§ 6.36 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that this Report be now received.
§ Moved, That the Report be now received.—(Lord Harris of Greenwich.)
§ On Question, Motion agreed to.
§ Clause 3 [Discrimination against married persons in employment field]:
§ Viscount HANWORTH moved Amendment No. I:
§ Page 2, line 12, after ("married person") insert ("or parent").
§ The noble Viscount said: My Lords, with the agreement of the House, I should like to speak to this Amendment and to Amendments Nos. 2, 5 and 7. The intention of these Amendments is simply to ensure that there is no discrimination against unmarried mothers, as the clause mentions only "married persons". I am sure that nearly all noble Lords will agree with this principle, something which we might have had reservations about some years ago but which today cannot possibly be logically sustained. I do not think it is necessary to elaborate this aspect in any more detail.
§ Before putting down this Amendment I had some doubts as to whether the Bill as it stands did not cover the point, but my legal advisors are of the opinion that it does not do so. Certainly unmarried mothers are at present discriminated agianst in some cases in the granting of maternity leave; for example, one institution for advanced education has recently made a distinction on this basis. There are other ways in which distinction and discrimination in fact occurs. If the Bill needs amendment to cover the point, then it follows that further Amendments should be made to Part III of the Bill so that housing and similar matters are also covered. I beg to move.
§ Lady KINLOSS
My Lords, I should like to support this Amendment moved by my noble friend Lord Hanworth. Whatever the marital status of a woman 968 may be, she should surely be treated in the same way in regard to having paid time off from her work, whether for pregnancy or sickness of a child. The way Clause 3 is worded, it seems to me to discriminate not only against single women who have a child but also divorcees. In either case, the welfare of the child is of paramount importance, and we have no reason to discriminate between children because of the status, marital or otherwise, of the mother.
Viscount COLVILLE of CULROSS
My Lords, may I say a word on this, if the noble Lord, Lord Harris, will forgive me. It is a topic on which perhaps I may be allowed to speak, even if I am doing so from the Dispatch Box, because I was for quite some time the President of what used to be the National Council for the Unmarried Mother and her Child. The noble Baroness, Lady Serota, has now taken that august position from me, and very rightly so. It is absolutely correct that an organisation like that should keep its eye upon legislation as it goes through Parliament and should seek every opportunity it gets to draw attention to the disabilities which are, by reason of attitude or of law, imposed upon one-parent families—and it does not matter whether it is the mother or the father looking after the children.
What I suggest to the noble Viscount, with very great deference to him—and, if I may say so, to his wife, who is now the Chairman of this organisation—is that one has sometimes to look at the scope of the legislation to see whether this reform fits into it. I am sympathetic to the sort of case which underlies the Amendment, but I wonder whether the noble Lord, Lord Harris, will tell us whether this is really within the scope of the mischief with which we are trying to deal under this Bill, or whether it might not be more appositely dealt with on another occasion in other legislation.
I do not wish to suggest that, meanwhile, persuasion should not be brought on those who discriminate in this way. But I wonder whether we are getting wide of the fairly narrow purpose of this Bill, and whether, if we let in this sort of discrimination which is not on the grounds of sex, or perhaps of marital status, we are also going to get ourselves 969 involved in a number of other discriminations, and shall have so unwieldy a vehicle that we shall not know at all how to handle it. It is worth while raising this point, but it is not one that fits easily within the fairly limited ambit of the Bill as discussed in this House and in another place.
§ 6.42 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I am sure there is no dispute between either side of the House, or between the Government and the noble Viscount who moved this Amendment, about the urgency of this problem. However, like the noble Viscount, Lord Colville, I find it difficult to accept that this problem can best be dealt with in terms of this Bill. The intended effect of the Amendments of the noble Viscount is to make it unlawful to discriminate either directly under Clause 3(1)(a) against a "parent", or indirectly under Clause 3(1)(b). I must make it clear at the outset that the object of the Bill, as the noble Viscount, Lord Colville, pointed out, is to deal with a particular kind of prejudice—that based on a person's sex. This is a major problem which requires complex treatment. I do not think there will be any doubt about that after the discussions we have had on the Bill.
Without, I hope, sounding unduly complacent, I think that the Government have done their best to tackle this problem with some energy, making this Bill, when it eventually reaches the Statute Book, one of the most far-reaching antidiscrimination measures which exist in any country of the Western world. But we have paid a price for this. As my noble friend Lady Gaitskell pointed out on the last occasion, the Bill is already lengthy and complex. As she said, it is not easy for members of the public to follow it. I agree with her and the noble Viscount too in saying that the Commission will have a major job in simply communicating to public opinion as a whole in this country what is in this Bill, when it eventually goes on to the Statute Book.
I believe that the problem facing the Commission will become intolerably difficult if we start at this late stage of the Bill in trying to widen it in this way. If business is conducted moderately expeditiously in this House and another 970 place, then with good fortune this Bill will be put on the Statute Book by the end of next week. That is our hope at the moment. But that will be greatly prejudiced if at this stage we attempt to widen the Bill in the way the noble Viscount has done today. I do not in any way doubt the admirable motives which have moved him, but the Amendment raises the most formidable problems, which it would be extremely difficult for us to resolve in the week or nine days between now and when the House rises for the Summer Recess. It would further complicate an already complicated Bill.
May I give some indications of the problems which would arise in terms of the Amendments moved by the noble Viscount, and deal with the whole clutch at the same time? First, if the intention is, as the noble Viscount said it was, to help the one-parent family in particular, I do not think it will succeed in that objective because the vast majority of cases covered by the Amendments would be married people and not simply the unmarried mother or the mother and father of the one-parent family. Unmarried mothers would not benefit unless less favourable treatment was also visited upon married mothers. That is the first problem.
Secondly, it is right to look at the problem facing mothers, married or not, covered by this Amendment. Many of the most daunting problems face the mothers of young children, be they married or unmarried mothers. The problem of illness is particularly difficult for a working mother with young children. The problem of school holidays is a great deal more difficult for a mother with young children than for a mother with older children. But if an intending employer, even if these Amendments were to reach the Statute Book, were to discriminate against a young mother who could be disadvantaged for exactly the reasons I have endeavoured to point out, and he did not discriminate against those with older families, then he would not be discriminating on the grounds of parental status, which is the mischief at which these Amendments are endeavouring to be directed.
Further, exactly who is a "parent" as defined by this Amendment? The problem is not defined, and this is another 971 difficulty that we should face. Is it intended that the protection would end when the child reached 18? The Amendment does not say so. If it does end at the age of 18, what about the woman with a handicapped son and daughter of 30, who could equally face difficult employment problems? All I am endeavouring to do is not to nit-pick but to point out that there are formidable difficulties which would emerge if these Amendments were carried today at a very late stage in the Bill's progress through the House.
As I indicated at the beginning of my speech, the insertion of Amendments at this late stage would cause serious damage to the cause of getting this Bill implemented speedily. In addition, it would make the job of the Commission in getting the Bill easily understood a great deal more difficult. This is a Bill to deal with one form of discrimination; it cannot conceivably cover every possible form of discrimination against any disadvantaged group, without making the job of the Commission totally impossible. I do not think that anyone on this side of the House would in any way wish to underestimate the grave difficulties facing unmarried mothers and other people responsible for one-parent families, but it is extremely difficult to deal with that problem within the confines of this Bill.
§ Viscount HANWORTH
My Lords, before the noble Lord sits down, may I ask him a question? Could he say whether, as the Bill stands, one can discriminate between a married person and a married person with children? This seems to me to be the nub of the question. If the Bill does not prevent one from doing that, then I can accept the noble Lord's arguments, but if it does then I cannot. I am asking at this stage for clarification on that point before I decide what to do.
§ Lord BEAUMONT of WHITLEY
My Lords, I have some points to put to the Minister and I am wondering whether he intends to speak again, in which case he will have to seek the leave of the House.
§ Lord BEAUMONT of WHITLEY
My Lords, this is the moment when it is worth while making a certain protest. One does not have anything except sympathy for the Ministers who are in charge of this Bill and my protest is addressed not to them but to the Government, whose ill control of their legislative programme—and, I may add, of the affairs of the country—have led us into a situation like the one we face tonight. I am bitterly resentful of the fact that this highly important and complex Bill will not get a separate Third Reading after a reasonable time following its Report stage to enable us to deal with the no doubt highly complex matters which will be raised tonight and possibly on another night. I am resentful that this Report stage should be occurring at the fag end of an evening after a lot of other business, and that we are promised that it will be continued after the long and no doubt extremely complex arguments on the Committee and other stages of the anti-inflation Bill on Thursday.
This is no way to treat this Bill. As a result of all this, we find ourselves in a position we often get with nice Bills which do a lot of good but which are not absolutely essential to the Government's programme; we have veiled threats held over us—that unless we are good little boys, do not divide and are not awkward in other ways, the whole thing will be delayed, it might be lost and then we would get nowhere. I always think that this is an unworthy situation, and it is no less unworthy when I appreciate that noble Ministers are not attempting to exercise blackmail but are simply telling the truth as it happens. This is the situation they find themselves up against, but nevertheless I do not feel that this Report stage should go by without somebody making this point.
Having registered that protest, I come to the Amendment of the noble Viscount, Lord Hanworth, which could and should be taken into account in this Bill without too much difficulty if we had the necessary time. Unfortunately, we do not have that time and I rather suspect that, because of this, the noble Viscount will have little alternative but to withdraw his Amendment. This is a pity, because this situation could have been avoided by the better management of the Bill and the 973 other business of the House. This is all part of a process which has been building up and it is a great pity that we shall not be able to deal with the very real problem to which the noble Viscount has drawn attention, and he has my sympathy in the efforts he has made to try to deal with it.
My Lords, I quite understand the position in which the noble Lord, Lord Harris of Greenwich, finds himself, and in view of this I will simply ask him whether, in discussion with his right honourable friend the Secretary of State for Education, he will raise one area where discrimination is caused by local education authorities. It might be helpful if the noble Lord could say something to them to make the situation easier. For example, one teacher was told that she must live outside the borough if she wished to teach there. In another case, a teacher was told at her interview that the staff must not be told the facts; the alternative was for her to wear a wedding ring and call herself "Mrs." Occurrences like that are an unfortunate start to any young teacher's career and I hone, if this Amendment cannot be accepted, that the noble Lord will discuss this issue with his right honourable friend to try to make the situation in this area easier.
§ Lord HARRIS of GREENWICH
My Lords, I will, with the leave of the House, speak a second time. I will gladly take up the point made by the noble Baroness, Lady Vickers, with my right honourable friend the Secretary of State and, indeed, my noble friend the Minister of State is with us today and will have taken note of the point. I am aware that problems of this sort sometimes arise in the area which the noble Baroness has identified and I will certainly draw to the attention of my right honourable friend what she said.
In answer to the point made by the noble Lord, Lord Beaumont of Whitley, while I am certainly young in the service of the House. I think I am right in saying that complaints of this sort have been made in previous years. Governments of different political persuasions have found themselves in exactly the difficulties in which we find ourselves. I do not want to be unfair to my noble friend Lord Hanworth, because the point he 974 has raised is important, but it is exceedingly difficult to have raised at the very last stage of a Bill's progress through this House, the measure having gone through another place, a new issue of major significance and I hope that we can keep to the timetable which I outlined in my Second Reading speech in this House when I pointed out that we wished this Bill to be implemented at the same time as the Equal Pay Act, in December of this year.
We are working undoubtedly to a very tight timetable, but even if we had unlimited time available and could go into this matter in greater detail, I would still doubt very greatly whether we could hope to deal with every possible form of discrimination against anybody in this Bill. We must recognise that we cannot deal with everything in this Bill, and this is not in any way to underestimate the importance of this issue and the fact that many of the people, about whom my noble friend Lord Hanworth has been speaking, have the gravest difficulties in getting through life. I do not wish in any way to indicate that we are complacent about it because we are in no sense complacent. However, I do not think this Bill is the right way of tackling their problems.
I endeavoured to point out that the problem which my noble friend has identified is being raised by him under Clause 3, a clause which deals with what is in reality the marriage bar used against women to keep them out of certain types of job, and that is a provision which will be of some significance to some women in thic category. I also draw my noble friend's attention to Clause 1(1)(a) which says:A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if…on the ground of her sex he treats her less favourably than he treats or would treat a man…They are two provisions which seem relevant in answer to his question. I recognise at once that they do not totally meet his point, but I hope, for the reasons I have indicated, that he will not press his Amendment.
§ Viscount HANWORTH
My Lords, the Minister did not answer my last question. Does the Bill as drafted prevent discrimination as between a married woman and a married woman with 975 children? if it does, then I would consider myself justified in pressing the Amendment. If it does not, then I would accept that probably the Bill as a whole does not cover this kind of thing. I should like an absolute and clear answer to this question.
§ Lord HARRIS of GREENWICH
As I have tried to point out, my Lords, the Bill deals with sex discrimination and sex discrimination only.
§ Viscount HANWORTH
My Lords, in all the circumstances, remembering that this is the Report stage, I probably should withdraw the Amendment, though I must say I am not convinced by many of my noble friend's arguments and I am certainly not convinced of the importance of rushing the Bill through. In my view, its importance lies in its psychological effect rather than its legal effect, and hence so long as it is on the stocks and ready to be implemented, it will probably be as effective as if it had been an Act. But that is by the way, and I now beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 [Exception where sex is a genuine occupational qualification]:
§ Lord JACQUES moved Amendment No. 8:
§ Page 5, line 28, after ("available") insert ("for persons holding that kind of job")
The noble Lord said: My Lords, the Amendment relates to the interpretation of Clause 7(2)(c)(i) which, subject to subparagraph (ii), provides for exceptions where:
…the only such premises which are available are lived in, or normally lived in, by men and are not equipped with separate sleeping accommodation for women and sanitary facilities which could be used by women in privacy from men".
§ A point of interpretation has arisen in connection with the employment of women in ships where the only available accommodation is communal. In many ships, there are several blocks of communal accommodation which are related to the duties of the crew members who occupy them and which are often situated conveniently near the part of the ship where the crew's duties are carried out. There are separate blocks for the crew members who are on watchkeeping duties 976 —that is a type of shift work—in order that they should not disturb the sleep of others who are not on such duties. There can be separate blocks of living accommodation for deck ratings, engine room ratings and catering ratings. Certainly, at the present time and probably for some years to come, each of these blocks will be lived in, or normally lived in, by men. Sub-paragraph (i) says that the exception applies where only such premises are available, but I am advised that these words do not cover the subdivision of accommodation into separate quarters. They relate to the totality of the living accommodation of a ship, and therefore the requirement of sub-paragraph (i) cannot be met by any ship which has more than one block of sleeping and sanitary accommodation for its crew. By definition, such a shin is equipped with separate sleeping and sanitary accommodation which could be used in privacy from men.
§ I take as an example a ship which has separate job-related blocks of accommodation and which is recruiting crew members before it sails. As sub-paragraph (i) is now drafted, if a woman applies to join the ship, it may not be possible to claim that Clause 7(2)(c) applies because the ship will fail to meet the requirement of sub-paragraph (i). This will be so whether the woman is the first or the last applicant. However, until such time as we have an abundance of women seafarers, it is likely that it will be necessary to recruit men to occupy the communal accommodation to ensure that there are sufficient crew members to run the ship efficiently and to enable it to sail on schedule.
§ The Amendment removes the difficulty. It will enable the exception to be applied where there are separate blocks of job-related accommodation but only as long as the requirements of sub-paragraph (ii) as well as those of sub-paragraph (i) have been met. It will be necessary for the employer to show that the provisions of sub-paragraph (ii) are satisfied. This would require the employer to show that it would not be reasonable to expect him to provide separate accommodation for women. I repeat that, for the exception to apply, both paragraphs of subsection (2)(c) must be satisfied, so that the Amendment does not provide that all ships with communal accommodation will 977 be excepted from the Bill. The only effect of the Amendment is that such ships will not be excluded from Clause 7(2)(c) by the drafting of sub-paragraph (i) but will be available to attempt to claim that sub-paragraph (ii) applies. I beg to move.
§ On Question, Amendment agreed to.
§ 7.7 p.m.
§ Lord BEAUMONT of WHITLEY moved Amendment No. 9:
§ Page 5, line 33, after ("reasonable") insert ("on grounds of cost").
§ The noble Lord said: My Lords, noble Lords will remember that this is an Amendment which we moved on Committee stage, but which, partly owing to defective drafting on my part, we withdrew. The position is that these subsections contain exceptions to the Bill and that it is the business of those who are putting forward the Bill, and particularly of the Government who are responsible for its drafting, to justify them. Where possible, we want to limit these exceptions as much as we can.
§ We challenged the point as to whether there were any grounds except those of cost on which it would not be reasonable to expect the employer to equip the premises or to provide other premises. At the time, this was in the nature of a probing Amendment, but it uncovered some rather murky ground because, in dealing with the Amendment, the noble Lord, Lord Jacques, produced as a possible alternative reason why it should not be reasonable to expect an employer to provide accommodation or equip premises the case of a solitary female who wanted a job which would necessitate her being with, say, 10 or 11 men in a far distant area.
§ This seems to a number of us to go to the very heart of the Bill and to be exactly what we are trying to fight. This is a Bill to do away with discrimination against women because they are poor little things who are not capable of doing jobs or because they are likely to be raped if they find themselves in distant parts of the world with 11 strong men. We do not believe that this reflects the kind of situation in which working men and women find themselves in this century. Unless the noble Lord can, on behalf of the Government, produce arguments as to why accommodation should not be 978 equipped or premises provided other than that of cost and other than that which he provided during the Committee stage, I do not feel that the Bill as it stands is acceptable. I beg to move.
§ Baroness PHILLIPS
My Lords, the noble Lord, Lord Beaumont of Whitley, has twice said that this is a Bill which concerns discrimination against women. I should like to remind the noble Lord that it deals with discrimination on grounds of sex against men or women. It is important to remember that, because we are in danger of falling into the trap of dealing with the Bill from one angle only.
§ Lord JACQUES
My Lords, I accept the view that where there are exceptions of this kind it is for those who are putting forward the Bill to justify them. I also agree that in most cases to which Clause 7(2)(c)(ii) may be pleaded, the ultimate reason for any alterations being unreasonable will come back to cost in some sense of the word. Almost anything can be achieved by an employer who is prepared to wait long enough and to pay enough for it. Therefore, the questions of practicability, delay and so on can all eventually be brought back to that of cost. However, the Amendment might have the effect of limiting the defence only to the cost of making the actual physical alterations that would be necessary and excluding consideration of any indirect costs involved, particularly costs to some other person.
Previously, I gave examples involving a small ship on which a woman crew member could be accommodated in privacy only by taking up so much of the cargo space that the ship was no longer economically viable for its main purpose. It is quite true that the ultimate reason for the employer to resist doing this is what it will cost him in lost revenue and so on, but the cost of the alterations might be very low indeed. I should like to take another example involving ships. A crew may be recruited for a ship which must sail within a very short period. A woman may apply for a vacancy, but there is no accommodation for her at the time. The necessary alterations might he relatively cheap, but the materials might not be immediately available so that the voyage would be delayed, perhaps for some days. It is possible that many people, including passengers, would be 979 inconvenienced. In those circumstances, it would be very difficult to assess the whole of the inconvenience in money terms.
We think there should be no doubt that a tribunal may take into account indirect costs of this kind as well as direct costs of equipping the premises. Therefore, we prefer that the clause should remain as it is. I should make it clear that the clause ties the question of what it is reasonable to expect to the direct and indirect effects of making the necessary alterations. It would not be open for the tribunal to consider, for example, whether or not a job is suitable for a woman. All we are concerned to ensure is that the full consequences of making such alterations as would be necessary may be taken into account—and not merely the direct financial costs of the alterations themselves. I hope that with that explanation the noble Lord will feel that he can withdraw his Amendment.
§ Lord BEAUMONT of WHITLEY
My Lords, I thank the noble Lord for his extremely full answer. I am delighted with the last assurance, that it is tied to the direct and indirect costs and the effect of providing accommodation, and nothing else. I am also pleased that the idea that this clause might, because of prejudice, be used against one woman having a job among 11 men in a different area, is merely a spectre. I am still not entirely certain about this mythical ship which, if one woman is put aboard it, automatically becomes unviable because of its reduced cargo-carrying capacity. I wish that my noble friend Lady Seear, who unfortunately is in Australia, was here, because she was even more sceptical than myself about whether such ships existed. But in the circumstances the explanation which the noble Lord has given so fully is very reasonable, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.13 p.m.
§ Baroness VICKERS moved Amendment No. 10:
§ Page 6, line 14, leave out ("or could not effectively")
§ The noble Baroness said: My Lords, in moving this Amendment I should like, with the leave of the House, to speak to 980 another Amendment to line 19, because these two Amendments are tied together. I hope that is suitable to the noble Lord who is to reply. I wish to thank him for giving me such a very full letter containing details in reply to the Amendment which I moved on the previous occasion—
§ Lord JACQUES
My Lords, I want to be as helpful as I can, but I think it would be to the advantage of everyone if we kept these two Amendments separate, because they are independent.
First, as I said, I wish to thank the noble Lord for the very long and detailed letter he sent to me. I was delighted to see that it was signed in red ink. That reminded me of that grand old lady Mrs. Braddock who always wrote everything in red ink. In this respect the letter gave me thoughts of the past. I am moving this Amendment because I am not satisfied with the letter, despite its detailed observations. During the debate on 14th July, the noble Lord mentioned at col. 1052 representations by the CBI and others. Therefore, before I received the noble Lord's letter I did a considerable amount of research and got in touch with the CBI. Interestingly enough, I phoned and got the exact examples given in the letter—and no more.
The letter also quotes cases. I shall not go into all the details but it mentions in particular the example of an American company employing women secretaries and typists at a site, which it was told it must leave. Clearly, they had not been included in the personnel when the curricula vitae was sent. It was said that this case is not unique. But as no other cases have been given, it may be unique. Therefore, I was not very satisfied with that part of the reply. It was stated that other types of cases could arise elsewhere in the world. Of course cases can always arise. I do not think that that point is very much of an argument in regard to my previous Amendment or my present one. It was stated in the letter that it was no use sending a woman geologist to be involved in taking samples in underground mines in a country where all employment for women underground is prohibited. The noble Lord mentioned France; surely it is prohibited in Britain as well? I do not regard that 981 argument as very convincing. This is cited as an example of where laws rather than customs could be involved. As I have said, it is the same in the United Kingdom. The noble Lord goes on to say that this exception must be retained.
I now wish to suggest that I have mitigated these ideas about putting a less strong Amendment and perhaps the noble Lord might consider this. I wish to ask him one other question concerning women in the Diplomatic Service. I understand that an unmarried woman is acceptable in the Diplomatic Service, but that a married woman is still not accepted by the Foreign Office for the Diplomatic Service. Perhaps the noble Lord can let me know whether this position has been changed recently. Certainly, it had not been changed when I last inquired. I hope that on this occasion the noble Lord may accept this Amendment, because it is what I call a qualifying Amendment. We are to have the Inter-Parliamentary Union Conference, and as I am a delegate I saw a magnificent opportunity to get other examples. I am only sorry that the Conference has not taken place before this debate today; otherwise, I might have had even better arguments to put forward. I hope that in view of what I have said the noble Lord will consider my present Amendment. My Lords, I beg to move.
§ Lord HOUGHTON of SOWERBY
My Lords, perhaps someone will tell us what is the difference between "could not" and "could not effectively." I suppose there is a distinction. The Amendment proposes that the words "or could not effectively" should be left out. It seems to me that there is an attempt here to press some fastidious distinctions to the point of absurdity. There is no room left—or there will shortly be no room left—in this Bill for any common sense. If it is not in the Bill, it will not be anywhere; and if it is not in the Bill one need do nothing about it. I am an old campaigner for equality for women, but I feel that at present we are spending a good deal of effort in pressing points to find distinctions on theoretical situations, without troubling about the fundamental weaknesses of what we are doing namely, not giving the support to women to take the opportunities which this Bill is intended to provide.
982 We must consider the women with children. They are the majority of the people who will be going into employment and who will be taking advantage under the Bill, if there are advantages to be taken under it. Yet we are quite casual about this. Where is the family support? Where are the day nurseries? Where is the fundamental change in the relationship between husband and wife and the economic relationship between the two which is an indispensable condition of equality? This Bill is only tinkering with the opportunity for the limited number of women who can avail themselves of it. The great bulk of women are going to be in bondage still when this Bill is passed. I am sorry to lose my patience, but that is how I feel about pressing Amendments which try to distinguish between "could not" and "could not effectively".
§ Lord BEAUMONT of WHITLEY
I agree with the last 90 per cent. of what the noble Lord, Lord Houghton, has said. I could not agree with the first 10 per cent. because despite the absolute truth of the great majority of what he said our business is to get this Bill right as it is. This is a useful Amendment because I entirely agree with the question Lord Houghton asked: what is the difference between "could not" and "could not effectively"? That is why we think it is unnecessary to have the second part in the Bill. If this should unfortunately ever come to be a matter to be decided by an industrial tribunal or any court, I think it would be easier if they have to decide whether this is a job a woman could do because of the laws and customs of another country or whether it is one she could not do effectively. It seems to me to leave open areas which could be argued with the kind of minutiae and fine points that the noble Lord, Lord Houghton, rightly, does not want to see. It is just an important, simplifying little clause; and the fact that we have not touched on a large number of the major matters on which I feel as passionately as does the noble Lord but do not feel this is the Amendment to speak about them, does not in any way stand against the benefits that we should get, small though they would be, through passing this Amendment.
§ Baroness ELLIOT of HARWOOD
I should like to support the noble Baroness who moved this Amendment. It is always a mistake to qualify things. I do not like "could not effectively" because that would lead to discussion as to whether or not they could or could not effectively do the job. Either the job can be done by a woman or a man—and I agree with the noble Baroness, Lady Phillips, that we must think in terms of men and women—or it cannot. I would prefer to see the simple phrase and to leave out those words. The noble Lord, Lord Beaumont of Whitley, mentioned countries where women are not by custom, law or tradition allowed to do certain jobs. These are exactly the kind of countries and women we want to support and help. This is one of the things which might start a kind of liberation in those countries. I do not disagree with the noble Lord, Lord Houghton, in saying that there are many areas where women are severely handicapped by the laws of this land. This is, we hope, a big step to free women from those discriminatory laws. But it would be a better Bill if we were to take out these qualifying phrases. It is not a matter of splitting hairs. It would be much stronger and better to remove those words. And I hope the Government will see the effectiveness of removing this sentence.
§ Lord JACQUES
In view of what appeared to be the understanding on this issue in Committee, I should like to make two points. First, I want to make it quite clear that where the duties are wholly or mainly outside the United Kingdom this Bill does not apply. We are not dealing with that kind of situation. The situation we are dealing with is where some of the duties are outside the United Kingdom. The second point is that the exceptions are not exceptions to the prejudice of women. Whatever applies to women also applies to men. The interpretation clause makes that clear as well as this clause of the Bill. Later I will give examples applying to men as well as to women.
In our view by seeking to delete the words "or could not effectively" from paragraph (g) the noble Baroness is saying that the exception should be available only where laws and customs of the country are such that the duties of a job could not be performed by a woman at 984 all. Here I underline the words "at all". Furthermore, in effect she is saying that where a job of the kind we are considering could not effectively be done by a woman, an employer would nevertheless have to consider men and women equally for the job. One has only to put the proposition in this way to see that it could act in a way which is unreasonable.
I will give two examples. First, take a consultancy assignment on a site in Saudi Arabia which involved supervision of locally-employed staff. In such a situation, there is no doubt that if a woman was given the job then, because of the attitude of the people in that country towards women, she would not be able to do the job effectively because her orders would not be carried out. If the noble Baroness's Amendment were accepted, the exception would not apply because the job could be done by a woman, in the sense that the duties could be carried out by a woman although not effectively. The second example is based on a statement made by the noble Baroness in Committee at col. 1053 of the Official Report where she said:I can assure your Lordships that I have been in harems where a man would not be allowed to go.
These women buy a lot of goods. I base my next example on that statement. Supposing that a cosmetics firm wants to appoint a representative. Presumably, cosmetics would be sold in places where men are not allowed to go and also in places where men would be allowed to go. It follows that a man could do the job but not effectively. In our view that employer would be right in saying that the man could not do that effectively and it is a job for a woman. I think that is a very fair case. I believe it shows there is a need for the clause as it stands. It is necessary for the employer to have that freedom which is to the prejudice of neither men nor women.
I should like to point out that any employer would tend to rely on the clause to convince a tribunal—if there were a complaint from a woman who was discriminated against—that the specific laws and customs in the country or countries where the job-holder would be required to work were such that the exception applied. This would put an onerous burden on the employer. With that explanation and the examples I have given I 985 hope that the noble Baroness will feel able to withdraw her Amendment.
I am not very satisfied with the reply. I was astonished that Lord Houghton almost repeated his remarks when he attacked me previously at col. 1035 of the Official Report on July 14th when he said:Is it necessary to provide for situations which go further than people want to go?"—and—We shall be unwise to pursue some of these points to four or five places of decimals in order to establish theoretical non-discrimination…".Surely this is a non-discrimination Bill. I am astonished that he has taken two opportunities to repeat the same point. The examples given by the noble Lord are what he kindly gave in his letter to me—he has obviously nothing new. He has not answered my point about married women in the Diplomatic Service; perhaps he could do that before I decide what I am going to do about the Amendment.
§ Lord JACQUES
Since that is not a matter for my Department, my Lords, I will make inquiries and write to the noble Baroness.
My Lords, that will leave it open to me to put down another Amendment at Third Reading. In view of what has been said, and the lateness of the hour, with great regret I will withdraw the Amendment and hope to get further knowledge at the Inter-Parliamentary Conference, and perhaps we will get another chance to make further progress in another Bill.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
§ Lord BEAUMONT of WHITLEY moved Amendment No. 11:
Page 6, line 19, at end insert—
( ) Paragraph (c) of subsection (2) shall not apply after the expiration of five years from the passing of this Act.
§ The noble Lord said: My Lords, this is the second part of the Amendment which I put forward at the Committee stage and which, because of my bad drafting, failed. I have put it forward now because I do not think that the answers we were given at that stage were very satisfactory. The noble Lord, Lord Jacques, has agreed, generously and 986 rightly, that it is for the proponents of the Bill to defend the exceptions. I do not think he will quarrel with the desire of a number of your Lordships to try to limit these exceptions in terms of time v; here it seemed reasonable to do so. I wonder whether there are and situations where, after five years from the passing of this Act, it would still be reasonable for an employer to say that he could not provide premises or alternative accommodation. Five years is a long time in which to write off costs; it is a long time in which to make alterations, and to do it in the cheapest and most economic way.
§ If there are such cases where, after five years, it seems likely that it would be thoroughly unreasonable to expect an employer to provide the accommodation, then—although I cannot speak for the noble Baroness, Lady Vickers—I should be happy to withdraw the Amendment. It is just a question of seeing whether this particular exception is justified after a period of five years. I suspect that it is not, and that to give a time limit like this would concentrate employers' minds massively on how to put into effect what this Bill is all about, and how to provide alternative accommodation in the best and cheapest possible way. I beg to move.
§ Lord JACQUES
My Lords, even if it were realistic to expect that in the five years allowed employers would set about rebuilding their premises in case a woman or a man should for the first time apply for a job, an employer may find it impossible to estimate what proportions of men and women are going to apply for employment. He is therefore in a difficulty in providing the exact amount of accommodation for each sex. There will always be the marginal case where the only space left is accommodation already occupied by a person of one sex. Without Clause 7(2)(c), it would be unlawful for the employer to turn down a person of the other sex for that last job. That would apply particularly to ships.
I must also point out that we are not dealing only with the continuous situation; there is also the one-off situation where workers are, for example, sent to live in temporary buildings on a remote site. Whether it is reasonable to expect separate premises to be provided for women in such cases must be judged on 987 its merits; whether the Act has been in force for two years or ten years when the situation arises is hardly of any great relevance. It is the merits of the case at the time.
The exception, as it stands, is not a very wide one. To claim it, the employer will need to show that it is necessary, not merely expedient, because of the nature or location of the establishment, for the jobholder to live in the premises provided, and that he cannot reasonably make arrangements to accommodate an applicant of a particular sex without making men and women employees share the same sleeping quarters or the same non-private sanitary facilities. Unless those conditions are fulfilled, the exception will not apply, and the employer will be obliged to make the necessary alternative arrangements. I do not think we can assume that it is possible, with the best will in the world, to ensure that these conditions will not apply anywhere after 1981, and where they do, it is right that the exceptions should continue to be available. I hope that with this explanation the noble Lord will feel able to withdraw his Amendment.
§ Lord BEAUMONT of WHITLEY
My Lords, I cannot say that I am tremendously happy with that answer. There is an undertone in it, as there was in the answer to my Amendment No. 9, which I find disturbing. The noble Lord said something to the effect that employers could not be expected to see in advance what requirements they would need in five years. So long as they do not have to provide the accommodation because it is unreasonble now, they will not build accommodation for women, and then it would be equally unreasonable in five years to do so. There is a vicious circle element here which also came out in Amendment No. 9 when the noble Lord, Lord Jacques, talked about until the time when there are a large number of women seafarers. But there will not be a large number of them, of course, until the exceptions are removed, until it is fully accepted, and until there are no obstacles in the way of women becoming seafarers. I hope this is not going to be a factor which militates against the increase of equality of employment among women in these areas. Nevertheless, I entirely agree with the noble Lord, 988 Lord Houghton of Sowerby, when he says that we must rely to a very large extent on common sense being exercised by the tribunals. I do not think that this is a major matter, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.38 p.m.
§ Baroness YOUNG moved Amendment No. 12:
§ After Clause 7 insert the following new clause:
§ Employment exemption orders
§ ".—(1) In the case of an establishment falling within paragraphs 4 and 8 of the Table in section 22 of the responsible body may submit to the Equal Opportunities Commission set up under Part VI an application for an order (an "employment exemption order") authorising sex discrimination against male applicants for employment for the period specified in the order.
§ (2) An application under this section shall specify the job descriptions in respect of which the responsible body wishes to discriminate, the transitional period proposed by the responsible body to be provided for in the order, the stages within which the body proposes to move to the position where section 6(1)(a) or (c) is complied with, and any other matter relevant to the terms and operation of the order applied for.
§ (3) The Commission shall not make an order on an application under this section unless they are satisfied that the terms of the application are reasonable having regard to the need to preserve and to increase the opportunities for employment in teaching and research available to women.
§ (4) The Commission may if they think fit by a further order made under this section vary or revoke a previous order so made.
§ (5) During the period specified in the employment exemption order section 6(1)(a) or (c) shall not apply in respect of sex discrimination to any employment of the descriptions and for the purposes of the establishment specified in the order.
§ (6) Subsection (5) does not apply if the responsible body contravenes any condition of the employment exemption order.
§ (7) Except as mentioned in subsection (5) an employment exemption order shall not afford any exemption from liability under this Act."
§ The noble Baroness said: My Lords, I must apologise to the House as I was not able to be present to move my original Amendment at the Committee stage. I read what was said by the noble Lord, Lord Crowther-Hunt, in answer, and what was said regarding a similar subject moved by the noble Baroness, Lady Seear. This new Amendment is intended both to 989 meet the original point and the subsequent criticisms made by the Government. It may be helpful if I explain briefly the original purpose of it. It is concerned with a small and specialised group of people, tutors of those colleges at Oxford and Cambridge which at present are single-sex but which are in the process of going co-residential. Above all, this is not a hypothetical case of the nature we have been discussing; it is happening now. Colleges at Oxford and Cambridge which were previously exclusively for men are now admitting women, one of the objects of this exercise being to help women, and for there to be more women undergraduates both at Oxford and Cambridge, the numbers previously being limited by the amount of residential accommodation which could be provided by the women's colleges. Not only is this entirely in line with the purpose of the Bill; not only will it help women undergraduates, but it is designed to provide more teaching posts for women in the universities.
§ The Amendment therefore is concerned only with this transitional period while the number of women who have been admitted to men's colleges becomes an increasing proportion of the total number of that college and that in this transitional period there will be a balance of tutors of men and women. It is therefore a relatively narrow point on a relatively narrow subject. I believe it not to be dissimilar in principle to other parts of the Bill which make special provisions for transitional periods in educational establishments, and therefore I hope that the principle at least is one which the Government will favour. Having said that, it is only fair to say that the Government have not been sympathetic to this Amendment at any stage during the passage of this Bill either in this House or in another place, but I hope now that the Amendment has been completely redrafted they will look favourably upon it. I have explained the purpose of the principle of the Amendment and now I should like to explain the detail.
§ It covers only universities, which term includes a college or a hall of a university. I hope this meets one of the main criticisms of the noble Lord, Lord Crowther-Hunt, when we were discussing this on Committee. He was worried that if the Amendment was agreed to it could 990 be extended to cover other situations. It retains the notion of a transitional period. Again it was a major concern that having got it into the Bill it would remain there in perpetuity. It does not. It is concerned only with the transitional period. I think it removes the actual wording or the concept of a reasonable balance which, although I think is intended in other parts of the Bill where it is desirable to have a reasonable balance between the sexes, was objected to by the noble Lord's honourable friend in another place as being a term which was impossible to define. So this concept has been left out of the drafting of the Amendment. It is strictly limited to applicants for employment and therefore it does not cover anything else but these particular groups of people. Finally, it is modelled on Schedule 2, and although I am advised that that Schedule covers univerisities, paragraph 5 of Schedule 2 relates only to the admission of pupils, and I hope that the point is fully covered.
§ So far as the argument on Clause 7(2) (e) is concerned, this is not very helpful to colleges in this transitional period; that is, those which are going co-residential. As has been stated, it is possible for men to tutor women and for women to tutor men, and indeed, for men to look after women in this welfare role as well as actually to teach them. But the Amendment would allow discrimination in favour of women in positions of teaching and research, which Clause 7(2)(e) does not cover at all. Therefore it is during this transitional period that I think this Amendment would enable the colleges to maintain and help women dons in universities as well as undergraduates.
§ I shall quite understand if the noble Lord says that it is not correctly drafted. It is not my drafting; it was drafted by a lawyer, but long experience has taught me that whatever Amendment one puts up is never correctly drafted. I shall quite understand if that is the criticism of it and I shall, of course, withdraw it if the Government say that they will look at it.
§ I hope that the noble Lord will understand that it is a matter of serious concern to a limited number of people for a transitional period. It is not intended to go against the principle of the Bill. The Amendment is so drafted that it could be 991 altered when the need for it has passed and this rests with the Equal Opportunities Commission. I therefore hope that the noble Lord feels that it meets the spirit of the Bill. It meets something which I think is a problem that will arise for only a small number of years and I hope that with this redrafting the Government will agree to consider it. I beg to move.
§ 7.45 p.m.
§ Lord KAHN
My Lords, admittedly this clause would apply only within a rather narrow field, but within that field it is a clause of great importance. I intend to be very brief, but it may help your Lordships and supplement what the noble Baroness has said if I quote some facts about particular instances. Not only do I have to declare an interest, but it is within the context of that interest that I make my speech. I am a Fellow of King's College, Cambridge, one of the three men's colleges in Cambridge which three years ago went co-residential. Their example is now to be followed by a number of other Cambridge colleges and some Oxford Colleges, and further colleges in Oxford and Cambridge will cone in at a later stage, but not the whole lot. I must make it clear that I have no mandate to speak on behalf of the Oxford and Cambridge colleges which are or may be affected, and even as regards my own college I can only express a view. I am not actually briefed.
This is the end of the third year since we began to be co-residential. Therefore, so far as undergraduates are concerned, we are now in balance. We have 331 undergraduates in their first three years and of these 116 are women (35 per cent.). We have 102 Fellows, and of these 7 are women (7 per cent.). Of those 102 Fellows, 24 are research Fellows and the number of women research Fellows is 4 (16 per cent.). We have a considerable teaching staff, but only one woman is a member of the college teaching staff. We have a considerable number of tutors. One woman is a tutor as a result of our advertising for a woman tutor. I am talking here about tutors in the Cambridge sense. I believe the equivalent in Oxford is a moral tutor, and not a tutor who teaches rather than gives moral help.
992 In my college, there is a reasonable balance between the sexes among the undergraduates but it still sadly lacking in our fellowship body. We are not influenced by the view that, so far as possible, it is desirable that women undergraduates should be cared for by a woman tutor and be taught by women Fellows. That is not at all our view. Indeed, our one woman tutor is responsible for quite a number of men as well as some women, and most of the responsibility for our women graduates lies with tutors who are men. We are therefore not helped by Clause 7(2)(e), even if no legal doubt arose as to the operation of that subsection. The considerations by which I believe we are influenced are well described in subsection (3) of the proposed new clause. We are also concerned to secure an improvement in the proportion of our research Fellows who are women, and the same consideration applies to those of our Fellows who hold their Fellowship by reason of being university teaching officers.
Until a few days ago we had no women who held a Fellowship by reason of being university teaching officers, but we elected one a few days ago. I must be careful not to exaggerate the figures I have quoted of my College, but the fact is that in British universities women constitute a low proportion of full-time academic staff. In the academic year 1972–73 there was a percentage of 10.7 in all British universities except Oxford and Cambridge, with 6.8 per cent. for Cambridge. I regret that I have not been able to find a similar figure for Oxford. The figures which are more relevant for my purpose are those for the Arts, which are much higher for women, for obvious reasons, than for the Sciences. The percentage of women in the Arts in all British universities other than Oxford and Cambridge is 15.3, with 10 per cent. for Cambridge. The corresponding figures for the Sciences are 4.5 and 8 per cent.
§ Lord HOUGHTON of SOWERBY
My Lords, it does not matter what the figures are, so far as I am concerned. I object to this clause in principle. Why should we attempt to create a preserve for women in the academic world of universities that we are not prepared to create in girls' schools lower down? I find this distinction unacceptable and I think it is also bad in principle, in a Bill 993 of this kind, to begin to seek statutory authority for discriminating against men, albeit for a limited period under the Order. I assume that when appointments are being made to these posts things will be going through the minds of those who are given this responsibility. They will exercise some judgment as to what they are doing and they will look at qualifications relatively—or will this whole task be given to the Equal Opportunities Commission? I would prefer to see them act as guide, philosopher and friend in areas where there may be some doubt, rather than try to lay down the matter in literal form in a clause of this kind.
So far as I can see, the Equal Opportunities Commission are going to be rather fully equipped. There has just been a trawl throughout the Civil Service to find staff for the Commission. The Director is to be of assistant secretary rank with a salary of between £8,000 and £11,500 a year. They are to be senior principals, principals, senior executive officers, higher executive officers, higher clerical officers, clerical officers, the lot; and they want a staff of 100 by Christmas. They want them to go to Manchester. It seems to me that they are going to start off rather well to look after appointments in the academic world and everywhere else as well. I do not myself believe that the Equal Opportunities Commission can do their job without staff, but this is a good beginning. I think they can keep their eyes on what is happening in university appointments, and probably elsewhere as well.
I hope we are not going to have this atmosphere—I do not like the word "fussy" in this context, but I hope that everybody will not be under a kind of non-discrimination vigilance everywhere at all times. Surely the appointments boards and those responsible for these kind of appointments in universities can do their job without this feeling. After all, it is equal opportunities we are after, not better opportunities for some than for others: not shutting out some people in order to make it easier for others to get there. I do not see the point of this and, if I may say so, I am surprised that the noble Baroness, Lady Young, should have pursued this matter again.
We were both in Paris a few weeks ago and had the pleasure of meeting the headmaster of Roedean. I am glad that 994 nobody tried to keep out that gentleman, because he seemed to be a very desirable headmaster for a girls' school. It is this kind of "mixing-up" that we want to see. Do we have to create a kind of Indian reserve in the universities, to make sure that nobody else encroaches for a time? No; leave it alone, my Lords, and let us get on with the Bill. There is more in this Bill than in any comparable Bill in the world today. I would suggest that we should give it a chance to work and see how it goes. There can be amendments to it later on, if necessary, so again I would plead: Do not let us try to do too much before we have even started on the very big job of reform under the Bill.
§ Baroness GAITSKELL
My Lords, I am against this Amendment because I cannot see any reason, however transitory, for a special provision to be applied to residential colleges which cannot be applied to non-residential colleges, such as University College, London, for example. Why do we need these special provisions?
§ Lord GARDINER
My Lords, I should like to raise one very brief point. We are dealing with the tables in Clause 22. A point arises on Clause 22 which I am not happy about. All through this Bill it refers to "man" and "woman". Clause 5 says:…'man' includes a male of any age…and a'woman' includes a female of any age.Clause 2 says that wherever in this Bill you read "man" or "woman", you can read "man". That is everywhere except at one point. In Clause 22 it suddenly says—and I paraphrase—"in future it will be unlawful to discriminate in the field of education against a female." There is no clause which says: "Where you read 'female' you can read male '". There seems no reason for the change. Students are young people, of course, but as Clause 5 already says that a woman is a female of any age, that is no bar to using the word "woman". I have mentioned this to my noble friend Lord Harris and he has written me a very courteous reply, but that is apparently the only answer the draftsman gives. I have not had any sleepless nights over this because, if I am right, all it means is that in the field of 995 education anybody can discriminate against men as much as they like in future. I cannot think this is really intended, but I thought it best to mention this point while we are discussing education.
§ 7.58 p.m.
§ The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Crowther-Hunt)
My Lords, may I begin by saying that I very much agree with the noble Baroness. Lady Young, and the noble Lord, Lord Kahn, about the great importance of this clause. The Amendment proposed is a very serious matter though, as has been pointed out, it affects few people and is restricted in very many ways. During the Committee stage we discussed Amendments moved by the noble Viscount, Lord Colville of Culross, and by the noble Baroness. Lady Seear. I hope your Lordships will forgive me if, inevitably, I repeat some of the points made on behalf of the Government at the Committee stage.
I should like first to say a few words about the transitional arrangements for single-sex establishments turning coeducational in Clause 27 and in Schedule 2, because the wording of the present Amendment bears a family resemblance to the drafting of paragraph 5 of Schedule 2. The Government have welcomed the growing move towards co-education. But we recognise that certain single-sex educational institutions which wish to become co-educational—and we had in mind the Oxbridge colleges—would be faced with such formidable problems of reorganisation and accommodation if they were required, as from a certain date, to admit students without discrimination that they might decide in the event that staying single-sex was preferable to going co-educational.
We have therefore provided in Clause 27 and Schedule 2 for a transitional period during which the institution could discriminate in respect of admissions of pupils or students under arrangements approved either by the Secretary of State or, in the case of universities, by the Equal Opportunities Commission so as to move by a planned and reasonable progression to full co-education. Full co-education does not necessarily mean 996 exactly 50 per cent. women and 50 per cent. men, but clearly we are talking in terms of a student body which is roughly comprised of equal numbers of both sexes.
Then there is the question of the time-scale for an institution moving to full co-education in this sense. It is not uncommon for a girls' school which has decided to become a mixed school to admit boys into the first form in the first year, into the first and second forms in the second year, and so on. The school would then become fully co-educational over a period of about six or seven years. Such a period would not be unreasonable for other educational institutions.
Let us examine the Amendment against this background. As has been pointed out, the Amendment deals only with universities. It provides for discrimination in favour of women in making staff appointments and it lays down that:The Equal Opportunities Commission shall have regard to the need to preserve and to increase the opportunities for employment in teaching and research available to women".When does the need to preserve and to increase the opportunities cease? Does it cease when 25 per cent. of the staff are women, even though the student body is made up half of men and half of women, or is it when half of the tutors, lecturers and fellows are women and the other half men? It is difficult to avoid the conclusion that what the noble Baroness, Lady Young, and the noble Lord, Lord Beaumont of Whitley, in whose name this Amendment also stands, have in mind is a quota, but their Amendment throws the burden of deciding what that quota should be on the Equal Opportunities Commission. I must repeat again that the concept of a quota is completely alien to the spirit of the Bill. We are concerned to ensure that in the field of employment a man or a woman should not be discriminated against because of his or her sex. A candidate for a post should be considered on his or her merits and the best candidate should get the post, irrespective of sex.
The Bill inevitably includes a number of exceptions, although the Government have tried to keep them to the absolute minimum. However, as a deliberate act of policy the Bill contains no provision—and I stress that it contains no provision—for reverse discrimination in 997 respect of recruitment to a field of employment. I must ask your Lordships to consider very seriously the precedent which this Amendment would create, because once we start down this reverse discrimination road where in logic do we stop? So far as universities are concerned, I know that we stop in this clause, but where in logic do we stop in terms of the principle that is involved? So far as reverse discrimination is concerned, why should we make it a principle to be applied to Oxbridge colleges and not to anywhere else? I emphasise that the essential concept upon which this Amendment is based is that in an institution there shall be a certain quota of women teachers and that this should he achieved during some period of time. However, the Bill as a whole is not based on the concept of a guaranteed quota. The Bill is based on the concept of equal opportunities for employment for men and women.
Let us consider the question of time-scale in relation to the Amendment. It has been said that we are concerned with a transitional period. While I do not wish to prejudge any decision of the Equal Opportunities Commission in issuing transitional exemption orders under Clause 27 and Schedule 2, it is perhaps not unreasonable to suppose that a college could move from single-sex status to full co-education over a period of three to five years. The noble Lord, Lord Kahn, thought that, so far as undergraduates are concerned, King's might be said in three years to have become a co-educational college.
§ Lord KAHN
My Lords, may I have your Lordships' leave to reply? So far as undergraduates are concerned, we had no difficulties at all. There was no accommodation problem. We simply wanted to get into phase in the course of three years. In the first year we admitted one-third of the women undergraduates that we now have; in the second year another third, and now we have the full complement. So far as senior fellows are concerned, there is no question of a quota. A transitional period as short as three or five years would mean that one would make very little use of this proposed clause because one could only then use it at the expense of a deterioration of standards which would be quite unacceptable. For my 998 own part, I had in mind a period of between ten and fifteen years.
§ Lord CROWTHER-HUNT
I do not disagree with what the noble Lord has said. I was using King's as an example and was stressing that so far as the move to co-education of the student body is concerned—and I specifically emphasised the student body—the transitional period might be said to be three to five years, King's having completed the transition within that period of time. Presumably the noble Baroness and the noble Lord who have proposed this Amendment intend that there shall be a different time-scale for employment exemption orders—as, indeed, the noble Lord, Lord Kahn, has just indicated.
If a college does not increase in size, even though it decides to admit students of the opposite sex, presumably appointments to the teaching staff can be made only as and when vacancies occur. Even if discrimination were permitted in the appointment of staff during a transitional period, we are talking of a time scale which is dictated by natural wastage. Is this to be ten years or fifteen years, as the noble Lord, Lord Kahn, was suggesting, twenty years, or even more? If it is less than that it is pointless. If it is not less than those kinds of period, this Amendment is intended to introduce reverse discrimination, not over a short transitional period only, but conceivably to the end of this century. What proportion will staff of the other sex have to reach before the transitional period in this reverse discrimination sense is deemed to be at an end?
In the debate in Committee, the noble Lord, Lord Wynne-Jones, made the perfectly fair point that a woman who takes on a job and leaves to have a family may find herself at a disadvantage when she seeks further employment. It was partly to deal with this problem that the Government introduced the Amendment in Committee, which is now Clause 47 of the Bill, to provide for discriminatory training. But to attempt to deal with the problem by providing reverse discrimination in appointments would completely change the character of this Bill, and I stress that it is the character of the Bill that we should be changing.
The noble Lord, Lord Beaumont of Whitley, said in Committee that he 999 believed that although positive discrimination in legislation is sometimes necessary, it is necessary only on behalf of the really powerless and the very inarticulate. I am sure that he would not include in that category the able and gifted women who teach in our universities, or who seek to teach in our universities. The noble Lord, Lord Wynne-Jones, also stressed that we are concerned with the education of voting persons in universities and colleges. He said that it must be recognised that where one has a preponderance of girls in a college it is important to have women in that college in the position of tutors, lecturers and professors. Then he went on to imply that unless this was the case, young women would not have the kind of education appropriate to them. I cannot accept that there is any educational justification whatsoever in such a claim. As the noble Lord, Lord Roberthall, said at that time, what is important is that the tutors, lecturers and fellows should be of the highest quality, irrespective of sex, and this can be achieved only by providing equality of opportunity and by choosing candidates on the basis of their merits, irrespective of sex. I am not seeking to argue that it is right or desirable in a mixed college that tutors, lecturers and fellows should all be men or all be women.
In Committee I referred to the discrimination that would be permissible under Clause 7, and I should like to explain in a little more detail the way in which Clause 7 is helpful towards the concept of a "mixed team". Clause 7 provides that employers may discriminate on grounds of sex in making appointments where being of a particular sex is a genuine occupational qualification for the job. The clause also lays down criteria for establishing whether a particular job satisfies this exception. Subsection 2(e) of Clause 7 provides that being a man or a woman is a genuine occupational qualification for a job where "the holder of the job provides individuals with personal services promoting their welfare or education or similar personal services and those services can most effectively be provided by a man"—or woman Subsection (2) needs to be read in conjunction with subsection (3) of 1000 Clause 7. Subsection (3) says that the exception applies to a job where only some of the duties satisfy the criteria.
A college would therefore be able to discriminate in appointments if the posts fell within the provisions of subsections (2)(e) and (3) of Clause 7; that is, where all or some of the duties of the posts were concerned with the provision of personal services to individuals promoting their welfare or education, being services which can most effectively be provided by a man (or woman). This implies that the post involves an element of counselling or pastoral care. That the clause is relevant to tutorships in the Cambridge sense, though not in the Oxford sense, is accepted by the Cambridge colleges, with whose representatives the Department has discussed this question. It is interesting to note that the Amendment under discussion provides that an application made for an employment exemption order shall specify "the job descriptions in respect of which the responsible body wishes to discriminate". This implies that the responsible body itself would have to make a judgment about which posts in the college were ones where it was appropriate to discriminate. But whereas Clause 7 sets out clearly the criteria for the exception, the Amendment appears to leave it entirely to the responsible body to decide where discrimination should take place and where it should not.
I find rather depressing the assumption behind this Amendment that women candidates will obtain posts only if the universities are allowed to discriminate in their favour. Do women candidates for university posts really want to say, "I got the post not because I was the best or most suitable candidate, but because I was a woman"? The Bill w ill provide not only equality of opportunity but, in the field of university appointments, wider opportunities than ever before. Most colleges are still men's colleges. Under the Bill, it will be unlawful for them to discriminate against women in making appointments. This is the right way, to quote the words of the Amendment, "to increase the opportunities for employment in teaching and research available to men." It is not the right way to move into a closer situation and have positive discrimination in favour of women, and 1001 in the light of what I have said I invite the noble Baroness to withdraw the Amendment.
§ 8.13 p.m.
§ Lord BEAUMONT of WHITLEY
My Lords, that was a magnificent performance but I do not think it really convinces. During the Commitee stage, there was wide acknowledgment that positive discrimination in the long term was thoroughly undesirable and should not be in the Bill. It seemed to me there was a growing realisation that there were all sorts of difficult transitional problems created by the Bill, in regard to trade unions, teachers' unions, political Parties, pupils at co-educational schools, which are already in the Bill, where positive discrimination would be a good thing for a limited amount of time, and this Amendment in the name of the noble Baroness, Lady Young, and myself falls into that area.
I agree with one or two of the criticisms that have been made by the noble Lord, Lord Houghton of Sowerby, and the noble Baroness, Lady Gaitskell, that it is illogical that we do not include more of these exceptions. It does not seem to me that that is an argument for rejecting this Amendment. I wish we had more exceptions in and, indeed, I have Amendments tabled later which would allow the Secretary of State rather more easily to make transitional arrangements for all sorts of bodies and I sincerely hope the Government will see their way to accepting some of them.
In the meantime, we have identified a particular problem and I suggest that we do something about it, and what we do about it should be what is done in this Amendment. I do not accept that it will either be useless or will last until the end of the century. I think it will be useful if it lasts only a very short time—the time that the Commission themselves regard as reasonable and will allow an exception order for. It is not as if there were not already arrangements for positive discrimination in the Bill, even though they may not be on the grounds of employment. It is not a quota system; there is no suggestion that it should be only until a certain proportion has been reached. It is merely a proposal to tide us over a rather difficult period of time which can be made—and, undoubtedly, 1002 the Commission will make it so—extremely short. I do not think the noble Lord's arguments really stand up and I sincerely hope that the noble Baroness will press this Amendment.
§ Baroness YOUNG
My Lords, I should like to begin by thanking the noble Lord, Lord Beaumont of Whitley, for his support, and also the noble Lord, Lord Kahn. Coming to the arguments that have been advanced against this Amendment, I see that the noble Lord, Lord Houghton, has now left the Chamber but I was rather surprised to hear his argument. I have listened to a great many of his speeches and one of the things which he has said over and over again is that the Bill is not perfect as it stands, that discrimination will not come to an end as a consequence of this Bill, that it can at best create the right atmosphere but that a lot of discrimination will remain. All this Amendment seeks to do is, for a given period of years, to try to make the Bill a little better. It is not against the principle of the Bill, and therefore I should have thought the noble Lord would have been glad of a constructive Amendment for a short period of time, which is meeting what is clearly a defect as it stands at the moment. The noble Lord, Lord Beaumont of Whitley, has rightly pointed out that there are a number of special provisions for this interim period while this is being worked out.
§ Lord CROWTHER-HUNT
My Lords, may I just ask the noble Baroness what she means by a "short period of time" in terms of years and what number or proportion of female staff in a co-educational institution there would have to be before she would regard the transitional period as being over?
§ Baroness YOUNG
My Lords, my Amendment does not answer this question but, in effect, leaves it to the Equal Opportunities Commission, who will of course have had experience—far more experience than I have had. I have not discussed this with the people who have an interest in both Oxford and Cambridge, because it seemed to me that it was a relatively hypothetical question as the Equal Opportunities Commission were being given the opportunity to look at it. If I were asked, I should be quite prepared, if the Government wanted to 1003 impose a limit, to accept one for a relatively shorter period of years than the noble Lord, Lord Kahn, has suggested. I think it would be quite wrong to say that a transitional period goes on to the end of the century or even for 20 years. This is not anybody's understanding of a transitional period, and it is certainly not mine. I am sure that those supporting this Amendment would agree to that.
Furthermore, I should think that, when the college had built up the number of women that it expected to take finally, that would be the conclusion of the transitional period. I do not quite know how long this would be in all colleges, but probably four or five years would be effective and I should be quite prepared to see that kind of time-scale. In regard to this Amendment, the difficulty I find myself in is that I am grateful for what the noble Lord, Lord Crowther-Hunt, has said and clearly the great trouble that he has taken about the Amendment. The difficulty is that the argument changes every time. One reads Hansard for the House of Commons and one reads it for this House; one tries to meet all the points and now yet another argument has been advanced, and that is that if this Amendment is agreed to we are suggesting a quota system. Certainly, I have
|Amherst of Hackney, L.||Elliot of Harwood, B.||St. Aldwyn, E.|
|Beaumont of Whitley, L. [Teller.]||Elton, L.||Sandys, L.|
|Hornsby-Smith, B.||Strange, L.|
|Berkeley, B.||Kahn, L.||Stuart of Findhorn, V.|
|Byers, L.||Lloyd of Kilgerran, L.||Vickers, B.|
|Campbell of Croy, L.||Northchurch, B.||Wigoder, L.|
|Colville of Culross, V.||Rankeillour, L.||Young, B.|
|Denham, L. [Teller.]|
|Arwyn, L.||Harris of Greenwich, L.||Platt, L.|
|Blyton, L.||Hoy, L.||Raglan, L.|
|Brockway, L.||Jacques, L.||Ritchie-Calder, L.|
|Champion, L.||Janner, L.||Rusholme, L.|
|Crowther-Hunt, L.||Lee of Newton, L.||Shepherd, L. (L. Privy Seal)|
|Davies of Leek, L.||Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|Elwyn-Jones, L.(L. Chancellor.)||Lovell-Davies, L. [Teller.]||Strabolgi, L.|
|Maelor, L.||Wallace of Coslany, L.|
|Feather, L.||Monson, L.||Ward of North Tyneside, B.|
|Gaitskell, B.||Peddie, L.||Wells-Pestell, L. [Teller.]|
|Gardiner, L.||Pitt of Hampstead, L.||Wynne-Jones, L.|
§ Resolved, in the negative, and Amendment disagreed to accordingly.1004
§ never suggested a quota system. I think this would be outside the terms of the Bill, I do not think it is desirable and it is not something I want to see. As I have tried to indicate, this is an Amendment designed for only a transitional period and I view a transitional period as being a limited period of years, not till the end of the century.
§ On the point about making appointments when vacancies occur I understand that it is not necessary to wait until vacancies occur; it is perfectly possible to add to the numbers of staff. It may be difficult in the present economic circumstances but it is not impossible and it is not ruled out by the Bill and, after all, a college might think it was worth doing in this transitional period. I do not take the view that it is a depressing assumption. I think that like a lot of law it is reality, and that is what we ought to be concerned with in a difficult situation. This is a matter of principle, and as I should like to test the feeling of the House, I will not withdraw my Amendment.
§ 8.20 p.m.
§ On Question, Whether the said Amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 21; Non-Contents, 33.