EXCEPTION WHERE SEX IS A GENUINE OCCUPATIONAL QUALIFICATION (Hansard, 18 June 1975)

§ Mr. John Fraser
I beg to move Amendment No. 16, in page 5, line 22, after 'in', insert 'or normally lived in'.
Clause 7 provides for exception where sex is shown to be a genuine occupational qualification for a job. The subsection to which the amendment relates provides an exception where the holder of the job is required to live in premises connected with the employment and where the sleeping accommodation is communal and the sanitary facilities, bathing, washing and toilet facilities, are such that they cannot be used in privacy from persons of 1502 the opposite sex and where it is not reasonable for the employer to provide suitable accommodation and facilities, the provision was designed to cover, for example, jobs in ships, lighthouses and remote construction sites.
We now find that it is possible that a problem could arise in applying the subsection as now worded, and particularly in relation to employment in ships. This is a problem which the hon. Member for Barkston Ash (Mr. Alison) raised in Committee on 1st May at the request of the General Council of British Shipping. Unfortunately, some of the finer points of the case for amending the provision did not emerge at the time, but I now accept that the General Council had justification for its representations, and I shall do my best to explain to the House the intricacies of the problem.
The General Council is concerned about the position of shipowners if the first crew member to come forward for employment in a particular ship, where the crew accommodation is communal, happens to be a woman. As the subsection is now worded the exception applies where the premises are "lived in by men". Hon. Members should note that there are the words which are at the root of the problem, but in this particular ship which is due to sail, say, on the following day, the crew accommodation—the "premises" for the purposes of the Bill—is empty. None of the crew members has come forward so far. It is not lived in by men. In fact, it is not lived in by anybody. Therefore, the employer cannot plead the exception. This is the problem, a problem we solve by using the word "normally", so that the clause will read normally lived in by men". In case my hon. Friends think that I am going too far in giving a concession to the General Council of British Shipping I emphasise as strongly as I can that there is the other provision in the clause that for a shipowner to succeed in a defence he must convince a tribunal that the second part of subsection (2)(c) applies, that it is not reasonable to expect him to equip the ship with appropriate accommodation for women. Only if he so convinces the tribunal will he lawfully be able to restrict his crew to men.
1503 I hope that I have the balance right, and that the amendment commends itself to the House.

§ Mr. Ronald Bell
Again I ask for clarification because my hon. Friend the Member for Barkston Ash (Mr. Alison) is not here. I see from the Official Report of the Committee debates that his point primarily concerned a new vessel being commissioned and the first person coming forward being a woman. Can the Minister give the assurance that the words or normally lived in apply to the accommodation in a newly commissioning vessel?

§ Mr. John Fraser
I am not sure what the hon. and learned Gentleman means by "newly commissioning vessel". The words apply not to a new vessel but to a vessel which is about to take on a crew. I am not sure whether the hon. and learned Gentleman means a completely new vessel or one about to go on a new voyage.

§ Mr. Ronald Bell
In the Standing Committee my hon. Friend the Member for Barkston Ash (Mr. Alison) postulated a new ship which had not been lived in, where the crew accommodation was obviously intended for men. He pointed out the difficulty if the first person to come forward is a woman. As he said, in a ship of any size it would not be possible to have a crew consisting wholly of women at present, and therefore there would be an impossible situation. Is that covered?

§ Mr. John Fraser
That is the situation dealt with by the amendment, which would apply whether it were a new ship or an old one.
The only matter that might have to be taken into account, if the employer had commissioned a brand-new ship, would be the provision about reasonableness. Such a defence might not be so readily available to him as with a ship constructed or commissioned well before the passing of the Act.

§ Mr. Stanbrook
How is it that a ship which has never been lived in can "normally" be lived in within the terms of the subsection?

§ Mr. Ronald Bell
I congratulate the Minister on the answer he gave me, and 1504 thank him for it. It was precisely the answer I had hoped that he would give, because if a brand-new ship with crew accommodation can have that accommodation described as "normally lived in by men" there is a great deal to be said for what the Minister has been saying, as "normally" there means "according to the prevailing customs of the times". As long as that governs the interpretation of the Bill, I am quite happy.

§ Mrs. Colquhoun
I hope that these proceedings are not being broadcast. If they are, we shall all get the sack at the next election.

§ Mr. John Fraser
I shall consider the point about the brand-new ship. It had not occurred to me before.
However, I recommend the amendment to the House on the basis that—and I must be careful about this—if it can be established that the accommodation was designed for men the amendment would be intended to apply to a newly commissioned ship as well as an existing ship.

§ Mr. Ronald Bell
I beg to move Amendment No. 17, in page 5, line 25, leave out sub-paragraph (ii).
I wish to omit subparagraph (ii) of subsection 2(c) on which the Minister has been relying so heavily. It is the subparagraph which says that: it is not reasonable to expect the employer either to equip those premises with such accommodation and facilities…". This provision should be omitted because it is unreasonable.
Who on earth will decide whether it is reasonable for someone to build new premises? The Minister dealt with this provision as though it were all about ships. Of course it applies to ships, but it also applies to everything else. Clause 7 is a perfectly general clause. The heading says: Exception where sex is a genuine occupational qualification. Therefore, certainly it applies not only to ships.
It is a good, old clause about the authentic male characteristics. It is the lavatory clause—and all that. Nothing would help the Bill to make sense, but if we did not have Clause 7 the Bill 1505 would be such manifest nonsense that it would have been laughed out on Second Reading.
We should not have the impression that the lines which I am seeking to omit are about ships in particular. They are about anything. The question is raised whether being a man is a genuine occupational qualification for a job. Someone has to decide whether an employer should build new accommodation and equip it for women. This is a most extraordinary provision to put in a Bill. I can understand a Bill that says that an employer must not discriminate between whether men and women can both do the job. However, to say that the employer will be committing an unlawful act if he does not employ a woman because he has an existing establishment where the accommodation permits only the employment of men is going a little too far. Shall we have all sorts of accountancy evidence about the capital costs involved, the interest charges, the expected future of the business, the demand for products and other matters of that kind? Who will examine all this rubbish—a county court judge or an industrial tribunal?
Let us have some practical common sense. If the employer does not have the right accommodation, that is it. If he has, we are back to the general principle of the Bill, which I do not like but which the Minister does. I ask him to throw out these lines and to make the Bill just that shade less absurd than it is at present.

§ Mr. John Fraser
It is not that the Bill be a shade less absurd. It is that it would be a shade less effective, and we intend that it should be as effective as possible, that it should have the minimum number of exceptions and that the cost of having to comply with it should not be a defence.
There is a huge yawning gulf between the philosophy of the hon. and learned Gentleman and my philosophy and, I suspect, the philosophy of a great many right hon. and hon. Conservative Members on equal opportunities for women.
We take the view that the exceptions should be minimal. If, for instance, it is necessary to build a second lighthouse in order to provide accommodation for a 1506 woman, we regard that as a reasonable defence for the employer. If it is necessary so to alter a small ship that all the cargo space is taken up in order to provide women's accommodation, the employer or the shipowner should have a defence. However, that apart, if it is reasonable to make alterations, he cannot use that as a defence for having to provide communal accommodation. We apply exactly the same principles in safety legislation and in legislation applying to offices, shops and railway premises. In my view, we ought not to do anything less for women.

§ Mr. Ronald Bell
The hon. Gentleman has not answered the question at all. If it takes up half of the cargo space, or a quarter of it, to put in a women's lavatory, this will produce an absurd position. The Minister said that possibly a good many of my hon. Friends shared my view. Let me tell him that a good many Labour Members also share my point of view. It is just that they are not all bold enough to state it. The amount of genuine support on either side of the House for this Bill could go into quite a small ink pot and leave room for a piece of chalk.
This is one of the silliest Bills that have ever been inflicted on Parliament. It is making a fool of the legislative procedure. It just shows that any set of dedicated cranks who lobby long enough can get any Bill through Parliament.