§ Mr. Deputy Speaker (Mr. Michael Morris)
Madam Speaker has selected the amendment in the name of the Leader of the Opposition.
§ The Minister of State, Department of Employment (Mr. Michael Forsyth)
I beg to move,
That this House takes note of European Community Document No. 6703/88 and the Supplementary Explanatory Memorandum submitted by the Employment Department on 21st October 1993, relating to the burden of proof in the area of equal pay and equal treatment for women and men; endorses the Government's view that the draft Directive breaches the principle of subsidiarity and would have a disproportionate impact in the United Kingdom; shares the Government's view that the proposed Directive is wrong in principle and unnecessary for the proper determination of cases; agrees with the Government that the United Kingdom's arrangements for deciding complaints of sex discrimination and equal pay are fair to both parties, and take proper account of the problems of evidence and the need to reach fair decisions with due regard to the interests of both parties; and supports the Government's view that the draft Directive should not be adopted.I find it simply incomprehensible that the Community is now considering yet again the directive on the burden of proof. The directive was laid to rest as unworkable and unacceptable as long ago as 1988. It lay dead for five years until the Belgian presidency resurrected it last July as one of three Lazarus directives that it wanted to bring to life. Now, when it looks like being consigned to the tomb once more, the Burke and Hare tendency on the Opposition Benches wants to prevent a decent burial by trying to breath new life into the body.
The simple fact is that the directive has nothing whatsoever to do with the real priorities facing the 12 member states. Unemployment is now at record levels across the Community, and in all countries except the UK the figures for unemployment among women are higher than those for men.
Whenever we consider the social agenda in the Community, we must put questions of unemployment at the top of the list. Europe needs to stop adding to the regulations for people in employment and to start helping the people who are without employment of any kind. What we want is action which supports, not hinders, the efforts of member states to return to sustainable economic growth and provide real employment opportunities for men and women alike.
Despite the resurrection of measures such as the directive, things are beginning to change in Europe. The debates about growth and competitiveness in the Community stemming from the Commission's white paper last year show that the distinctive UK message is beginning to hit home. All member states recognise that Europe's labour markets are simply not delivering the jobs we need. That is good; Britain has long been saying that.
Member states are recognising that labour costs are too high and damage the growth in jobs. That is good, too—again, a British message. Member states are recognising that employers must be given the flexibility to compete with the rest of the world. Britain has always said that a policy of Fortress Europe would spell disaster for our prospects.
101 All proposals from the Community therefore need to be measured against three fundamental principles if they are to meet the needs of a changing Europe. The directive fails against all three.
§ Mr. Geoffrey Hoon (Ashfield)
If everything the Minister says is true, why do the other 11 member states all support the directive?
§ Mr. Forsyth
I am surprised at the hon. Gentleman: he usually takes care to read these texts. If he reads the text of the directive, he will find that other member states have managed to opt out of the provisions. There are exemptions covering those countries because of their differing legal systems. So they are quite happy to support a measure that lumbers Britain with the problem. Unfortunately, Opposition Members do not fight for Britain, do not speak for Britain and will sign up for anything.
§ Mr. Bernard Jenkin (Colchester, North)
Is not Britain pursuing its historic role of vetoing a measure that is unpopular in other member states, which pretend to be in favour of it knowing that we shall do so?
§ Mr. Forsyth
No, that is not so. My hon. Friend will know that we have used our veto, which Opposition Members would throw away, and the Eleven will proceed with the directive as Eleven. If Opposition Members had had their way, we would have signed up for the social chapter and would not now be in a position to resist this ridiculous measure, which fails all three tests.
All action taken by the Community should not damage but promote Europe's competitiveness; the directive is a distraction from that. Community social policy needs to recognise Europe's diversity—the very different traditions, institutions and practises of 12 very different member states. The directive ignores our differences by trying to move to a single statutory model.
Community policy needs to be consistent with subsidiarity. Nothing shows that this issue requires action at Community level. No evidence has been produced to show that differences in the way in which legal systems operate affect Community obligations. On the contrary, Heads of Government have made it clear that the legal systems of member states should not be called into question.
What is all too predictable, however, is that the Opposition are now giving the directive their support. Here we go again. Labour would sign anything, whatever its cost or whatever damage it would do. Let us think what we would have been saddled with in recent years if the Opposition had had their way: a working time directive, which would have banned work on Sundays.
§ Mr. Forsyth
The hon. Member says yes, but that directive would have banned work on Sundays and robbed 2.5 million people of the chance to earn overtime pay.
A young workers' directive would have threatened the long United Kingdom tradition of allowing children to earn pocket money by delivering newspapers or by doing a Saturday job.
§ Mr. Forsyth
The hon. Gentleman, who, as a Front-Bench spokesman, should know better, says, "What 102 would the working time have done for the doctors?" If he had read the text of the directive, he would be aware that there is a specific exemption.
§ Mr. Forsyth
The hon. Gentleman says that we are the employer. It is a matter for the House and the Government to decide; it is not for others outside the House to dictate working time or conditions in our country. That is the difference between the Government and the Opposition.
If the Opposition had had their way, a part-time work directive would have priced many part-time jobs out of the reach of employers.
A European works council directive would have given the unions the whip hand in 330 major UK-based multinational companies. United Kingdom employers and employees alike can be grateful that they have a Government who fight for their interests and do not surrender them at the first call from Brussels. That is what would have happened if the United Kingdom had accepted the social chapter at Maastricht and my right hon. Friend the Prime Minister had not been successful in securing an opt-out, which Opposition Members would throw away.
Equal opportunity measures such as this directive would have been subject to qualified majority voting, despite the fact that the directive is aimed almost exclusively at the British system. A British Government would have been unable to protect themselves from this directive being imposed over their head. We used the British veto against the directive once before in 1988 and we can do so again to protect vital national interests. The Opposition would cast that veto aside.
§ Dr. Robert Spink (Castle Point)
Will my hon. Friend confirm that Britain attracts almost half the total inward investment in the European Community, the other half being shared among the other 11 members of the Union? Does he think that the directive would almost certainly damage our ability to attract that investment and would therefore damage jobs in this country?
§ Mr. Forsyth
I agree with my hon. Friend that Britain is as successful as all the other member states put together in attracting inward investment, which is vital for jobs. The man to whom we should look for the explanation is that well-known socialist, Jacques Delors, who said that, because the Prime Minister had secured the opt-out from the social chapter, Britain would become a paradise for inward investment. He was right—not even Jacques Delors is wrong about everything—and my hon. Friend is right to point out that we have benefited from the success of our policies.
The directive is completely irrelevant in addressing the fundamental issues facing the Community. The Commission says that it is necessary because women are at a disadvantage in bringing sex discrimination claims. It says that women cannot prove their case because employers have all the evidence and that tribunals are reluctant to draw inferences from the facts: bunkum and balderdash, I say to that.
If the Commission had taken the trouble, which it did not, to inquire about the United Kingdom system, it might have thought twice before proposing this silly measure. It did not do so. Instead, it wants to put British employers in 103 the dock, condemned guilty of sex discrimination unless they can prove themselves innocent. That is what the text of the directive means.
§ Mr. Alex Carlile (Montgomery)
For those of us who are trying to look at the issues in this matter, will the Minister explain, so that we can understand what the Government are saying, the difference between the directive and decisions such as Chattopadhyay v. Headmaster of Holloway school, which I am sure he will have considered? How does the directive differ from the state of the law as it is now?
§ Mr. Forsyth
What the country needs to know—[HoN. MEMBERS: "Answer."] I shall answer—is that the hon. and learned Gentleman and his friends in the Liberal party would sign away the veto and the House would have no say in whether the proposals applied to this country. The answer to his question—the hon. and learned Gentleman is a lawyer and should know it—is that there is all the difference in the world between the impact of a judgment in the courts and a directive such as this, which would apply the universal principle of reversing the burden of proof.
§ Mr. Forsyth
The hon. Gentleman should focus on what the directive says. I can understand the Liberals supporting it, but I am surprised that Labour supports a measure that reaches this level of absurdity.
The Opposition amendment seeks to set aside the centuries-old principle that is central to our system of justice. No evidence has been presented to show that there is a problem. Lord Slynn of Hadley has made it clear on behalf of himself and the all-party sub-committee in the other place that the Government's opposition to the directive's central purpose remains valid. Unfortunately, but unsurprisingly, the hon. Member for Kingston upon Hull, East (Mr. Prescott) and his hon. Friends appear less clear-headed. They have become deeply infected by the Commission's enthusiasm for this measure. The amendment supports—
§ Mr. Forsyth
In a moment, if the hon. and learned Gentleman can contain himself; if he persists, I shall not give way.
§ Mr. Forsyth
I will happily give way to my hon. Friend after I have given way to the hon. and learned Member for Montgomery (Mr. Carlile) and when I have completed the point that I want to put to the Opposition. Opposition Members do not want to hear it spelt out.
They are taking an astonishing position which suggests a complete lack of appreciation of the strength of the United Kingdom's system for dealing with complaints about sex discrimination and equal pay.The UK has a strong and comprehensive framework of law which goes far beyond what other member states provide. There is no need for the directive or for us to abandon the principle of innocent until proved guilty.
§ Mr. Alex Carlile
The hon. Gentleman appears to turn our understanding of the law on its head. What is the difference in effect on the Government between decisions by the employment appeals tribunal, which is a superior court of record, and the directive, if its provisions were brought into force, and decisions of the courts of the European Community?
§ Mr. Forsyth
The hon. and learned Gentleman knows that, if the House agreed to such a directive and produced legislation, the burden of proof in every sex discrimination case would be reversed. It would be universal. The hon. and learned Gentleman is right to say that there are limited occasions on which the reversal of the burden of proof will apply, but, as he knows, the directive is about applying it universally. It is wrong for him to seek to fudge that. If he had his way, the House would have no say on this and many other matters, because he would have sold out our veto and the sovereignty of this place.
§ Mr. Heald
Does my hon. Friend agree that, although there were references in Chattopadhyay to where inferences could be drawn, in case after case since Chattopadhyay the courts and the employment appeals tribunal have stressed that in British law the burden of proof does not shift.The hon. and learned Member for Montgomery (Mr. Carlile) is not listening. The directive seeks to do something totally different.
§ Mr. Forsyth
I am grateful to my hon. Friend for his free legal advice. It is much appreciated. I suspect that the hon. and learned Member for Montgomery knows the position perfectly well. It is that Britain has effective frameworks such as ACAS, the Equal Opportunities Commission and industrial tribunals to establish the facts and apply the relevant law. They operate on the principle that the applicant has to prove his or her case on the balance of probabilities. That principle has been whole-heartedly accepted by all parties until now, but now we know where the Opposition stand. They are prepared to ditch an important principle for a great leap in the dark.
The Opposition want confusion instead of common sense, and it is common sense that guides industrial tribunals. They have received guidance from the Court of Appeal about the burden of proof. An industrial tribunal simply looks at the evidence as a whole and decides whether a complaint has been established. Sometimes clear evidence of discrimination will not be available, but tribunals are perfectly capable of dealing with that by drawing inferences from the facts. That is a common-sense approach that works perfectly well and tribunals apply it every day.
The Government will fight to ensure that employers remain innocent until proved guilty. [Interruption.] The hon. Member for Kingston upon Hull, East scoffs as if this were some minor matter. That shows why he will remain on the Opposition Benches and will not be in government. We will simply not accept a measure that seeks to put every employer in the position in which, on the flimsiest of evidence, an aggrieved party can force him to prove his innocence.
§ Mr. Deputy Speaker
Order. There is so much noise from the Opposition Front Bench that I cannot hear the hon. Gentleman's intervention. [Interruption.] Order. Hon. Members must respect the courtesies of the House.
§ Mr. Forsyth
I have not seen the reasoning behind that. The Law Society says many things. The hon. Gentleman will have heard what I said about Lord Slynn of Hadley and the all-party sub-committee which agreed with the Government. That is a fairly authoritative source. I look forward with some enthusiasm to hearing the explanation by the hon. Member for Cynon Valley (Mrs. Clwyd) of the Opposition policy which Opposition Members must try to defend. I dare say that that is the strongest argument they can produce.
§ Sir Teddy Taylor (Southend, East)
While I wish to convey my enthusiasm for the splendid sentiments expressed by my hon. Friend the Minister, will he make it clear that, if we followed the Law Society's recommendations and changed our law, we could change it back next year if it did not work? If we allowed the European people to alter our law, we could not change it. That is terribly important.
§ Mr. Forsyth
I think that I should be where my hon. Friend is, and that my hon. Friend should be here. [HoN. MEMBERS: "Hear, hear."] He puts the argument clearly and precisely—I could not have put it better myself. I want the House and the country, if it is listening, to know what Opposition Members would hand over.
Let us get down to brass tacks. How would the proposal work? An employer would advertise for someone to fill a vacancy and a man and a woman would apply. On this occasion, the employer chooses the man because he is the best candidate. That ought to be the end of the matter. Not so under the directive. If the woman could show that she had the minimum qualifications necessary, her case would be made in the eyes of those who drafted the directive. Never mind the employer's judgment that she was not the better candidate. Simply by not being selected, she would establish a prima facie case under the directive and the entire burden of proving no discrimination would shift to the employer. Unless the employer could produce convincing evidence that the complainant was not discriminated against, she would win. That is amazing and totally unacceptable.
As if that was not reason enough to consign the measure to the dustbin, there are others to show how misguided is the Opposition's support. The directive would have an uneven impact across the European Union because it exempts procedures based on inquisitorial systems of justice that are common in most other member states—for example Belgium, France, Italy and Luxembourg. Other countries whose systems are a mixture of inquisitorial and adversarial—Netherlands, Ireland, Portugal and Greece—could also claim exemption. The directive would bear heavily on the United Kingdom's adversarial system. France, Italy, Greece and Spain have all secured their 106 lifeboats while the Opposition are scuppering a British system that stands scrutiny alongside that of any member state.
The vagueness and ambiguity of the directive would introduce confusion into an important area of the law. I am too kind and honourable to give way to the hon. Member for Cynon Valley so that she could explain exactly how an industrial tribunal would apply article 4. Has she studied article 4? What does it mean? Does the hon. Lady know what it means? The plain fact is that the directive is confused and not needed.
Our record of providing employment opportunities is the best in the European Union.
§ Mr. Forsyth
The hon. Gentleman scoffs. Why does he not examine Britain's success? In Britain, more and more women are working. The number of women in employment here has risen 16 per cent. since Labour Members were last in office. That represents more than 1 million extra jobs for women under this Government. Opposition Members have nothing to teach us in that regard. There are now more women in paid employment in Britain than in any other European member state except Germany.
§ Mr. Eric Illsley (Barnsley, Central)
The Minister suggests that the British system works and does not need change. Is he aware that the National Union of Mineworkers has been pursuing a claim for equal value for canteen workers for 16 years, but it has still not been resolved and has yet to go before the Court of Appeal? Surely the Minister does not believe that the system is foolproof.
§ Mr. Forsyth
I agree that there have been problems in pursuing claims, in terms of timing and so on. That is for the House to put right. My right hon. Friend the Secretary of State for Employment is addressing some of the proposals made by the Equal Opportunities Commission, but that has nothing to do with the directive. If there is a Division, I hope that the hon. Gentleman will join us in the Lobby. He should recognise that it is for the House to decide the systems that operate in this country and that his party would sign all that away and give up our veto—which the Government are maintaining. We will use to ensure a system that reflects the interests of the United Kingdom and employment opportunities here.
Since 1979, women's average weekly earnings have risen in cash terms 300 per cent. and in real terms 55 per cent. faster than those of men. That impressive record has been achieved because the Government steadfastly pursued the right policies, leading to a dynamic and flexible labour market, underpinned by an effective framework of law. Under this Government, the UK labour market is able to offer a wide range of opportunities, and women have taken advantage of them. The Government will continue to pursue those policies and to make more opportunities available. We will not accept damaging proposals such as the directive.
§ 9.9 pm
§ Mrs. Ann Clwyd (Cynon Valley)
I beg to move, To leave out from "men" to the end of the Question and to add instead thereof:
refutes the assertion by the Government that the United Kingdom's arrangements for deciding complaints of sex 107 discrimination and equal pay are fair to both parties: supports the principle of reversing the burden of proof in this area; condemns the pressure, mostly from the UK Government resulting in the original draft Directive being diluted; is perturbed that the wider definition of indirect discrimination contained within the original draft has been removed and that Article 4 of the new draft introduces the concept of 'objective justification' into cases of direct sex discrimination; and calls for the redrafting of the Directive to reflect the proposals outlined in the original version.I imagine that the Minister's bluster over the past 20 minutes has been more to do with his dislike of the European Union than of the directive. I recall that, when I last debated European legislation that promoted the rights of part-time workers, in Committee upstairs, the Minister was at pains to distance himself from his Christian Democratic colleagues in the European Parliament, describing them as too socialist for the liking of the "party opposite". I suspect that if we are looking for a stalking horse, we could do no better than promote the Minister's chances in the race ahead.
I cannot accept the Minister's bluster when we are discussing a directive that is of supreme importance and offers an opportunity to discuss the undervaluing of the contribution that women make to the economy and society. The deficiencies in the Sex Discrimination Act 1975 and the Equal Pay Act 1970 are all too obvious to the eye of any objective observer.
I cannot accept the Minister's crocodile tears over jobs. The Conservative party has just deprived 200 men in my constituency, who work in a highly profitable and productive industry, of jobs. The Conservatives did not shed any tears over making sure that those men lost their jobs. In fact, by pursuing a deceitful argument and programme, they eventually pushed them out of their jobs.
It is not up to the Minister to give the Labour party any lessons on the importance of employment to people in our constituencies, because we have seen the effects of the Government's policies in every single one of them. So please give us no lessons on the importance of jobs; we have seen the effects of long-term unemployment, not only on those who have lost their jobs, but on their families as well, and no jobs have come to areas that have lost thousands of jobs, for example, in the coal and the steel industries in the past 15 years.
Despite the Sex Discrimination Act and the Equal Pay Act, women continue to be undervalued and underpaid. They still face unnecessary barriers at work. They fail to gain equal treatment at work and are denied equal pay. Again, the Minister boasted about women and their pay. The figures show that pay differentials between men and women are greater in the United Kingdom than in any other European country. For manual workers in industry, female earnings represent just over two thirds of average male earnings. For non-manual workers in that sector, female earnings represent only 58.3 per cent. of average male earnings—lower than any in other country shown except Luxembourg. If the Minister wants to make any claims about pay, he should address himself to those tables, which are available in the Library if not to the Department of Employment.
§ Mr. Ian Bruce (South Dorset)
I wonder whether the hon. Lady has looked at the statistics on men and women's pay, moving up towards and including 1970 when the Equal Pay Act was introduced. They show that women's 108 pay was getting closer and closer to men's pay until the Equal Pay Act; then, for more than two decades, it went in the opposite direction.
§ Mrs. Clwyd
That is a very interesting argument indeed. I suggest that the hon. Gentleman looks at the table in the Library, which shows that, since this Government came into office, the gap between men's and women's pay has grown wider instead of closer. That is nothing to do with the Equal Pay Act; it is to do with the Government and their policies towards women.
The right to equal treatment is a fundamental right for all workers in the European Union. There is a legal duty on all member states to provide effective measures to ensure that those principles are applied. Yet, since 1979, the United Kingdom Government have paid only lip service to attempts to reduce discrimination.
Despite having a woman Prime Minister for 11 of the past 15 years—[HoN. MEMBERS: "Hear, hear."]—only one woman was appointed to the Cabinet, and she was sacked after a year. I am interested in the support for the 'previous Prime Minister. If that support were available from the Conservative Benches for the present Prime Minister, he would not find himself in his present vulnerable position.
I must say one kind word about the present Prime Minister: he is a leader in one respect. He was the first person holding that office since 1964 to appoint an all-male Cabinet. As the Minister was happy to acknowledge, this Government have blocked European directives on part-time work and parental leave. Indeed, the Government find a reason to oppose any progressive European social legislation. They did that when I was a Member of the European Parliament. Of all the countries and parties represented on the Social Affairs and Employment Committee, the only party to block effective social legislation was the Conservative party.
The Government's latest act was to abolish wages councils which provided for the equalisation of pay rates for men and women. Nearly 2 million of Britain's lowest-paid women now have no effective remedy against unequal pay. The Trades Union Congress has made a formal complaint to the European Commission arguing that, by abolishing the wages councils, the United Kingdom Government are failing to comply with their legal obligations.
§ Mr. Michael Forsyth
Of course we have abolished wages councils. However, will the hon. Lady confirm that wages councils had nothing to do with equal pay? Until the passing of the Equal Pay Act 1970, was it not the case that, under a Labour Government, wages councils set different rates of pay for men and women?
§ Mrs. Clwyd
The disparities have grown since the wages councils were abolished.
The Minister did not welcome a recent House of Lords judgment which gave part-time workers the same rights as full-time workers with respect to unfair dismissal and redundancy payments. Instead, he said that he was still taking legal advice. He did not even bother to say that tonight. The Minister's comments tonight seemed to convey the fact that it was never the Government's intention to implement legislation that the other place has said that this House must implement.
Clearly, the Government have no intention of moving on the protection of part-time workers. That is another 109 example of the Government's reluctance to support working women when 88 per cent. of part-time workers are women.
I was very interested in the Minister's comments on the draft directive on the burden of proof. The draft directive was first published in 1988 and, predictably, it was opposed by the United Kingdom Government. It was revised and amended by the Belgian presidency in July 1993. If the Minister is unaware of the evidence given to the Committee in 1988, I suggest that he examines it. The Law Society, the TUC, the Equal Opportunities Commission and others gave very detailed evidence and they all supported the directive.
The purpose of the draft directive is to enable alleged victims of sex discrimination to pursue their claims more easily and more speedily in the courts. It is not clear from the memorandum submitted by the Department whether the United Kingdom Government agree that that purpose is important and desirable. From what the Minister has said tonight, it is highly unlikely that the Government believe that such a purpose is important.
Government opposition to the original draft directive in 1988 put them at odds, as was said earlier, with the Law Society and the Equal Opportunities Commission. Both those bodies believe that the reforms in the draft directive were sensible and practical and would eliminate areas of doubt from complex legislation. The proposals would ensure greater consistency in application of discrimination legislation in industrial tribunals and, where appropriate, the county court.
As noted in the supplementary explanatory memorandum, the United Kingdom opposes the shifting of burden of proof in principle, and it is the only member state to do that.
Not surprisingly, I cannot find anywhere in the Government's written evidence any statement about the importance of eliminating discrimination in employment. Indeed, quite the contrary, from what the Minister said tonight. There is no mention—and the Minister has not acknowledged it anywhere—of the undisputed fact that sex discrimination remains prevalent in employment and in many other areas of British life.
It is brazen impudence for the Government to argue that the law is fair and accessible when both the TUC and the Equal Opportunities Commission have complained about its operation. The EOC has also called for a major overhaul of sex discrimination and equal pay laws in this country. It seems that everyone apart from the Government acknowledges that the laws are complicated and obscure.
In the Minister's written evidence, the United Kingdom also opposes the draft directive on the grounds of subsidiarity. We know from other debates that we have had with the Minister that the Government use subsidiarity as an argument when they do not like some European measure; then they say that we should decide the matter at home. In the area under discussion, the Government want to argue subsidiarity on the one hand, but on the other hand they are not prepared to do anything about the issue.
Since 1981, the EOC has been pressing for legislation to bring United Kingdom law into line with that of the European Union. Each time the Government adopt a minimalist response, and that is their idea of subsidiarity. If anyone is to take the argument of subsidiarity seriously, surely there must be common minimum standards on which European Union member states can build. What women in Europe need are easier and speedier ways to win 110 basic rights. The apparently technical draft directive is about making European equality law work in practice for women in all the member states.
The Government's motion argues that the draft directive would have a disproportionate effect on the United Kingdom. Yet as the EOC pointed out, broadly speaking, United Kingdom case law already provides for the shifting of the burden of proof. The directive therefore would for the most part establish that position.
§ Mrs. Clwyd
I should be grateful if the hon. Gentleman read the rest of the judgment.
The main relevance of the directive to the United Kingdom would be its effect on sex discrimination proceedings. Everyone can quote cases and pick out lines, as we could from Enderby and others, which show that there are still some arguments on these points. It is to clarify the points that we are trying to persuade the Government to be progressive in their approach to the directive.
§ Ms Jean Corston (Bristol, East)
Does my hon. Friend agree that study after study over the past 16 years has shown that women have failed to succeed at tribunals, partly because there is no legal aid? Also, it is impossible for women to prove discrimination if they have no access to records. That is also applied to race discrimination cases such as that of West Midlands Passenger Transport Executive v. Singh—as we are all citing cases. In that case, it was held by the Court of Appeal that—
§ Mr. Deputy Speaker
I am grateful for that remark from a sedentary position; at present, I am in the Chair.
§ Ms Corston
Time and again, it has been shown that women have failed to prove sex discrimination because they have no access to records. The only way in which that can be done is for the burden of proof to shift, and that is why it is so important for the directive to be enforced.
§ Mrs. Clwyd
I am grateful to my hon. Friend the Member for Bristol, East (Ms Corston). She is a most eminent lawyer who has much experience in the matter, and we are all grateful for that intervention.
Interestingly enough, the Government conceded that point in the explanatory memorandum of 12 July 1988 relating to the earlier drafts of the directive. They said that the directive proposed in sex discrimination cases that the burden of proof should be shifted from the complainant to the respondent, once a rebuttal presumption of discrimination had been established. They added that case law in the United Kingdom provided for the burden of proof to be shifted in that way already.
It is therefore nonsense to suggest now that the draft would disproportionately affect the United Kingdom. The Government surely are making a mountain out of a molehill. The Opposition have, of course, always been 111 staunch supporters of the original draft. In particular, we supported the wider definition of indirect discrimination that it contained. Under current law, that is extremely difficult to prove, and the draft directive would make it easier for people to claim indirect discrimination, since it allows more general practices to be examined for discriminatory behaviour. That would have been a major advance in the fight for equal treatment in the workplace.
The original draft contained many other worthwhile proposals—far too many for the Government to countenance—but the Government's pressure to wreck a worthwhile European initiative eventually bore fruit. When the Belgian Government, who were seeking a compromise, brought the directive back to the table, it had been considerably watered down. That was mainly due to the efforts of the Government.
In addition, article 4 of the new draft was rewritten. It begins by stating that the respondent—that is, the employer—must prove that the principle of equality has not been violated. It goes on to say that member states may decide that the respondent complies with that point if he or she can prove that there are objective reasons not concerned with a person's sex which justify a difference in treatment.
That clause has apparently sprung from nowhere, and it may introduce so-called objective justification into cases of direct sex discrimination. An implication of that may be that employers will be able successfully to justify a refusal to take on a pregnant woman because of the costs of staff cover during maternity leave. That, according to the Equal Opportunities Commission, would be a major departure from the current position in United Kingdom law, and that is one of several reasons why it does not support the draft directive in its present form.
Labour's position is entirely clear. Unlike the Government, we support the principle of reversing the burden of proof. That has been established in practice in the United Kingdom, and we support the extension of the principle, and of laws to support it, throughout Europe. Along with our allies in the European Parliament, we have consistently supported the extension of best practice for working men and women throughout the Union.
§ Mr. Jenkin
May I draw the hon. Lady's attention to the letter in the Vote bundle on this issue from Lord Justice Slynn of Hadley—
§ Mr. Jenkin
I beg your pardon. The letter refers to his belief that the measure would lead tomore protracted litigation rather than a higher ratio of success for applicants seeking to prove unlawful discrimination".Is the hon. Lady aware that Lord Slynn is hardly a Euro-sceptic? He has served extensively in employment appeal tribunals, judged extensively in sex equality cases and served in the European Court, both as Advocate-General and as a justice.
§ Mrs. Clwyd
I am grateful to the hon. Gentleman for giving me Lord Slynn's curriculum vitae. However, I prefer to take account of the view of the Equal Opportunities Commission's considerable and extensive experience of these matters. It has more experience than Lord Slynn, despite his extensive CV, which the hon. Gentleman read out. The hon. Gentleman is entitled to his opinion.
§ Mr. Alex Carlile
Does the hon. Lady think that it is perhaps worth making the point that the Government have rejected the opinion expressed by the distinguished lawyer and judge Lord Slynn and have given reasons for rejecting the directive which are different from those given by Lord Slynn in his letter?
§ Mrs. Clwyd
I am grateful to the hon. and learned Member. Perhaps he would explain the matter to the hon. Member for Colchester, North (Mr. Jenkin) as soon as he can.
§ Mr. Michael Forsyth
In the spirit of helping the hon. Lady, if we could leave Lord Slynn for the time being, may I ask her what she would say to the Court of Appeal, which has taken the view that changing the position on the burden of proof would not be helpful and is not necessary?
§ Mrs. Clwyd
I do not think that the Minister got the phraseology right. Would he like to phrase the question again?
§ Mr. Michael Forsyth
I was simply making the point that not only Lord Slynn but the Court of Appeal has said that reversing the burden of proof would be unnecessary and unhelpful. Is the hon. Lady saying that we should take the views of the Equal Opportunities Commission before those of the Court of Appeal?
§ Mrs. Clwyd
Obviously, there are many opinions on the matter. I am not saying that anyone has the complete answer. We do not support the directive as it is currently drafted. We ask the Government to go back and rewrite it. If the Minister had read our amendment—he clearly has not—he would have seen what we were asking him to do. We are not calling for support for the directive. We want to see it rewritten. We want to bring back many of the positive features of the original version. We also want to see article 4 redrafted so that there is no prospect of objectively justified direct sex discrimination creeping into United Kingdom law.
If the Government claim that they are committed to the elimination of sex discrimination and oppose the draft directive on principle, which is what I understand the Minister to argue, as well as for technical reasons, what other steps are they planning to take—[Interruption.] I am addressing the question directly to the Minister and I hope that he will respond to it when he replies.
What steps do the Government plan to take to speed up and increase the success rates in sex discrimination and employment cases? If the Minister rejects the directive and wants to see it buried, what does he propose to put in its place to improve the current position?
As we all know, the Government have fought tooth and nail against any extension of Community competence in equal opportunities legislation. I have not seen any evidence that the Government want to make it easier and quicker for applicants to win sex discrimination cases. In fact, the opposite is the case.
The original draft directive was a modest attempt to improve the status and position of women in society. In opposing the amended directive, the Government once again are showing their complete lack of concern about the growing gap between the position of men and women in our society. Whatever progressive social legislation is proposed by the European Union to eliminate inequality, the Government are guaranteed to fight it tooth and nail. In 113 the coming European elections, as in last week's local elections, the electorate will once again kick the Government where it hurts.
§ Mr. Ian Bruce (South Dorset)
I was not planning to speak until I saw this incredible amendment—[HON. MEMBERS: "What about your notes?"]. They are all blank; I am making it up as I go along. The Opposition tabled this incredible amendment—[Laughter.] Opposition Members may scoff but I am trying to address my remarks directly to the motion.
I was starting to warm to the hon. Member for Cynon Valley (Mrs. Clywd) during her final remarks because she rightly said that she wants something positive to happen to redress the balance between men's and women's earnings. I certainly agree. The question that we should ask is whether that balance can be redressed by legislation either in this House or in Europe. I contend that it cannot.
Before 1970—before we legislated—employers were starting to recognise that women were valuable members of the work force, and the differential between men's and women's earnings was becoming less. For one year after the Equal Pay Act 1970, the momentum carried that trend forward, but, in all but a couple of years since then, the differential has widened. Therefore, legislation has not been effective.
Hon. Members have mentioned the Law Society often enough this evening, saying that it wants us to legislate more. I am looking at the lawyers who are present in the House, because one finds that almost all those in lawyers' offices who are doing the really valuable work are women and they are on the lowest salaries paid in virtually any profession. All those legal secretaries who make all the money for the business and keep it going by doing the conveyancing get virtually no money.
§ Mr. Hoon
On a straightforward political point, if the hon. Gentleman's argument is correct, why did the Conservative Government not repeal the Equal Pay Act 1970 between 1970 and 1974? That Act was fully implemented in the Sex Discrimination Act 1975.
§ Mr. Bruce
If I had been in the House, I certainly would have urged the Government to do precisely that. Hon. Members should learn that, if legislation that was put in place more than 20 years ago has completely failed, we should kick against it instead of trying to tinker with it in the ridiculous fashion that this European directive requires.
When I earned an honest living, as they say, carrying out work studies, as a work study manager—I cannot even remember my job title now—I was a good job evaluation person. One thing that we had to do was to demonstrate why job evaluation was a useful tool in a workplace. We had to make it clear to people, however, that there never has been and never will be a situation in which one can say that a job of work has a particular financial value.
Job evaluation was set up to ensure that, within a workplace, differentials could be justified in terms of the types of jobs people had to do. Clearly, if it is impossible to give work a specific value, it is also impossible for 114 anyone who does a job in a different company at a different rate of pay to prove that his or her work is equally valuable. When people take employers to the sex discrimination courts to try to prove that case, they find it impossible. They are trying to prove an impossibility.
There is no clear relationship between the value of what someone does and the amount that they are paid for it. I touched on the example of solicitors' offices. Hon. Members should consider where the money is earned and who does the conveyancing work, and the fact that the solicitors are paid a large amount of money because they have a particular qualification.
It is a value judgment to decide that someone who has had the privilege of going to college for six years and all the fun of student union rags and the rest of it should get extra reward for their work. Opposition Members may scoff at that, but I have an even better example to cite that is much closer to home. They should think twice about scoffing, especially when they read Hansard tomorrow, because my other example concerns the differential between the salaries of Opposition Members and their secretaries.
If one compares the work of Opposition Members with the productivity of every secretary in the House it becomes clear that there is absolutely no case for those hon. Members to earn more money than their secretaries and research assistants. They get all the perks and the money but, in terms of skill levels, qualifications and knowledge, their secretaries stand far higher: they do all the work, but they earn much less. Those Opposition Members would have the greatest difficult in proving that they are worth more money. They are paid more just because of custom and practice. There are also far more men than women doing their job.
§ Mr. Illsley
The hon. Member started by arguing that comparisons are invalid and that no comparisons can be made between the equal value of one type of work and another, but he is now seeking to make such a comparison between hon. Members and their secretaries. Which way does he want it?
§ Mr. Bruce
The hon. Gentleman has just made my point. I was simply saying that one cannot make such value judgments. The marketplace and those in power make the decision. One of the few occasions on which the House can be assured of a good turnout from Labour Back Benchers on a one-line Whip is when they are called upon to vote through a pay rise. They are very good at justifying that. That is the way of the world and that is reality.
I am not kicking against reality; I am telling legislators that they cannot simply tell the House or the European Parliament or the Commission that they want to reverse the laws of reality. There is no point in their deciding that there is a strict relationship between the amount of money that someone is paid and the value of his work. The directive is seeking to change the burden of proof, which means that the impossible, which cannot be proved, will be proved by the employer. The employer will be unable to do that and the case will therefore fail.
The Government are totally justified in rejecting this ridiculous directive. If the European Parliament fights against our Government and the sensible measures that they put forward after the European elections, we will rue the day on which anyone voted for socialist or Liberal Democrat candidates to serve in that place.
§ Mr. Alex Carlile (Montgomery)
It was interesting to see the cloak of sackcloth and ashes worn by the hon. Member for South Dorset (Mr. Bruce), as he talked about equal pay for equal value. The Register of Members' Interests reveals that he is the chairman of Ian Bruce Associates Ltd., parliamentary adviser to the Telecommunications Managers Association and parliamentary adviser to Trevor Gilbert and Associates, personal injury employment advisers, which is a division of Recruitment Network Ltd. The register also states that he has received a gift of satellite equipment, two fax machines from Southern Electricity plc and a mobile telephone from Talkland International, and that he has had the use of a Nissan Primera. [HoN. MEMBERS: "Oh."] He also visited Elveden forest holiday village. And so it goes on.
What a disreputable performance we witnessed from the hon. Gentleman.
§ Mr. Carlile
If the hon. Gentleman would like to confirm that he does not take his full parliamentary salary, for which some of us voted, I should be happy to give way. Does he take that money or not?
§ Mr. Bruce
The hon. and learned Gentleman has just proved the point, because although my staff work much harder than I do, I can command more in the marketplace for doing certain things. If the hon. and learned Gentleman thinks that that any of my staff should simply be able to go to the European Parliament or wherever and prove that he should be paid that money instead of me, that is ridiculous.
§ Mr. Carlile
I am afraid that the hon. Gentleman's brain works like a jigsaw puzzle with half the pieces missing.
There are some important and serious arguments to be made. As I listened to the Minister's speech, I was reminded of the memorable occasion in the House on which Mr. Alan Clark spoke about the same subject. In his diary, Mr. Clark is frank about that occasion. He says, in effect, that on that evening he was playing the part of Bacchus after earlier bibulousness; his speech then was at least as coherent as that of the hon. Gentleman playing the part of ignoramus here tonight.
For example, the Minister sought to rely on the right hon. and noble Lord Slynn of Hadley. I have read Lord Slynn's letter. I have an immense admiration, as I think have most lawyers in the House, for the intellectual ability of Lord Slynn and his experience in the European Union. If Lord Slynn had objected to the directive on the same basis as did the Minister tonight, the Minister might have some credibility; but he has chosen to rely on two entirely different points. One related to subsidiarity, and has been adequately discussed by the hon. Member for Cynon Valley (Mrs. Clwyd), and the other related to the basis of the labour market.
The hon. Gentleman was eventually tempted by the hon. Member for Hertfordshire, North (Mr. Heald) to remember the case in the Court of Appeal of Camara. I would remind him that his hon. Friend was a little bit selective—I am sure more selective than he would be in court—in citing from the case of Camara. In court, one has to tell the judge not only the good things but the adverse points when making 116 one's submissions. I remind him especially of that part of the judgment in Barking and Dagenham London Borough Council v. Camara, in which it was said:
Thereafter bearing in mind the burden of proof upon the applicant the Tribunal should apply their findings to each element necessary to establish the type of discrimination alleged, and finally decide whether the applicant has established direct or indirect discrimination or victimisation as the case may be.If one analyses those words and the rest of the Court of Appeal's judgment in Camara, one realises that the Court of Appeal was doing its best to apply the same evidential standards without reversing the burden of proof in jurisprudential terms. If it were to reverse the burden of proof it would be overruled by the House of Lords, because that would be judicial law making, which is not permitted. By taking a very clever, intellectual approach, the Court of Appeal achieved almost exactly what is in the directive in any event.
It is plain that the Government do not understand what article 4 of the directive says. Indeed—I know that there is a great shortage of time tonight, so I shall make the argument as quickly as I can, but it is important—it seems clear that the Minister has never read article 4 of the directive, in its present or its previous form.
Paragraph 1 of former draft article 3 would have required persons who considered themselves wronged by failure to apply to them the principle of equality to establish before a court or other competent authority a presumption of discrimination. So immediately, before the burden of proof—if it be the right word—shifted, the complainant would have to establish that there had been discrimination. There is a clear burden of proof on the applicant.
Paragraph 2 of the same draft stated:A presumption of discrimination is established where a complainant shows a fact or a series of facts which would, if not rebutted, amount to direct or indirect discrimination.Those words could not have a plainer meaning. I say to the Minister that they and the subsequent version made it crystal clear that the applicant under the directive has to establish something that would amount to direct or indirect discrimination unless it is rebutted. What is the difference between that and what the Minister claims to be the alternative, which the Government seek to present to the House as the answer to the directive?
The Government do not understand the directive. They seek simply to find yet another stick with which to beat the European Union. At the beginning of the debate when the Minister was making his opening remarks, it was plain that most of the Conservative Members who had come in to listen to him belonged to the Prime Minister's illegitimate tendency. There were so many of them that the Minister looked like the old woman who lived in a shoe.
It is time that the Government showed a little intellectual honesty in European matters and recognised that the directive represents a fair statement of what should be the law in this country and the fact that it is close to our existing law.
§ Mr. Oliver Heald (Hertfordshire, North)
I confess that when I heard the hon. and learned Member for Montgomery (Mr. Carlile) twitting my hon. Friend the Member for South Dorset (Mr. Bruce) about his interests, I chuckled because I thought of all the remunerated employment that the hon. and learned Gentleman must have as a silk. He must make a good few bob— 117 [Interruption.] I confess to being a lawyer. However, in addition to being a Queen's counsel, a recorder and a lay member of the General Medical Council, the hon. and learned Gentleman also has the loan of a word processor and software from Tandem computers, which is no doubt useful when considering briefs.
I was hoping to make three points in the debate. First, the burden of proof is an important principle. It is a right of the individual that should not be attacked except where it is essential in the interests of justice. The principle that he who asserts a right must prove it is vital. It is wrong for Opposition Members to say that, simply because it is difficult to prove a case in particular circumstances, we must change the whole basis of proof and how it is achieved.
The House of Lords Select Committee looked at the proposal and reached that conclusion. It said that, if we pursued that approach, more cases would be proved but at the risk of proving cases that should not be proved. It made the cogent point:a Directive which clearly did reverse the legal burden of proof would undoubtedly assist complaints in this area. The Committee do not, however, believe that such a change would he right in principle … It is not obvious that there is any unique justification for making a change as sweeping as reversing the basic rule on burden of proof in favour of victims of sex discrimination".Once that barrier is breached, where does the matter end? A case that is difficult to prove can always be found, but, if the burden of proof were reversed in every such case, an extremely dangerous principle would be established.
§ Mr. Heald
I have only a short time in which to speak. Given our years of debating law together, the hon. Gentleman will accept that we could discuss that area of law for many a happy hour.
Secondly, if there are objective reasons and one can point to, for example, a difference in pay, I accept that the burden should be reversed—and it is. But in a case where such direct evidence does not exist, the balance struck in the case of Chattopadhyay and later cases is right: that if one person has better qualifications than another but that person has not been appointed, an inference should be drawn. But the burden of proof should not be changed because it is an important protection for the individual.
In the Chattopadhyay case, the court made it clear that the inference should be drawn only in circumstances that were consistent with the treatment's being based on racial grounds. In later cases—in particular, the case of Barking and Dagenham London Borough Council v. Camara, of which we have already heard a good deal—the courts made it clear thatthe guidelines in earlier cases permitting inferences to be drawn in favour of an applicant were not to be taken to mean that the burden of proof itself shifted.That principle was still clearly enshrined in the words read out by the hon. and learned Member for Montgomery: the burden of proof, which is important in English law, should not be interfered with in such a way. The fad that an inference can be drawn is a way of providing proof, but that is not the same as changing the burden of proof.
118 The Commission has not taken adequate account of the procedural safeguards in English law. There is a statutory questions procedure, whereby—if inferences are not to be drawn—an employer can be forced to answer a range of sweeping questions relating to the way in which he has dealt with the choice between two applicants. Documents can be required, and the employer can be forced to give them up if that can be justified. Those protections, together with the burden of proof, are important in protecting the interests of the employer, while also ensuring that the plaintiff has a reasonable chance of succeeding in a case of this sort.
I believe that the burden of proof should be protected. I think it right, in clear cases, to shift the burden as we do; but, given the protections that already exist in English law, I do not consider that we would be right to introduce the directive. Interestingly, the hon. Member for Cynon Valley (Mrs. Clwyd) criticised Conservative Members, saying that we argued for subsidiarity because it would allow us to decide at home what should happen. I believe that: I believe that we should fight hard for subsidiarity. It is right for us to decide many such issues at home. One reason is that, over a thousand years, we have developed one of the best legal systems in the world—and I do not want it to be bastardised by the European Community or anyone else.
§ Mr. John Hutton (Barrow and Furness)
Earlier, we were entertained—his speech was certainly entertaining—by the Minister of State. He made what most of us would describe as a rather raucous speech and a convincing case for being reshuffled into the Foreign Office, where he could display some of his more diplomatic skills in describing our European Union partners. At various points, he described this modest set of proposals as ridiculous and absurd, but anyone examining the details of the directive would reach a different conclusion.
Many of us were left with the impression that the Minister was not actually talking about the directive. He showed contempt for our European partners who, as my hon. Friend the Member for Ashfield (Mr. Hoon) said, support the proposals. His comments about competitiveness were complete gibberish. There is no suggestion that the directive will add any new legal obligations for employers. It is simply an attempt to clarify the emerging European jurisprudence on where the burden of proof lies in cases of discrimination.
The Government's rather flimsy compliance cost assessment, contained in the bundle of documents that they have provided, is also ludicrous. The measure will increase employers' obligations by a minute fraction. As the Government have effectively conceded, it is almost impossible to put a financial measure on any extra costs that British employers will face, and the attempt to do so strikes me as absurd.
The Government's objections to the draft directive have more to do with their current problems over Europe than with the issues raised by this modest set of proposals. The debate is all about their resistance to positive measures to improve the employment protection rights of British workers. That resistance will be shown to have been a mistake. The debate is also largely about appeasing the growing number of Eurosceptics on the Government Back Benches.
119 There has been some reference to case law tonight and to the burden of proof in discrimination cases, but no one has looked in great detail at the Enderby v. Frenchay health authority case. The European Court of Justice, which is the ultimate authority in such matters—not the Court of Appeal or the House of Lords, although the Minister may not like that—has already made the position transparent in respect of that case.
§ It being Ten o'clock, the debate stood adjourned.
Motion made, and Question put forthwith, pursuant to Standing Order No. 14 (Exempted business),
That, at this day's sitting, the Motion in the name of the Prime Minister relating to Equal Pay and Equal Treatment (Burden of Proof) may be proceeded with, though opposed, until any hour.—[Mr. Conway.]
§ Question agreed to.
§ Question again proposed.
§ Mr. Hutton
As I was saying, in the Enderby case the European Court made it transparently clear that under the provisions of article 119 and the supporting directives there has already been a shift in the burden of proof. Paragraph 18 of the European Court judgment, which was about a case involving equal pay, reads as follows:Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory".The hon. Member for Hertfordshire, North (Mr. Heald) and others have tried to quote other authorities, but the European Court is the overriding authority, and I have quoted the governing principle that applies to cases in which the onus of proof is the subject of dispute.
The hon. and learned Member for Montgomery (Mr. Carlile) made a point that the Minister did not seem to understand—these are not cases that will land employers with impossible burdens. They will not have to fight cases with both hands tied behind their backs, because applicants will have to make out a prima facie case of discrimination before there can be any argument about the onus of proof moving to the respondent. The Minister cited the case of a man and a woman with equal qualifications, but the woman did not get the job. There, it would still be open to the employer to present the argument that the Minister predicted—that the woman was not appointed because she was not the right candidate for the job.
§ Mr. Hutton
The hon. Gentleman has had his opportunity, and time is limited.
The argument about subsidiarity must also be exposed for what it is. The Government are using it to reject and defeat an idea to which they are fundamentally and ideologically opposed.
The Minister also tried to argue that there is no evidence to warrant the changes to the directive. In the research done in 1984 by Jennifer Corcoran and Elaine Donnelly, the problems in many European jurisdictions were clearly shown up. Many applicants face a problem trying to present their cases successfully to an industrial tribunal, and that problem is what the directive attempts to solve.
The Minister rather laboured the point that there is a fundamental objection in the British legal system to anything that reverses the onus of proof and places it on the respondent. As my hon. Friend the Member for Ashfield 120 (Mr. Hoon) has said, we have already done that in a number of other sectors. The burden of proof in taxation law has been moved around. For the product liability directive in 1985, the Government accepted a change in the onus of proof—it was moved to the respondent. So that, too, is a bogus argument. There is no principled objection to the change. If there were, it would have emerged in earlier cases, when the Government did not object to a shift in the burden of proof.
It all comes down to the basic proposition that the Government oppose the draft directive because it would do something positive to advance the employment protection rights of British workers, especially workers who have faced sexual discrimination. The Government's arguments amount to superfluous waffle. They simply oppose the directive because, in its modest way—many of us would say, its limited way—it represents an attempt to improve the employment rights of British women.
I hope that the House will have the common sense and the good judgment to tell the Government that we have had enough of their Eurosclerosis and scepticism. A logical and reasonable case can be made in support of the directive. I hope that the House will take that view.
§ 10.4 pm
§ Mr. Eric Illsley (Barnsley, Central)
In the few remaining minutes of the debate, I want to elaborate on a point that I made earlier about an equal pay case that has dragged on for many years.
A number of women have been unable to plead their case successfully under the legal system, despite the fact that they have been aided by the National Union of Mineworkers, which provided funds so that the women could pursue their case and have legal representation.
As long ago as 1978, two canteen workers at Hem Heath colliery in Staffordshire applied successfully to an industrial tribunal for pay equal to a male working in a surface establishment. The NUM negotiated with British Coal in an attempt to ensure that that principle was applied throughout the industry. British Coal refused and said that each case would have to be proved and considered on its own. That led to a number of equal pay claims on behalf of women employees of British Coal, which unfortunately proved unsuccessful.
The NUM then pursued a case under equal value legislation. In 1983, it made some 1,500 claims to British Coal to secure equal pay for work of equal value on behalf of canteen workers. That claim was successful. An industrial tribunal found in favour of the canteen workers who were supported by the NUM. British Coal appealed, but the canteen ladies' case was upheld and British Coal's arguments were again rejected.
It is interesting to note the differential between the canteen workers' wages and comparable wages of male surface workers. It amounted to about 80 per cent. There was also a differential in concessionary fuel receipts, which were originally the basis of the claim. The preliminary hearing of the industrial tribunal found in favour of the canteen workers and the NUM was again successful at the employment appeals tribunal, yet, many years after the original claims in the early 1980s, British Coal wants to take the case to the Court of Appeal.
The union incurred considerable costs in pursuing those cases at the industrial tribunal and at the employment appeal tribunal. Despite the fact that British Coal has 121 already lost two cases, it is pursuing the case at the Court of Appeal, and if it loses that case, it threatens to take it to the House of Lords.
It is obvious that British Coal has lost the argument and that it opposes the case because, as a company, it has more resources available to it than the NUM. That is a result of a fault in the legislation. British Coal's deliberations and filibustering, for want of a better word, have resulted in the union spending much money on the case. The membership of the union has, sadly, declined because of Government policy and it now faces difficulties in pursuing the case to the Court of Appeal and then the House of Lords, despite the fact that it has been successful on two occasitons.
Our legislation is not good enough and in the absence of Government legislation the directive is the only measure that is available. Perhaps we should consider it to make our legislation more effective. Where a proper and valid claim has been found successful by the employment appeals tribunal, there should be a measure to allow it to go forward.
§ 10.9 pm
§ Mr. Michael Forsyth
This interesting debate has shown the differences between the Opposition and the Government on Europe. Were it not for the social chapter opt-out which my right hon. Friend the Prime Minister negotiated and which Opposition Members opposed, the House would not be discussing the measure at all because it would have been decided by other member states under qualified majority voting. The hon. Member for Ashfield (Mr. Hoon) nods with enthusiasm because, as the hon. Member for Cynon Valley (Mrs. Clwyd) confirmed in her speech, Opposition Members see Europe as a way of bringing in socialism by the back door and of achieving what they cannot achieve in the House because they cannot secure a mandate for it.
The hon. and learned Member for Montgomery (Mr. Carlile) was hoist by his own high technology. He accused me of not having read the directive but quoted from a version that has long since been superseded. It appears from a study of the Register of Members' Interests that the hon. and learned Gentleman has a computer. It is high time that he had a look at his database and revised his views.
The hon. Member for Cynon Valley said that the Equal Opportunities Commission was concerned about the impact of wages councils on women's pay. As I pointed out, she neglected to mention that wages councils used to set different rates of pay for men and women. There was no mention of that under a Labour Government. Why was it that we had no trouble in Europe and no trouble from the Equal Opportunities Commission on the role of the wages councils when the Labour Government abolished 11 of them?
The measure is unnecessary. As the hon. Member for Barrow and Furness (Mr. Hutton) said, every employer who refused to give a job to a woman with the same qualifications as a male applicant, even though the employer had chosen the man because he thought that he was the best person for the job, would be put in the dock and asked to prove that he had not discriminated against the woman. If that is what the Labour party wants to happen, I hope that people will know about it. [Interruption.] We do not want any interventions from the hon. Member for Kingston upon Hull, East (Mr. Prescott). We all know his view on positive discrimination from the 122 shadow Cabinet elections. If his colleagues are to be believed it was not exactly progressive. We know all about his efforts to support his leadership on that matter.
We do not need the directive to decide matters. The House can put in place systems to deal with sex discrimination. The level at which our system has placed women in work is better than that which other member states have been able to achieve. Contrary to what the hon. Member for Cynon Valley said, under our system women's pay has grown and under this Government the pay differential with men has been reduced.
§ Mr. Forsyth
It is true. Since 1979 the differential has been reduced by 4 per cent. and the hon. Lady should know that.
The most fundamental objection to the directive is that it is part of a package of measures that simply misses the point about the principles that are important in the Community. If we want to give women more opportunities and create more jobs we do not need more regulations that will add to the cost of employment and make it more difficult to employ people. Opposition Members would accept the social chapter and give away our veto, leaving our country less able to compete.
The hon. Member for Kingston upon Hull, East has been travelling throughout the country making a lot of noise and the Leader of the Opposition has been busily telling the country that Labour are committed to maintaining Britain's veto and would not get rid of it. Tonight, we have an example of a measure that Britain is vetoing. We are able to veto it because we opted out of the social chapter. If we were in it, we could not veto the directive. Opposition Members would have removed that veto.
Labour Members do not need the veto because they believe in a socialist agenda that would make it more difficult to create the jobs that are desperately needed throughout the Community. As my hon. Friends pointed out, it is no coincidence that half the inward investment in the Community comes to Britain. That is happening because we are able to reject the kind of nonsense that we have heard tonight.
§ It being one and a half hours after the commencement of proceedings on the motion, MADAM SPEAKER put the Questions necessary to dispose of them, pursuant to the Order [29 April.]
§ Question put, That the amendment be made:—
§ The House divided: Ayes 232, Noes 285.126
|Division No. 232]||[10.15 pm|
|Abbott, Ms Diane||Benton, Joe|
|Ainger, Nick||Bermingham, Gerald|
|Ainsworth, Robert (Cov'try NE)||Berry, Roger|
|Allen, Graham||Betts, Clive|
|Anderson, Donald (Swansea E)||Blunkett, David|
|Anderson, Ms Janet (Ros'dale)||Boateng, Paul|
|Armstrong, Hilary||Boyes, Roland|
|Ashton, Joe||Bradley, Keith|
|Austin-Walker, John||Bray, Dr Jeremy|
|Banks, Tony (Newham NW)||Brown, Gordon (Dunfermline E)|
|Barnes, Harry||Brown, N. (N'c'tle upon Tyne E)|
|Barron, Kevin||Bruce, Malcolm (Gordon)|
|Battle, John||Byers, Stephen|
|Bayley, Hugh||Callaghan, Jim|
|Beckett, Rt Hon Margaret||Campbell, Mrs Anne (C'bridge)|
|Beith, Rt Hon A. J.||Campbell, Menzies (Fife NE)|
|Bennett, Andrew F.||Campbell, Ronnie (Blyth V)|
|Campbell-Savours, D. N.||Hutton, John|
|Canavan, Dennis||Illsley, Eric|
|Cann, Jamie||Ingram, Adam|
|Carlile, Alexander (Montgomry)||Jackson, Glenda (H'stead)|
|Chisholm, Malcolm||Jackson, Helen (Shef'ld, H)|
|Clapham, Michael||Jamieson, David|
|Clark, Dr David (South Shields)||Janner, Greville|
|Clarke, Eric (Midlothian)||Jones, Barry (Alyn and D'side)|
|Clarke, Tom (Monklands W)||Jones, Ieuan Wyn (Ynys Môn)|
|Clelland, David||Jones, Lynne (B'ham S O)|
|Clwyd, Mrs Ann||Jones, Martyn (Clwyd, SW)|
|Coffey, Ann||Kaufman, Rt Hon Gerald|
|Cohen, Harry||Keen, Alan|
|Connarty, Michael||Kennedy, Charles (Ross,C&S)|
|Cook, Frank (Stockton N)||Kennedy, Jane (Lpool Brdgn)|
|Cook, Robin (Livingston)||Khabra, Piara S.|
|Corbett, Robin||Lestor, Joan (Eccles)|
|Corston, Ms Jean||Lewis, Terry|
|Cummings, John||Litherland, Robert|
|Cunliffe, Lawrence||Livingstone, Ken|
|Cunningham, Jim (Covy SE)||Lloyd, Tony (Stretford)|
|Dalyell, Tam||Llwyd, Elfyn|
|Darling, Alistair||Lynne, Ms Liz|
|Davies, Bryan (Oldham C'tral)||McAllion, John|
|Davies, Ron (Caerphilly)||McAvoy, Thomas|
|Davis, Terry (B'ham, H'dge H'l)||McCartney, Ian|
|Dixon, Don||McFall, John|
|Dobson, Frank||McKelvey, William|
|Donohoe, Brian H.||Mackinlay, Andrew|
|Dowd, Jim||McLeish, Henry|
|Dunwoody, Mrs Gwyneth||McMaster, Gordon|
|Eagle, Ms Angela||McWilliam, John|
|Eastham, Ken||Madden, Max|
|Enright, Derek||Maddock, Mrs Diana|
|Etherington, Bill||Mahon, Alice|
|Evans, John (St Helens N)||Mandelson, Peter|
|Ewing, Mrs Margaret||Martlew, Eric|
|Fatchett, Derek||Meacher, Michael|
|Faulds, Andrew||Meale, Alan|
|Field, Frank (Birkenhead)||Michael, Alun|
|Fisher, Mark||Michie, Mrs Ray (Argyll Bute)|
|Flynn, Paul||Milburn, Alan|
|Foster, Rt Hon Derek||Miller, Andrew|
|Foster, Don (Bath)||Mitchell, Austin (Gt Grimsby)|
|Foulkes, George||Moonie, Dr Lewis|
|Fraser, John||Morgan, Rhodri|
|Fyfe, Maria||Morley, Elliot|
|Gapes, Mike||Morris, Rt Hon A. (Wy'nshawe)|
|Garrett, John||Morris, Estelle (B'ham Yardley)|
|George, Bruce||Morris, Rt Hon J. (Aberavon)|
|Gerrard, Neil||Mudie, George|
|Gilbert, Rt Hon Dr John||Mullin, Chris|
|Godsiff, Roger||Murphy, Paul|
|Golding, Mrs Llin||Oakes, Rt Hon Gordon|
|Gordon, Mildred||O'Brien, Michael (N W'kshire)|
|Graham, Thomas||O'Brien, William (Normanton)|
|Griffiths, Nigel (Edinburgh S)||O'Hara, Edward|
|Griffiths, Win (Bridgend)||Olner, William|
|Grocott, Bruce||O'Neill, Martin|
|Gunnell, John||Orme, Rt Hon Stanley|
|Hain, Peter||Parry, Robert|
|Hall, Mike||Patchett, Terry|
|Hanson, David||Pickthall, Colin|
|Harman, Ms Harriet||Pike, Peter L.|
|Harvey, Nick||Pope, Greg|
|Hattersley, Rt Hon Roy||Powell, Ray (Ogmore)|
|Henderson, Doug||Prentice, Ms Bridget (Lew'm E)|
|Heppell, John||Prentice, Gordon (Pendle)|
|Hill, Keith (Streatham)||Prescott, John|
|Hinchliffe, David||Primarolo, Dawn|
|Hoey, Kate||Purchase, Ken|
|Home Robertson, John||Quin, Ms Joyce|
|Hoon, Geoffrey||Randall, Stuart|
|Howarth, George (Knowsley N)||Raynsford, Nick|
|Howells, Dr. Kim (Pontypridd)||Redmond, Martin|
|Hoyle, Doug||Reid, Dr John|
|Hughes, Kevin (Doncaster N)||Rendel, David|
|Hughes, Robert (Aberdeen N)||Robertson, George (Hamilton)|
|Hughes, Roy (Newport E)||Roche, Mrs. Barbara|
|Hughes, Simon (Southwark)||Rogers, Allan|
|Rooker, Jeff||Turner, Dennis|
|Rooney, Terry||Vaz, Keith|
|Ross, Ernie (Dundee W)||Walker, Rt Hon Sir Harold|
|Rowlands, Ted||Walley, Joan|
|Ruddock, Joan||Wardell, Gareth (Gower)|
|Sheerman, Barry||Wareing, Robert N|
|Sheldon, Rt Hon Robert||Watson, Mike|
|Shore, Rt Hon Peter||Wicks, Malcolm|
|Simpson, Alan||Williams, Rt Hon Alan (Sw'n W)|
|Skinner, Dennis||Williams, Alan W (Carmarthen)|
|Smith, Andrew (Oxford E)||Wilson, Brian|
|Smith, C. (Isl'ton S & F'sbury)||Winnick, David|
|Smith, Llew (Blaenau Gwent)||Wise, Audrey|
|Soley, Clive||Worthington, Tony|
|Spearing, Nigel||Wray, Jimmy|
|Spellar, John||Wright, Dr Tony|
|Squire, Rachel (Dunfermline W)||Young, David (Bolton SE)|
|Steel, Rt Hon Sir David|
|Stevenson, George||Tellers for the Ayes:|
|Strang, Dr. Gavin||Mr. Peter Kilfoyle and|
|Taylor, Mrs Ann (Dewsbury)||Mr. Jon Owen Jones.|
|Ainsworth, Peter (East Surrey)||Colvin, Michael|
|Aitken, Jonathan||Congdon, David|
|Alexander, Richard||Coombs, Anthony (Wyre For'st)|
|Alison, Rt Hon Michael (Selby)||Coombs, Simon (Swindon)|
|Allason, Rupert (Torbay)||Cope, Rt Hon Sir John|
|Amess, David||Cormack, Patrick|
|Ancram, Michael||Couchman, James|
|Arbuthnot, James||Cran, James|
|Arnold, Jacques (Gravesham)||Curry, David (Skipton & Ripon)|
|Arnold, Sir Thomas (Hazel Grv)||Davies, Quentin (Stamford)|
|Ashby, David||Davis, David (Boothferry)|
|Aspinwall, Jack||Day, Stephen|
|Atkins, Robert||Deva, Nirj Joseph|
|Atkinson, David (Bour'mouth E)||Devlin, Tim|
|Atkinson, Peter (Hexham)||Dickens, Geoffrey|
|Baker, Rt Hon K. (Mole Valley)||Dorrell, Stephen|
|Baker, Nicholas (Dorset North)||Douglas-Hamilton, Lord James|
|Baldry, Tony||Dover, Den|
|Banks, Matthew (Southport)||Duncan, Alan|
|Banks, Robert (Harrogate)||Duncan-Smith, Iain|
|Bates, Michael||Dunn, Bob|
|Batiste, Spencer||Durant, Sir Anthony|
|Bellingham, Henry||Eggar, Tim|
|Bendall, Vivian||Elletson, Harold|
|Beresford, Sir Paul||Evans, David (Welwyn Hatfield)|
|Biffen, Rt Hon John||Evans, Jonathan (Brecon)|
|Blackburn, Dr John G.||Evans, Nigel (Ribble Valley)|
|Bonsor, Sir Nicholas||Evans, Roger (Monmouth)|
|Booth, Hartley||Evennett, David|
|Boswell, Tim||Faber, David|
|Bottomley, Peter (Eltham)||Fabricant, Michael|
|Bottomley, Rt Hon Virginia||Fenner, Dame Peggy|
|Bowden, Andrew||Field, Barry (Isle of Wight)|
|Bowis, John||Fishburn, Dudley|
|Boyson, Rt Hon Sir Rhodes||Forman, Nigel|
|Brandreth, Gyles||Forsyth, Michael (Stirling)|
|Brazier, Julian||Forth, Eric|
|Bright, Graham||Fowler, Rt Hon Sir Norman|
|Brown, M. (Brigg & Cl'thorpes)||Fox, Dr Liam (Woodspring)|
|Browning, Mrs. Angela||Fox, Sir Marcus (Shipley)|
|Bruce, Ian (S Dorset)||Freeman, Rt Hon Roger|
|Budgen, Nicholas||French, Douglas|
|Burns, Simon||Fry, Sir Peter|
|Burt, Alistair||Gale, Roger|
|Butcher, John||Gallie, Phil|
|Butler, Peter||Gardiner, Sir George|
|Carlisle, John (Luton North)||Garel-Jones, Rt Hon Tristan|
|Carlisle, Kenneth (Lincoln)||Garnier, Edward|
|Carrington, Matthew||Gill, Christopher|
|Carttiss, Michael||Gillan, Cheryl|
|Cash, William||Goodson-Wickes, Dr Charles|
|Churchill, Mr||Gorman, Mrs Teresa|
|Clappison, James||Gorst, John|
|Clark, Dr Michael (Rochford)||Grant, Sir A. (Cambs SW)|
|Clarke, Rt Hon Kenneth (Ruclif)||Greenway, Harry (Eating N)|
|Clifton-Brown, Geoffrey||Greenway, John (Ryedale)|
|Coe, Sebastian||Griffiths, Peter (Portsmouth, N)|
|Grylls, Sir Michael||Neubert, Sir Michael|
|Gummer, Rt Hon John Selwyn||Newton, Rt Hon Tony|
|Hague, William||Nicholls, Patrick|
|Hamilton, Rt Hon Sir Archie||Nicholson, David (Taunton)|
|Hamilton, Neil (Tatton)||Nicholson, Emma (Devon West)|
|Hampson, Dr Keith||Norris, Steve|
|Hanley, Jeremy||Onslow, Rt Hon Sir Cranley|
|Hannam, Sir John||Ottaway, Richard|
|Hargreaves, Andrew||Page, Richard|
|Haselhurst, Alan||Paice, James|
|Hawkins, Nick||Patnick, Irvine|
|Hawksley, Warren||Pattie, Rt Hon Sir Geoffrey|
|Hayes, Jerry||Pawsey, James|
|Heald, Oliver||Pickles, Eric|
|Hendry, Charles||Porter, Barry (Wirral S)|
|Higgins, Rt Hon Sir Terence L.||Porter, David (Waveney)|
|Hill, James (Southampton Test)||Portillo, Rt Hon Michael|
|Hogg, Rt Hon Douglas (G'tham)||Renton, Rt Hon Tim|
|Horam, John||Richards, Rod|
|Hordern, Rt Hon Sir Peter||Riddick, Graham|
|Howarth, Alan (Strat'rd-on-A)||Rifkind, Rt Hon. Malcolm|
|Howell, Rt Hon David (G'dford)||Robathan, Andrew|
|Hunt, Rt Hon David (Wirral W)||Roberts, Rt Hon Sir Wyn|
|Hunt, Sir John (Ravensbourne)||Robinson, Mark (Somerton)|
|Hunter, Andrew||Roe, Mrs Marion (Broxbourne)|
|Jack, Michael||Rowe, Andrew (Mid Kent)|
|Jackson, Robert (Wantage)||Ryder, Rt Hon Richard|
|Jenkin, Bernard||Sackville, Tom|
|Jessel, Toby||Sainsbury, Rt Hon Tim|
|Johnson Smith, Sir Geoffrey||Scott, Rt Hon Nicholas|
|Jones, Gwilym (Cardiff N)||Shaw, David (Dover)|
|Jones, Robert B. (W Hertfdshr)||Shaw, Sir Giles (Pudsey)|
|Key, Robert||Shephard, Rt Hon Gillian|
|King, Rt Hon Tom||Shepherd, Colin (Hereford)|
|Kirkhope, Timothy||Shepherd, Richard (Aldridge)|
|Knapman, Roger||Shersby, Michael|
|Knight, Mrs Angela (Erewash)||Sims, Roger|
|Knight, Greg (Derby N)||Skeet, Sir Trevor|
|Knight, Dame Jill (Bir'm E'st'n)||Soames, Nicholas|
|Knox, Sir David||Spencer, Sir Derek|
|Kynoch, George (Kincardine)||Spicer, Michael (S Worcs)|
|Lait, Mrs Jacqui||Spink, Dr Robert|
|Lamont, Rt Hon Norman||Spring, Richard|
|Lawrence, Sir Ivan||Squire, Robin (Hornchurch)|
|Legg, Barry||Stanley, Rt Hon Sir John|
|Leigh, Edward||Steen, Anthony|
|Lester, Jim (Broxtowe)||Stephen, Michael|
|Lidington, David||Stern, Michael|
|Lightbown, David||Stewart, Allan|
|Lilley, Rt Hon Peter||Streeter, Gary|
|Lloyd, Rt Hon Peter (Fareham)||Sumberg, David|
|Lord, Michael||Sweeney, Walter|
|Luff, Peter||Sykes, John|
|Lyell, Rt Hon Sir Nicholas||Tapsell, Sir Peter|
|MacKay, Andrew||Taylor, Ian (Esher)|
|Maclean, David||Taylor, John M. (Solihull)|
|McLoughlin, Patrick||Taylor, Sir Teddy (Southend, E)|
|McNair-Wilson, Sir Patrick||Temple-Morris, Peter|
|Madel, Sir David||Thomason, Roy|
|Maitland, Lady Olga||Thompson, Sir Donald (C'er V)|
|Malone, Gerald||Thompson, Patrick (Norwich N)|
|Mans, Keith||Thornton, Sir Malcolm|
|Marland, Paul||Thurnham, Peter|
|Marlow, Tony||Townend, John (Bridlington)|
|Marshall, John (Hendon S)||Townsend, Cyril D. (Bexl'yh'th)|
|Marshall, Sir Michael (Arundel)||Tracey, Richard|
|Martin, David (Portsmouth S)||Tredinnick, David|
|Mates, Michael||Trend, Michael|
|Mellor, Rt Hon David||Twinn, Dr Ian|
|Merchant, Piers||Vaughan, Sir Gerard|
|Mills, Iain||Viggers, Peter|
|Mitchell, Andrew (Gedling)||Waldegrave, Rt Hon William|
|Mitchell, Sir David (Hants NW)||Walden, George|
|Moate, Sir Roger||Walker, Bill (N Tayside)|
|Molyneaux, Rt Hon James||Ward, John|
|Monro, Sir Hector||Wardle, Charles (Bexhill)|
|Montgomery, Sir Fergus||Waterson, Nigel|
|Moss, Malcolm||Watts, John|
|Needham, Richard||Wells, Bowen|
|Whitney, Ray||Wolfson, Mark|
|Whittingdale, John||Wood, Timothy|
|Widdecombe, Ann||Yeo, Tim|
|Wiggin, Sir Jerry||Young, Rt Hon Sir George|
|Willetts, David||Tellers for the Noes:|
|Wilshire, David||Mr. Sydney Chapman and|
|Winterton, Mrs Ann (Congleton)||Mr. Derek Conway.|
|Winterton, Nicholas (Macc'f'ld)|
§ Amendment accordingly negatived.
§ Main Question put and agreed to.
That this House takes note of European Community Document No. 6703/88 and the Supplementary Explanatory Memorandum submitted by the Employment Department on 21st October 1993, relating to the burden of proof in the area of equal pay and equal treatment for women and men; endorses the Government's view that the draft Directive breaches the principle of subsidiarity and would have a disproportionate impact in the United Kingdom; shares the Government's view that the proposed Directive is wrong in principle and unnecessary for the proper determination of cases; agrees with the Government that the United Kingdom's arrangements for deciding complaints of sex discrimination and equal pay are fair to both parties, and take proper account of the problems of evidence and the need to reach fair decisions with due regard to the interests of both parties; and supports the Government's view that the draft Directive should not be adopted.
§ Mr. Nigel Griffiths (Edinburgh, South)
On a point of order, Mr. Deputy Speaker, of which I have given notice to the Minister for Energy and the hon. Member for Brentford and Isleworth (Mr. Deva), relating to a parliamentary question that I tabled on 3 May about a report published today, "Competition and choice in the gas market—a joint consultative document". A similar question was tabled by the hon. Member for Brentford and Isleworth three days later. The Minister answered that question today, held a press conference outside the House and notified me of his answer to the hon. Gentleman, despite the question that I had tabled previously. That is a gross discourtesy to the House.
The document, which is effectively a Green Paper and which has been the subject of parliamentary questions, should have been the subject of a statement in the House. It is an insult to more than 18 million gas users in this country.
§ Mr. Deputy Speaker (Mr. Geoffrey Lofthouse)
The hon. Gentleman may think that, but it is not a matter for the Chair, as he well knows.
§ Mr. Jacques Arnold (Gravesham)
On a point of order, Mr. Deputy Speaker. I wonder whether you recall the occasion when a press release was put out by the hon. Member for Edinburgh, South (Mr. Griffiths) about a speech which he never made in the House of Commons—
§ Mr. Dennis Skinner (Bolsover)
On a point of order, Mr. Deputy Speaker. Undoubtedly you will have heard earlier today that the Minister for Social Security and Disabled People misled the House on Friday when he said that he had no knowledge about parliamentary questions—
§ Mr. Deputy Speaker
Order. As I am sure the hon. Gentleman knows, Madam Speaker told the House that she will consider the matter.