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Lord Lester of Herne Hill: My Lords, I should be grateful if that could be done. However, I am troubled because I was persuaded not to seek to amend the Northern Ireland Bill to fill the gap. It is not filled by the order and I wonder whether the Minister would deal at least with the merits of the issue. Does he agree that one can think of no good reason for treating discrimination by a public authority as lawful and discrimination by a private person as unlawful, whether indirect or direct discrimination, in providing services and facilities?
I ask that question as a matter of policy and also because I expect that someone will at some time challenge the unfortunate decision by the House of Lords. Can the Minister or his colleagues identify any good reason for that highly restrictive approach to the problem? If not, it must be tested in the court or dealt with by subsequent legislation. If he cannot deal with that matter now can he write to me and to other noble Lords who are interested?
Lord Dubs: My Lords, while listening to the noble Lord, I was tempted for a brief moment to try to deal with the matter here and now. However, it would be wiser to accept his offer to write to him and to the noble Lord, Lord Cope. The issue is complicated and I believe that if I were to enter into it off the cuff I might mislead him. If I misled him on a previous occasion I very much regret doing so. It was not my intention. I answered the final question he put during our debate on the Northern Ireland Bill literally and not in the context that he has now outlined. I agree that that may have been a more appropriate interpretation of his question, but I interpreted it literally. The question he asked had only one answer, which was "yes". I did not qualify the answer and perhaps I should have done. It would be better if I wrote to him on the point he raised.
Lord Lester of Herne Hill: My Lords, I am not at all suggesting that there was any intention to mislead me or the House. I fully understand that under pressure the Minister said "yes" when he might have said "yes, but". I might then have had to press the point, so I shall be grateful if at this stage he could deal with, in correspondence, the mischief I have addressed and say how we can deal with it; whether by way of seeking clarification in the courts, through legislation, or otherwise.
Lord Dubs: My Lords, I shall certainly do so by letter. It might not be a consolation to the noble Lord if I say that had he pursued his amendment at that stage I should have been obliged to resist it, so it would not have passed anyway--I trust. I shall certainly deal with the issue by letter.
The fair employment tribunal has the power to award costs in cases which are frivolous or vexatious. I assure the noble Lord, Lord Molyneaux, that the order has nothing to do with sexual orientation. I take it that the reference to the Equality Council is the Equality Commission created by the Northern Ireland Act.
The noble Lord, Lord Monson, asked about the justification for extending the legislation to include discrimination in the provision of goods, facilities and services and in the management and disposal of premises. It would be ill-advised of me to give anecdotal illustrations or examples as these could be better demonstrated by cases brought in the courts. Answering at the Dispatch Box would not be the best way to clarify this matter. The issues to which the noble Lord referred were not covered in the 1976 or 1989 Acts. The Government believe that any unjustified discrimination on the grounds of religious belief or political opinion should be unlawful. Therefore, as a matter of principle, it is right to extend the legislation to include goods, facilities, services and premises.
If the noble Lord were to look a long way back into the history of Northern Ireland he would find areas where such discrimination took place, but I doubt whether it would be helpful for me at this stage to go down that path.
Lord Monson: My Lords, I am grateful to the Minister for giving way. I accept that entirely. I was trying to ask whether there had been any recent, or relatively recent, cases of such discrimination. I understand why the noble Lord may not wish to give specific examples.
Lord Dubs: My Lords, I am grateful to the noble Lord for his understanding. My noble friend Lord Blease asked about the working group. That is not a statutory body. It will bring forward proposals to Northern Ireland Office Ministers after it has consulted relevant interest groups in Northern Ireland. I note my noble friend's interest in the group's proposals and I shall ensure that he receives a copy of them when they are ready.
I believe that I have dealt with the point made by my noble friend Lord Fitt in relation to shops that do not serve the security forces and indicate that by a notice. I deplore such acts of discrimination, even though they may not be unlawful within the terms of existing legislation. It is not helpful for shops to display such
The noble Lord, Lord Cope, asked a number of specific questions. It will be unlawful to refuse to serve a person of a particular religion. If a member of the security forces were refused service, he might have a case of indirect discrimination against the service provider but it would be difficult, legally, to achieve that.
The noble Lord, Lord Cope, asked about the position of teachers. Employment as a teacher in a primary or a secondary school in Northern Ireland is exempt from the provisions of the order, as the noble Lord indicated. There has been no change in the position since 1976. However, the commission has duty to keep that exemption under review.
The noble Lord referred also to the description of "Northern Ireland Minister" to which we devoted quite some time during the various stages of the Northern Ireland Bill. That expression does not include a junior Minister for the purposes of this order. The only reason for that inclusion in Article 2.2 is to make clear that it includes the First Minister and Deputy First Minister when acting jointly and all Ministers other than junior Ministers. Junior Ministers do not have that particular position.
The noble Lord asked also about the definition of "member" and why it was split between two parts. The simple explanation is that it is merely for ease of reading. There is no complicated thinking at all. It is merely to make it easier to read the text by having it divided in that way.
Lord Lester of Herne Hill: My Lords, before the noble Lord leaves that point, the intervention of the noble Lord, Lord Cope, drew my attention to something of which I was unaware; namely, that trade unions are not covered by the legislation, as far as I can see, whereas they are under the race relations and sex discrimination legislation.
There is no direct provision making it unlawful for a trade union to discriminate on religious grounds against members or applicants for membership or in the collective bargaining process. That is my reading of the order. I thought that I was some kind of an expert and it may be that I am about to be proved wrong. However, if that is correct, the Minister may like to write to me because there is a complete mismatch, if I am right, between the race and sex equality legislation and the religious discrimination legislation. However, I may have missed a provision in the order and I am grateful to the noble Lord, Lord Cope, for drawing the matter to my attention.
The noble Lord, Lord Cope, referred to another point in the White Paper; namely the section in the White Paper which deals with SACHR's recommendations in relation to the constitution Act. The reference there to fair employment legislation is to clarify that the constitution Act provisions were effectively a goods and services provision for the public sector and that the fair employment legislation would extend those to the private sector.
The noble Lord, Lord Cope, raised a number of points about the way in which the order has been drafted. The order is drafted in post-devolution terms with transitional provisions to cope with the interim period. Again, I wish to write to the noble Lord on some of the technical points he raised.
In concluding, perhaps I may make two brief points about the fair employment legislation generally. First, there is evidence that it is achieving increasing cross-community recognition as those of all religious beliefs and none make use of the legislation and come to realise its value in upholding fundamental rights. That is surely a most welcome development.
I should like also to restate the Government's firm commitment to the principle of appointment on merit and their opposition to quotas or any form of discrimination. That is not only morally right but in economic terms it is the only approach which makes sense. More important, it is a key principle to which both communities in Northern Ireland can subscribe.
The merit principle ensures that the legislation is not partisan and that it can make a particular contribution to the success of the political settlement in Northern Ireland. I am encouraged by the progress made in promoting equality of opportunity in Northern Ireland. The introduction of the order will certainly continue that process. For those important reasons, I hope that your Lordships will join with the Government in formally approving the order.
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