HL Deb 22 July 1991 vol 531 cc625-9

1 a.m.

Lord Belstead rose to move, That the draft order laid before the House on 4th July be approved.

The noble Lord said: My Lords, I beg to move this order which relates to an issue that your Lordships have addressed before. Fair employment is important to the political, economic and social well-being of Northern Ireland. There have been advances in the provision of equality of opportunity for both communities since the passage of the Fair Employment (Northern Ireland) Act 1989. However, the recent fair employment Act which I have just mentioned was found to have a weakness in the discrete but important area of individual cases of alleged discrimination.

Noble Lords may recall that up to 1989 the determination of such cases rested with the former Fair Employment Agency. After 1989 the determination passed to a new Fair Employment Tribunal and such cases were handled in similar manner to sex discrimination cases in Northern Ireland and Great Britain and race discrimination cases in Great Britain.

In October 1990, in the case of Pryce v. University of Ulster, it was found that the confidentiality provisions relating to information from which community affiliation could be determined were too widely drawn. The confidentiality of such information is important in Northern Ireland, where an individual's religious affiliation is perhaps a matter of greater sensitivity than in the rest of the United Kingdom. So it was both important and appropriate that the 1989 Act should have protected the confidentiality of such information.

But the legislation of 1989 was unbalanced in that the effect of Section 30 of that Act was that no information on community affiliation could be divulged either to individual complainants wishing to pursue a case or to employers who might wish to use such information in answering a case. In effect the defect in Section 30 stopped the processing of all individual cases before the Fair Employment Tribunal. Some 330 cases are now logjammed. The primary purpose of this amending order is to enable those cases to flow again—and to flow as quickly as possible—to and through the new Fair Employment Tribunal.

When government addressed the problem of Section 30, and consulted widely upon it, the views divided upon the most appropriate form of remedial action. Some favoured total repeal of Section 30, effectively removing confidentiality altogether. Others, while accepting the need for some amendment of Section 30, wished to retain very tight prohibitions on the disclosure of monitoring information. So it was necessary to find a means of balancing the need for disclosure with the concern that the confidentiality of such information should be respected and protected.

It is important to mention that the monitoring of a large number of smaller employers—those with 10-plus employees—is due to commence in January 1992. So the retention of some confidentiality will become even more important for a wider number of people. At the same time, the tighter and more stringent the prohibition on disclosure, the greater is the legal risk of inordinate delay, legal complexity and dispute.

Accordingly, the Government have decided upon an approach, which we are laying before your Lordships today, which we consider a reasonable compromise between the competing requirements of confidentiality on the one hand and disclosure on the other.

Briefly, the draft order has the following features. It will repeal Section 30. It will add a new provision to Section 28 of the 1989 Act to enable monitoring regulations to provide for the confidentiality of monitoring information. It will enable new regulations to be made which will define the information to be protected and to set out exceptions. Those are set out in Article 3.

However, the amending order does not require disclosure of monitoring information. Nor in fact do the regulations which are to be made under the new provisions of Section 28. So an employer as at present will not be required to disclose information unless ordered to do so by the Fair Employment Tribunal. The amending order and regulations are premissive. The regulations will allow but not compel employers to disclose otherwise confidential information in certain specified circumstances.

The order has three main features. First, it protects information about religious affiliation obtained from the three principal methods of monitoring. Secondly, it protects information on the determination by an employer of the community to which an employee or applicant is treated as belonging for monitoring purposes. Thirdly, it provides exceptions in regulations and in the order to allow, but not to compel, disclosure of otherwise confidential information.

This draft order has been debated both in the Northern Ireland Committee and in another place. The debates have reflected different views on the way forward; but they have also reflected a unanimous recognition that it is important in the interests of equity and of justice that the Fair Employment Tribunal begins to address individual cases as quickly as possible. That is important not only to the individual seeking justice before the tribunal but also to the overall effectiveness and general impact of the Government's fair employment legislation. One of the best ways to facilitate the success of that legislation is to encourage inward investment and job creation. Fair employment and equality of opportunity are both best promoted in healthy and robust economies where there are expanding job opportunities. That is why campaigns, ostensibly for fair employment, but which in practice discourage investment and job creation are both damaging and misguided. People who do that cut off those essential new job opportunities that can do so much to sustain and increase the momentum of best fair employment practice.

Accordingly, in commending this draft order to your Lordships, I also call upon your Lordships, as in the past, to express your support for the complementary objectives of fair employment and job creation. If your Lordships think that is right, it will transmit a positive message of hope to all those genuinely concerned with equality of opportunity and economic prosperity in Northern Ireland.

Moved, That the draft order laid before the House on 4th July be approved—(Lord Belstead.)

Lord Prys-Davies

My Lords, I thank the Minister for explaining the significance of the order so clearly and convincingly. We on these Benches fully support the order and the reasoning upon which it is based. It was appreciated two years ago when we were discussing the provisions of the Bill that we are amending, that they would have to be read alongside the provisions of the Fair Employment Act 1976. However, it is now clear that we did not examine carefully enough the impact of Section 30 on individual complaints of discrimination under the Fair Employment Act 1976. In the result, it was left to a respondent, in the position of the University of Ulster in proceedings brought against it under the Fair Employment Act 1976 by Mr. Stephen Thomas Pryce, to highlight the difficulty. The Minister has referred to those proceedings.

It should be recalled that Mr. Pryce sought an order that the university o should disclose the perceived religious affiliation of candidates for a particular post at the university. It was the university in reply which claimed that it would be unlawful for it to supply that confidential information because of the operation of Section 30 of the 1989 Act, which makes it a criminal offence to disclose such information, except under the limited circumstance allowed by that section, which the Minister has explained.

The president of the Fair Employment Tribunal refused to make the order that had been sought because he thought that it would be clearly wrong for the tribunal to make an order which carried the risk that it might involve the commission of a criminal offence. The implications of that decision and certain other points raised by the president had relevance in other fields, such as sex discrimination and labour relations. The Minister has told the House that the hearing of over 300 cases of alleged unlawful discrimination are being held up pending this piece of amending legislation.

The president of the tribunal delivered his judgment on 9th October last, and it must be said that the Government have proceeded with commendable speed to redress the position. On 14th November they issued a consultative document, suggesting two main ways of resolving the difficultes, and they have eventually come up with a third option, published in February, which is basically enshrined in the order. It is fair to say that others have flirted with other possible solutions. I am sure that the Minister will confirm that the order, as it now stands, meets with the approval of the Fair Employment Commission, the Labour Relations Agency and the Equal Opportunities Commission.

I note that the effect of the order will be retrospective. As far as I can see, that point was not raised in the consultative document. Ordinarily we are rightly critical of retrospective legislation because it can make for unfairness. However, in the circumstances of this case, there would, in the absence of retrospectivity, be much unfairness and many disputes and difficulties, particularly in cases which have been filed between January 1990 and the coming into force of the order.

The consultative document made it clear that the amending legislation would take the form of an order in council because of the need for urgent action. I note that that position has been the subject of some criticism but, in my view, that criticism does not on this occasion hold its usual merit.

I have made it clear that we welcome the order. For the reasons given by the noble Lord, Lord Belstead, it is in the interests of Northern Ireland that the fair employment legislation should be working smoothly in order to overcome discrimination where it exists, so that, in spite of differences, communities proceed steadfastly towards the objective of a fairer society in Northern Ireland. As I see it, that is part of the healing process. On that, the Minister has offered encouraging and positive words.

1.15 a.m.

Lord Belstead

My Lords, I am grateful to the noble Lord, Lord Prys-Davies, for his reception of the order at this late hour. The noble Lord is always assiduous in being present for Northern Ireland business and I am most grateful to him.

I say that in particular because, as the noble Lord pointed out so clearly in his closing remarks, this is a very important order. As he made clear in opening, the whole idea of the 1989 legislation was in danger of becoming a dead letter because the Pryce v. University of Ulster case fell to the ground due to the unworkability of Section 30 of the 1989 Act. I believe that the noble Lord and I are both relieved that that is now to be unblocked. This House will now give effect to the order, another place having looked at it.

The noble Lord asked me whether the three organisations which the noble Lord mentioned—the Fair Employment Commission, the Labour Relations Agency and the Equal Opportunities Commission—are content with the order. I understand that they are, although it is fair to say that their first preference would have been the complete repeal of Section 30. As I sought to explain in moving the order, the Government felt it necessary to try to find a compromise between the different views on this matter. I hope that the noble Lord believes that we have reached a reasonably good compromise.

Finally, the merit of the order is that we can now get natters going again. It is very important that the matters before the tribunal can now be heard and that we can get the fair employment legislation working again. That is important not only to meet individual needs but for the wider reason that fair employment and t good economy go hand in hand. Once again, I thank the noble Lord for his contribution to the debate. I commend the order to your Lordships.

On Question, Motion agreed to.