HL Deb 17 July 1975 vol 362 cc1359-444

3.41 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord ROYLE in the Chair.]

Clause 50 [Establishment and duties of Commission]:

Lord HOUGHTON of SOWERBY moved Amendment No. 47A: Page 30, line 21, after ("individuals") insert ("of whom at least one half shall be women").

The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. At the same time, I confess quite frankly that my heart is not in the matter. However, I am very susceptible to feminine influence and I yielded to the entreaties of some of my friends in another place who apparently still remain doubtful about the balance of composition of the Commission for Equal Opportunities. Personally, I feel that any such fears are groundless. If my noble friend is able to dispel any lingering doubts that the balance will not be right, then I shall have great pleasure in asking for the leave of the Committee to withdraw the Amendment. I am sure that there is no need to spend any time upon it. I feel that I have discharged a pledge of honour to my friends in another place with, I hope, reasonable sincerity and, possibly, effectiveness.


May I remind my noble friend Lord Houghton of Sowerby that the Select Committee considered this question. I do not think we were in favour of more statutory women, but we suggested putting into the Bill the following clause: Any Minister of the Crown who is authorised by or under any enactment whether passed before or after this Act to appoint the members of any Board, Commission, Committee or other public body or the holders of any public office shall consider women equally with men for the purposes of such appointment". I rather regret that this Bill does not contain that clause.

Baroness SEEAR

I oppose the suggestion of the noble Lord, Lord Houghton of Sowerby. I understood that we were opposed to quotas in any shape or form. We want the best people to be appointed to do the job, whatever may be their sex.


I agree with the noble Baroness. Curiously enough, when it came to the best people we always found in the past that they were male. Time after time noble Lords have heard me ask my noble friend why it is that a certain committee is composed of men and that no one woman serves upon it. Unless we put down our foot at this stage the same thing will happen again. Men have not changed in this respect. They all want power, even on a Commission of this kind. This is a modest proposal. I should have thought that more than half the members of this Commission ought to be women. My reason for saying that is that surely this Bill should be regarded as of greater interest to women than to men. Perhaps we are trying to prevent discrimination against a very few men, but in the main we are trying to prevent discrimination against women. Therefore, I should like to see on the Commission individuals who will be vigilant, and I believe that a woman would be more vigilant than a man in observing whether discrimination has been exercised. Furthermore, we are told in the Bill that the Commission will be concerned with the Equal Pay Act. Again, equal pay is a woman's concern, and I feel that the individuals on the Commission should be particularly concerned with the Equal Pay Act. Therefore, I say that at least half of the members of the Commission should be women. I support my noble friend, although I am sorry to hear him say that he has very little interest in the matter.


I have been waiting to use this argument to my noble friend Lady Summerskill for, I think, two days and this is the first opportunity I have had to do so. I should like to draw her attention to the very persuasive argument used in the Standing Committee in another place by my honourable friend the Parliamentary Under-Secretary at the Home Office, with whom I think she is well acquainted, which justifies the Government's position on this matter and is partly the explanation of why my noble friend Lord Houghton of Sowerby moved this Amendment in rather restrained terms. I think that is a fair way of describing his position.

First, may I say that I agree with my noble friend Lady Summerskill on one point, that there are far too few women on boards appointed by Ministers. As a result—his picks up a point which was made by my noble and learned friend Lord Gardiner—it is the intention of the Government to consider tabling an Amendment at Report stage which is designed to ensure that the principle of non-discrimination on the grounds of sex is reflected in the making of appointments to public boards, although the clause will not be enforceable under Clause 3. Clearly, it is desirable for us to indicate once and for all that the appointment of a single woman to the board of a nationalised industry or any board appointed by a Minister is quite inappropriate now, and we are endeavouring to meet that point by the Amendment which we are considering putting down at Report stage.

My noble and learned friend Lord Gardiner referred to the Report of the Select Committee. May I remind the Committee of what the Select Committee said on this point; namely: The Committee were unanimous in rejecting the requirement for a fixed number of women on the Board. Since the aim of this legislation is to enable women to be considered as persons in their own right and not to be categorised by sex, it seems singularly inappropriate to demand a quota of women on the Board. And, indeed, that is the point which was made by the noble Baroness, Lady Seear, a few moments ago. I must make it quite clear that the Amendment will not indicate any form of quota, but it will to a certain extent meet the point made by my noble and learned friend and, I hope, the House when it is considered on Report stage. On that basis, I hope that my noble friend will not press his Amendment.


I am satisfied, and I beg permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.50 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 48:

Page 30, line 39, at end insert— ("( )The Commission shall discharge its functions in accordance with arrangements made by the Commission and approved by the Secretary of State. ( )The said arrangements may provide for the discharge under the general direction of the Commission of the Commission's functions in relation to any complaint, claim or any other matter falling to be dealt with by them, or in relation to any class of such matters, by a group of members of the Commission selected by the Chairman of the Commission; and where any such functions are in accordance with such arrangements to be discharged by a group of members, anything done by or in relation to the group in or in connection with the discharge of those functions shall have the same effect as if done by or in relation to the Commission.)

The noble Viscount said: I had my attention drawn to a parallel piece of legislation regarding the Race Relations Board. May I say straight away that I do not think one ought necessarily to import wholesale into one's approach to the Bill that is now before the Committee everything that is in the race relations legislation. On the contrary, one should be very careful to see where the differences lie. But in this respect I observe two points laid down in Section 14 of the later of the two Acts relating to this subject, which contain with adaptations the same provisions that I put in this Amendment, and I suggest to the Committee that there is some merit in re-introducing this for the Equal Opportunities Commission.

There are really two points here. First, under the parallel provision relating to race relations, there is, I suppose, a certain amount of co-operation and discussion betwen the Board and, I think it is in that case, the Home Office, about the way in which they fulfil their functions. Taking that in the context of this Bill we have not just one Department, the Home Office, but other Secretaries of State as well. We have the Department of Education and Science, the DHSS, the Department of Employment, the Scottish Office and the Welsh Office. I imagine they would all be included in the definition of "Secretary of State" for the purposes of this Bill, and I think it would be very valuable that the various Secretaries of State and their Departments should be involved in the working out of the practical arrangements for the Equal Opportunities Commission, and indeed the general approach that they adopt to the various subjects within the aegis of those Departments.

The second point is that I believe the headquarters of the Commision are to be in Manchester. I certainly would not wish to demur from that because we do indeed wish to provide for some decentralisation and for the setting up of important Departments of State in places other than London. Nevertheless, except in Northern Ireland, this particular body will be exercising its jurisdiction all over the British Isles, and therefore we need to have sub-divisions of that body who will do their jobs in various parts as independent units of the Commission.

It may be that one does not need these Amendments. Nevertheless, it is a marked omission from the Bill that whereas in the Race Relations Acts this provision is spelt out, there is nothing equivalent in the Bill. I think probably the approach ought to be just the same, and therefore it is worth while putting it into the legislation itself in order to make quite sure that the same sort of general arrangements apply and that sub-committees, or groups of members of the Commission, can exercise the full powers of the Commission individually without in a formal way calling the whole panoply of the body to their support. I beg to move.


Would my noble friend elicit, for the benefit, perhaps, of the female Members in this place, how many commissions are settled out of the capital City? Is this the first Commission that has its headquarters outside London?


If I may deal first with the point made by my noble friend, I could not answer her questions without some fairly substantial investigation; but as the noble Viscount pointed out a moment ago, it was the policy of the previous Government and it is the policy of this Government, to try to achieve some decentralisation of offices. In my view it is wholly right, as the noble Viscount has said, to ensure that when new organisations of this sort are set up they move to areas outside London. Indeed, as my noble friend will be aware, this is the position with regard to a substantial number of Government Departments which, over the last few years, have moved out of London.

Turning now to the point made by the noble Viscount, the Government are indebted to him for having drawn our attention to it. As he rightly said, this is a provision which was inserted in the Race Relations Act, and I entirely agree with him that that does not by itself mean that it should be introduced into this Bill. Nevertheless, I think he has made a persuasive case. We have looked into this matter and, if he will be good enough to withdraw his Amendment, the Government will introduce an Amendment on this point at the Report stage.


I am very much obliged to the noble Lord. I have never yet drafted anything right—yes, I did once, and the noble Lord, Lord Kennet, after having refused it on three occasions, on a matter of drafting, said it was then contrary to policy. Nevertheless on this occasion if the noble Lord will do better than I can, I will happily withdraw my Amendment now.

Amendment, by leave, withdrawn.

Clause 50 agreed to.

Clauses 51 to 55 agreed to.

Clause 56 [Power to obtain information]:

3.56 p.m.

Lord DRUMALBYN moved Amendment No. 49: Page 33, line 14, leave out from ("unless") to end of line 16 and insert ("the Commission has undertaken in the notice to pay or tender to him the necessary expenses of his journey to and from that place").

The noble Lord said: Clause 56(1)(b) enables the Commission by notice of the prescribed form served on him in the prescribed manner to require any person to attend at such time and place as is specified in the notice, and subsection (4) equates the penalty for non-compliance with the penalty for neglecting a witness summons. It follows, therefore, that it must be made absolutely clear to the person who is summoned that his expenses will be paid before he makes up his mind whether or not to attend.

It would be quite wrong to require a person to attend if he was in any doubt as to whether or not his expenses would be paid. The second and perhaps rather minor point is that the Commission obviously will not necessarily know where he is coming from and therefore could not assess in advance the expenses, or tender them in advance. I am not certain whether my drafting is right but I think the idea should commend itself to the Government. I beg to move.


I looked at this matter with some care because I am bound to say that the Amendment appears to be unnecessary and I hope I shall succeed in persuading the noble Lord that this is so. Subsection (3)(b) of Clause 56 says that the notice to attend a formal investigation by the Commission: shall not require a person— (b) to attend at any place unless the necessary expenses of his journey to and from that place are … tendered to him. The effect of this Amendment is twofold: first, it substitutes for actual payment what could be described as a promise to pay. I am not sure that that takes us very far; but, secondly, it provides that payment of expenses shall be by the Commission. Even without the Amendment it is obvious that in a very large number of cases the Commission would, of course, pay. But there are circumstances where the Commission might issue a notice at the request of an organisation being investigated and, in those circumstances, it seems to us that it is perfectly appropriate for that organisation to be the people who would carry the burden of the travel expenses incurred.

Therefore, with respect to the noble Lord, it seems to us that the effect of the Amendment would be to lead to increased public expenditure and I do not really believe that it is altogether justified, for the reasons I have endeavoured to set out.


I think the noble Lord has put forward a perfectly understandable case. What he is really saying is that the clause does not state who is paying the expenses but, equally, it does not state that the Commission has to undertake to pay the expenses in an appropriate case where it should pay the expenses. I wonder whether the noble Lord could look at it again?


I will gladly look at the point, but if the noble Lord, Lord Drumalbyn, studies in Hansard tomorrow what I have said, I hope he will feel that his point has been met. Certainly I will look again at it.


I am much obliged to the noble Lord. What he is really saying is that "tendered" is the equivalent of the words I have put down.


The point is that in most cases there is no doubt that the Commission will pay, but in a number of cases where they are acting on behalf of someone else in order to effect their attendance, it is reasonable that that organisation should pay rather than the Commission.


I accept that. What I said originally was simply that it is essential that the person required to attend should know in advance that his expenses will be paid or tendered by someone. Perhaps the noble Lord will look at the matter again. In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

Clause 57 [Recommendations and reports on formal investigations]:

4.2 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 50:

Page 34, line 20, leave out subsections (2) and (3) and insert— ("(2)The Commission shall prepare a report of their findings in any formal investigation conducted by them. (3) If the formal investigation is one required by the Secretary of State—

  1. (a) the Commission shall deliver the report to the Secretary of State, and
  2. (b) the Secretary of State shall cause the report to be published,
and unless required by the Secretary of State the Commission shall not publish the report. (4)If the formal investigation is not one required by the Secretary of State, the Commission shall either publish the report, or make it available for inspection in accordance with subsection (5). (5) Where under subsection (4) a report is to be made available for inspection, any person shall be entitled, on payment of such fee (if any) as may be determined by the Commission—
  1. (a) to inspect the report during ordinary office hours and take copies of all or any part of the report, or
  2. (b) to obtain from the Commission a copy, certified by the Commission to be correct, of the report.
(6) The Commission may if they think fit determine that the right conferred by subsection (5)(a) shall be exercisable in relation to a copy of the report instead of, or in addition to, the original. (7) The Commission shall give general notice of the place or places where, and the times when, reports may be inspected under subsection (5).").

The noble Lord said: If I may, I will speak to this Amendment and also to Amendments Nos. 51 and 52 at the same time. In another place, my honourable friend the Parliamentary Under-Secretary agreed to consider whether a requirement should be imposed on the Commission to make reports of formal investigations available for inspection. We think it is right that reports should be published, as they will be where the Secretary of State requires a report to be submitted: but in cases where no such requirement is made, we consider it right that these reports should be available for inspection. I beg to move.


I am sure that is right. I do not want to pick any quarrels with the noble Lord, Lord Harris of Greenwich, on that. I am entirely in favour of these things being made public. But I would draw the attention of the noble Lord to one point; that is, the provision in subsection (6). Of course, it is always good to make sure that, in the drafting of legislation we have covered all the possibilities. We should also make sure we keep up to date. But the fact remains that there are large numbers of registers and other matters of public interest open to inspection by the public. We have now got a photocopying machine, invented by someone called Mr. Xerox, I rather think—a Greek gentleman, as the noble Lord the Deputy Chairman of Committees has reminded me. If we provide that his works should be available instead of the original in the subsection and do not do it for copies of the register under the Town and Country Planning Act or a myriad of other statutory provisions, I wonder whether we shall not throw doubt on the validity of those.

It seems to me one ought to consider whether one is not being too pernickety about it, and I do not like subsection (6) for this reason, because common sense will provide for it anyway. If we put it on the Statute here, you throw doubt on the validity of doing it anywhere else. Would the noble Lord look at the point? It is only a matter of convenience and elegance; otherwise the principle of this is entirely acceptable to me.


I would be glad to look at the point again.

On Question, Amendment agreed to.

Clause 57, as amended, agreed to.

Clause 58 [Restriction on disclosure of information]:


I beg to move Amendment No. 51, which is consequential.

Amendment moved— Page 34, line 39, after ("Commission") insert ("or made available for inspection under section 57(5)").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.


I beg to move Amendment No. 52.

Amendment moved— Page 35, line 7, after ("publication" insert ("or for inspection").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 58, as amended, agreed to.

4.8 p.m.

Baroness SEEAR moved Amendment No. 53: After Clause 58, insert the following new clause:

Codes of practice

".—(1) The Commission may issue codes of practice containing such practical guidance as the Commission thinks fit for the purpose of eliminating discrimination and promoting equality of opportunity.

(2) When the Commission proposes to issue a code of practice, it shall prepare and publish a draft of that code, shall consider any representations made to it about the draft and may modify the draft accordingly.

(3) If the Commission determines to proceed with the draft, it shall transmit the draft to the Secretary of State who shall, if he approves of it, lay it before both Houses of Parliament.

(4) If within the period of forty days beginning with the day on which a copy of the draft is laid before each House of Parliament, or, if such copies are laid on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

(5) In reckoning the period of forty days referred to in subsection (4) above, no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(6) If no such resolution is passed as is referred to in subsection (4) above, the Commission shall issue the code in the form of the draft and the code shall come into effect on such day as the Secretary of State may appoint by order by statutory instrument.

(7) An order under subsection (4) above may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code of practice thereby brought into operation.

(8) The Commission may from time to time revise the whole or any part of a code of practice issued under this section and issue that revised code, and subsections (2) to (7) above shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of a code.

(9) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings; but in any proceedings brought under this Act any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the tribunal or court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

The noble Baroness said: This is an Amendment of some considerable substance, in that I am proposing here that the Commission should be empowered with suitable safeguards to draw up a code of practice for the implementation of the Sex Discrimination Act. I hope this would include the Schedules to the existing Bill which cover the Equal Pay Act 1970. There are two major reasons why I believe it would be extremely useful to have a code of practice which would be used before tribunals in trying to establish that a woman has been discriminated against or treated unfairly under the Equal Pay Act 1970.

This Bill and the Equal Pay Act 1970, as revised in the Schedule to this Bill, contain a number of very general con- siderations which will have to be worked out by the tribunals in very great detail. It is not plain to see, as one reads through either this Bill or the preceding Act, just how this is to be interpreted. I will not weary the Committee with a large number of examples, but the whole interpretation of the concept of indirect discrimination, for example, is one that is very much open to discussion. Cases which will be generally regarded as cases of indirect discrimination, and those which will not will be matters of concern both as to the women as to whether they have a case, and the people who are advising them, and the industrial tribunals which have to see, when the Bill becomes an Act, that the Act is in fact administered.

Similarly, the Equal Pay Act now embodied in Schedule 1, Part II of this Bill, contains a number of points about which we are not at all certain at present with regard to how these matters are to be interpreted. There are matters regarding the meaning of "terms and conditions of employment", and the meaning of "broadly similar". Under the Equal Pay Act, a woman is entitled to the same pay as a man, if she can establish that her work is broadly similar to that of a man. The wording of the Act gives us some clues as to what is meant by "broadly similar", but these are by no means definite and clear cut. There is a great deal of uncertainty in the minds of people who are now preparing themselves, line by line as it were, for the implementation of this legislation in places of work, as to what precisely the legislation in both these Acts will mean in practice.

This may not be immediately apparent to your Lordships, but when you get down to looking at what it means in terms of particular jobs, the Bill leaves a very great deal of uncertainty in the minds of a number of people. In order that this uncertainty should be removed, it would be of great help if codes of practice could be worked on, and some of these uncertain areas were studied in great detail and embodied in codes of practice; thus both the individual woman and the people advising her and the industrial tribunals who are faced with this legislation, in an area which is novel to them in a large number of ways, will have the assistance they will need in seeing that this legislation is properly implemented.

So the first reason why I should like to see a code of practice and the opportunity to quote a code of practice before a tribunal is that it would be of real assistance in making this legislation work. That is the first point. The second point is that, because the implications in real situations of both these two pieces of legislation now incorporated in the same Bill and in the ultimate Act are very far-reaching, and because it is going to depend on how employers and trade unions in practice apply these things, the sheer working out of the code of practice would have a valuable educative effect on both unions and employers involved in discussions on it. What is more, it will work only if unions and employers, in training courses, in discussions, in seminars up and down the country, are able to get across what the legislation really means.

A code of practice is something with which industry is already familiar, because we have had it in connection with other legislation. It was, after all, one of the very few things which the Labour movement was prepared to retain from the Industrial Relations Act. This is a tribute to the idea of having a code of practice. We are used to reading these things, but if you are conducting a supervisors' course and you present them with the Sex Discrimination Act or the Equal Pay Act you do not get very far, unless you have something much more concrete than the wording of an Act to present to them. You can say, "This is the code of practice and this is what it means in certain circumstances". The chance of getting it understood in places of work up and down the country is greatly enhanced. I believe that the educative effect of having a good code of practice is just as important as its value in bringing cases before tribunals, because both aspects are of the greatest importance. I beg to move.


I wonder whether I could ask the noble Lord a question before he replies. This is a matter which was debated in another place, and the honourable lady the Parliamentary Under-Secretary at the Home Office—


She has been mentioned once or twice.


She has not only been mentioned once or twice, but rightly so mentioned.


I thank the noble Viscount.


She had some arguments against this. As I understand it, there is no prohibition against the Equal Opportunities Commission issuing codes of practice, and the difference between what they will be able to do with this Amendment and without it is solely concerned with what appears in subsection (9) of the proposed new clause, whereby the code of practice would be like the Highway Code if this Amendment were passed, and not if it were not passed. In other words, it will be evidential and will be able to be produced in the tribunal or court where the matter is being tried. Therefore, I think there is a fairly narrow point concerned in the Amendment.

What I should be more interested in the noble Lord explaining to us is this. We are going to have, I suppose, a number of trial cases which will take the form of a number of decisions upon extremely disparate matters in all sorts of fields. It will happen on employment, on indirect discrimination, on non-intentional discrimination; all sorts of sets of circumstances are going to be brought before various courts or tribunals in order to have some principles established. I think this will be very helpful. I come back to what I keep on mentioning in this House, that we have a paucity of references for this sort of thing under the ordinary commercial machinery in this country.

It is provided in Clause 67 that there shall be a register of non-discrimination notices, and I suppose that that sort of thing, since it can be the end result of an appeal process under Clause 65, will give one an indication of what the courts, the county courts or the sheriffs courts, or the industrial tribunals, have said on a case brought before them by the Commission. But the ordinary case that is taken to the industrial tribunal or the county courts or the sheriff courts, or being readily available to other people. The industrial tribunals are better served in this respect than county courts. Your Lordships will find in the Library a series of reports called the Industrial Tribunal Reports, which are a regular and proper series of law reports, including these matters, at all stages as they go up the hierarchy. You can see there what the industrial tribunals have said on dismissal and on equal pay, and no doubt on cases which will be before them under this Bill. But you do not get that for the county courts; there is no place where county court decisions are reported. I stand subject to correction, but I do not think the sheriff court decisions are reported either.

What I would suggest to the noble Baroness is not so much that we should have codes of practice, and that these should be evidentially admissible in the courts, as that we should get a collection of decisions on particular matters, which would be much more apposite than codes of practice because they would be much more specific, and make sure that they are available to members of the public, to those who may think they are being discriminated against and those who may be discriminators. What can the noble Lord tell us about this? I believe that it is at least equally important to find out what has happened as to lay down in advance, in rather vague terms—and I think, inevitably, in rather broad terms—what ought to happen. If I can inject that into this discussion, I think it is something that was not touched upon in another place and something on which we should like some guidance.


If I could take first the point made by the noble Viscount, I should like to look into this point. It is something which was not discussed in another place. I think the noble Viscount is quite right, and it is highly desirable that people should be made aware of these judgments, because they will go to the very heart of the matter. I will look at this to see whether it is appropriate to do anything before Report stage, or whether it can be done by some other means, and I will write to the noble Viscount.

On one point I would certainly agree with the noble Baroness, though my view of the matter is very similar to the one put by the noble Viscount; namely, that I do not think the analogy of the Highway Code is appropriate to this Bill. As the noble Baroness indicated, this was discussed in another place. The noble Viscount pointed out that a decision was made on this, and the Amendment before us today is in significantly more moderate terms than the one put down in another place. But I would agree with her that there is a major communication problem here, that people should be made aware of their rights. I think at the moment, in the initial stages, it is the responsibility of the Government but thereafter, as soon as the Commission becomes more active, it will be a major part of their work.

There is, of course, nothing to debar the Commission from publishing voluntary codes on any aspect of the Bill. The problem before us is whether it is desirable to have a statutory code, rather than a voluntary one. There is no doubt that in some aspects of the Bill they will wish to do this. The discussion we had earlier on the Amendments initiated by the noble Lord, Lord Drumalbyn, on problems concerning advertising, is a clear indication that it would be helpful if the Commission gave guidance in this area. But the problem of a statutory code is still, in my view, as persuasive as it was when another place discussed this point. First, a statutory code cannot in any way replace the need to comply with the Act itself. Secondly, it is not necessarily true that a person who has appeared to comply with the code has not committed an unlawful act of discrimination under the terms of the Bill. It would not, therefore, constitute in any way a successful defence.

Thirdly, I do not think the code would help a court or tribunal in deciding the relevant question and it is essential to keep on coming back to this point. The relevant question is not whether a defendant has treated a particular woman less favourably than a man, but whether it was done on the grounds of her sex. In no way would the existence of a statutory code help anybody in determining that. Fourthly, and perhaps the strongest argument of all, I think it could introduce some element of confusion into what is already a fairly complex situation.

I recognise that the noble Baroness will not be wholly satisfied with this reply, but I would put it to her that there is no difference between us on the question of the importance of making people aware of their rights under this Bill. The Government, and certainly the Chairman and Deputy Chairman of the Commission who have already been appointed, recognise that this will be one of their principal responsibilities. However, I would put it to the noble Baroness that this can be done by a series of voluntary codes and there is no necessity to have a statutory code which, as I have indicated, from the Government's point of view is rather difficult to accept.

Baroness SEEAR

I am sorry that the Minister has not been prepared to go a little further than this. Written voluntary codes of course will be published and will be useful, but perhaps the Minister is not fully aware how much uncertainty remains in both these two Acts. May I draw his attention, for example, to the fact that in the Schedule—the equal pay part of which is now the combined legislation, where he is talking about whether the job is the same or broadly similar—all we are told to guide us is that the difference, if any, between the things she does and the things that they (the men) do is not of practicable importance in relation to the terms and conditions of employment. Accordingly, in comparing her work with theirs regard should be had to the frequency or otherwise in which differences occur in practice, as well as the nature and extent of those differences. I can see endless arguments going on about this, and one industrial tribunal coming down in favour of saying that two jobs are broadly similar and another tribunal equally sincerely trying to arrive at an honest conclusion coming to a quite different conclusion. That is why I am not entirely happy with the suggestion of the noble Viscount, Lord Colville of Culross, that we shall build up case law as guidance for the tribunals.

I think we shall build up some extremely confusing case law and that industrial tribunals really need much guidance in advance. It may be that a voluntary code will do it, but something of very considerable substance and set out in considerable detail; otherwise very conflicting findings will be made by industrial tribunals. If that happens, people will not know whether or not they have a case to bring. However, in view of what the Minister has said I will ask the leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Clause 60 agreed to:

Clause 61 [Conciliation in employment cases]:

4.25 p.m.

Lord JACQUES moved Amendment No. 54: Page 36, line 12, at end insert— ("(2A) In proceeding under subsection (1) or (2), a conciliation officer shall where appropriate have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.")

The noble Lord said: This Amendment seeks to provide an additional subsection to Clause 61. It would put a statutory duty on conciliation officers to encourage the use of voluntary grievance procedures or any other appropriate procedures in cases under the Bill or the Equal Pay Act. In practice, conciliation officers—who are part of the independent Advisory, Conciliation and Arbitration service—already do this in appropriate cases relating to unfair dismissals. However, this Amendment will give this practice a statutory basis and will ensure that all parties to a dispute, where appropriate, will be encouraged to use voluntary procedures wherever these are in existence.

The new subsection will not in any way restrict the freedom of the conciliation officer or of the parties to a complaint. The conciliation officer is required only to encourage the use of voluntary procedures where he considers it to be appropriate. If he advises the parties to consider the use of voluntary procedures, it is entirely a matter for the parties to decide whether or not to do so. Finally, I should add that the Government have, in another place, tabled Amendments to the Employment Protection Bill placing a similar duty on conciliation officers in relation to cases they will be dealing with under that Bill and under the Trade Union and Labour Relations Act 1974. Thus the relevant Statutes will all be in line. I beg to move.


I am sure that this is right, and in order that I do not bowl a Thomson or a Lillee delivery at the noble Lord, Lord Harris of Greenwich, in relation to the similar provisions which we will need to have for the enforcement of Part III under Clause 63, may I warn him in advance that on that clause I shall ask how we are to do the similar exercise when we do not have the advantage of the machinery provided by the Department of Employment and have to rely on the lawyers instructed by those who may be involved in a case. I do it at this stage, because we have not quite got there and the noble Lord might like to have some warning on it. I shall not ask the noble Lord, Lord Jacques, anything about this, but I shall raise it in the debate on the next clause.

On Question, Amendment agreed to.

Clause 61, as amended, agreed to.

Clause 62 agreed to.

Clause 63 [Claims under Part III]:

4.28 p.m.

Baroness SEEAR moved Amendment No. 55: Page 37, line 42, leave out ("four") and insert ("two").

The noble Baroness said: This Amendment has to do with enforcement in relation to the educational position. To many of us, the educational side of sex discrimination and getting changes in the educational field is of primary importance—primary in both senses of the term, because if we do not get changes in the educational field we shall whistle for a great many changes in subsequent aspects of discrimination. Therefore, to get an alteration in the educational curricula and in educational opportunities for girls is absolutely vital, if at the end of the day this Bill is to bite. In view of this, it is unfortunate that whereas—and I think it is to this that the noble Viscount, Lord Colville of Culross, was referring a moment ago—there is a procedure through the industrial tribunal for speedy enforcement of cases in the employment field, there is no such speedy system of enforcement in the educational field.

The preliminary stages of enforcement in the educational field are in the hands of the educational authorities themselves, and the Secretary of State for the Department of Education. This is somewhat objectionable, on the grounds that the appeal is going from the people who consider they are being discriminated against in the field of education, to people who are associated with the alleged act of discrimination; whereas in the case of employment it will go to a completely independent party—that is the industrial tribunal. This puts the enforcement machinery in the education area in a less satisfactory position than that in the employment area. Of course it is true that subsequently a case can go to court, but it has to go through this procedure of the Secretary of State.

As it stands, there must be this period of four months after a case has been referred to the Secretary of State. Let us consider what this means in reality. Supposing a girl wants to enter a class for mechanical drawing and she is told, as some have been told, that such classes are for boys only. She starts off this elaborate procedure for getting this decision changed and it is possible for this appeal to be lodged for no less than four months with the Secretary of State. I suggest that by that time the young woman in question would have opted for needlework and her chances of going for mechanical drawing will be finished, possibly for her lifetime. It may be that the decision when it is finally handed down from on high, will be helpful to another young woman who later wants to do mechanical drawing, but it will be too late if we are to have this sort of delay for any individual who wants to get into a class which starts in September or October, or whenever it may be, if she has to wait for as long as the procedure laid down in the educational section of this Bill. It is for that reason that we propose that it should be reduced from four to two months. This is a matter of urgency and we believe that it should be treated as such.


I must emphasise that the four months figure is the maximum time to be allowed between the submission of a complaint to the Education Minister and the time when the complainant, if not satisfied, could take proceedings in the county or sheriff court. The purpose in this is to produce as much speed as we possibly can because the hope is that when a simple complaint of precisely the nature the noble Baroness, Lady Seear, mentioned is made—of refusing a girl entry to a class in mechanical drawing—it would in fact be dealt with very quickly indeed through the channels of the Department and on the basis of the appeal to the Education Minister, and we do not see any real difficulty in that.

There may be much more complicated situations. We would confidently expect that the majority of complaints would be dealt with in a very much shorter time, and many within the period of two months mentioned by the noble Baroness. We would really expect that to be so. However, there will undoubtedly be situations where the consideration of a complaint is not as straightforward as that, where it has to be thoroughly investigated, and then it might have to take some time, especially in the case of a complaint by any person that he or she has been discriminated against by a body in the public sector of education in contravention of Clauses 22 and 23. There may be some real complexities here.

It will normally be necessary for the Education Minister in complicated cases to make inquiries of the local education authority or other body concerned, and they in turn might need to consider it in their committees and make inquiries at the institution involved in the complaint, and delay could sometimes take place if the investigation has to be made outside term time. There is also the point that it may be necessary on some occasions to consult Her Majesty's Inspectors of Schools and we might in certain circumstances have to go back to the complainant for further information. Thus, there could be complexities here, but I hope, and it is certainly our intention, that most complaints will be resolved during the process of investigation; that that will be done very quickly indeed and that the use of directions or orders, which the Secretary of State can use in the last resort, will be very limited, although of course Education Ministers would not hesitate to use their powers in the last resort.

If the maximum period were to be reduced to less than four months it would, in the view of the Government, allow Education Ministers insufficient time on some occasions for proper consideration to be given to certain complaints and could lead to extra work and duplication of effort by causing some complaints, which might otherwise have been settled by the Education Ministers, to go to the county or sheriff court. I appreciate that the noble Baroness is worried about this procedure in which Education Ministers have a large part to play—because the noble Baroness mentioned this on Second Reading—but I am doing my best to assure her that the purpose of this is to produce a speedy situation and a speedy solution, and it will be in only a small number of cases in our view that the period of four months will be required. I hope that in the light of what I have said the noble Baroness will be prepared to withdraw her Amendment.


I am afraid that the noble Lord does not convince me at all. He said that the case which my noble friend Lady Seear cited as a possible example would be dealt with very quickly and that the Government expect the great majority of complaints to be dealt with very quickly. It is all very fine to expect and hope, but the experience of a great many of us in dealing with Government Departments at one time or another is that maximum periods of this kind also become the minimum time. Since there will be no great hurry to produce anything before the deadline of four months, particularly if there are busy and overworked civil servants, this is what may happen.

For this reason, I should still like to see the period of four months reduced to two, because it does not seem to me that the awful consequences which the noble Lord cited to us of what would happen if we passed this Amendment would be so awful. If it were not resolved in two months the complainants could go to the court. In most cases, of course, if the Department explained the complexity of the situation they would not, and if they did in a very few cases, then the duplication of effort, work and expense—which I admit would happen in a few cases—does not seem to me to weigh very heavily against all the arguments that have been put forward in favour of bringing down this period to two months.

Baroness SEEAR

Like my noble friend Lord Beaumont of Whitley, I am not persuaded that this work could not effectively be got through in the great majority of cases in two months. As the noble Lord, Lord Crowther-Hunt, said, the simple cases can be handled very quickly, thus it will be only a small residue of cases which will go further. If those cases do from time to time have to appear in the courts as a result of delay,

Resolved in the affirmative, and Amendment agreed to accordingly.

4.48 p.m.

On Question, Whether Clause 63, as amended, shall stand part of the Bill?


This is the point of which I gave notice

then I do not believe that this will necessarily be a bad thing, because it will be a redress to the Departmental nature of the handling of the cases. I am not prepared, therefore, to withdraw the Amendment.

4.38 p.m.

On Question, Whether the said Amendment (No. 55) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 43.

Airedale, L. Effingham, E. Northchurch, B.
Amherst of Hackney, L. Elliot of Harwood, B. Nugent of Guildford, L.
Amulree, L. Emmet of Amberley, B. O'Neill of the Maine, L.
Arran, E. Erskine of Rerrick, L. Orr-Ewing, L.
Ashbourne, L. Falkland, V. Platt, L.
Balerno, L. Geoffrey-Lloyd, L. Porritt, L.
Balfour, E. Gladwyn, L. Rankeillour, L.
Balfour of Inchrye, L. Goschen, V. Reigate, L.
Barnby, L. Grenfell, L. Renwick, L.
Beaumont of Whitley, L. [Teller.] Grimston of Westbury, L. Roberthall, L.
Hanworth, V. Robson of Kiddington, B.
Berkeley, B. Harvington, L. Rochester, L.
Bessborough, E. Hawke, L. Sackville, L.
Brentford, V. Henley, L. St. Davids, V.
Brooke of Cumnor, L. Hornsby-Smith, B. Sandys, L.
Brooke of Ystradfellte, B. Jessel, L. Seear, B.
Byers, L. Killearn, L. Selkirk, E.
Campbell of Croy, L. Lauderdale, E. Sempill, Ly.
Cathcart, E. Lindsey and Abingdon, E. Somers, L.
Chorley, L. Long, V. Stamp, L.
Clitheroe, L. Loudoun, C. Teviot, L.
Colwyn, L. Lyell, L. Thurlow, L.
Cromartie, E. Massereene and Ferrard, V. Thurso, V.
Cullen of Ashbourne, L. Meston, L. Trefgarne, L.
Daventry, V. Montagu of Beaulieu, L. Vickers, B. [Teller.]
de Freyne, L. Mountgarret, V. Vivian, L.
Derwent, L. Mowbray and Stourton, L. Ward of North Tyneside, B.
Drumalbyn, L. Nelson of Stafford, L. Windlesham, L.
Dundonald, E. Newall, L.
Alport, L. Greenwood of Rossendale, L. Phillips, B.
Beswick, L. Harris of Greenwich, L. Royle, L.
Brockway, L. Henderson, L. Segal, L.
Bruce of Donington, L. Houghton of Sowerby, L. Shackleton, L.
Collison, L. Hughes, L. Shepherd, L. (L. Privy Seal)
Crowther-Hunt, L. Jacques, L. [Teller.] Stedman, B.
Darling of Hillsborough, L. Janner, L. Summerskill, B.
Delacourt-Smith of Alteryn, B. Leatherland, L. Wallace of Coslany, L.
Douglas of Barloch, L. Lloyd of Hampstead, L. Wells-Pestell, L.
Elwyn-Jones, L. (L. Chancellor.) Lyons of Brighton, L. White, B.
Fisher of Rednal, B. Maybray-King, L. Willis, L.
Gaitskell, B. Melchett, L. [Teller.] Wilson of Radcliffe, L.
Garner, L. Pannell, L. Winterbottom, L.
Gordon-Walker, L. Peddie, L. Wootton of Abinger, B.
Goronwy-Roberts, L.

a few minutes ago. The Committee will see that in cases which go to the Industial Tribunal for enforcement under Part II of the Bill, those concerned will be fortunate in having, under Clause 61, the help of the conciliation officers of the Department of Employment. As I understand the process intended under this clause, they will be able to take an active part in trying to iron out the difficulties, remove the discriminatory prejudices and in fact do everything possible to settle the matter without anybody having to indulge in litigation at all. If that is what they are doing, I am all in favour of their doing it. However it raises the question of who is going to do the equivalent job in a case of enforcement under Part III which does not go to the Industrial Tribunal but to the courts, both in England and in Scotland. The conciliation services of the Department of Employment are not apt to deal with these.

I am a little afraid of there being a problem here because although my profession, the legal profession, is, I am sure, only too happy to have most fervent arguments with those who are alleged to be discriminating against our clients, we unfortunately have to spend a certain amount of time and trouble doing it; and we charge for it. I think that we are entitled to do so because we take a certain amount of time and trouble doing it. If in a case of this sort one of my profession is engaged under legal aid by a person against whom discrimination has been practised, does the legal aid scheme—I simply do not know; I ask out of ignorance—involve payment for the active participation in negotiations with the alleged discriminator, going to see the person who has offended under some of these provisions in Part III: has not given equivalent services, for hire purposes, or any other goods and services or entertainment, or whatever it may be? One looks at Clause 29 to see what sort of things may happen. We are involved also in the provision of premises, in lettings, in transfer of leases.

Does the legal aid service include this sort of active role for a solicitor or, occasionally, for counsel, both North and South of the Border? If not, we are leaving a gap in the Bill which will result in unnecessary litigation simply for the default in providing for somebody there to conciliate in the first place before the matter gets into the court. I believe that there is something to be said for doing it without litigation if we can, and I would ask the noble Lord whether the machinery is geared to enable this sort of thing to happen.


The noble Viscount said that he did not want to bowl any Thompson or Lillie-style bowling at me, but I fear that the effect of his generosity is that I am still unable to answer the question of which he gave me notice. I shall have to look at this. As I understand the situation—and I have tried to clarify it since the noble Viscount raised the point—we have not made any special arrangements in this type of case in the county court so far as legal aid certificates are concerned, but I am not at the moment able to give him the unequivocal answer to which he is entitled, and he will receive such an answer.


I am obliged.

Clause 63 as amended, agreed to.

Clause 64 agreed to.

Clause 65 [Appeal against non-discrimination notice]:

4.52 p.m.

Viscount COLVILLE of CULROSS move Amendment No. 57: Page 40, line 3, at end insert (" but a person upon whom any such requirement is imposed under subsection (3) may appeal to the Court of Appeal, or in Scotland the Court of Session, on any question of law. ").

The noble Viscount said: On behalf of my noble friend Lord Drumalbyn and somewhat unpreparedly, I should like to move the Amendment because I feel that it is something about which we need an answer. The provisions of Clause 65 enable a person against whom a non-discrimination notice has been served to appeal. The court—either the county court or the sheriff court—can look at it and substitute a new requirement in place of the original requirement of the non-discrimination notice under Clause 64. I suppose the court does this at the end of the hearing on its own Motion or upon the suggestion of the parties, either singly or jointly, in place of what was originally appealed against. There is, normally speaking, an appeal from the decision of a judge in the county court—and I think the same applies in Scotland—on a point of law, but not on a point of fact. Certainly, I believe that, where one has rather peculiar jurisdiction such as is provided for in Clause 65(3), where the court is really making a direction, the ordinary appeals provisions in the County Courts Act and the Scottish equivalent probably do not apply at all.

Can the noble Lord tell us what is the situation? If we reach the end of a hearing about a non-discrimination notice and the county court judge or the deputy sheriff decides to make a new requirement which no one has ever heard of before, is there or is there not any further provision for appeal? It appears to me that it is probable that it ought not to be left completely unappealable, either on a point of law or on a point of fact. It may be that we shall have to be content with a point of law, in which case one will probably be able to construct it on the grounds that the person had no reasonable basis for coming to that conclusion, or something of that nature, but I think I am right in saying that, unless we provide explicitly for an appeal on this particular type of jurisdiction, the general law almost certainly does not cover it. I may be entirely wrong, but I should be very grateful for the guidance of the noble Lord, Lord Harris, on this point. I beg to move.


I believe that I should be able to persuade the noble Viscount that the Amendment is unnecessary. Section 108 of the County Court Act 1959 provides a right of appeal on a question of law to the Court of Appeal and, in Scotland, by virtue of Sections 27 and 28 of the Sheriff Court (Scotland) Act 1907 there is a corresponding avenue of appeal to the Sheriff Principal and the Court of Session. Under the industrial tribunal procedure, there is a right of appeal to the High Court on a point of law. It is true that Section 65(4) prevents the recipient of a non-discrimination notice which has been amended by a court or tribunal in appeal proceedings by the insertion of a substitute requirement from appealing again to a court or a tribunal in respect of that substitute requirement. However, the recipient can still appeal on a point of law in the way I have outlined. Although we have looked at this point since the Amendment was tabled, we do not see that there is any need to spell this out in relation to Clause 65. I believe that the point which the noble Viscount has made is met.


I am very grateful to the noble Lord, as I am sure my noble friend will be also. The only gap in this is that one can have a situation—and I am trying to envisage what might happen—in which one had an original requirement which came before the court and which was argued about. Submissions would be made, evidence would be called and the whole procedure would be gone through and, at the end of the day, the sheriff or the county court might misinterpret the situation and produce a substitute requirement which would then be binding on both parties and about which nobody could do anything. The requirement would be in substitution for the original one which was indeed appealable, but the sheriff or the judge would come out and produce, ex cathedra, an entirely new requirement over which nothing could be done unless there were a mistake in law. I should think that, in 99 cases out of 100, if not more frequently, there will not be a mistake in law. Therefore, one will have a situation which will be unappealable.

It may be that this is the inevitable result of doing it in this way and that there is nothing which can be done about it, but I can imagine cases where, from a misunderstanding, a mistake or, just occasionally, out of unreasonableness—because one must recognise the possibility that this can occur—there will be an unsatisfactory conclusion. I was grateful to hear about the appeal on the point of law. I believe that my noble friend would like to look at this in view of the Minister's response, so, for the present, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clauses 66 and 67 agreed to.

4.58 p.m.

Clause 68 [Persistent discrimination]:


Amendment No. 58 puts right a printing error. I beg to move.

Amendment moved

Page 41, line 1, leave out ("72") and insert ("63").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Baroness VICKERS moved Amendment No. 59:

Page 41, line 12, at end insert— ("( ) Persons or organisations against whom such an order or injunction is granted shall not be eligible for grants of any kind from public funds or for tendering for any contracts paid out of such funds, notwithstanding any other enactments prior to this Act, for a period to be decided by the county court or sheriff court.").

The noble Baroness said: I feel that the Sex Discrimination Bill has been subject to some criticism, both inside and outside the House, because of many points of detail which are lacking. On Second Reading, I criticised it as having many loopholes. Women form nearly 40 per cent. of the work force of this country and one in five women can expect to be the family's breadwinner, but the average woman can expect to earn only half the average man's wage. The Equal Pay Act will not, I regret to say, put this right until women are more fairly spread throughout all types and levels of job. Few girls stay at school after 16 and not much more than a quarter of our university students are women. The number of women in professions is derisory. Forty-four out of over 3,000 university professors, and only 21 per cent. of doctors are women. Only 4 per cent. of architects and 3 per cent. of solicitors are women.

This Bill, as I understand it, is supposed to put right discrimination against women, but it does not even try to deal with this enormous disparity in jobs held by each sex. Yet I suppose that almost the sole purpose of the Bill is to ensure that if a woman wants a job, or a place in an educational institution, or access to goods or services, her application will be, quite rightly, dealt with on the same terms as those of a man. Even within these limited aims, the penalties provided for offenders are hardly adequate deterrents: a £400 fine for failure to comply with a notice ordering fair treatment for women; maximum damages of £5,200 or only 104 weeks' pay for proven, intentional and deliberate discrimination against an individual woman. I agree that no penalty can compensate for the seriousness of the offence of those who persist deliberately in treating women unjustly, even after a court or industrial tribunal judgment, but I consider that this should be put right.

It is unfortunate that money, in the form of rates and taxes, should be taken from women and used to support or employ organisations which then dis- criminate against them—discriminate not just occasionally, or accidentally, or by default, but in a determined and systematic way that leads them to disobey a court, industrial tribunal or the Equal Opportunity Commission's Order. I mention the limited aims of the Bill, because I should like to contrast what is offered to the women of this country with what is provided for the women of the United States. In that country, the Federal authorities have been more ambitious.

Their aim is not just to make sure that individual women get a fair chance of any job, education, or facility available, but that the proportions of women at every level of the work force should steadily increase. I suggest that this is what we want to see happen in this country. To be eligible for Federal contracts, or sub-contracts, a firm in the United States must show not just that it does not want to discriminate against women in its recruitment or promotions policies, but that it is taking active steps—they call it "affirmative action "—to put right the existing under-representation of women.

The Runnymede Trust has recently urged that in this country firms tendering for Government contracts worth more than £100,000 should be obliged to show that they are working towards equal job opportunities for men and women and ethnic minorities. Existing non-discrimination clauses in Government contracts should be extended to include women, and should be rigorously enforced. This Amendment seeks a more limited sanction, but I suggest that it would encourage employers and others to take active steps so that they do not run any risk of incurring that sanction. I desire to end a system—this is the important part of my Amendment—that gives grants or contracts paid from public funds equally to those who treat women fairly and to those who have been convicted of persistent, wilful and prolonged refusal to do so.

What I am suggesting falls a long way short of the American approach of positive action, but does not go as far as the Runnymede Trust urges. It seeks to make sure only that the country need not continue to support organisations that persistently break the law. By encouraging employers and others in this way to take active care that they do not risk being convicted of persistent discrimination, I believe we should be offering more impetus towards positive discrimination in favour of women, with a small but worth while enlargement of the limited ambitions of this Bill. It is for that reason that I beg to move.


I am bound to say at the outset that the Government are unable to accept this Amendment. As the noble Baroness pointed out, she is endeavouring to deal with the persistent offender. The question is not whether the persistent offender should be dealt with harshly, but rather—under her Amendment—whether this is the appropriate or just way of dealing with him; and I think that it is not. In her Amendment, the noble Baroness is asking for a mandatory disqualification from tendering for public contracts of central and local government, and the period of such disqualification would be determined by the county court judge in England and Wales and by the sheriff in Scotland. The objections to this are as follows.

First, it involves a double penalty, but only for certain types of persistent offender; namely, the one who has an interest in public contracts. He is to be dealt with differently from the person who might be a persistent offender of a far more objectionable character, but who is not involved in tendering for public contracts of any sort. That seems to me to be a fairly formidable argument in itself. But the Amendment deals only with the new contract, not with the existing contract. I realise the reason for that, and if the noble Baroness had made such a proposition I suspect that I should be arguing even more strongly against that point. Nevertheless, it is right that it should be recognised that the Amendment would not deal with a long term contract of whatever duration, but only with a new one.

The third objection—and I think this is a point of substance—is that it takes no account of other objectives of either central or local government. I wish to give some examples of what could be involved in a matter of this sort. Let us take a case involving an important new defence contract, where one of the sub-contractors is one of these persistent offenders. However—and this is where I suspect that the parallel with the United States is not a particularly strong one—he may well be involved in supplying a part for, let us say, an armoured fighting vehicle, or a radar installation, and he may be the only person capable of supplying that part. Is one to put oneself in the position of having to say that it is very unfortunate, but in that case we will not be able to have the new type of armoured fighting vehicle or whatever it may be? With respect, I do not think that the noble Baroness can totally put on one side other important objectives of Government policy.

There may, for instance, be a situation affecting a local authority where, in a widely scattered rural area, there is only one possible potential supplier, but that supplier would be debarred if he were a persistent offender. I am not in any way seeking to say that these people should be treated other than severely if they fall foul of this clause. But I say to the noble Baroness that the penalty for ignoring an injunction of a court, set out in this clause of the Bill, is very severe in itself. It can lead to a term of imprisonment or a severe financial penalty. I point out to the noble Baroness that there is nothing between the Government and herself on the question of how severely these people should be treated. But though we respect the motives which underlie this Amendment, we do not believe that this is a right way of dealing with the situation.

Baroness VICKERS

Following the noble Lord's reply, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Clause 70 agreed to.

5.10 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 60: After Clause 70, insert the following new clause:

Transfer of proceedings

".—(1) Where—

  1. (a) a complaint is made under section 60; or
  2. (b) a claim is made under section 63; or
  3. (c) an appeal is brought under section 65,

and it appears to the industrial tribunal, the county court or the sheriff court (in this section referred to as "the court"), as the case may be. that the matter falls within the jurisdiction of another of the courts, the court may, on the application of any party to the proceedings or of its own motion order that the whole proceeding be transferred to the appropriate court.

(2) Where an order is made under subsection (1) of this section, the record in the proceeding shall be transferred to the appropriate court, and the proceeding shall thenceforth be continued in that court as if it had been originally commenced therein.

(3) Rules or regulations, as defined in section 71(5), shall be made for the purposes of and incidental to the provisions of this section."

The noble Viscount said: This is an attempt to be helpful, and I hope that it is not entirely misguided. A little later, there is another of the Amendments which deal with the period of what I might describe as limitation. As it is in the names of both the noble Lord, Lord Harris of Greenwich, and my noble friend Lord Drumalbyn, it looks as if it is likely to be included in the Bill. It extends from only three months to six months the period within which one can initiate proceedings. I am entirely in favour of there being a fairly short period during which proceedings are to be initiated, whether it be under Part II of the Bill for employment matters or under Part III for the other sphere that the Bill deals with, because only if you instigate proceedings quickly will you get people who can remember what actually happened and can give reliable evidence; otherwise, the whole thing becomes confused and hazy in people's recollection.

What worries me—and I raised this point on Second Reading—is that we have a considerably complicated series of situations where people may feel that they have been discriminated against. Some of them are plainly within the realm of employment and probably will cause no difficulty; some of them are quite plainly within the realm of something other than employment and equally will cause no very great difficulty. What will happen, for instance, under something to do with vocational training? I produce this as an example only because it is fairly apparent on the face of the Bill that this could occur; in practice there will be numbers of other borderline cases, but at the moment I cannot think of the details. At present, Clause 14 deals with vocational training bodies and provides for something which I would broadly describe as being educational. There are also provisions in Part III which deal with education and training. The other day the noble Baroness, Lady Fisher of Rednal, referred to polytechnics and retraining. That is a matter which comes within Part III of the Bill.

Take an ordinary, simple person who was not very good at the law and obtained this Bill from a library to see how he should go about making a complaint. He perhaps thought the matter had something to do with vocational training and therefore referred the complaint to the industrial tribunal. He did not get the Bill from the library until four months had elapsed, and when the matter was to be heard it was seven months after the difficulty occurred. Suppose the industrial tribunal said that it was something which came not under Part II of the Bill but under Part III, and that the matter should have gone to the county court or the sheriff court. The person concerned would then be out of time and nothing could be done about the matter. There is no power in the Bill to extend the time, and therefore the person would be deprived of his remedy.

In the ordinary courts of this land, although you do not get separate jurisdictions of this kind, there is a simple machinery whereby you can transfer from the High Court to the county court, or vice versa, a case which was started by mistake in the wrong court. It would be immensely helpful for people who either could not afford a great deal of advice, were wrongly advised, genuinely muddled or, in some other way, were in a position where they made a mistake and were out of time, to have the protection of some machinery such as I have provided in order to correct it in front of the right tribunal. The court to which they originally went, upon discovery of the situation, could transfer the case to the right court.

I do not know whether this is something which makes sense. It occurs to me as a practical way of getting out of some of the difficulties which can arise from the complications and scope of this Bill. We on our side would have had a simpler Bill and cases would have gone only before the industrial tribunals. Let us accept the fact that the Government have decided on a wider scope, but let us see whether we can assist those who may try to take advantage of its provisions and not be put off by a technicality. I hope that the noble Lord will either accept this or will tell me how else you can do it. I am after practical solutions to problems, and if this is the wrong way to do it I will happily consider any other one.


I have listened with great interest to the noble Viscount. He talks about the simple woman going to the library and getting out this document to read. After she has read the first page she will probably put it back on the shelf again! As noble Lords have said, it is a very difficult Bill to understand even for those of us experienced in reading Bills. So that the good lady, whether simple or intelligent, does not get into the difficulty about which the noble Viscount has spoken, is there any possibility of getting an Easy Guide to the Sex Discrimination Bill so that all the women to whom it is supposed to apply will understand it and be able to take all these legal precautions?


I should like to support my noble friend 100 per cent. on this. If I ask for the Intelligent Woman's Guide to the Sex Discrimination Bill I shall be contravening the Bill itself! I am all in favour of this Bill, but I do not understand a word of it. It is a step in the right direction, and I am sure that there are some very good things about it. But as for understanding the drafting, I do not know how anybody can understand it at all—man, woman or child. I hope that the Government will let us have some guidelines or a simplified version of this Bill. I think it is very important we should have that; and perhaps they could let us have it first of all in this House.


If the Government are thinking of issuing simple guides or explanations of Bills, a number of your Lordships would wish to submit a long list including the new Social Security Bill.

5.18 p.m.


I think the problem raised by my noble friend Lady Gaitskell can be dealt with by calling the guide the Intelligent Person's Guide to the Sex Discrimination Bill. This Bill deals with underprivileged men as well as under-privileged women—a most important matter. I hope with the noble Baroness, Lady Fisher of Rednal, we shall get a guide to Bill. As I indicated in the debate on an earlier Amendment, there is a major communications problem here and the Government, the chairman and the deputy chairman of the Commission, are well aware of it. To a large extent this Bill will, certainly in the initial year or two of its life, stand or fall by the success achieved in communicating the provisions of the Bill. Obviously this is going to be one of the Commission's most urgent tasks when they begin to work.

In dealing with the point made by the noble Viscount, I suggest we also discuss Amendment No. 67 which deals partly with the same point, as this will help us in the area identified by the noble Viscount during his Second Reading speech. As a result of what he said, I have been discussing this matter with officials in my Department. I should not like to form a judgment at this moment about the precise points he makes; nevertheless, as a result of the noble Viscount's Amendment, we have had our own Second Reading debate within the Home Office. I hope that within the Home Office we shall soon be moving ahead to our Committee stage and Report stage, so that by the time we come to the Report stage in your Lordships' House we shall have something to offer.


I am grateful to the noble Lord. It is true that Amendment No. 67 goes some way towards the solution of this problem. If I may now address myself to his internal Report stage, what it does not deal with is the actual initiation of the process. There are court fees involved. You have to redraft your proceedings in front of the new tribunal. No doubt you have incurred fees in the inappropriate court and you will never get those back. There are costs if the case has got as far as a defence or some answer. You will not get those costs back, either. I have no particular brief for what I put down but, despite the fact that you have two slightly different types of organisation in an industrial tribunal and court between which the transfer is suggested, a simple transfer may be the easiest, cheapest and most simple solution. I would much rather leave this for the discussions which I am glad to hear are going on, and I look forward very much to there being a satisfactory result. It is essential that we should do something about it.


I do not want to commit myself, but I regard this as an important matter.


I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 71 [Help for aggrieved persons in obtaining information etc.]:

5.20 p.m.

Baroness SEEAR moved Amendment No. 61:

Page 42, line 40, at end insert— ("( ) In employment cases the person discriminated against in contravention of this Act shall consult the Conciliation Officer of the Advisory Conciliation and Arbitration Service before action is taken under subsection (1) of this section. ")

The noble Baroness said: This is to some extent also a probing Amendment and is concerned with a procedural matter, though it impinges upon the way in which this Bill will be administered. Its purpose is to ensure—if this is the right way of doing so—that in a matter such as this, where there can be a great deal of misunderstanding and human confusion, it is very important that before the legalistic procedures are embarked upon the more informal processes of conciliation should be fully pursued. The way in which Clause 71 is drafted, with its references in sub-paragraphs (a) and (b) to the filling-in of forms suggests to me, and also to at least one very experienced company lawyer, that there is a real danger that these cases will get into the hands of the lawyers and will be handled in a very legalistic way. In certain circumstances and at the end of the day that is right and proper, but it is my contention, and certainly the contention of this very experienced industrial lawyer that it is essential in employment cases that the conciliation officers should first handle them in the most informal way possible before the lawyers are brought in. It may be that this Amendment is not the right way of doing this, or that this aspect is covered in some other part of the Bill. But I move this Amendment to try to ensure that the conciliation officers are brought in as soon as possible before the lawyers are brought in, to deal with private cases. I beg to move.


In the hope that I might save time, I will not state the case against the Amendment at this stage, but would merely point out that Clause 61 (2) permits a concilation officer to be brought in before a formal complaint is made. Thus, whenever an individual feels that the services of a conciliation officer would be helpful, even where that individual does not want to make a formal complaint, the Bill already makes the appropriate provision.

Baroness SEEAR

The noble Lord has just said that the Bill permits the conciliation officer to be brought in. The point of my Amendment is to ensure that the conciliation officer has contact with these cases in the early stages. In other words, this is a procedural matter which will ensure that the conciliation officer automatically looks at a case before it goes to the lawyers. That is different from permitting a case to go to the conciliation officer.


There is a formidable case against this Amendment, and in the circumstances I must state it. First, the drafting of the Amendment is extremely had and no Amendment could be accepted in this form. For example, it assumes that the person is guilty of discrimination even before being charged. However, the purpose of the Amendment is clear and I will deal with it on that basis. Clause 71 is intended to help an aggrieved person to obtain information which will assist him or her to decide whether or not to make a complaint and, if it is so decided, to prepare a case. Let me take, for example, the case of a woman who has applied for a job, has perhaps been for an interview and has subsequently received a letter stating that she has not got the job. She may have little information about the reason for this, but may have some grounds for suspecting that it is because she is a woman. Clause 71 makes provision for forms to be prescribed, by means of which a woman may question an employer as to his reasons for turning her down. The Amendment would have the effect of requiring every individual—this would be mandatory—who considers that he or she may have been discriminated against under the employment provisions of the Bill and wishes to use one of these Clause 71 forms, to consult a conciliation officer before sending off the form.

I am afraid we do not think this would be a good idea, for several reasons. First, it would be inappropriate for a conciliation officer to have this kind of task. I am not sure whether the noble Baroness intends that the conciliation officer would simply help the individual to put the questions in the correct manner, or whether he would be expected to contact the other party to get the other side of the story. If it were only the former, then this would be a somewhat wasteful use of the skills of a conciliation officer. Moreover, I doubt whether many people would have difficulty in completing these forms, either by themselves or with the help of colleagues such as trade union representatives. Our hope in devising the form would be to direct attention to the kinds of questions which it would be most useful and relevant for an aggrieved person to ask. If it is the latter point which the noble Baroness has in mind, this, again, would be wasteful because this may be too early a stage at which to bring in the conciliation process. All an individual wants is to discover the reasons for a certain act, and it may be that once this information is available the grievances will disappear. At that point it is much too early to bring in the conciliation officer.

The second objection to the Amendment is that the very essence of a conciliation officer's task is that he always proceeds with the agreement of the two parties concerned. Thus, under Clause 61 of the Bill, nobody is forced to use the services of a conciliation officer: this is entirely for the two parties themselves to decide. But this Amendment would require an individual to consult the conciliation officer before using a Clause 71 form. I do not think this would fit at all happily into the work of a conciliation officer.

Finally, I do not favour this Amendment, because it would place a very heavy burden on a service which is already going to be over-burdened. These officers are already responsible for conciliation in cases of unfair dismissal. The scope of these cases has considerably widened since the Trade Union and Labour Relations Act 1974. They will also have the duty of conciliating in cases under this Bill, under the Equal Pay Act and under the Employment Protection Bill. The Advisory Conciliation and Arbitration Service will thus be very heavily committed in meeting their statutory duties. As I have already indicated, I do not think it would be appropriate for these conciliation officers to be engaged on work consequential to this Amendment. We feel that Clause 61(2), which gives the individual who feels aggrieved the right to call in a conciliation officer if she wishes, is the better way of dealing with this situation.


I have no particular pride in the drafting of this Amendment, but if it is not satisfactory it could well be altered. I take the point of the noble Lord, Lord Jacques, regarding cases of selection. Where a person has applied for a job and is not already employed in the firm, perhaps it is much more difficult to bring in conciliation officers. I can see that. I am not greatly convinced by his argument about the volume of work involved. If the Government pass a great deal of legislation which to be properly handled requires a great increase in conciliation work, then it is up to the Government to ensure that there are enough conciliation officers to deal with it. I do not believe that that factor in itself is an argument either way. It is quite possible for the Government to have sufficient conciliation officers to meet the burden of work which their legislation brings about. That, surely, is a consequence of all legislation—the provision of staff to deal with it.

However, I do think that where a woman is already employed in a firm—and these are going to be the most difficult cases of all—and believes that training or promotion opportunities have been denied her, it is difficult to bring a case and it is highly desirable that the conciliation officers should work on the situation before legal proceedings are started. I know that the noble Lord will say, "The woman has an opportunity to do this." This is true. I know that he will say that both sides have to agree to the process of conciliation. Of course that is so; I am fully aware of this. Only one party needs to go to the conciliation officer. Of course it will take two parties to get anywhere with it, but this is the normal daily work of the conciliation officer. Someone goes to him and he attempts to take the matter up with the other side. There is nothing different in this from any other part of the conciliation officer's work.

Although I do not intend to press this Amendment, because the drafting could be improved, I strongly believe that every possible effort should be made to ensure that conciliation officers automatically come into all the internal cases—the training and promotion cases—which are going to be very sensitive indeed and which, in my view, are quite inappropriate for the more legalistic procedures. I do not believe we shall get anywhere with legalistic procedures; I believe we may go quite a long way with conciliation, and this should be the normal drill.


Before the Minister replies, I should like to support him greatly in what he said about the burden of work for conciliation officers. I have considerable nerve in attempting to disagree with the noble Baroness, Lady Seear, but this Bill is not going simply to swim easily into the whole of our legislation on this subject. There will be many very difficult cases and there will be a great burden—I think a terrifying burden—on conciliation officers. So I am afraid I would disagree with the noble Baroness on that point.


I support my noble friend the Minister in his observations on this Amendment. We have to leave something to the imagination and something to common sense. It would be a pity if we tried to spell out everything to the last dot and comma. My noble friend was describing a situation where a woman applied for a job and received just a simple, possibly curt, letter saying that her application was unsuccessful. She may have had grounds to believe she had been discriminated against. She may have instituted inquiries in support of her suspicion. If she felt she had a case, then under Clause 70(1)—I underline this fact—she has to decide whether to institute proceedings. This is what this clause is about—whether to institute proceedings.

In the case that my noble friend mentioned, the woman concerned would possibly have no union to look after her interests because she was not already employed in the organisation. The conciliation officer clearly does not come into it because there is no semblance of an industrial dispute or differences between the union and the management or between worker and worker. It is a simple case of application for entry into employment. Where, however, a woman is in employment and feels that she has been unfairly treated in a matter of selection for a position of responsibility—and this problem usually arises over promotion or employment on duties which may carry status or improved pay, where the employer says the job is not suitable for a woman—surely the first thing to happen is that the union or unions concerned would try to sort the matter out.

The conciliation officer must not be misused. He is to deal with matters which may give rise to industrial discord or industrial disputes. I am against trotting in the conciliation officer at the drop of a hat. From my experience he is in the initial stage the last person we want to see. We can settle many of these difficulties ourselves, and this is what we want to do. This legislation is, after all. a tremendous exercise and adventure in the field of human relations. As to bringing in the law, goodness me! have we not heard all these words before in connection with the Industrial Relations Act 1971? When the law is brought into human relations and industrial relations unnecessarily or in a provocative way, there is likely to be more trouble than if one did nothing at all. We must be careful not to do in this Bill the kind of thing we objected to in the Industrial Relations Act 1971. In these circumstances we should leave well alone. Let us see how some things work out and not try to overdo it.

I conclude by saying that the material words in this clause which it is sought to amend relate to instituting proceedings. One would hope that in most cases there would be a great deal to do before one contemplated taking proceedings. I believe that the number of proceedings that will be taken under this Bill when it becomes an Act of Parliament will be minimal. In most fields of employment the unions and management together in the new atmosphere created will accommodate different points of view on the position of women and the opportunities to be given to them. Elsewhere, I think again that the climate of opinion which this Bill will create will surely put selectors on their guard against actions which might be misinterpreted as discrimination, when perhaps all they were doing was considering qualifications without any sex bias at all. So I myself would be quite content to see this Amendment withdrawn without any reservations whatever.

Baroness SEEAR

With all respect, I do not think the noble Lord heard what I said. A good deal of what he said was on my side. I am exceedingly anxious to keep legal proceedings out. I think I have already said that three times in this discourse. I am not going to say it any more and I am going on to beg leave to withdraw the Amendment. I would only add that if the noble Lord, Lord Houghton, seriously believes that in all cases up and down the country trade union representation at factory floor level will be the woman's best friend, I think he is not as closely connected with this aspect of the trade union movement as are some of us. With the leave of the Committee, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

5.39 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 62: Page 42, leave out lines 42 and 43.

The noble Viscount said: If I may say so, with the lightest possible touches to the noble Lord, Lord Houghton, unfortunately we are still, from time to time, going to have the law involved in some of these matters. That is really what Clause 71 is about. I want to be convinced by the noble Lord who is to answer—I do not know who will do so—that we are not doing something here which is either unnecessary or possibly a little misguided. I first want to make quite plain that I do not in any way wish to object to legal innovations. I said so on Second Reading and I say so again. If we can think of some useful, workable short cuts whereby points can be put into evidence before the courts in a sensible way, for goodness' sake let us have them!

But that is not the point I am taking. What I should like to do—and this applies also to Amendment No. 63 because both Amendments are on the same point—is to find out what the provision in this clause does. First of all, we are to have a method whereby a person who thinks that he or she is being discriminated against can interrogate the other party. That seems to me to be very sensible. The clause tells us that the rules of court will set out how you do it and, indeed, how you answer it, or the form in which you answer it. So far, that seems to be eminently sensible because there will be a recognised set of forms which everybody knows apply to the Sex Discrimination Act. People will get a form, they will know what it is all about and they will know that if they look it up they will find the form in which to answer it. So far so good. However, the Amendment which I have moved deals with the exception to this particular rule. The Bill says that you can have rules and regulations to set out the form in which you ask the question and the form in which you answer it, but you need not pay any attention to the way in which it is set out in the rules of court either in asking the question or in answering it; any old question will do and so will any old answer.

In those circumstances, will the noble Lord tell me, first of all, what is the point of having rules, because if anything will do, why have rules at all? Secondly, will he tell me this. If, as I suspect, it is a good idea to have rules, why do we provide that people should be allowed wholly to disregard them? I am not saying that one cannot have a rule—this is very common in legal parlance—which says that a question should be in this form or to that effect so that one sticks roughly to the same formula. How- ever, I am concerned—and I have said it several times and so have other noble Lords—that one should not bring this legislation into disrepute. If anything will do—any question, however obscure, however oblique, however unconnected with whatever it is that may appear to be the point—and will count as a question which is being asked under Clause 71, may be given in evidence without any I further ado under this clause and if you have not answered an adverse inference is drawn from your failure to answer it in connection with an alleged sexual discrimination, then I think we are a very long way from simplifying matters. On the contrary, we shall make people suspicious.

If somebody writes a letter to me and I think there may be some possible implication in it which concerns sexual discrimination, how am I to know whether or not this will be a question which falls under Clause 71? Shall I have to suspect every communication as being possibly a trap which will be used against me in legal proceedings? If so, nobody will give sensible answers to anything and this will not facilitate the ironing out of disputes. It will make people suspicious, it will make people legalistic and it will make them fearful that whatever it is that they have said will be taken down and used in evidence against them, even though they have had no warning that it is a question under Clause 71. For all the belief that I have in making matters easy for people, I strongly suspect that it will be counter-productive.

Therefore, the third question that I wish to ask the noble Lord is this. If we are going to have rules and regulations which set out the forms of these questions and answers, and if we shall be able to disregard them wholesale and not pay attention, even remotely, to the form in which the rules set out the matter, and we then come to a matter which is dealt with under subsection (2)(b), what will be the result? I have taken an extreme case because when one is dealing with evidence I suggest to the Committee that it is sensible to do so. The rules of evidence have been built up by trial and error over an immensely long period in the courts of this country. They may look silly and complicated to the layman but they are an attempt to be fair, to avoid people being caught out, to avoid words being put into people's mouths which they never said without giving them an opportunity to deny it—and so on.

In Clause 71(2)(b) there is an opportunity for the court to draw an adverse inference from an answer, or a failure to answer. I should not mind this in the very least if this were going to be done according to the rules of court which have been prescribed. That would be perfectly fair. If somebody receives something which says that it is a question set out by Statute in accordance with the rules of court and he does not answer it, or he answers it in an evasive and tiresome way, you can draw the necessary adverse inference from that fact. But if he does not even know that it is a question under Clause 71 and he has not the faintest idea what the object of it is, why is it right that adverse inferences should be drawn as the Statute now provides that they should be?

It comes to this. If you are going to have rules, I would suggest to the Committee—it is simply a practical suggestion and it may be quite wrong—that you can use all the powers that are set out in this clause in the case of questions and answers that apply with them or come within the general form of the rules. If you wish to rely upon something else—a question and an answer which bear no resemblance whatever to the way in which the rules set out that it should be done—you are still entitled to bring this in evidence. I believe that the ordinary rules of evidence would allow you to do so. You can get out the question and the answer in the course of the pleadings, or in discovery, or at a suitable stage of the proceedings, or you can do it in evidence itself. But why provide specifically for there to be an adverse inference which can be drawn from these facts when the person may not have realised what it was all about in the first place?

To summarise, if we can disregard them, why have rules? If we are going to have rules, what is it in the question and the answer that cannot be dealt with by way of the ordinary rules of evidence, anyway? What do we add by the provisions of this clause? Thirdly, is it right that people should be in danger of being able to be caught out and of having an unsuspecting answer used adversely against them in proceedings when they did not understand in any way what was being asked of them in the first place? They may even not be there. The evidence can be drawn in court and any inference drawn. Therefore, a little explanation should be given about this. I am not being hostile but I am being intensely inquisitive. I have looked at the report of the debate in Standing Committee in another place. I do not think that the full philosophy underlying this clause in the way it has been drafted has been spelled out and I believe that the Committee of this House is entitled to know a little more about the Government's thoughts on the subject. I beg to move.


As the noble Viscount pointed out a moment or two ago, he dealt with this matter during the Second Reading debate. Since then, as on the previous point, I have been involved in certain discussions. At the moment, I do not think that the way in which this appears in the clause is wholly satisfactory. In particular, the noble Viscount dealt with the admissibility of evidence point. We are in the process of having a look at this question and we shall be putting something before the House on Report.


I am very glad that we have identified a common source of dissatisfaction. Plainly the best course will be for me to await what the Govenment have to say. I reserve the right to criticise it if I do not like it, but at the moment I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 71 agreed to.

Clause 72 [Assistance by, Commission]:

5.50 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 64: Page 43, line 36, after ("involved") insert ("or the applicant's financial circumstances").

The noble Viscount said: To start with I know that the Government are not going to accept this Amendment so I need not have any bold hopes. Nevertheless, it is something that I should like the Committee to consider. The point is that there will be cases where people are discriminated against in the course of their employment, that is to say under Part II of the Bill, where, if they are going to do anything about it at all, they have to go before the industrial tribunal. We heard on Second Reading, and it has been said before, that at the present moment (for financial reasons that I entirely understand) legal aid will not be available for people who wish to take cases before the industrial tribunal. Therefore, if they do it will have to be at their own expense. I do not suppose it will be terribly expensive, unless there is a great deal of evidence to be called, but, all the same, people will have to take time off work, there will be a certain amount of marshalling of evidence, there will be work involved in looking up the Bill and looking up Law Reports and spending time in the public library. One does not go before even the most informal tribunal without taking a certain amount of trouble, and particularly if you are complaining about discrimination.

If you happen to have been discriminated against in one of the connections referred to in Part III of the Bill, that is to say the provision of facilities and so on, then of course you can obtain legal aid because you are going before one of the ordinary courts where legal aid is provided. So at the moment there is a positive disadvantage for a person who wishes to take up a point on employment. The only palliative that has been produced in this Bill—and of course I understand the difficulty on financial terms, because if you have legal aid before the industral tribunal there are 101 other tribunals which would require the same treatment. The only palliative which has been put forward is in Clause 72, whereby the Equal Opportunities Commission can give some assistance. I am in no way dissatisfied with the idea that they should do so; in fact it must be a very good thing. Many will be the case where they wish to take up an important matter on behalf of some individual and it happens to be the test case on an important principle. That really is the matter dealt with in Clause 72(1)(a).

There are however other cases which do not necessarily raise an important matter of principle, where nevertheless under the Bill the Commission can help a person who wishes to take a case before any of the tribunals or courts to which the Bill applies. Those cases are dealt with under Clause 72(1)(b). or by the words "by reason of any other special consideration". Paragraph (b) says that they can grant aid or assistance if it is unreasonable, having regard to the complexity of the case "— that is one thing— or the applicant's position in relation to the respondent"— which I suppose might be a personal relationship or an employment relationship or something of that sort— or another person involved "— and one can imagine the sort of circumstances; it might be a family thing, or I know not what— or any other matter".

The point of my Amendment is this: what is "any other matter" or "by reason of any other special consideration"? Does that include cases where the woman concerned, or, if it happens to be that sort of case, the man concerned, just cannot afford to do it on his or her own? Does this include power for the Commission to deal with a case by way of assistance simply—being fairly blunt about it—where legal aid ought otherwise to be provided? I wonder whether the noble Lord would consider this. At the moment I see no reason why "any other matter" should not include the financial position of the applicant. If it does, then all is well; but then of course we have a difficulty, because that goes against the principle that we heard about on Second Reading. On the other hand, if you do not spell it out you leave a doubt, and inevitably there will be hard cases which do not get assisted and they might have been if only those words had been in the Bill.

I think there is a difficulty here. It may be one for a compromise, but at any rate would the noble Lord tell the Committee how we are to get over this difficulty of a proper case—not one of principle, not particularly difficult but one that needs to have a little financial assistance? Can the Commission do it or not? I beg to move.


A moment or two ago the noble Viscount referred to a point made, I think, in my speech on the Second Reading of this Bill. On the principle here I think we should be clear that the primary role of the Commission is the strategic one of identifying and eliminating discrimination. It is a deliberate decision by the Government that individuals should have direct access to courts and to tribunals, and that complaints should not be handled through a central body as they are in the case of the race relations legislation. We are anxious that people should go directly to the courts, and indeed to tribunals, without necessarily involving any intervention by the Commission. The trade unions, for instance, will take their members' cases directly to tribunals on their own account, without intervention by the Commission.

The question which the noble Viscount raised at the end of his speech was what discretion would the Commission have in regard to this particular point. My view of the matter is this. As he rightly surmised, we do not find ourselves able to accept this Amendment because it could have substantial financial implications at a time when public expenditure is rightly under severe examination, and it would not be right—and I am sure the noble Viscount is not suggesting this in any event—to give some form of backdoor legal aid machinery for tribunals in particular, whereby the Commission would eventually be in a situation where it was processing substantial numbers of applications from people who did not have adequate financial resources. Obviously, we would very much like to extend legal aid to tribunals, but in the present financial situation it is clearly quite out of the question.

The point asked by the noble Viscount is, whether the Commission would have to disregard the financial situation of a particular applicant. The answer is, No, they would not; they would certainly have discretion in the matter. I think the noble Viscount will recognise that a situation could arise involving a fairly complex question—perhaps a borderline case—as to whether or not the Commission were going to give assistance. In a situation of that sort it would be perfectly right for the Commission to take account of the financial situation of the person concerned. I fear we could not go wider than that and make this explicit without creating expectations which could not conceivably be realised in the present financial situation. That. I fear, is why we cannot accept this Amendment; but I hope the assurance I have been able to give will to some extent meet the point raised by the noble Viscount.


I think the Committee may find that helpful. Of course I understand what the noble Lord has said. But it is not perhaps so much myself or members of this Committee who need to be reassured; I suspect that the people who would like to know what is the Government's attitude are the members of the Commission themselves. They do not have to disregard what is said in Parliament in the way the courts do; they can read speeches made in this House and in another place, and I think they may be comforted and helped by what the noble Lord has just said. On that basis I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 72 agreed to.

Clause 73 [Period within which proceedings to be brought]:

Lord HARRIS of GREENWICH moved Amendment No. 65: Page 44, line 28, leave out ("three") and insert ("six").

The noble Lord said: This is an Amendment on which, by some curious act of fate, the noble Lord, Lord Drumalbyn, and my Department had the same view at precisely the same time, and therefore in his absence I will explain why the Government have come to the conclusion that we should change the time limit. This affects proceedings in county and sheriff courts. We have come to the conclusion that three months is unduly restrictive and it will be far better to have a period of six months. I do not think it is necessary to add to that. I beg to move.


I have observed that my noble friend Lord Drumalbyn has just come back into the Chamber. I am sure he will be delighted to know that, to the surprise of us all, the noble Lord, Lord Harris of Greenwich, has just suggested to the Committee that for very good reasons we should accept his Amendment. I am sure my noble friend is extremely grateful. I do not want to say more. I am very glad my noble friend is here to move the next Amendment.

On Question, Amendment agreed to.

6 p.m.

Lord DRUMALBYN moved Amendment No. 66: Page 44, line 36, after ("act") insert ("or the last of a series of acts").

The noble Lord said: This is a very simple Amendment. The purpose of it is to make Clause 73(3) read: A county court or sheriff court shall not consider an application under section 69 unless it is made before the end of the period of six months beginning when the act "— and here I would insert the words: or the last of a series of acts to which it relates was done. It is to enable a series of acts to be taken into account. I think this is well precedented in legislation. I do not know whether it commends itself to the Government. I beg to move.


Having looked at this matter, I do not feel that there is a great need for it. If we are talking about a series of acts, assuming the particular insertion is of the same character, it is difficult to know why one of them should be any different from the others. With great respect to the noble Lord, I am not quite clear that this Amendment carries us a great deal further. If we are talking about a series of similar acts, I do not see why one of them is more significant than the others. I understand that the noble Viscount, Lord Colville of Culross, may be about to intervene. It would be helpful to have the matter clarified, because I am not clear of the intention.


It was not my idea, but I can envisage that there might be circumstances where this happens. Supposing one has to piece together a process whereby discrimination occurs. The last bit of the process may occur and it may not in itself be sufficient to establish that there was discrimination. One wants to look at a course of conduct which has occurred over a period of time. The course of conduct manifests itself by a series of different acts done by the discriminator. One would want to be able to tell the whole story, and one would not want to be put out of time because the thing that actually led to the culmination, and which was the last in the series of acts, was not in itself sufficient to establish one's case. This is the sort of circumstance where I can see there might be advantage in having this kind of provision in the Bill. Perhaps there is merit in what my noble friend suggested.


May I appeal to the noble Viscount, Lord Colville of Culross, whose legal skills I constantly admire. This Bill is very complicated, and I beg the noble Viscount not to make it more complicated by such things as this.


I do not know whether it is true—I bow before the legal wisdom of other speakers—but is there not a point here dealing with a situation of persistent discrimination and wanting to do something under Section 68? If in fact someone has discriminated over a period of time in very much the same way, but it is only the last thing you catch which is within time, I should have thought it was not unfair or unjust that the court should be able to refer to acts before that in order to establish that what was happening was persistent discrimination.


I will gladly have another look at the point.


I am much obliged to the noble Lord I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move Amendment No. 67.

Amendment moved— Page 44, line 43, leave out from ("if") to end of line 45 and insert (" in all the circumstances of the case, it considers that it is just and equitable to do so").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 73, as amended, agreed to.

Clause 74 agreed to.

6.7 p.m.

Lord CROWTHER-HUNT moved Amendment No. 68:

After Clause 74 insert the following new clause:

Educational charities in England and Wales

" .—(1) This section applies to any trust deed or other instrument—

  1. (a) which concerns property applicable for or in connection with the provision of education in any establishment in paragraphs 1 to 5 of the Table in section 22, and
  2. (b) which in any way restricts the benefits available under the instrument to persons of one sex.

(2)If on the application of the trustees, or of the responsible body (as defined in section 22), the Secretary of State is satisfied that the removal or modification of the restriction would conduce to the advancement of education without sex discrimination, he may by order make such modifications of the instrument as appear to him expedient for removing or modifying the restriction, and for any supplemental or incidental purposes.

(3) If the trust was created by gift or bequest, no order shall be made until 25 years after the date on which the gift or bequest took effect, unless the donor or his personal representatives, or the personal representatives of the testator, have consented in writing to the making of the application for the order.

(4) The Secretary of State shall require the applicant to publish notice—

  1. (a) containing particulars of the proposed order, and
  2. (b) stating that representations may be made to the Secretary of State within a period specified in the notice.

(5) The period specified in the notice shall not be less than one month from the date of the notice.

(6) The applicants shall publish the notice in such manner as may be specified by the Secretary of State, and the cost of any publication of the notice may be defrayed out of the property of the trust.

(7) Before making the order the Secretary of State shall take into account any representations duly made in accordance with the notice.

(8) This section does not apply in Scotland."

The noble Lord said: In introducing the debate on 1st July, my noble friend Lord Harris of Greenwich said that the Government intended to introduce an Amendment to make it easier for the trustees of educational trusts, whose benefits are now restricted to members of one sex, to open them up to both sexes. The Government indicated in another place their sympathy for the purpose behind an Amendment relating to charities, although for a number of reasons it could not be accepted as it stood. New Clause 74A, and as respects Scotland new Clause 74B, fulfils the undertaking then given that an Amendment relating to educational trusts would be placed before your Lordships.

It is a longstanding principle of charity law that so far as is practicable the wishes of the donor should be respected by law. Education is, however, an area in which it is important that the law should reflect social change, and the power which is conferred on Education Ministers by this clause is not without precedent in the educational context. In the last century, the need for flexibility to meet educational developments was recognised in the Endowed Schools Acts and more recently the Education Act 1973 enables the Secretary of State to make modifications of educational trust instruments in certain circumstances. In particular he may, under Section 1(2)(a) of the Act, make such modification as appears to be requisite in consequence of proposals for the reorganisation of schools approved by him under Section 13 of the Education Act 1944. If the Secretary of State did not have such a power it would often not be possible for the governors of a maintained school to implement their statutory obligations without breaching the terms of the trusts regulating the school foundations.

The powers of the Charity Commissioners to widen the trusts of an educational charity by a scheme under the Charities Act 1960 are exercisable only in limited circumstances, and the 1973 Education Act recognised that school governors must not thereby be prevented from making such changes in their schools as are necessary to enable them to participate fully in educational developments. The Secretary of State's powers under the 1973 Act can be exercised to alter the trust deed of a single-sex maintained school to permit co-education but his powers do not extend to independent schools in this respect.

Against this background, the Government consider that it would be in accordance with the spirit of the Bill to permit trustees of educational trusts whose objects are restricted to benefiting persons of one sex, to apply to the Education Ministers for an order removing or modifying the restrictions so that the benefits can be made available to persons of the other sex. This will enable, for example, trustees providing scholarships for men only to apply for approval to make them available also to women. It would also make it easier for the trustees of an independent single-sex school to move towards co-education.

I turn now to a description of the new clause. Subsections (1) and (2) will enable the Secretary of State for Education and Science or the Secretary of State for Wales to modify deeds and other instruments regulating certain educational charities by removing any restriction contained in them on the availability of benefits to persons of one sex. The power will extend to all trust deeds and other instruments, including enactments, which regulate any property which is applicable for or in connection with the provision of education in any of the establishments which are listed at paragraphs 1 to 5 of the Table in Section 22. It will be exercisable only upon the application of the trustees or other responsible body, and only if the appropriate Secretary of State is satisfied that the removal or modification of the restriction would conduce to the advancement of education without sex discrimination. The power will be exercisable by order.

Under subsections (4) to (7) it will be necessary for the applicants to comply with certain requirements as to publication of notice of the proposals similar to those contained in the Charities Act 1960 and there will be opportunity for representations to be made to the Secretary of State before the order is made. Subsection (3) provides that the power will not be exercisable in respect of a trust created by a gift or bequest until a period of 25 years has elapsed since the date upon which the gift or bequest took effect unless the donor or his personal representatives, or the personal representatives of the testator, have consented to the making of the application.

As I have already said, the power could be exercised for modification of deeds regulating independent schools whose governors wish them to become co-educational and for the modification of instruments regulating ancillary trusts; for example prize funds and scholarships at single-sex institutions which become co-educational. I should make it clear, however, that it would not be exercised so as to modify, for example, a trust under which scholarships at a co-educational institution are tenable by pupils from a particular single-sex school by removing the reference to that school or enlarging it so as to include a school for members of the other sex. I therefore commend this clause to your Lordships. I beg to move.


I should like, if I may, as a trustee of probably one of the biggest single-sex educational trusts, namely, the trust set up in the will of Cecil Rhodes, to say how much I and my co-trustees welcome the Amendment just proposed by the noble Lord, Lord Crowther-Hunt. Ever since I have been a trustee, and long before that, the trustees have been endeavouring to make Rhodes scholarships open to women as well as men. But after taking the best legal advice we could, we came to the conclusion that it was impossible, as the law now stands or has stood hitherto, to do anything about it at all. Rhodes' will was made over 70 years ago and was quite specific in its limitation to men only. This proviso was perhaps not unreasonable or surprising at the time it was made. And, of course, it was the will of somebody who was a lifelong bachelor and had the reputation, perhaps wrongly, of being a woman-hater. But one cannot say, of course, that it is impossible to carry out its provisions.

We were told that the only legal way to change this limitation was by promoting a private Act of Parliament, and that apart from the other difficulties that there might be insuch a procedure the courts would not allow the trust's own funds to be used in order to, the courts would say, frustrate the purposes of the trust. I am bound to say that as a general doctrine that does not seem unreasonable. The Amendment now before the Committee would give us just what we wanted; it does not, of course, compel the trustees to take steps to remove these limitations, nor does it give them an unfettered power to do so, and that also seems to me to be quite right. It does empower them to make an application to the Secretary of State, and it empowers him, if he thinks fit, and subject to representations, to grant the application.

In all the circumstances, it seems to us, at any rate, to be a most excellent solution to a difficult problem. I know that my noble friend Lord Harcourt, who is the chairman of the trustees, would certainly say the same if he were here. I can safely predict that if this goes through the Rhodes Trust will be among the first single-sex educational trusts to make an application to the Secretary of State.


I am grateful for the words of the noble Lord, Lord Blake. As he rightly says, this is one of the objects we had in mind in this Amendment.

On Question, Amendment agreed to.

6.15 p.m.

Lord CROWTHER-HUNT moved Amendment No. 69: After Clause 74 insert the following new clause:

Educational endowments, etc. to which Part VI of the Education (Scotland) Act 1962 applies.

" .—(1) This section applies to any educational endowment to which Part VI of the Education (Scotland) Act 1962 applies and which in any way restricts the benefit of the endowment to persons of one sex and any reference to an educational endowment in this section includes a reference to

  1. (a) a scheme made or approved for that endowment under that Part of the Education (Scotland) Act 1962;
  2. (b) any endowment which is, by virtue of section 121(1) of that Act, dealt with as if it were an educational endowment; and
  3. (c) a university endowment, the Carnegie Trust, a theological endowment and a new endowment.

(2) If, on the application of the governing body of an educational endowment, the Secretary of State is satisfied that the removal or modification of the provision which restricts the benefit of the endowment to persons of one sex would conduce to the advancement of education without sex discrimination, he may, by order, make such modifications to the endowment as appear to him expedient for removing or modifying the restriction and for any supplemental or incidental purposes.

(3) Where the Secretary of State proposes to make an order under this section, he shall publish a notice, in such manner as he thinks sufficient for giving information to persons whom he considers may be interested in the endowment

  1. (a) containing particulars of the proposed order; and
  2. (b) stating that representations may be made with respect thereto within such period as may be specified in the notice, not being less than one month from the date of publication of the notice,
and the cost of publication of any such notice shall be paid out of toe funds of the endowment to which the notice relates.

(4) Before making any order under this section, the Secretary of State shall consider any representations duly made in accordance with the said notice and he may cause a local inquiry to be held into such representations under section 68 of the Education (Scotland) Act 1962.

(5) Without prejudice to section 76(4) of this Act, any order made under this section may be varied or revoked in a scheme made or approved under Part VI of the Education (Scotland) Act 1962.

(6) For paragraph (b) of section 123(1) of the Education (Scotland) Act 1962, there shall be substituted the following paragraph— (b) where he considers it expedient to do so, provide for extending to both sexes the benefit of the endowment".

(7) This section shall be construed as one with Part VI of the Education (Scotland) Act 1962."

The noble Lord said: This is a separate clause for Scotland designed to take account of the rather different legal framework governing educational charities there. There is no substantial difference in principle, however, from the clause that your Lordships have just accepted. Under the Education (Scotland) Act 1962, the Secretary of State has power to make schemes for the reorganisation of educational endowments, and the purpose of the clause under consideration here is to give the Secretary of State power to remove restrictions to one sex in any endowment for which he may make a scheme. The power may be exercised either by order as in the English Amendment, or by a scheme made under the existing Act. It is noteworthy that the 1962 Act itself, by Section 123(1)(b), provides that in framing a scheme the Secretary of State shall, so far as can be equitably arranged and as the circumstances of each particular locality require, provide for extending to both sexes the benefit of the endowment. This goes some way towards satisfying the principle embodied in the English Amendment and requires only the Amendment proposed at subsection (6) in the Scottish clause to bring it completely into line. The Secretary of State would thus be enabled to remove sex discrimination in an endowment by means of a scheme which perhaps effected a more general reorganisation of the endowment; but the power to remove such a restriction by order is also required, so that the potentially cumbersome scheme-making machinery need not be set in motion when all that is required is a simple removal of a sex restriction. I therefore commend the new clause to your Lordships. I beg to move.


May I ask the noble Lord a question? There was a time many years ago when I was very much involved in the reorganisation of endowment schemes in Scotland. I remember that there was a right of appeal to the courts. Whether or not that still exists I do not know. It may be that because all this takes place on the application of the governing body of the educational endowment, it is not thought necessary to preserve that right. I do not know if the noble Lord can answer the question whether an appeal to the courts remains.


I regret that I cannot answer that question, but I will write to the noble Lord about it.

On Question, Amendment agreed to.

Clause 75 [Power to amend certain provisions of Act]:


Perhaps we can take Amendments Nos. 70 and 71 together. These Amendments simply bring up to date Clause 75 to take account of the new clauses added to the Bill, first, in another place and, secondly, here. I beg to move Amendment No. 70.

Amendment moved— Page 46, line 7, leave out from (" and (3)") to end of line, and insert (" Discrimination: Consent for assignment or sub-letting) (2), 31 to 34 and 42 to (Trade unions etc.: elective bodies)").—(Lord Harris of Greenwich.)


I cannot let the noble Lord get away with it quite that easily. The Committee may remember that I asked the noble Lord, Lord Jacques, about the new clause which is called Trade unions etc.; elective bodies, which was put in as Amendment No. 47 last Tuesday. I asked at the time what was the purpose of taking power under Clause 75 by Statutory Instrument to amend it. Was it something that was going to be a temporary provision—that is to say, the new clause—and was it something that we really needed to have power to repeal? If we were not going to repeal it—the noble Baroness, Lady Seear, will remember that she agreed with me that we wanted to see these transitional provision kept as transitional—what was the Amendment that the Government had in mind to make, or what sort of Amendment; I do not necessarily wish to tie it down to the type of Statutory Instrument they might wish to introduce. Both the noble Baroness and I were happy with the new clause but we did not want to see it as a permanent feature of the legislation, and as there have been two days in which to think about it, perhaps the noble Lord can tell us the answer to the question now.


I have listened to the discussion with interest and I will look at the point.

On Question, Amendment agreed to.

6.21 p.m.


I beg to move Amendment No. 71.

Amendment moved— Page 46, line 12, leave out ("or 30") and insert ("30 or (Discrimination: Consent for assignment or sub-letting)").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 75, as amended, agreed to.

Clause 76 [Orders]:

Lord HARRIS of GREENWICH moved Amendments Nos. 73, 74 and 75: Page 46, line 24, leave out ("46(2)(b)") and insert ("(Discriminatory training by certain bodies) (4)(b)"). Page 46, line 27, leave out (" 46(2)(b)") and insert (" (Discriminatory training by certain bodies) (4)(b)"). after ("75(1)") insert ("and, subject to subsection (3), section (Educational charities in England and Wales)").

The noble Lord said: I think that on this occasion I can assure the noble Viscount that these are Amendments of the most technical character.

On Question, Amendments agreed to.

Lord CROWTHER-HUNT moved Amendment No. 76:

Page 46, line 28, at end insert— ("( ) Subsections (1) and (2) do not apply to an order under section (Educational charities in England and Wales) or (Educational endowments etc. to which Part VI of the Education (Scotland) Act 1962 applies), but—

  1. (a) an order under section (Educational charities in England and Wales) which modifies an enactment, and
  2. (b) any order under section (Educational endowments etc. to which Part VI of the Education (Scotland) Act 1962 applies) other than one which relates to an endowment to which section 128 of the Education (Scotland) Act 1962 (small endowments) applies,
shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.")

The noble Lord said: Amendment No. 76 is consequential upon new Clauses 74A and 74B but makes slightly different provision in respect of England and Wales and of Scotland. In relation to orders made under Clause 74A, which deals with educational charities in England and Wales, the procedural requirements of subsections (1) and (2) are with one exception disapplied, so that orders made by the Education Minister for England and Wales under that clause are not to be made by Statutory Instrument subject to annulment by Resolution of either House of Parliament. The exception is an order which modifies an enactment. In Scotland, however, it is proposed that any order made by the Secretary of State under Clause 74B should be made by Statutory Instrument subject to annulment in pursuance of a Resolution of either House, unless the order relates to a small endowment.

Orders made by the Education Minister for England and Wales under Section 1 of the Education Act 1973—that is, orders modifying trustees in consequence of proposals approved under Section 13 of the Education Act 1944—are not made by Statutory Instruments, nor indeed were schemes made by Ministers under the Charities Act 1960 when they exercised that jurisdiction. It is not thought necessary, therefore, to make orders under the new clause by Statutory Instrument subject to annulment in pursuance of a Resolution of either House, except where the Instrument creating the trust is itself an enactment. In such cases, it is considered appropriate that Parliament should have the opportunity to consider the order.

In Scotland it is desired to keep the form of any such order and the Parliamentary control applicable to any scheme for the reorganisation of an educational endowment made by the Secretary of State under Part VI of the Education (Scotland) Act 1962. In general, schemes made by the Secretary of State under that Part of that Act are Statutory Instruments, and may in certain circumstances become subject to annulment in pursuance of a Resolution of either House of Parliament. However, this does not apply to a small endowment which is an educational endowment with an annual value of less than £500. Section 128 of that Act provides a simplified procedure for making a scheme in relation to such an endowment. It would therefore seem appropriate to provide that in Scotland any order relating to any education endowment should be made by Statutory Instrument subject to annulment, except any order relating to a small endowment.


It looks to me as if the noble Lord, Lord Crowther-Hunt, has given the answer about which the noble Lord, Lord Harris of Greenwich, was going to write to me. If that is so, I exempt the noble Lord, Lord Harris, from writing to me.


I do not wish to cast a spanner into the works at this late stage, but I am becoming more and more confused and if the Minister cannot give me an answer now perhaps he would send me a letter. At the beginning of the proceedings on the Bill, I understand that the charitable organisation of which I am general secretary, which is a women's organisation, was under rather different terms of reference from some of the later clauses; in other words, we would not be regarded as discriminators if we did not accept men—always assuming that men wished to come. I now learn that we are an educational charity and I begin to get the feeling that there is a difference between a charity and an educational trust. I am wondering whether I am confused or whether there is a difference.


I think I can answer the noble Baroness now, but in safety I would much prefer to write to her about it.

On Question, Amendment agreed to.

Clause 76, as amended, agreed to.

Clause 77 [General interpretation provisions]:

Baroness VICKERS moved Amendment No. 79: Page 46, line 39, leave out ("a deliberate") and insert ("an")

The noble Baroness said: I should like to move the Amendent which is down under the names of my noble friends and myself. As I understand it, this clause defines the word "act", which is used throughout the Bill, as "a deliberate omission ", but I consider that many cases brought when this Bill becomes an Act will involve omissions; for example, omissions to offer employment, a loan or further training. So the effect of this definition will be that the complainant will have to prove that such omission was deliberate. This amounts to requiring that he or she must prove intent, since the burden of proof is normally placed on the complainant.

It was argued in Committee in another place that tribunals and courts would construe the term reasonably. In the years that I have been in both Houses, I have found that the word "reasonably" often becomes very unreasonable when it comes to defining it. Also, recent rape cases have thrown some doubt on the reasonableness of the courts. It might be argued that the word "deliberately" was used in the Race Relations Act, but I suggest it was not used throughout that Act and that in Section 28(1) an "act is defined as including omission "—not deliberate omission. Neither is "act" defined in the Trade Union and Labour Relations Act 1974 as including only deliberate omissions.

I ask if the burden of proof is to rest on the complainant, and the discriminator as an adversary will be better armed than she—probably better financed and with better legal advice—is it not unreasonable if, in addition to proving that the act of omission took place, she must show that it was also intentional? I beg to move.


As the noble Baroness said, there was discussion on this point in another place. The first point I should like to make is that Amendment No. 79 would not have the effect of including inadvertent omissions. The reason is that where an omission is made unlawful in the Bill—for example, Clauses 6(1)(c), 22(b) and 29(1)(a)—the relevant provisions relate to deliberate omissions only. I doubt, therefore, whether the Amendment would have any practical effect of any kind.

There are two lines of argument for ensuring that the Bill deals with omissions only in so far as they are deliberate. The first, to take a straight forward example, is that an employer should not be liable under the Bill for omitting, quite inadvertently, to consider a woman's application for a job. I do not feel that that would make any sense of any sort. It would bring the Bill into disrepute and that is something which I am sure we are all determined to avoid. On the second line of argument, I do not think it would make any sense to say that an inadvertent omission can constitute discrimination as regards direct discrimination under Clause 1(1)(a). I find it difficult to visualise a situation in which a person could be said to have treated a woman less favourably on the grounds of her sex by accidentally omitting, for example, to provide her with some facility or another. For these reasons, I hope the noble Baroness will not press the Amendment.

Baroness VICKERS

I thank the noble Lord for that explanation and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move Amendment No. 80, which is consequential.

Amendment moved— Page 47, leave out lines 9 to 14.—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

On Question, Whether Clause 77, as amended, shall stand part of the Bill?


I ventured to suggest on Second Reading that subsection (1) of this clause—which specifies that films, photographs and illustrations generally form advertisements—when taken in conjunction with Clause 37 could present profound and perhaps unforseen problems for advertisers, and the noble Lord who replied on Second Reading did nothing to deny or refute my suppositions. The more I examine this clause the more far-reaching its effects appear to be. For the sake of simplicity and to save time, I will take as an example only a selection of newspaper advertisements concerned with the recruitment of personnel, which are accompanied by illustrations showing the sort of job situations that the lucky applicants are likely to encounter.

The Abbey National Building Society for example, is advertising for management trainees. This is accompanied by an illustration showing six people working behind a counter in an Abbey National office, three of them men and three of them women; so, clearly, the Abbey National Building Society is on the side of the angels so far as this Bill is concerned and has nothing to fear. I turn to another advertisement which talks about "the men we need" and immediately one's ears prick up. It seeks cost engineers, planners and estimators and, what is more, it shows three people, all of them male, wearing overalls and safety helmets. However, one goes on to read that the advertiser is the Nchanga Consolidated Copper Mines of Zambia, so presumably that concern is exempted by Clause 35 and it, too, has nothing to fear.

One then turns to look at Ferranti's advertisement. Ferranti is advertising for technical authors and the accompanying illustration is a head and shoulders silhouette; the features are quite rugged and the haircut is short—it could possibly be an urchin cut, but that is out of fashion now—and from the solidity of the shoulders I take it to be a male silhouette. Clearly, therefore, if Ferranti wants to do the right thing, it will have to alternate this silhouette with a rather more curvaceous one. The same applies to Plessey, which is advertising for software engineers. The advertisement contains a photograph, a rather blurred one, of a somewhat paunchy male in his shirtsleeves and tie and that firm, too, will presumably have to alternate.

Then one comes to an advertisement by British Home Stores, which will really get into hot water if it does not do something about its advertisements. It is currently advertising for distribution managers with starting salaries of £3,000. No fewer than six individuals are depicted in the accompanying drawing; four of them are beyond any question males, there are two rather indistinct but broad-shouldered figures shown in the cab of a heavy lorry and, unless they are perhaps former Olympic athletes from behind the Iron Curtain, I suggest that they are males, too. Finally, one comes to an advertisement by Woodall Duckham, another public company, which depicts three figures in its advertisement; two men and one woman. There is a man in a safety helmet, obviously leading some sort of outdoor life, operating a bulldozer or whatever it might be; there is another male leaning forward over a draftsman's desk, while the woman has a telephone in one hand and is jotting down something on a note pad with the other. It so happens that the woman is the happiest looking of the trio, with a contented smile on her face, but we know that does not matter because she surely must have been conditioned by an unjust male-dominated society into accepting a stereo-typed feminine role. If Woodall Duckham know what is good for them, presumably they will show her in the next advertisement changed from her quite attractive dress into a boiler suit and crash helmet, driving heavy earth moving equipment. I wonder whether the noble Lord can confirm that my suppositions are broadly correct?


The noble Lord, Lord Monson, made so many suppositions that it is difficult for me to identify which to reply to. The only point I would make on the issue of advertising—and I do this in the presence of the noble Lord, Lord Drumalbyn, who I am sure will agree with me on this—is that I am quite sure the advertisers, particularly those identified by the noble Lord, will be anxious to fall in line with the general spirit of this Bill; not only the letter of it, but the spirit as well. It is important to recognise that if we are going to deal, as we must, with discrimination against women, which has been going on for a very long period of years, we have to deal with the problem of advertising and I know that the advertising industry will take its responsibilities extremely seriously.

If the noble Lord had been here earlier, when I was involved in discussion with the noble Baroness, Lady Seear, on the question whether one should have a statutory or voluntary code, then, if the noble Lord is as concerned with this issue as I know him to be, he would have been gratified to hear me say that the Commission must and will take its responsibilities seriously, particularly in this field. I use this as an illustration to advertisers and others who may be interested to give some indication of how they see the Bill biting, and I am sure that will be done. However, I do not have any of the nightmarish fears which possess the noble Lord, Lord Monson, on this point and I hope that that to some extent reassures him.


Would not these advertisers be exonerated on the ground that it is not deliberate discrimination?

Clause 77, as amended, agreed to.

Clause 78 [Transitional and commencement provisions, amendments and repeals.]:

6.39 p.m.

Lord HOUGHTON of SOWERBY moved Amendment No. 80B:

Page 50, line 15, at end insert— (" ( ) Notwithstanding the provisions of subsection (2), section 12 shall not come into operation until the expiration of the period of two years beginning with the passing of this Act.")

The noble Lord said: This is the Amendment which I tabled the other day and it was referred to in the course of the speech of my noble friend the Minister of State for the Department of Education and Science on the teachers' trade union problem, a matter raised by the noble Lord, Lord Alexander of Potterhill, and myself on Clause 12. The Amendment seeks to absolve the unions in the teaching profession from complying with Clause 12 for a period of two years, if that would be for their convenience. They can do it earlier if they like, but they would not be required to do it in under two years.

It may be that I have drawn the Amendment too widely. Both the noble Lord, Lord Alexander of Potterhill, and I were thinking of the teaching professions and not of the unions generally. If my noble friend feels that it would be more convenient to relate the Amendment more closely to the teaching profession, I should be quite agreeable and, if my noble friend will tell the Committee that the principle of the Amendment is accepted and that the period stipulated in it seems reasonable, subject to the redrafting, I shall certainly ask leave to withdraw the Amendment.


I believe that this can be dealt with relatively quickly to the satisfaction of all concerned. I should like first of all to clear up a certain amount of confusion that may have arisen over the Goverment's attitude to the Amendment. The noble Lord, Lord Alexander of Potterhill, in this Committee on Monday, moved an Amendment which would, we believe, have enabled only four unions—the Associations of Headmasters, Headmistresses, Assistant Masters and Assistant Mistresses—to continue to operate on a single-sex basis. It was clear during the debate that many noble Lords and noble Baronesses were concerned about the particular problems of these organisations. On consideration, the Government have accepted that there is a case for allowing the four unions concerned a measure of time to adjust to the requirements of the Bill. When I replied to the noble Viscount, Lord Colville, on Amendment No. 22, which had a similar purpose, I indicated that we were prepared to give a transitional period to these unions. I regret that what I said may also have left the impression that the Government were inclined to support the present Amendment, which is very much more widely drawn and which would apply to the whole of Clause 12.

I shall not go into details as to why we cannot accept that the concession should apply to the whole of Clause 12, but I should like just to make clear what the Government are proposing to do. We undertake to bring forward an Amendment on Report which will give the four unions in the teaching profession, about which many of your Lordships have expressed concern, a transitional period of two years before the provisions of the Bill regarding membership come into effect in their case. We propose that the application to those unions of Clause 12 should be deferred until 1st January 1978. This will, I hope, meet much of the case which was argued by the noble Lord, Lord Alexander, the noble Viscount, Lord Colville, and others at the Committee stage. It is on that understanding that I hope my noble friend will feel ready to withdraw the Amendment.


I am very glad to hear what the noble Lord, Lord Crowther-Hunt has just said. I am sure that the Amendment is too wide and there is no necessity to exempt all trade unions from the provisions of the Bill, any more than there is any necessity to exempt anybody else unless there is very special reason for doing so. If the noble Lord is suggesting a narrower Amendment to deal with the special case which we have been arguing, I am very happy about it and I am delighted that the noble Lord, Lord Houghton, is of the same mind and will not be pressing this rather wide Amendment.


I am quite satisfied with the reply and assurance given by my noble friend, and I would only add that we must understand that, when the two-year period is up, Clause 12 will not thereupon make such organisations unlawful. It means merely that they must open their ranks to both sexes and must adjust their existence to that requirement. I make this point in order to remove any suggestion that, at the expiry of two years, some axe will come down and chop them off, so that they will be prevented from living in their accustomed role. They will be free to go on, if they wish, to put up with all the inconvenience and difficulties which would arise from having mixed membership of organisations which were previously tied to a single sex.

I believe that that explanation is worth while in order to indicate that there is nothing in Clause 12 or in the Amendment which the Government are to move which is draconian in the sense of completely disrupting the trade union position of the unions concerned. It will only make the difference I have tried to describe. It will be for the convenience of the unions concerned and, in accordance with the purposes of the Bill, it will make for good order and discipline if the unions adjust themselves to the new concept of trade union organisation being on the basis of free access to trade union membership for both men and women. With that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 78 agreed to.

Remaining clauses agreed to.

Schedule 1 [Equal Pay Act 1970]:

6.48 p.m.

Baroness SEEAR moved Amendment No. 80A:

Page 53, line 12, at end insert: (" 2A. In section 3, after "women only" there is inserted "such provision shall be unlawful; but"").

The noble Baroness said: With the permission of the Committee, I will take this Amendment with Amendment No. 81A, because it is a paving Amendment to Amendment No. 81A and the substance of the Amendment is to be found on page 56, line 40, which is referred to in Amendment No. 81A. Paragraph 3 of Part II of Schedule 1, with which the Amendment is concerned, says: Where a collective agreement made before or after the commencement of this Act contains any provision applying specifically to men only or to women only, the agreement may be referred, by any party to it or by the Secretary of State, to the Industrial Abitration Board …". This implies that different treatment of men and women in a collective agreement remains lawful unless it is referred to the Industrial Arbitration Board for the latter to rule that it is not lawful.

It has been very widely supposed since the passing of the Equal Pay Act 1970 that Section 3 of that Act would make it unlawful for any collective agreement, after the coming into force of the Act at the end of December 1975, to contain differential treatment of men and women. This is a misapprehension if the interpretation I am giving of this paragraph is correct. If it is a misapprehension, it is one which is widespread and it is based, among other things, on the Second Reading speech in another place on that Act, when the Minister said: Where, on the operative date,"— that is, the end of December 1975— a collective agreement or pay structure specifies a class of work or workers, however defined, to which separate men's and women's rates are attached, the women's rate must be raised to the level of the men's rate. And where an agreement or structure contains a women's rate as such—that is, without any description of the jobs that women do—that rate must be raised to the level of the lowest men's rate in the agreement. The effect of this on the women concerned is that none would get less than the lowest male rate and some might get more, depending on the jobs they actually perform."—[Official Report, Commons; 9/2/70; col. 920.]

This impression was further reinforced in a number of ways, but I shall draw your Lordships' attention particularly to an official publication from the Office of Manpower Economics discussing equal pay, in which it says at page 37, Amongst other matters the Act requires the removal from collective agreements and employers' pay structures of separate men's and women's rates and where this has not been done by December 1975, employers will be required to raise women's rates to the lowest men's rates. But if one reads carefully Section 3 of the Act, which is the subject of this Amendment, one sees that it does not say that. It says only that such differences can be referred to industrial arbitration.

The purpose of the Amendment is to render such differentiating collective agreements illegal and unlawful, and the argument about them can subsequently be referred to the Industrial Arbitration Board. The Amendment seeks to confirm what many of us have believed to be the law, and what has been discussed as the law in many quarters: that no collective agreement, after the end of this year, is lawful to the extent that it discriminates between men and women. It is implicit in the clause as it stands, when read very carefully, that that is not so and that it does not say that. The clause says only that where there are such differences the matter can be referred to arbitration. Indeed, the fact that it says that implies that such differences remain lawful. It is in order that it can be quite clear that after the end of this year agreements may not contain differential treatment for men and women that I beg to move.

6.52 p.m.


The objective of this Amendment is one of the objectives of the Bill; that is, to remove discriminatory references to women from all collective agreements. Therefore, we start in the position that our objectives are the same. The difference between us is on what are the desirable methods. At the time when the Equal Pay No. 2 Bill was drafted, the ways of achieving this objective were thoroughly examined, and the procedure which was eventually adopted was that which caused discriminatory agreements to be referred to the Industrial Arbitration Board for amendment. It was felt that this was the most practicable way of dealing with discriminatory agreements. However, we have looked at the noble Baroness's Amendments, and we feel that the consequence of this Amendment would be quite undesirable.

A collective agreement generally has no legal status until its provisions are incorporated into the contracts of employment of individual employees. Thus, if a certain provision of a collective agreement were made unlawful by virtue of this Amendment, a woman's contract which referred to these provisions would contain unlawful provisions. She would therefore be unable to enforce her contract in those terms. The effect of such an Amendment would therefore not increase the rights of women, but diminish those rights. It is in that sense that we think the Amendment is undesirable. May I put it another way? The noble Baroness wants to take away the inferior agreement. "full stop". The Government's attitude is that we get hold of the inferior agreement and we amend it. In other words, our method is a practicable one of putting something in place of the unlawful agreement.

Although the Equal Pay Act has not yet come into force, my right honourable friend has already been acting. In the past few months he has referred to the Arbitration Board three cases of collective agreements which he felt were not moving fast enough towards equal pay. In one of these cases the agreement has been amended. In another case, by agreement between the parties, it has been referred back to the parties for amendment; and there is a third case still before the Board. Therefore, I hope that the noble Baroness will accept that the Government's method is not only a practical method, but is a method which the Government are using, and that the Government are not letting any grass grow under their feet.

Baroness SEEAR

I regret that the noble Lord has responded in the way that he has. Of course, I am aware that the Minister has been referring cases to the Industrial Arbitration Board. But there is a very substantial difference here. If the procedure, as outlined by the Minister, stays, it means that it is only those cases which are referred where a correction will be made, and the discriminatory situation remains unless and until the agreement is referred to the Arbitration Board. The point has been made that collective agreements are not enforceable at law, and that of course is correct. But the woman's individual contract, based on the Industrial Agreement, is enforceable at law, and it would be possible, if the Minister were so disposed, to re-draft this Amendment in such a way that contracts between the woman and the employer, based on a discriminatory industrial agreement, automatically became unlawful.

This is not an impossible way of dealing with the matter. I am sure the Minis- ter will recognise that there is a very important difference between saying that a particular type of contract is automatically unlawful, and saying that it is lawful until such time as it has been referred to arbitration, because although the larger, more conspicuous, agreements may well be referred to arbitration in due course, the procedure as it stands means that unless somebody takes it up and refers it, the discriminatory practice lawfully continues. That is what we want to avoid.

It may well be correct that one cannot automatically say that anything in the collective agreement is itself unlawful, although I am not absolutely convinced that that is so. The Minister may well be right on that. But I see no reason why it should not be said that any individual contract between a woman and an employer, based on a voluntary negotiated collective agreement which contains discriminatory clauses, automatically becomes unlawful.


That is not the point of difference between us. The point of difference is that the noble Baroness wants to destroy the contract by saying that it is unlawful. But we want to go further than that. We think that direction is more important than speed, and we want to put something in place of the unlawful contract immediately. The noble Baroness, by what she proposes, is doing nothing but to leave the woman employee in the air. The woman employee would be left with an unlawful contract which she cannot enforce, and nothing would be put in its place. We take an entirely different view. We say that not only have we to destroy the contract which is discriminatory, but that we must put something else in its place. I stress, not only in relation to this provision but to many others in the Bill, that direction is far more important than speed.

Baroness SEEAR

I am sorry that the noble Lord does not understand what I am trying to do. He has failed to grasp the point that his procedure requires that someone should take up the case. In my approach, the case automatically falls if it is based on a discriminatory contract. The Minister seems to think that all such cases will automatically find their way to arbitration. They will not! He is relying on someone referring all such cases to arbitration.

This is a very optimistic view of the way in which agreements, especially the many smaller agreements which are made, will be handled, arid it requires that no agreement which is made which contains any discriminatory element should be allowed to constitute the basis of a contract between an employer and an employee. It becomes void because it is based on a discriminatory contract.

I do not think that we can usefully discuss this any further. I am prepared to withdraw the Amendment, but I would suggest that it be discussed more fully at Report stage. The weakness of the Government's case is that it depends on somebody taking the case to arbitration; but such cases do not always find their way to arbitration. I beg leave to withdraw the Amendment, but hope it will be gone into fully on Report.

Amendment, by leave, withdrawn.

7 p.m.

Lord JACQUES moved No. 81:

Page 53, line 19, leave out from ("child-birth") to end of line 20 and insert— (" (1A) An equality clause and those provisions—

  1. (a) shall operate in relation to terms relating to membership of an occupational pension scheme (within dig meaning of the Social Security Pensions Act 1975) so far as those terms relate to any matter in respect of which the scheme has to conform with the equal access requirements of Part IV of that Act; but
  2. (b) subject to this, shall not operate in relation to terms related to death or retirement, or to any provision made in connection with death or retirement ")

The noble Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 81 and 82 together. The Social Security Pensions Bill, as introduced, extended the requirement of equal treatment for men and women in the Equal Pay Act 1970, so as to require equal treatment to be afforded as regards terms and conditions of employment relating to access to membership of an occupational pensions scheme. We think it right that this provision should be contained in the Equal Pay Act, rather than in the Social Security Pensions Bill. My noble friend Lord Wells-Pestell proposed a corresponding Amendment yesterday to the Social Security Pensions Bill which was accepted.

I think the Committee will appreciate that this would make some difference to the date of the legislation becoming effective. It is likely that this Bill will be effective as from 29th December this year; whereas the Social Security Pensions Bill will probably come into effect in 1977 or 1978; so that this speeds up the point in question. I beg to move.


I do not want to go into the merits of this. I simply want to ask the noble Lord, Lord Jacques, whether I am right in thinking that Amendment No. 82 ought to be in heavy black print to fit in with the rewriting of this part of the Equal Pay Act to set out the Amendments. Ought it not to have been in heavy black print on the Marshalled List?


We will look into that.

On Question, Amendment agreed to.


I beg to move Amendment No. 82 to which I have already spoken.

Amendment moved—

Page 60, line 6, leave out from (" child-birth") to end of line 7 and insert— (" (1A) An equality clause and those provisions—

  1. (a) shall operate in relation to terms relating to membership of an occupational pension scheme (within the meaning of the Social Security Pensions Act 1975) so far as those terms relate to any matter in respect of which the scheme has to conform with the equal access requirements of Part IV of that Act; but
  2. (b) subject to this, shall not operate in relation to terms related to death or retirement, or to any provision made in connection with death or retirement ").—(Lord Jacques.)

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Transitional exemption orders for educational admissions]:

Lord CROWTHER-HUNT moved Amendment No. 83: Page 62, line 29, leave out from ("Commission") to ("unless") in line 30 and insert ("on any application under paragraph 6 may if they think fit make a transitional exemption order, but shall not make such an order").

The noble Lord said: This Amendment corrects an omission from the Scottish paragraphs of Schedule 2. These paragraphs assume that both the Commission and the Secretary of State have powers to make transitional exemption orders in the sectors for which they are respectively responsible. However, as it stands, the Schedule expressly confers this power only on the Secretary of State (in paragraph 8); this Amendment secures that the Commission enjoys a similar express power to make orders (in paragraph 9).

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Schedule 4 [Transitional and commencement provisions]:

Lord JACQUES moved Amendment No. 84: Page 66, line 23, leave out from beginning to ("section") in line 24, and insert ("3.—(1)")

The noble Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 84 and 85 together. Paragraph 3 of the Schedule is defective in that it would continue to allow any discrimination on grounds of marriage, including, for example, the provision of a sick pay scheme for married and single men and single women, but not for married women. We think this is undesirable and the Government's Amendment seeks to confine the exclusion from the operation of the Equal Pay Act to existing rights to marriage gratuities or the commutation of such existing rights. I beg to move.

On Question, Amendment agreed to.


I beg to move Amendment No. 85 formally.

Amendment moved— Page 66, line 27, leave out ("marriage") and insert (" sums payable on marriage in pursuance of a contract of employment made before the passing of this Act, or the commutation, at any time, of the right to such sums. (2) In relation to service within section 1(8) of the said Act of 1970 (service of the Crown) for the reference to a contract of employment made before the passing of this Act there shall be substituted a reference to terms of service entered into before the passing of this Act.")—(Lord Jacques.)

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Minor and consequential amendments]:

7.8 p.m.

Lord JACQUES moved Amendment No. 86: Page 66, line 29, at end insert—

(" Factories Act 1961 (c. 34)

1. In section 15(2) (unfenced machinery: operations carried out by specified male persons) the word "male" shall be omitted.")

The noble Lord said: With the leave of the Committee, and especially with the approval of the noble Viscount, Lord Culross, I would speak to Amendments Nos. 86 and 88 together. There are two sections of the Factories Act which prohibit or restrict the employment of women on certain operations which involve proximity to moving parts of machinery. I will deal with these separately.

Section 15 allows only trained males of over 18 years of age to examine moving machinery and to lubricate or make adjustments where it is necessary to do this when the machinery is in motion. The males are trained in accordance with regulations.

There is a general measure of agreement on both sides of industry that a trained woman is as capable as a trained man of examining, lubricating or adjusting a machine. The Government acknowledge this and when the Bill was being considered at Report stage in another place the Government spokesman said that the Government were considering the possibility of moving Amendments in this House, which would have the effect of enabling adult men and women to be treated equally with regard to jobs that can be done safely on moving machinery and, in addition, would apply equally to adult men and women any restrictions imposed because of risk of injury. I am pleased to be able to say that as a result of the Government's examination of these provisions, I am able to move today that the word "male" be omitted from Section 15(2) of the Factories Act. This will enable regulations to be amended so as to allow women aged 18 and over who are equally qualified with men to examine, lubricate and adjust machines. I would point out that this Amendment is identical with the Amendment to the first part of Schedule 6 in the name of the noble Viscount, Lord Colville of Culross.

I come now to the other section which is concerned with machinery; that is, Section 20 of the Factories Act. I must explain to the Committee why I am unable at this stage to move an Amendment to this section. Section 20 first of all places a total prohibition on a woman aged 18 or over, or a young person, in cleaning any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion. Secondly, it provides that a woman or young person shall not clean any part of any machine—and I repeat "any machine"—if they are thereby exposed to injury from a moving part of that machine or any adjacent machine.

On the face of it, it would seem a simple matter to move an Amendment to remove the reference to women in Section 20, and thus put them on an equal footing with men. This was proposed by the Conservative Government in their Consultative Document Equal Opportunities for Men and Women, and is also proposed by the noble Viscount in his Amendment. But this would have the effect of removing the protection afforded to women instead of extending the protection to men which, as was stated in another place, was one of the objects of the Government's examination of this section, and which is also the aim of the TUC. We should be extremely cautious in removing protection from anybody if there is a danger of exposure to injury. The Government consider that there has not been enough study of the effect of this simple Amendment. Your Lordships will agree that the aim must be to reduce the risk of injury to both men and women. I must stress that the Government have no intention of removing the protection afforded to young persons by Section 20.

I come now to the second option which was open to the Government, which was a simple amendment to extend the protion to men. I can assure the Committee if this had been found technically possible under the Bill I would have been moving an Amendment today to do that, but difficulties exist and have not yet been resolved. For example, to adapt the present wording of Section 20 to apply to all persons could have had the effect of imposing a virtual prohibition on the cleaning of all moving parts of machinery throughout industry. I am advised that a moving part has been judicially interpreted as being capable of motion rather than actually in motion. The consequences to industry would be uncertain, and it is felt it would not be wise to embark upon such a course without consultation. Furthermore, in view of the inter-relationship between Section 20 and other sections of the Factories Act, it is not yet altogether clear what effect an Amendment to Section 20 would have on other sections of that Act.

I come now to the third option, which is the one most likely to be satisfactory. There should be a root and branch amendment to Section 20, which will extend the protection to men but will avoid any unfortunate circumstances and take account of any consequential amendment to other sections of the Factories Act. This will require much further study, and there is some doubt as to whether this is an appropriate Amendment for this particular Bill.

The Government spokesman in another place gave an undertaking that if it were not found technically possible to make these amendments under the Bill, the Health and Safety Commission would be requested to arrange for an early review of the provisions in question. I repeat this undertaking today in respect of Section 20. We will seek to find an acceptable way, under the health and safety legislation, of applying protection from risk of injury to both men and women. I am aware that the noble Viscount, Lord Colville of Culross, is to move an Amendment to Schedule 6 of the Bill which, in addition to providing for the amendment to Section 15(2) of the Factories Act which I am now moving, seeks to remove the references to women in Section 20. I hope that in view of my explanations of the Government's reasons for not seeking to amend Section 20 at this time the noble Viscount will feel justified in withdrawing his Amendment. I beg to move Amendment No. 86.

7.15 p.m.


Well, I have not moved it yet! What I will do is read in the Official Report what the noble Lord, Lord Jacques, has said. I think I ought to give him notice that I may not be entirely satisfied because I am not sure I am clear about the reasoning, on two grounds. Of course I am delighted to see the Amendment to Section 15(2), and I welcome a gesture in this Bill being sketched towards getting rid of protective measures which are no longer necessary and which in the past, for historical reasons, were there for the protection of women. If we can get rid of them in the Bill it is a step in the right direction and helps to nullify those disabilities protected under Clause 7(2)(f) which will still prevent women from taking jobs because they are protected in this way under the Factories Act.

The noble Lord said the difficulty about Section 20 of the Factories Act was that the second limb of it contains a prohibition on a woman or young person cleaning any part of any machine if the cleaning would expose that person to risk of injury. Of course nobody wishes to legislate in such a way that somebody is exposed to the risk of injury; but as the section does not protect a man at all, it does not seem to me that to remove the reference to a woman increases any danger to men. They are either covered under something else already or not covered at all. Merely to confine the wording of this section to young persons does not increase the possibility of danger to anyone. That is the first point. I am not sure I follow the reasoning which makes this impossible. I shall only be able to do so, if at all, when I read it. It was a carefully prepared speech which the noble Lord made and I will read it in the Official Report.

Much more significant is this. The noble Lord says one requires to look carefully at the whole of Section 20—and of course I understand this—in order to see what appears to be a simple repeal in order to remove an unnecessary protection based merely upon the fact that in the old days women had long hair and men did not. This is plainly no longer a sufficient reason for protection. Within my own family there are some who have longer hair than I have. If that is the reason for it let us be perfectly certain that we have the necessary powers.

All the way through the passage of this Bill in another place it was said: "Do not worry, the special protective provisions in the Factories Acts can be looked at carefully. The Equal Oppor- tunities Commission will look at them. There is power by way of regulations under the Health and Safety at Work Act 1974 to make the necessary repeals by Statutory Instruments." I am sure that there is not power under that Act to rewrite Section 20 so that it causes a completely different aspect of protection in factories to be introduced. If there is a power, I should like to know where it is.

I would ask the noble Lord to be careful about this. We do not want to let this Bill go through without making sure we can remove sex discrimination. We need to make certain we do not endanger anybody. It is no use allowing the Bill to go on to the Statute Book without putting in express powers, if needed, or relying on express powers in other legislation, if they are there and are adequate, to get rid of any unnecessary protection on the grounds of sex which may eventually be discussed and decided upon by the Equal Opportunities Commission. We cannot let this 20 without further examination; otherwise, we shall have enshrined a protection for women, on grounds of their having long hair, which nobody can do anything about, and we will not even have power by regulation under the Act of last year to repeal it in such a way as to make sense in a modern context. The noble Lord, and the Department, to whom I am sure he will report what I say, ought to look at this most carefully before we let it go. I am very happy to leave it at this point today, but I cannot necessarily say that I shall not wish to return to it. Meanwhile, I very much welcome the Amendment that the noble Lord is moving.


I should like to support the Amendment which is shortly to be put to the Committee. I would only note, with some surprise, that it was as recently as 1961 that a discriminatory clause like this was written in, which obviously did not make very much sense at the time, even given different hair-growing publicity.


The noble Lord ought not to think that we are as out of date as that. It was a consolidation Act.


I beg the noble Viscount's pardon; but since we are taking two Amendments together, I should like to express support for the noble Viscount, Lord Colville. I listened with great interest to the very elegant argument produced by the noble Lord, Lord Jacques. In many ways it made a lot of sense; but when the Government say that the result of a long, involved and elegant argument is that they cannot do something which plainly needs to be done, they should go away and find out the way in which it can be done. That, if I may put it rather crudely, is what they are paid to do.


Would the noble Lord excuse me? That is what we are doing. I have already said that.


I do not think the noble Lord has said that he can remove this discrimination which appears in Section 20 of this Act, which is the place where it should be done. It should be dealt with in this Bill, because this Bill is intended to remove discrimination against women in industry and this section in the Factories Act is one which enforces discrimination. Therefore it must be removed in this Bill and I very much hope that the noble Viscount, Lord Colville, will return to this and try to ensure that it is removed.


May I ask the noble Lord whether any restrictions in ILO Conventions are involved here?


I do not know of any, but as I understand it this is our difficulty. So far as Clause 15(2) is concerned, it is controlled by Regulation. Only trained men over 18 years of age can do that work. They have to be trained in accordance with Regulations. What we are doing by means of the Amendment which the Committee have before them—it has not yet been carried—is to say: "Very well, that can also apply to women, but they will have to undergo the same training under the same Regulations". That refers to Clause 15(2), but when you come to Section 20 it is an entirely different situation. It is a situation which does not specify training but merely protects women.

Three options have been considered. One was to just take out "woman", which we are not prepared to do. I would ask your Lordships to bear in mind that the question of training does not come in here. The second option would be to give the same protection to men, and that is not practicable. It would cause great difficulty to industry and should not be done without consultation. The third option is to recast Section 20 of the Factories Act in such a way as to give adequate protection to both men and women, so that they may work in equality. We think that is a matter for the Health and Safety Commission, and it has been referred to them. There is no loss of faith here. We made it clear in the other place that if we found this kind of difficulty this is what would be done, and I have repeated the undertaking which was given there. When it comes to a question of protection of this kind, I do not think the matter can be dealt with by merely making men and women equal. You need to have another look at the particular section of the Factories Act, let the competent body look at it, redraft the relevant section and let it apply to both men and women.


I am not going to make my speech all over again, but the noble Lord has not grasped my point. Will the noble Lord tell me—not immediately, but in writing later before the Report stage—whether or not there are powers to make Statutory Instruments under the Health and Safety at Work Act 1974, which will allow him to recast Section 20 in the way that he wants? I am not prepared to allow this to go, even on the basis of his third option, without taking the necessary powers to remove discrimination in this particular area. If they are there already, the noble Lord will of course refer me to them; he will tell me where they are and I can look at them for myself. If they are not there, please will he tell me quickly so that I may put down a different Amendment so that we can have the necessary powers by Statutory Instrument under this Bill to get rid of discrimination? That is all I am asking the noble Lord to do. He need not repeat his three options. I understand his argument, but I am not prepared to let this Bill pass into law without the necessary powers to get rid of this discrimination.


It would appear that the noble Viscount's objective is merely to speed up matters and that instead of having a Statute in order to amend Section 20, he would prefer to have a Statutory Instrument. Also, if we do not already have the powers, he will move an Amendment which will give the powers. I am sure that I should be foolish indeed if I did not say that I will certainly look at that, particularly to see whether we already have the powers.

On Question, Amendment agreed to.

Lord JACQUES moved Amendment No. 87:

Page 66, line 29, at end insert— (" The Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49) In section 21(6) for the word "woman" there shall be substituted the word "person".").

The noble Lord said: This is a minor technical Amendment to Schedule 5, which provides for consequential amendments to existing legislation. Clause 20 of the Bill removes the statutory prohibitions on a man becoming a midwife, by providing that references to "women" in the Midwives Act 1951 and the Midwives (Scotland) Act 1951 should apply equally to men. The Amendment to Schedule 5 will extend this provision to cover Section 21(6) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, which at present defines a certified midwife as, "… a woman certified under the Midwives (Scotland) Act." I invite your Lordships to approve this Amendment. I beg to move.


Of course, I can express approval only provisionally, because I am still waiting for the answer which I am to be given about the whole question of midwives, to which we shall return on Report stage. It is plainly right that we should have this Schedule brought into line, so that any necessary amendments are there in the Bill. But I do not think it necessarily follows that by accepting this Amendment today my noble friends, or anybody else who is interested in the subject, will necessarily forgo the opportunity to talk about midwives again. However, I think this is the last Amendment at Committee stage, unless something turns up on the Title of the Bill. So I hope I can end on a happy note by saying that I am glad to accept this Amendment for the moment.

On Question, Amendment agreed to.

Schedule 5, as amended, agreed to.

Remaining Schedule agreed to.

House resumed: Bill reported with the Amendments.