scale investigation of the employer under Clause 11. In our view the amendment is still unnecessary. The forming of an opionion by the commission acts as a clear signal to the employers that remedial action is required.

As I explained in moving the earlier amendment, we believe that it is inappropriate to place the power to recommend that the respondent take action on the tribunal rather than the commission. It is inappropriate because the only way of enforcing a recommendation such as is suggested in the amendment would be by means of an investigation by the commission. Indeed, it seems as though the purpose of the amendment is to provoke such an investigation. But this could cause considerable complications. An investigation could lead to undertakings and directions. These undertakings and directions may be appealed to the tribunal. If it was a tribunal recommendation which stimulated the investigation in the first place, then no employer would have any confidence that his appeal would be heard objectively. The amendment would thus unintentionally and inevitiably compromise the position of the tribunal. Given the status, prestige and enforcement powers accorded generally to the tribunal by the Bill, we consider it essential and imperative to respect the integrity and objectivity of its judicial status and appellate functions. For that reason, we must agree to differ, and I cannot accept the amendment set out so eloquently by the noble Lord, Lord Prys-Davies.

Lord Prys-Davies

My Lords, I am not sure that I presented the case eloquently. I fear that I failed to convince the noble Lord of the essential nature of this amendment. In any event, the tribunal will have the power to make the recommendation. That is part of its inherent jurisdiction and it will have that power. There would be no need for this amendment had the Government accepted our definition of indirect discrimination, but that they have failed to do.

We now have to consider whether we shall bring back this amendment in a refined form because I can see that, as drafted, it is imperfect. That is a matter which we shall consider and on which we shall consult with our advisers. We shall possibly return with this amendment in a refined form at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Clause 53 [Provision of training]:

Lord Prys-Davies moved Amendment No. 59:

Page 46, line 3, leave out from ("37(A)") to end of line 23 and insert— ("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 a community in Northern Ireland 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, provided that access to those facilities for training is not intentionally and exclusively confined to members of that community. (2) For the purposes of this section "community" has the same meaning as in Part II of the Fair Employment (Northern Ireland) Act 1989.").

The noble Lord said: My Lords, the Government approve of affirmative action; namely, action designed to secure fair participation in employment by members of the Protestant or Catholic community. We fully support affirmative action.

However, the employer who sets up an affirmative action scheme must be protected from a claim that his affirmative action programme itself constitutes a violation of the prohibition againt discrimination. The Government now accept that the employer must be protected from that challenge and seek to do so in the complex Clause 53.

We believe that Clause 53 is faulty, as it protects the employer only from a charge of indirect and not direct discrimination. The protection which is required in this sort of legislation is normally given by a specific exemption for an affirmative action scheme. Indeed, it was pointed out in Committee by the noble Lord, Lord Bonham-Carter, and the noble Baroness, Lady Seear, that British legislation on race and sex allows for gender and race exclusive training.

Amendment No. 59 exempts affirmative action schemes for the benefit of under-represened groups, provided that access to the training is not intentionally and exclusively confined to the members of that community. Therefore, that is the case for this amendment. We believe that it is superior to the Government's own Clause 53. I beg to move.

9.30 p.m.

Lord Bonham-Carter

My Lords, this seems to me in many respects the most difficult and the most important clause that we have discussed. What has happened in the past is that, although we have had a law in existence since 1976, it has been shown to be largely ineffective in changing the balance of opportunity between the two communities.

The reasons for that are manifold, but one is discrimination and another is a form of discrimination which leaves any group—for example, the Catholic group—at a disadvantage, not only because of where they live but also because of their qualifications, or so it would appear from their under-representation in certain occupations. The only test by which we can tell if the law is working is whether that representation changes. Therefore, we have to devise means which will qualify the under-represented group to get into the occupation in which it is under-represented. That means training.

We have tried this in the Race Relations Act and in the Sex Discrimination Act. In both those Acts we have clauses which are devoted to the training of either women or members of ethnic groups. This is special gender-related training—gender-specific it is called—or race-specific training so that those groups can be brought up to a standard where they can compete. The position is then reached that in the application for a job it is done strictly on merit. However, what is not done on merit is the training offered to those people who have been disadvantaged. That is why it is so difficult and complicated.

One also runs into two different problems—I have drawn the attention of the Minister to Clause 47 in the Sex Discrimination Act 1975 and I also draw his attention to the comparable clause in the Race Relations Act 1976. Both seem to me to be simple, clear and unambiguous. There may be special reasons why they cannot be translated into Irish legislation, and if so I should like to hear them. But it seems to me that the criticisms made of the Government's clause by the noble Lord, Lord Prys-Davies, were well-founded.

For example, the real trouble, pointed out by the noble Lord, is that if people followed that clause they might find themselves guilty of direct discrimination. Let us suppose that one sets up a training centre in West Belfast. It would be a foolish person who did not know that that would make it almost impossible for members of one community to attend that training course. Indeed, that would be the purpose—not to prevent the others attending it, but to catch those who had not in the past been able to get training. I should have thought that would be said to be direct discrimination.

I do not see how the Government's clause avoids that problem. The second difficulty is that I understand the Equal Opportunities Commission in Northern Ireland is worried about the clause and believes it may suffer from it. Therefore, I feel that even at this late stage this crucial element in the Bill—the part that is atttempting to change the situation—deserves most careful thought, even if it is only in the next few days. The amended clause put forward by the noble Lord, Lord Prys-Davies, is an improvement on the clause in the Bill. It may not be perfect, and perhaps we should endeavour to get something better, but it is certainly better than the present clause. I therefore support the amendment.

Lord Lyell

My Lords, the amendment that has been moved by the noble Lord, Lord Prys-Davies, ably supported by the noble Lord, Lord Bonham-Carter, takes us once again into very familiar territory. I was not necessarily thinking of West Belfast this early in the evening. We are dealing with affirmative action training and protection from both direct and indirect discrimination. When we come to our own alternative Amendment No. 60, I shall have something more to say, given that there is that possibility. I ask your Lordships to glance at the contents of what is now Clause 53.

I believe that clause meets the purposes which I understand this amendment is designed to achieve. It does so by applying a test which is more objective than that of intention which is proposed in this particular amendment. Essentially this is a reworking and refining of an amendment moved and then withdrawn at an earlier stage by the noble Lord. It certainly helps to clarify the distinction which noble Lords opposite draw between what they refer to as religious-specific and religious-exclusive training. In their terms religious-specific training means training taking religion into account to the extent of explicitly targeting training on an under-represented community, but not excluding those of other religions. I believe the noble Lord's reference to West Belfast and the reference made by the noble Lord, Lord Hylton, at an earlier stage, were relevant in their area.

Religious-exclusive training, in this amendment involves excluding all those who are of another religion. I am grateful to the noble Lord, Lord Prys-Davies, for refining his by now very familiar amendment to make their distinction clearer; and in doing so of course, for recognising that clarification was needed on the point. The new amendment also removes explicit reference to the Catholic and Protestant communities from the face of the Bill but achieves the same effect by attracting the definition of community in Part II of the Bill.

What is at issue in this amendment are two different approaches to the same basic objective. For the reasons outlined at an earlier stage when moving the adoption of what is now Clause 53, we believe that that clause is the best means of securing that objective. It protects affirmative action training from both direct and indirect discrimination while continuing to make it clear that religious-exclusive training is illegal. 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 political opinion.

I know that in Committee the noble Lord, Lord Prys-Davies, suggested that an intention to benefit a particular religious group will amount to direct discrimination by virtue of Clause 53. I have to disabuse him. That is not so. Clause 53 provides for the targeting of training, both in terms of location—that is the West Belfast argument—and in terms of class. That would cover women or race if needs be. So it can be used effectively to target training to areas, or in terms of selection criteria, that would favour an under-represented group and would be intended to do so. It follows that religious under-representation would be taken into account in targeting the training without risk of direct discrimination. We have carefully framed what is now Clause 53 so that a person who intends to benefit an under-represented group is protected from allegations of both direct and indirect discrimination, so long as members of the majority group are not expressly excluded.

I hope that in my words, which may not be as eloquent as those of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, I have explained why we believe that Amendment No. 59 is not a suitable vehicle for achieving the objectives which are sought for it.

Lord Prys-Davies

My Lords, this is obviously a difficult and complex area of the Bill. There is a significant difference between the Government's position and the position of the Official Opposition. We believe that affirmative action programmes designed to rectify religious imbalance in the composition of the workforce must inevitably contain an element of direct discrimination on religious grounds. But, according to the Bill, employers are not allowed to take this factor into account when pursuing affirmative action. We believe that in practice the Government's position is untenable. We are at a loss to understand why they are determined that employers in this situation shall not take religion into account when designing their schemes of affirmative action, given that the object of affirmative action, as spelt out in Clause 57, is to secure fair participation in employment by members of the two religious communities.

If the Government are not prepared to provide explicit protection for religious specific training programmes, it will be a brave man who will set up a religious specific training scheme. The noble Lord, Lord Bonham-Carter, and the Minister have said that this is a difficult area. We do not think that Clause 53 deals adequately with the position. However, we shall read the contributions of the noble Lord, Lord Bonham-Carter, and of the Minister and probably return with this issue at Report stage.

Baroness Seear

My Lords, the Minister said that one cannot have religious exclusive training programmes because that would be direct or indirect discrimination. The whole point of sections in both the Race Relations Act and the Sex Discrimination Act is that there are provisions relating to the underprivileged and under-represented groups. That is the whole purpose of the exercise. As I said in Committee, there are women-only management training courses. They are exclusive to women. Men cannot go on them. That is permitted by the legislation. It exempts them from the charge of indirect or direct discrimination. That is specifically said in the legislation.

In Committee I understood the Minister to say that the women were arguing that any such training, focused exclusively on the minority religious group, the under-represented religious group, would fall foul of the sex discrimination legislation. Could not that problem be avoided by saying that any religious exclusive training must provide for both male and female in that exclusive group? If that were so, it would meet the problems of the women who say that exclusive religious training might leave out women altogether. Could that not be brought in so that the objections can be met by writing into the Bill that it must include both male and female in the exclusively selected group? I ask that as a question. If that is the only objection as regards women, I can see no other objection to exclusive training. Of course exclusive training is what you want if you wish to enhance the opportunities of the under-represented group.

9.45 p.m.

Lord Lyell

My Lords, with the leave of the House, and at this late hour I am afraid that I do not have much to add to what I have already said. I am not entirely on all fours with what the noble Baroness is driving at, but perhaps I may consider carefully what she said and, if she wishes, we may take further action at a later stage of the Bill's proceedings. I think that that is all I can do in the circumstances. I cannot give a helpful or indeed a meaningful answer this evening.

Lord Prys-Davies

My Lords, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No 60: After Clause 53, insert the following new clause:

("Redundancy

. After section 37A of the Fair Employment (Northern Ireland) Act 1976 there is inserted—

"Redundancy

37AA.—(1) This section applies where—

1. (a) a practice relating to the selection of employees who may be dismissed as redundant is followed by an employer in pursuance of affirmative action and in accordance with an agreed procedure, and
2. (b) the practice does not involve the application of any condition or requirement framed by reference to religious belief or political opinion, but has or may have the effect that the proportion of employees of a particular religious belief or political opinion who are selected is smaller than the proportion of employees not of that religious belief or, as the case may be, not of that political opinion who are selected.

(2) The dismissal of an employee in pursuance of the practice is not by virtue of section 16(2) unlawful under any provision of Parts III and IV.").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 61. Both amendments are tabled in my name on the Marshalled List. The intention behind Amendment No. 60 is, I hope, apparent. We recognise, and I believe that it is generally accepted, that redundancy practices could have an effect which would compromise progress towards fair participation. If the result of affirmative action carried out by an employer had been to help correct under-representation in the workforce, it is not too difficult to see how a typical redundancy scheme, operating on the last in, first out basis, could completely undermine the beneficial results which he managed to achieve.

We have set our face against job selection or promotion, let alone selection for training courses, on the basis of religion. The merit principle applies at the point of selection. It follows that we are not prepared to act in the selection for redundancy on the basis of religion. Such selection would be discriminatory and illegal and would be contrary to the basic principles of fairness and equity which inform this legislation. Redundancy which is discriminatory in itself is therefore unacceptable as a solution to the problem that we have identified.

There is one more consideration. In drawing up the criteria for a redundancy scheme we must look into the overall balance of skills, qualifications, disciplinary record, flexibility and so on of the workforce as well as the long-term requirements of the employer. Leaving other considerations aside, we think that it is wrong to expect an employer to implement a redundancy scheme which maintained progress in the fair employment front but which denuded his undertaking of necessary skills and experience. All of those are important considerations. They have helped our thinking and they indicate the general context for this amendment.

I believe that the amendment is essential. It will allow an employer to safeguard the progress which has been made for fair participation. Further, it will not jeopardise industrial relations because it is firmly based upon agreed procedure, and it will protect the employer himself from charges of direct or indirect discrimination. I beg to move.

Lord Prys-Davies

My Lords, we thank the noble Lord for introducing this amendment to the Bill, but we are concerned about the proposal. On Second Reading, and again in Committee, we pressed the Government to include redundancy procedures within the context of promoting equality of opportunity. We thought that the progress towards fair participation should not be weakened or compromised by redundancy schemes.

The Minister promised that the Government would introduce an amendment, and we now have that amendment. It is complex. It appears to us to be faulty in conception and in execution. It is faulty in conception, because it purports to protect those redundancy schemes which are themselves part of an affirmative action. What is the position when a company's redundancy policy is not part of the affirmative action? If a business runs into unforeseen difficulties, it may have to make certain employees redundant. That redundancy would not be part of an affirmative action programme. What will happen where the redundancy scheme is not part of the affirmative action policy?

It is faulty in execution because the redundancy must be, in accordance with an agreed procedure". That term is not defined. Will the Minister tell us with whom the procedure must be agreed? Who is to be the other party to the agreement? If it is meant to be the trade unions, the shop stewards, has the point been cleared with the unions? We are uneasy about the amendment. It appears to be extremely complex and faulty on the two grounds that I have mentioned.

Lord Bonham-Carter

My Lords, I wholly agree with what the noble Lord, Lord Prys-Davies, said about the obscure phrase, in accordance with an agreed procedure because we do not know with whom it is to be agreed, what the procedure is or who would agree it if it were proposed..

What struck me earlier was when the Minister said that the Government have set their faces—I believe that I quote him—"against job selection or training on the basis of religion". If that is a statement of government policy, it explains why they have such trouble with Clause 53, which is about training on the basis, and it has to be on the basis, of under-represented religious groups. It is therefore in some way training on the basis of religion.

Does the Minister mean what he says? If he means what he says, he cannot have that kind of training. If he does not mean what he says, what does he mean? This is close to the heart of the matter around which we have been walking for a lot of this evening. In other respects, I agree fully with what the noble Lord, Lord Prys-Davies, says.

Baroness Seear

My Lords, perhaps I may attempt to clarify a point because I am also confused about redundancy in relation to agreed procedures. It must obviously be in relation to an agreed procedure with the trade unions. I envisage that any redundancy programme drawn up in agreement with the trade unions would include certain specific factors, of which one might be skill and another length of service. It is almost certain to take into account length of service—last in, first out.

The normal practice is for the unions to ask for last in, first out and then to make reservations to the point on various grounds. If those criteria are laid down clearly enough, it is possible for members of either religious group, if they are made redundant, to challenge that under the terms of those criteria they should not have been made redundant. They can protect themselves. I am not sure whether it needs to go into the legislation. If there are clearly defined factors to say who is to be made redundant, and you, Mr. O'McCarthy, are made redundant and you can at least show that under the terms of all those factors someone else—Mr. Prot—should have been made redundant, you can surely claim that that is unlawful discrimination.

What worries me here is the extent to which last in, first out is a major criterion for redundancy, as it frequently is. Could it not be the case that in certain areas where until recently almost all the people taken on have been Protestant and then, because of the operation of a non-discriminatory policy, a considerable number of Catholics are taken on, last in, first out means that they will be the ones to go? That is correct under the last in, first out criterion. However, incorrectly it could be indirect discrimination and the point needs to be clarified.

The idea is to have criteria which are clearly understood and agreed with the trade unions and then applied in redundancy. That leaves open the opportunity for someone to appeal that in terms of these criteria there has been discrimination on the grounds that somebody has been shuffled onto the list who ought not to be. We all know that this happens again and again in connection with redundancy.

People are shuffled onto the list because they are somebody's non-blue-eyed boys. This happens everywhere. If they can take their case somewhere, to the tribunal, and establish that it was discrimination on grounds of religion and not in accordance with the criteria, then they are covered. However, that does not cover the last in, first out point, unless something is put into the legislation to make sure that it does. I should like clarification on that point.

Lord Lyell

My Lords, perhaps I may reply. I have listened to what the noble Baroness has had to say and I shall certainly come to the point of the noble Lords, Lord Prys-Davies and Lord Bonham-Carter. We are most grateful for the contribution from the noble Baroness. She has discerned the scope and intent, as well as the effect of the amendment. I shall have one or two more amplifications to add to the process of redundancy.

First, I have a definition here of agreed procedures. This follows other industrial relations legislation which requires agreement to redundancy measures by employees and their representatives. So I hope noble Lords will agree that, as far as possible, in this difficult and often painful area agreement between employers and employees' representatives is paramount. I stress that where the redundancy scheme is not part of affirmative action the employer has no special protection. Indeed, he does not need any. I have stressed that we are concerned only to protect against the erosion of gains, not to provide for selection for redundancy on the basis of religion.

Perhaps I may amplify the amendment slightly. It gives employers the flexibility which I think is necessary in this area to negotiate a redundancy scheme which must not involve any condition or requirement framed by reference to a religious belief or political opinion. But as the noble Baroness pointed out, it may have a disproportionate effect on one community. It protects such schemes from the problems of both direct and indirect discrimination.

However, in order to do that we must meet three conditions. I shall just go through them briefly. First, the scheme is being carried out in pursuance of affirmative action. That means that the objective of the scheme is to help secure fair participation in employment. Secondly, the scheme must be in accordance with the agreed procedures. That means that it would have been agreed by the unions or the representatives of the employees, and it will certainly not in any way constitute a threat to good industrial relations. Thirdly, the scheme must not be selective on the basis of religious belief or political opinion.

That means that, while a larger number of persons from one community than from another may be affected by the scheme, religious belief or political opinion is not made a condition for inclusion in it. That is, of course, fully consistent with the protection which is afforded to affirmative action training by Clause 53. I hope that that goes some way to amplifying what I set forth at the outset. I am very grateful to the noble Baroness for bringing up this aspect of the amendment. I beg to move.

10 p.m.

Baroness Seear

My Lords, with the leave of the House, I do not think the noble Lord dealt with my problem about last in, first out. There has been a recent recruitment programme which has taken in a larger number of Catholics than Protestants. The latter would therefore under a last in, first out criterion, go.

Lord Lyell

My Lords, the last in, first out method is one of several methods. As I said, if by an agreed procedure a large number of Catholics was the result, I think that in the three conditions which I stressed that would certainly be part of the agreed procedures. I do not believe there is any need for a specific reference to last in, first out schemes. Although they may be in the majority, other schemes may exist also. They are covered by the amendment to the extent that in appropriate circumstances we should want to see such schemes abandoned. That would be precisely the case when a last in, first out scheme would have the effect of eroding gains made by the under-represented community.

Lord Prys-Davies

My Lords, with the leave of the House, will the Minister indicate precisely what part of his amendment deals with the practice of last in, first out?

Lord Lyell

My Lords, I said that last in, first out was one of a number of schemes. I do not necessarily take the thrust of the noble Lord's point. However, we are coming close to abusing the rules on Report. I have stressed all the conditions and the agreed procedures and I think that last in, first out, where it is covered by the agreed procedures, should not represent a problem. I covered the other problems which may be in the mind of the noble Lord, Lord Prys-Davies.

As I said, the amendment, if it is carried, will give employers flexibility subject to three conditions. I think the noble Lord heard what I said, but those three conditions certainly would cover all aspects of last in, first out. I amplified that for the noble Baroness, Lady Seear.

On Question, amendment agreed to.

Clause 54 [Measures to encourage applications etc. from under-represented community]:

Lord Lyell moved Amendment No. 61: Page 46, line 24, leave out from beginning to ("there") in line 25 and insert ("After section 37A of the Fair Employment (Northern Ireland) Act 1976").

The noble Lord said: My Lords, this is consequential upon Amendment No. 60. I beg to move.

On Question, amendment agreed to.

Clause 57 [Meaning of 'affirmative action]:

Lord Prys-Davies moved Amendment No. 62: Page 47, line 22, at end insert— ("and "fair participation" means a more representative distribution of employment between the two communities").

The noble Lord said: My Lords, the object of this amendment is to define the concept of fair participation which is used in the Bill. Affirmative action is defined in Clause 57 as action which is designed to secure fair participation in employment by members of the two communities. That is a key concept, but nowhere in Clause 57, or anywhere else in the Bill, are the words "fair employment" defined.

In Committee, the Minister introduced at least two amendments. The concept of fair participation was used in both of them, but again the term was not defined. We do not quite understand the Government's reluctance to define the term. Amendment No. 62 offers a definition. I should be the first to accept that there is no novelty at all about the definition which appears in our amendment. It is not a definition that we have thought out. The definition comes from the Government White Paper which preceded the Bill.

We believe that a Bill such as this, which is designed to promote fair employment, should be specific about what is meant by the term. The amendment provides a definition and we believe that that definition gives an objective standard by which progress towards equality of opportunity can be measured. Therefore we believe that the definition would improve the Bill substantially. I beg to move.

Lord Lyell

My Lords, the amendment raises an issue that we have been through at considerable length both here and in another place as to what is a proper definition of "affirmative action". The term can be given different definitions in different jurisdictions. The noble Lord has suggested the meaning of "affirmative action". There is a definition in paragraph 3.20 of our White Paper—I am thankful to learn that the noble Lord has looked at it—and one wonders why it does not appear in Clause 57. However, we do not think that this amendment is necessary or indeed that it would meet the spirit of paragraph 3.20.

May I explain briefly the two main points? The definition of "affirmative action" in the Bill is deliberately drafted as widely as possible. We did that in order to strengthen the Bill by avoiding too specific a definition which would prove limiting in subsequent interpretation and practice. The definition strengthens the Bill by giving the commission—the commission itself will draw up the code and specify alternative action measures within it—the widest flexibility and discretion in issuing recommendations and directions on the specifics of affirmative action. The same discretion would be given to the new tribunal when it issues orders of enforcement which incorporate affirmative action measures.

The objective of promoting more representative distribution of employment within the workforce is set out and that objective is implicit in the three aspects of the definition of "affirmative action". First of all, there is action designed to secure fair participation in employment by members of the Protestant or Catholic community by means including the adoption of practices encouraging participation. Then there is the modification or abandonment of practices which restrict or discourage fair participation.

I come back to fair participation in the terms suggested by the amendment. It is left at large in the Bill; it is not defined. That is deliberate, for the reason that fair participation depends upon the circumstances of each individual case. It can be defined, first, by the employer himself taking account of his location, the jobs on offer, the wages paid, the nature of the work and the prevailing pattern of travel to work. The second instance can be defined by the commission in a number of circumstances when it analyses monitoring returns and when it inquires into a new employer's monitoring returns on the outcome of his review. Similarly, the tribunal could take a view of what constituted fair participation, considering any appeal against the direction of the commission.

For all these reasons, I have to consider the amendment proposed by the noble Lord to be unnecessary. Certainly we endorse the spirit and the intention behind it. We understand that he wishes to achieve something further, but we think that that is already incorporated in the broad and expansive definition of "affirmative action". That is why we would ask your Lordships not to accept this amendment.

Lord Prys-Davies

My Lords, I thank the noble Lord for a few crumbs of comfort. I have had a quick look at Clause 57, to which he has referred, but I do not see the term defined there. Notwithstanding what the Minister said, it is puzzling why this definition was adequate when the White Paper was published but is now no longer adequate. That is not at all clear to me. Indeed, if I may be frank, we on these Benches are left with the impression that the Government's real reason for refusing to adhere to the definition in the White Paper is possibly connected with their unwillingness to set themselves targets for reducing the staggering differential rate of unemployment between Catholics and Protestants. That is the uneasy conviction which is growing among us. However, I shall not press the matter further this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 63: After Clause 57, insert the following new clause:

("Repeal of certain provisions of Fair Employment (Northern reland) 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) should cease to have effect.").

The noble Lord said: My Lords, we had a long discussion in Committee about this amendment. Its effect is to allow independent scrutiny by the judiciary of the national security notices issued by the Secretary of State. It was also discussed at Second Reading.

I want to emphasise that we accept that the Secretary of State must have the right to issue a national security notice even though the effect. of that notice is to prevent an investigation by the commission into the merits of a claim of alleged discrimination. It worries the Official Opposition and many people in Northern Ireland that, as the law stands, that certificate cannot be challenged. It is unappealable and cannot be challenged.

In Committee the Minister seemed to draw comfort from the fact that certificates had only been issued on 17 occasions. That, we believe, misses the point. I accept that there were 17, but there is no means of knowing whether those certificates had been validly issued.

In Committee the Minister opposed the amendment on the basis that to dismantle the certification process would undermine national security. We did not advance that argument. The argument is totally misconceived because the amendment does not call for the procedure to be dismantled.

We pointed out in Committee that under Part II of the Bill a contractor who is certified by the Secretary of State as being an unqualified person on grounds of national security is entitled to apply for judicial review of such a decision. If a contractor is entitled to judicial review, why cannot the ordinary individual who believes that he has been unfairly discriminated against apply for judicial review? Moreover, but subject to what the Minister will have to tell us about the Government's Amendment No. 68, a national security certificate issued under the sex discrimination order can be the subject of judicial review.

As I said, there is widespread concern in Northern Ireland and, I believe, among the Opposition parties generally about this order. Indeed, the Minister in Committee acknowledged that there was concern. The fact that the certificate has been issued on only 17 occasions in no way allays our fears. I beg to move.

10.15 p.m.

Lord Bonham-Carter

My Lords, I should like to say a few words in support of this amendment. Not only is it causing concern in Northern Ireland, but it seems quite unacceptable in any part of this country that the Secretary of State should have the power to issue a certificate which is then conclusive evidence that an act has been committed and prevents any investigation into a complaint in respect of which such a certificate had been issued. That cannot be regarded as a respectable mode of procedure or one which inspires confidence anywhere. In my view it is totally unacceptable.

I thought that the Minister had said at Committee that he would consider the position, and that he saw the force of introducing some independent element to scrutinise these matters. As the noble Lord, Lord Prys-Davies, has pointed out, the Sex Discrimination (Northern Ireland) Order 1976 has been amended to allow judicial review in the context of sex discrimination in Northern Ireland. Why is it only allowed to women and not to other people? It seems to me that the Government have a duty to do something about this.

Lord Lyell

My Lords, the noble Lords, Lord Prys-Davies and Lord Bonham-Carter, went over this ground at an earlier stage. It was raised even at Second Reading. I acknowledge that both noble Lords this evening have produced one or two new, interesting sides to the argument. I do not wish to repeat all the arguments that I deployed at an earlier stage, let alone at Second Reading. Perhaps I may make two points in defence of our position.

We are on all fours with the noble Lords who have spoken that the arbitrary use of power is reprehensible. However, as I tried to stress last week, and I certainly would point it out again this evening, the way in which the power of my right honourable friend the Secretary of State under the 1976 Act to issue Section 42 certificates is used is by no means arbitrary.

The noble Lord, Lord Prys-Davies, took me to task last week—he has taken me to task again tonight—by saying that 17 certificates issued in 13 years is too many. Perhaps it is. But both noble Lords, and all of your Lordships who are here this evening, will be conscious of the very considerable responsibility which is vested in my right honourable friend in exercising that arbitrary power. We are discussing security. We are discussing not just reasons which might be relevant elsewhere—in your Lordships' House, in England, in Wales or in Scotland—but matters of security and of 'very difficult circumstances in Northern Ireland. I hope that the noble Lord, Lord Bonham-Carter, accepts this point. I certainly stress it once again. Any decisions-17 in 13 years—are taken only after the very closest inquiry, scrutiny and deliberation.

At Committee stage recently I stressed that we are still examining the administrative procedures which are followed before a certificate under Section 42 is issued. I am afraid that I cannot be more helpful to the noble Lord, Lord Prys-Davies, than I was last week about how our inquiries are proceeding. I assure him that we shall continue to examine this problem to try to identify any ways of making changes to the system under Section 42, both in administrative terms and in terms of trying to identify—the noble Lord raised a point on my earlier words—means of introducing an independent element.

I do not see that this will remove the suspicion, but I feel that it will go some way to allaying the suspicion with which Section 42 certificates are regarded in some quarters. But at all times we must remember the security interests which this system is designed to protect. I should be very dishonest if I suggested that we were able to bring forward proposals in the near future, let alone at a later stage. We take on board all that has been said this evening by your Lordships. We are looking hard at it but I am afraid that I cannot recommend the acceptance of the amendment.

Lord Prys-Davies

My Lords, I listened carefully to what the noble Lord, Lord Lyell, said. It is a disappointing response, bearing in mind that on the Government's own evidence they have been considering the procedures since before the Bill arrived in this House. We did not say that the Government had issued too many certificates. We did not make that point. The point we were trying to make was that whether the certificates were 17 in number or not, there was no means by which an individual who felt that he had been wrongly discriminated against could call for that certificate to be the subject of judicial review. It is as simple as that.

I adopt all the arguments advanced by the noble Lord, Lord Bonham-Carter. I merely concentrated on the experience of Northern Ireland because at least it has experience of this system. It is aggrieved by the system. I fear that I cannot take the issue any further tonight, but the Government must surely take the point that it is not sufficient for justice to be done. Justice must also be seen to be done. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Minor and consequential amendments]:

Lord Lyell moved Amendments Nos. 64 to 66:

Page 50, line 34, leave out ("either") and insert ("any").

Page 50, line 36, after ("President") insert ("or Vice-President").

Page 50, line 40, leave out ("section 2") and insert ("appointed under section 3(1)(c)").

The noble Lord said: My Lords, I spoke to these amendments in the enormous parcel of amendments to which I spoke when I moved Amendment No. 3. They are all consequential. I beg to move.

On Question, amendments agreed to.

[Amendment No. 67 not moved.]

Lord Lyell moved Amendment No. 68:

Page 54, line 18, at end insert— ("29A. At the end of Article 63 of that Order there is added— (3) Where a complaint is presented to an industrial tribunal under paragraph (1) and it appears to the tribunal that the act to which the complaint relates is one in respect of which (as being unlawful discrimination within the meaning of the Fair Employment (Northern Ireland) Act 1976)—

1. (a) a complaint could be made to the Fair Employment Tribunal for Northern Ireland under Part III of that Act; or
2. (b) such a complaint has been made, but the proceedings under that Act have not been disposed of,

the tribunal shall not proceed further under this Order in relation to the complaint unless all proceedings which can be taken under that Act in respect of the act have been disposed of" ").

The noble Lord said: My Lords, I have had a whisper from my noble friend that I should be brief. I shall be. This amendment concerns sex discrimination. I had a note on a previous amendment asking the noble Lord, Lord Bonham-Carter, to wait for his reply until I reached the amendment on sex discrimination, as I now have.

This concerns the circumstances that might arise when there is a complaint of unlawful discrimination under Part III of the 1976 Act which could also give rise to a complaint of unlawful discrimination under Part III of the Sex Discrimination (Northern Ireland) Order 1976. The amendment seeks to ensure that if there is an issue under Part III of the 1976 Act, that issue is decided first. As such it makes provision equivalent to that of Article 29(2) of the Industrial Relations (Northern Ireland) Order 1976 in respect of a complaint of unfair dismissal where the facts giving rise to the complaint also raise issues under Part III of the 1976 Act.

To ensure that the provisions are effective, we believe that it is necessary to lay consideration before an industrial tribunal of a complaint of sex discrimination which might also involve issues of religious discrimination. That is what the amendment sets out to do and what it will achieve. I beg to move.

Lord Prys-Davies

My Lords, this is another amendment which causes us considerable concern. The Minister has explained the background. It is designed to meet the difficulty which he identified. The Government's solution is to seek to get around the difficulty where there is a conflict between the two pieces of legislation by suspending the proceedings under the sex discrimination order until such time as the proceedings under the fair employment legislation, including possible appeals, have been concluded.

The Minister has not explained to the House why the Government have decided that the sex discrimination proceedings are to be delayed. We have not been given the reasons. He has merely asserted that under this amendment they will be delayed.

We criticise the proposal on three main grounds. First, the proceedings under the Fair Employment Bill could be delayed for two or three years. There may be an appeal to the tribunal, from the tribunal to the Court of Appeal, from the Court of Appeal to the Judicial Committee of this House or a judicial review. A delay of that order—indeed, a delay of 12 months—could prejudice the interests of both parties to the proceedings. We believe that that is wrong.

Secondly, the solution appears to us to offer less favourable treatment to a woman claiming to have been discriminated against under the sex discrimination order. Therefore, we are entitled to ask whether the result will mean a conflict with Community law. Thirdly—and this is an aspect of the second argument—the solution would block or delay a woman's access to a Community-derived right and we believe that that could be contrary to Community law.

The amendment, coming at the end of a long day, has grave implications for the application of Community law. We believe that it is contrary to equal treatment directives. I personally have no experience of Community law. However, if it is contrary to Community law, might it not be possible for an individual or an organisation with a specific interest in discrimination policies to apply for an injunction in order to prevent Parliament from approving the amendment?

Perhaps the Minister can say whether the Department of Economic Development, which appears to have stumbled across this solution late in the day, has taken advice from a barrister specialising in Community law as regards the legality of the amendment. If it has not obtained reassuring advice from counsel, should the Government not withdraw the amendment until advice has been received between now and next Thursday?

Lord Lyell

My Lords, perhaps I presented this amendment in indecent haste. The noble Lord has had a full innings and I shall reply briefly. Under Clause 6 your Lordships will see that the president of the Industrial Tribunal and the Fair Employment Tribunal is empowered to direct that any matters relating to unfair dismissal or sex discrimination raised in a case of religious discrimination before the Fair Employment Tribunal may be heard by that tribunal.

As regards European law, I am advised that we are confident that the amendment does not breach the equal treatment directive. As I said to the noble Lord during Wimbledon, that is the instant volley which I trust will land within the lines. That is the advice I have at present.

Perhaps I may outline the procedure which we envisage will operate. In a case of sex discrimination, an element of religious discrimination arises. The industrial tribunal adjourns. I believe that the noble Lord, Lord Prys-Davies, is rather unrealistic in suggesting that it will adjourn for two to three years to hear these cases. The noble Lord shakes his head but he will be aware of the large tomes, and not just the Mear and Pereira cases which we discussed at the last stage of the Bill. I do not think that they would have required any such adjournment. However, in this case the industrial tribunal would adjourn and the complainant would make a complaint of religious discrimination to the Fair Employment Tribunal. That tribunal would hear both sex and religious discrimination cases simultaneously. I understand that that is how settlement of the case would be achieved.

On Question, amendment agreed to.

In the Title:

Lord Lyell moved Amendment No. 69: Line 2, leave out ("an office of President") and insert ("offices of President and Vice-President").

On Question, amendment agreed to.