POWER TO OBTAIN INFORMATION (Hansard, 18 June 1975)

§ Dr. Summerskill
I beg to move Amendment No. 61, in page 31, line 1, leave out from 'doing' to end of line 4 and insert 'acts of all or any of the following descriptions—

(i) unlawful discriminatory acts,

(ii) contraventions of section (discriminatory practices),
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(iii) contraventions of sections 35, 36 or 37, and

(iv) acts in breach of a term modified or included by virtue of an equality clause,
and confine the investigation to those acts.'

Mr. Deputy Speaker
With this we shall take Amendment No. 67, in page 36, line 29 leave out 'issue' and insert 'in the prescribed manner serve on him'. We shall also take Amendment No. 73, in page 38, line 38, leave out 'section 61(1)' and insert 'paragraph (b), or contravening section (discriminatory practices)'.

§ Dr. Summerskill
Amendment No. 61 relates to Clause 53, which provides that the Equal Opportunities Commission shall have, for the purposes of a formal investigation, power to require the production of written or oral information relevant to it, provided that either of two criteria are satisfied. These two criteria are set out in Clause 53(2) and they represent safeguards for the rights of individuals.
The criteria are that either the commission must be specifically authorised by the Secretary of State to exercise the power, or the commission must believe, and state in the terms of reference of the investigation that it believes, that a person named in the terms of reference may have done or may be doing unlawful discriminatory acts or acts in contravention of the Equal Pay Act.
Clause 53(2) is fine as far as it goes but we feel that it should go further. It covers unlawful discriminatory acts, but it does not cover four related matters with which the commission alone has the power to deal. These are unlawful advertising, instructions to discriminate, pressure to discriminate, and discriminatory practices.
Amendment No. 66 to Clause 61 complements Amendment No. 61 to Clause 53. It is clearly right that the unlawful acts in respect of which the EOC should be able to issue a non-discriminatory notice should not be, as they are at present, confined to acts of unlawful discrimination but should include pressure to discriminate, instructions to discriminate, discriminatory advertising and discriminatory practices.
1591 Amendment No. 73 is in turn consequential on the insertion of paragraph (b) into Clause 61.
I hope that the House will accept the amendments as improvements to the Bill.

§ Mr. Rees-Davies
I am wholly opposed to the amendment and also to the manner in which it has come about. The amendment very largely widens the scope of the Bill. It has arisen without any suggestion of any kind in Committee that it would do so and it comes before the House at a late hour. It seeks to give extensive additional powers for an investigation by the commission. The provisions relating to Clauses 35, 36 and 37 were not included before, and neither were those relating to discriminatory practices.
The Government have at no time given any specific reason for including these extra provisions. I am quite satisfied that they should not be included. Just what are the powers which will arise? Supposing, with the assistance of some advertising matter, I advertise for a host or hostess, a waiter or a waitress, a barman or a barmaid. Or suppose that I ask for a "chairman" rather than a "chair person", or I decide to ask for a "salesgirl" or a "salesman" rather than for a "sales person" because I have not yet managed to discover the totally new nomenclature which will have to be used by the advertising profession owing to the stupidities and absurdities of Clause 35(3).
Under Clause 53, as it is now proposed to be amended, the commission, for the purpose of a formal investigation, may, with notice in the prescribed form, not only require me to deliver written information as prescribed in the notice, but can specify the time, place, manner and form in which I give that information. It can then require me to attend at such time and place as it determines, give oral information, produce any documents which are in my possession, and impose a very severe penalty upon me if I destroy or fail to produce them. These are far wider powers than exist in any of the criminal courts. Previously all it could deal with was the question of the equality clause, on which it wanted formal investigation powers. It would, it was 1592 stated, confine its investigation to that matter.
The amendments tabled to Clause 35 were not called, doubtless because it was felt that the matter had been adequately discussed in Standing Committee. But there is a serious point on this clause. Under subsection (3), if we, for the purpose of a job description with a sexual connotation, use the words salesgirl, postman, waiter or stewardess, that might be taken as an intention to discriminate. It is not illegal or unlawful to discriminate. It is illegal to commit an unlawful act of discrimination in pursuance of it.
Thus, of course, the whole question of Clause 35 needs to be looked at again. But if it is intended to impose this on the advertisers of this country and those who use advertising and any form of notice, they must be told that they may find themselves hauled up before the commission and asked to produce all kinds of documents with all the paraphernalia which goes with a court hearing of that kind where they are obliged to produce evidence.
It is wholly unreasonable to widen the scope of the Bill like this. Let us consider it. Is it true and right that we should say that if a person wants to employ only bar ladies he will not have the opportunity to do so? Is that the fact that if one is running a business which requires hostesses, one has to advertise for hostesses with the "esse" in brackets? Then one will have the job of turning away the hosts one did not want. It is a waste of time and money and also a waste of the time of the applicants for jobs. It is deplorable. It also distorts the English language. We are going to have to find some words. You, Mr. Deputy Speaker, will become a "chair person" because one does not have a chairman, chairlady or chairwoman but a chair person.
People wanting sales staff will not be able to advertise for salesman or sales girl. How ludicrous it will be. I like the Bill and have always been in favour of ending sex discrimination, but "discrimination" has two connotations. We are using it in the lawful sense and it is made plain what we mean. If one calls a person discriminating, however, one is paying a great compliment. One means discriminating in taste in food and 1593 wine. It is a good phrase. I am pointing out that if one has a clause like Clause 35, which makes it impossible to advertise for people to get a special type of discriminating worker in a particular field, one is using a very blunt weapon.
I beg the Government to go away and think about this while the Bill is in another place and see if they can come back with some more sensible measures for advertising. Otherwise the country and the Government will soon look fools in this matter.
It is no use saying that this will not cause great troubles, because the editors of newspapers will have to lay down a proper advertising code. The types of advertising which the Under-Secretary of State for Employment referred to were ones in which one could clearly see the nature of the discrimination, like "Rapid promotion for brilliant young executive—male". That is fair enough, but what has been overlooked is the general run of these matters. People who have a first-class barman and staff may specifically want to get female staff. It may well be that in these days there are some entertaining jobs employing only men. It is the way the establishments are promoted. There are other establishments which want attractive girls for promotional purposes. That is part of tourism and promotional entertainment. We must not make it a joke. We must not make it necessary to add a long rider to the advertisement to the effect that a new type of bar is being promoted which employs only girls.
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To widen the provision by including a formal investigation by the commission before which advertisers and, no doubt, newspaper people have to give evidence is to use a sledgehammer to crack a nut. It goes far too wide.

§ Mr. John Fraser
The hon. and learned Gentleman has not quarrelled with the exceptions in Clause 7. We said that there would be some areas of employment where there may be exceptions and where discrimination will not be unlawful. For a post in respect of which an exception is provided in Clause 7 the advertisement can be discriminatory because the job is protected by Clause 7. There is some protection there.

§ Mr. Rees-Davies
Clause 7 provides exceptions only where it can be said that the man has a genuine occupational qualification for the job. The jobs I have been referring to—waiters and waitresses, hosts and hostesses, typists—can be done by men or women. I accept that a job that is normally only a man's occupation—as an actor, for example—is different. Section 7 does not limit that, and it will be left wide open for the nonsense that it is when the advertising managers have to work it out.
We are not dealing with Clause 35. I hang my argument on the fact that it is wrong to impose on the commission investigations into Clauses 35, 36 and 37. I accept that it is right for the commission to investigate cases arising on the new equality clause, and I understand that was the case the Government were presenting. Powers will be given to the commission which it does not want, and in many cases the commission will be dealing with frivolous matters.
I pray in aid what was said about advertisements in paragraph 28 of the Select Committee's report: On the condition that provision is made for exclusions in the employment provisions of any proposed Bill and that the … enforcement body is given discretion to ignore trivial, frivolous or vexatious complaints, we are in favour of there being a statutory provision against advertisements and notices which seek to discriminate in employment on grounds of sex. I do not believe that Select Committees or other bodies at any time meant to suggest that people should not be allowed to advertise either for a man or a woman. If a factory employs only men or only women, that will be apparent in the act of discrimination. I do not believe that the clause should be widened in this way.