SEX DISCRIMINATION BILL

HL Deb 31 July 1975 vol 363 cc1236-79

6.3 p.m.

Lord HARRIS of GREENWICH

My Lords, I beg to move that this Bill be further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

Lord HARRIS of GREENWICH moved manuscript Amendment No. 12A:

Page 8, line 16, leave out ("female") and insert ("woman who is a").

The noble Lord said: My Lords, in moving this manuscript Amendment, which is available to your Lordships, I should perhaps refer to a further manuscript Amendment which will be moved later. When I saw this morning's Marshalled List I saw Amendment No. 60 was dealing with the transitional arrangements proposed by the Government concerning both single-sex teachers' unions and midwives. It clearly seems desirable to take these two issues separately, and that will be done when we come to that particular Government Amendment.

Amendment No. 12A has been tabled because of representations received from my noble and learned friend Lord Gardiner, to whom we are indebted in this matter. My noble and learned friend raised a point on Report stage on new Clause 7A about the use in Clause 22 of the word "female" instead of "woman". He suggested that though Clause 2 allowed one to read "man" for "woman" it did not allow "female" to be read as "male", with the result that Clause 22 permitted discrimination against men in the field of education. His analysis is equally relevant to Clause 9, which speaks of "female contract workers". There is certainly no intention in either clause to permit discrimination against men. Though we do not ourselves believe that there is any doubt that Clauses 9 and 22 operate to the benefit of both sexes, the views of my noble and learned friend demand respect, and it is right to put the matter beyond doubt. Accordingly, I beg to move and I commend these Amendments to the House.

Lord GARDINER

My Lords, I am very grateful to my noble friend for having taken this course. I was never really concerned over Clause 9, because there the word "female" is used as an adjective, but in Clause 22—this being the only other place in the Bill where we do not refer to "man", "woman", "men" or "women"—the word "female" suddenly appears. I can see no possible disadvantage in that being changed to "women", because I think the idea at one time was that in the field of education one is dealing with very young people and "woman" might be appropriate. But I cannot think that is right or would ever have occurred to a judge, because in education one is dealing not only with young people but also with teachers, university staff, professors and so on; indeed, in my own university the average age of students is 30.

As Clause 5 expressly says that the word "woman" shall include "a female of any age", I see no possible disadvantage in using the word "woman". What I foresaw was that some judge some day would be struck by the fact that everywhere else one finds the word "woman" and suddenly in the field of education the Bill says in substance that in future it will be unlawful to discriminate against a female. If you are dealing with "woman", Clause 2 provides that wherever in the Bill you see the word "woman", the same thing applies to a man. There is nothing in the Bill which says that where you find the word "female" the same thing applies to a male. I am sure that any judge would have said to himself, "I am sure there must have been some reason for this, and it is up to me to find out what was meant and give effect to it. Obviously it cannot simply be because a lot of young people are concerned with education. There must be some object in using the word 'female' to produce some result which would not have occurred if the word 'woman' was used; and the only thing I can think of—and I must not look in Hansard—is that, whether because there are more men teachers, or for whatever reason, Parliament decided that when it came to the field of education they would not trouble to make it unlawful to discriminate against men. Then 'female' would exactly fit that. It would not apply to men. It would simply apply to women in that clause". I am very grateful to my noble friend for having taken this course. It has cleared up what might well have been a cause of trouble.

On Question, Amendment agreed to.

Clause 13 [Qualifying bodies]:

The DEPUTY SPEAKER (Lord Derwent)

My Lords, I must point out to your Lordships that if Amendment No. 13 is agreed to I shall not be able to call Amendment No. 14.

6.10 p.m.

Lord MONSON moved Amendment No. 13:

Page 11, line 5, leave out subsection (2).

The noble Lord said: My Lords, I beg to move Amendment No. 13 and, with the leave of the House, I will speak at the same time to Amendment No. 14 which, as your Lordships will have gathered, is very much a second-best alternative to Amendment No. 13. In Committee I asked the Minister whether he could quote any precedent for a Government seeking to dictate to an independent autonomous professional body the grounds on which they were obliged to judge whether an applicant for admission to the profession was of good character or otherwise. The noble Lord, Lord Jacques, was kind enough to write to me citing as the sole example Clause 35(2) of the Consumer Credit Act 1974, which roughly speaking, obliges the Director General of Fair Trading to take into account the conduct of an applicant, including whether or not he has practised sex discrimination when deciding whether to grant a licence to carry on consumer credit business.

With all respect, I submit that the two instances are in no way comparable. The Director General of Fair Trading is a Government appointee. Clearly, therefore, Parliament has every right to lay down the kind of terms which he must require from an applicant before granting a licence. Independent professional bodies, in contrast, have for many decades—I suppose in some cases, perhaps, centuries—formed their own judgments entirely as to what constitutes good character. Furthermore, although this is very much a secondary consideration, I think it would be agreed that for a person who has studied for many years to enter a profession, to be turned down at the last moment would cause him grievous financial loss as well as being a considerable social stigma. The same does not apply to nearly the same extent to somebody refused a licence to carry on consumer credit business.

Let us take the hypothetical case of a man who is perhaps site manager with a construction firm, who decides in mid-career that he would like to obtain professional qualifications and become a surveyor. He attends night school, spends many years studying, passes all his examinations and finally goes to the professional institution concerned for his interview. Suppose that the Royal Institution of Chartered Surveyors learns that in the course of his career he has refused to employ women to operate pneumatic drills on digging up roads, or whatever, on the grounds that this is unfeminine and unseemly—a proposition with which I think most people in this country of both sexes would agree. If the professional organisation concerned take the obligations under subsection (2) seriously they will be obliged to refuse him admission to the profession, to his great loss. I would submit that that is most unfair.

There is also the thin edge of the wedge argument. Just suppose—and I do not say for a moment that this is likely to happen—that Mr. Tony Kelly of Newham, North-East or somebody with the philosophy of Mr. Tony Kelly were to achieve great prominence in the Labour Party and rise to achieve a Ministerial post. Is it not conceivable that in a few years time some Bill might be introduced which obliged the General Medical Council to deem that any doctor or medical student who spoke out too vociferously in favour of private hospital beds or private medicine generally was an unsound character, with the implication that they ought to be struck off or refused admission to the profession? It may seem fanciful today, certainly, but stranger things have happened in the course of five years or so.

I have discussed this subsection with a very senior member of one of the professional organisations concerned not unconnected with the legal profession, and his feeling about the subsection is that it is probably unenforceable in practice and therefore one need not worry about it overmuch. But I prefer to stick to principles and forget about practice. For that reason, I should like to see the deletion of this subsection. However, if the House does not support me in this Amendment I hope that your Lordships will look favourably upon Amendment No. 14 which seeks to make a very much more minor change. My contact pointed out that to include associates as well as employees and agents is taking the doctrine of vicarious liability to the most extraordinary lengths. Furthermore, it does not tie up in any way with Clause 41 of the Bill which refers specifically to the liability of employers and principals and specifies particularly employees and agents but says absolutely nothing about associates. It is true that somewhere in the Bill associated employers are mentioned, but this is not the same as associates. I hope, therefore, that if your Lordships cannot for any reason support Amendment No. 13 the Government will support Amendment No. 14.

Lord JACQUES

My Lords, I can say at the outset that the Government cannot accept Amendment No. 13 but they would be prepared to accept Amendment No. 14. In the circumstances, does the noble Lord wish to withdraw Amendment No. 13?

Lord MONSON

My Lords, as nobody else has spoken in support of Amendment No. 13, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Lord MONSON

My Lords, I beg to move Amendment No. 14.

Amendment moved—

Page 11, line 12, leave out (", agents or associates ") and insert ("or agents ").—(Lord Monson.)

On Question, Amendment agreed to.

Clause 19 [Ministers of religion etc.]:

6.15 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 16:

Page 14, line 41, leave out ("any") and insert ("a significant number").

The noble Lord said: My Lords, I beg to move Amendment No. 16 standing in my name. This Amendment meets a point made by the noble Viscount, Lord Colville of Culross, when we were in Committee. It ensures that in so far as ordination to the ministry—

Viscount COLVILLE of CULROSS

No, my Lords; the noble Lord has the wrong Amendment.

Lord HARRIS of GREENWICH

I apologise, my Lords.

Viscount COLVILLE of CULROSS

This Amendment meets the point of the noble Baroness, Lady Seear.

Lord HARRIS of GREENWICH

My Lords, this is a point which was made by the noble Baroness, Lady Seear, who unhappily cannot be with us today. It will not totally satisfy the point she made during the Committee stage of the Bill but it goes in the direction of meeting her point. I hope it will be conceded by those who took part in the previous debate that this is an improvement on the previous form of words, and on that basis I recommend this Amendment to the House. I beg to move.

Baroness VICKERS

My Lords, in the absence of the noble Baroness, Lady Seear, may I say to the noble Lord, Lord Harris of Greenwich, that we are grateful that some concessions have been made and we should like to place our gratitude on record.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 17:

Page 14, line 41, at end insert—

"(2) Nothing in section 13 applies to an authorisation or qualification (as defined in that section) for the purposes of an organised religion where the authorisation or qualification is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.".

The noble Lord said: My Lords, the explanation for the slight confusion on my part is my own numbering system. If I had only left the matter to my excellent officials, I should not have been in the position of trying to move the wrong Amendment. However, here I can come back on the second occasion and congratulate the noble Viscount, Lord Colville, for having moved the Government in this way. The point he made when we were discussing this range of issues on the last occasion was that, in so far as ordination to the ministry or its equivalent for non-Christian Churches amounts to conferring a professional qualification under Clause 13, then the Clause 19 exception will apply to such ordination as well as to employment under Clause 6. On that basis I propose the Amendment in my name.

Viscount COLVILLE of CULROSS

My Lords, this is the first occasion when I have to thank the noble Lord for meeting some of my points. This is a substantial improvement, because otherwise the whole point of the exemption in Clause 19, where it will really bite, which was at the ordination stage, was not covered at all. Now it is, and I think that this situation is entirely satisfactory. I am very grateful to the noble Lord, and I warmly welcome this Amendment.

On Question, Amendment agreed to.

Clause 22 [Discrimination by bodies in charge of educational establishments]:

The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Crowther-Hunt)

My Lords, I beg leave to move Manuscript Amendment No. 18A. The reasons for it were mentioned earlier by my noble friend Lord Harris of Greenwich and by the noble and learned Lord, Lord Gardiner.

Amendment moved—

Page 15, line 29, leave out ("female") and insert ("woman").—(Lord Crowther-Hunt.)

On Question, Amendment agreed to.

Clause 26 [Exception for single-sex establishments]:

6.22 p.m.

Lord MONSON moved Amendment No. 19:

Page 18, line 34, at end insert— ( ) For the purposes of subsection (1) the admission of pupils of the opposite sex to a single-sex establishment shall be deemed exceptional if their numbers do not exceed 10 per cent. of the total number of pupils.

The noble Lord said: My Lords, I beg to move Amendment No. 19. This Amendment is designed to meet the problems of independent schools to which I drew attention in Committee. The noble Lord, Lord Crowther-Hunt, was kind enough to write to me setting out his view that any Amendment was unnecessary, on the ground that single-sex schools which took members of the opposite sex normally took them into the sixth form only and that therefore this would be deemed exceptional under Clause 26(1), either under paragraph (a) or possibly paragraph (b). However, the independent educational sector is in a state of great flux and it is not necessarily the case that single-sex schools will continue to take sixth formers only. There are prep schools which have started to take girls of nine and ten. Also, there are girls' schools which are admitting boys. I do not see the point of having any restrictions so far as primary and secondary education is concerned, because there has never been any lack of opportunity for members of either sex in the primary and secondary sector. It may well be the case that there is some justification for imposing restrictions so far as higher education is concerned so as to give equality of opportunity, but I do not think there has ever been a complaint of boys and girls under the age of 18 being deprived of the education which is their due.

The other somewhat worrying point which I must admit this Amendment will not in itself cure, is this. During the debate on Tuesday when the earlier part of the Report stage of this Bill was taken, I listened to the noble Lord, Lord Kahn, speak about King's College, Cambridge, where they have admitted 116 girls, forming roughly 35 per cent. of the total enrolment. I am afraid that I cannot find the passage in Hansard, but if I may paraphrase the noble Lord he said, "We think the proportion of women is about right". Subsequently, however, the noble Lord, Lord Harris of Greenwich, said—again I must paraphrase him because I cannot find in Hansard the column in question, since we have arrived at this Amendment more quickly than I expected—"We think that co-education ought to mean roughly 50:50—not exactly 50:50 but nearly so". As this is the case, it appears that the noble Lord, Lord Kahn, is under a misapprehension and that to conform entirely with the Bill they would have to admit more women and get rid of a number of men if they could not increase the total size of their enrolment. However, that is slightly off the Amendment.

I suggest that this Amendment is a simple one, and I cannot see that it will do any harm. In the third line of the Amendment I have used the word "if" rather than "provided that" so that a line is not drawn at 10 per cent. All it means is that if a single-sex school has 10 per cent. of pupils of the opposite sex, it is automatically free from any worry, but that if it has over 10 per cent. it may have to prove its case. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, I hope that we shall be very careful before the House decides to accept this Amendment. It seems to me that Clause 26 has been drawn in a particularly subtle way so that a good deal of flexibility and latitude of interpretation is given to the tribunal concerned to ascertain the facts in any case. I should be very loth to see a formula like 10 per cent. written into this Bill. It may be perfectly apt in a number of cases, but I am fairly certain that in the course of time some establishment will be found where 10 per cent. is exactly the wrong figure to take and will produce the wrong result. I never like things like 10 per cent. or formulae of this kind.

Perhaps the law is always supposed to be very silly, but one gets on quite well with words like "significant", "reasonable", "exceptional", "comparatively small", or whatever it may be. I should have thought—and I should be grateful if the noble Lord, Lord Crowther-Hunt, could confirm this—that he is not expecting perfectly genuine cases of children of the opposite sex to that of the majority of the pupils in the school being taken into the school for a particular purpose, whether it is into the sixth form or as a small number who do this or that, to get into any kind of difficulties.

I was hoping that in moving his Amendment the noble Lord, Lord Monson, would be able, if he was going to do anything at all, to justify it by giving examples. He has not done so. Therefore, I am very hesitant indeed to support any attempt to remove what I believe to be a very good degree of flexibility in the drafting as it stands.

6.27 p.m.

Lord CROWTHER-HUNT

My Lords, if I may reply to the points which have been made by both noble Lords, the Government's policy on single-sex educational institutions was set out quite clearly in the White Paper Equality for Women. The Government consider that legislation should not make unlawful existing or future single-sex schools or other educational institutions, whether in the public or the private sector. The White Paper goes on to say that there would therefore be an exception for single-sex educational institutions, including those which are predominantly single-sex, to admit pupils of the other sex to a part of the institution—for example, sixth forms.

Clause 26 is designed to give effect to the Government's policy. It excludes from the educational provisions of the Bill single-sex educational establishments which admit pupils of one sex only. Also it excludes those establishments whose single-sex character is essentially unchanged by the fact that they admit small numbers of pupils of the opposite sex. Subsection (1)(a) is intended to cover institutions which as an exception to their general rule—and I stress that it is as an exception to their general rule—admit persons of the opposite sex under arrangements made in individual cases. An example would be the admission by a women's college of education of mature men students who lived locally who would otherwise have to leave home to attend the course at a men's or a mixed college elsewhere. Subsection (1)(b) covers establishments which regularly admit members of the opposite sex to particular courses or classes. Examples would be the admission of girls to the sixth forms of boys' schools or the admission of boys to the infant classes of girls' schools.

In Committee, the noble Lord, Lord Monson, expressed concern about the impact of this clause on individual schools, although he did not mention individual schools today and I have already been able to assure him that Marlborough, which restricts entry of girls to the sixth form, will be covered by Clause 26(1)(b). The same is true of a number of other schools which I will not mention but which follow the same principle, where the intention is to admit girls and boys respectively to the sixth form only or to another particular course or part of the school. My understanding is that all the independent schools which at present admit pupils of the opposite sex are covered, because admission is restricted either to the sixth form or to infant classes. Therefore, I suggest to the noble Lord that his Amendment is unnecessary because the schools he has in mind and certainly has talked to me about are covered by Clause 26.

I must make it clear that the Government cannot in any case commend the Amendment to your Lordships because it would involve an unacceptable extension of the definition of a single-sex institution. Here I agree with the noble Viscount, Lord Colville of Culross. We have excepted single-sex schools and other educational establishments from the Bill, but have deliberately drawn a reasonable but tight definition of what is meant by a single-sex institution. This definition covers existing establishments which are essentially single-sex, though they admit small numbers of the opposite sex. But the effect of the Amendment of the noble Lord would be to permit continuing discrimination by schools and other establishments admitting pupils of both sexes to all classes and courses.

It is difficult to argue that schools with such an admissions policy are really single-sex institutions, and the Government cannot accept that they are made so by imposing an artificial limit of 10 per cent, on the admission of pupils of one sex. What is really being proposed here is that schools whose admissions policy is co-educational should be allowed, nevertheless, to continue to discriminate on grounds of sex. This would be completely against the spirit of a Bill which is concerned with the removal of sex discrimination. In view of what I have said, I invite the noble Lord to withdraw his Amendment.

Lord MONSON

My Lords, by leave of the House, I should like to pick up certain points made by both noble Lords. It is not the case that the schools I was referring to are essentially co-educational schools. The noble Viscount, Lord Colville of Culross, made the point that I have not given many examples. I did not do so because the whole independent education sector is in a state of flux at the moment. Hardly a day goes by without there being an announcement of a girls' school taking boys, or a boys' school taking girls, right down to prep. school level. A great deal of the sector is hard up financially, particularly prep. schools. I am trying to cater for the case where a prep. school normally taking 100 boys, may, in order to make ends meet, temporarily take 10 girls or so.

I admit I was a little thrown by what the noble Viscount, Lord Colville of Culross, said about the law. I was under the impression that lawyers generally, and judges in particular, were extremely dissatisfied at the imprecision and lack of clarity of recent Acts of Parliament; but the noble Viscount seems to suggest that in certain cases imprecision is a good thing, and that it works out. I am prepared to accept his judgment on that, because he is legally qualified and I am not. In view of the fact that I have not received any support for this Amendment from any quarter of the House, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 35 [Further exceptions from ss. 29(1) and 30]:

6.34 p.m.

Lord HARRIS of GREENWICH

My Lords, I beg leave to move Amendment No 20, which deals with exactly the point dealt with under Amendment No. 16.

Amendment moved

Page 23, line 26, leave out ("any") and insert ("a significant number").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Lord CROWTHER-HUNT moved Amendment No. 21:

Page 24, line 12, column 2, leave out ("paragraph 1") and insert ("paragraphs I and IA")

The noble Lord said: My Lords, this Amendment to Clause 35 is consequential on Amendment No. 60A to Schedule 4. It is the new Amendment which has been divided into two parts. I suggest it will be for the convenience of the House if these two Amendments are considered now.

Viscount COLVILLE of CULROSS

My Lords, I do not think this Amendment is paving on Amendment No. 60A. I think it is paving on Amendment No. 60.

Lord CROWTHER-HUNT

My Lords, I am grateful to the noble Viscount, Lord Colville of Culross; it is Amendment No. 60, of course. It is the first part of the Amendment which has been divided into two parts. On Committee stage we had a long discussion about the Amendment to Clause 12 moved by the noble Lord, Lord Alexander of Potterhiil, and the new Clause proposed by the noble Baroness, Lady Young, both of which sought to preserve the status of unions in teaching professions organised on a single-sex basis, but which have counterpart organisations for members of the other sex. At a later stage, the noble Lord, Lord Houghton of Sowerby, moved an Amendment which sought to allow these unions a transitional period of two years before the provisions of Clause 12 relating to union membership came into effect in their case. The noble Lord and, I believe, all noble Lords, recognised that the Amendment as drafted was too wide, but I undertook to move an Amendment on Report stage which would have the effect the noble Lord wished to achieve. That is the purpose of the proposed new provision to Schedule 4.

This provision allows those four unions known as the Joint Four to preserve their single-sex status until 1st January 1978, if they wish so to do. I can tell your Lordships that this new provision has been welcomed by the Joint Four. At the expiry of the two-year period, each of these unions must open their membership and any ensuing benefits to both sexes. A male teacher may apply to join a female union, and vice versa, and it will be unlawful for these unions to refuse the application on grounds of sex.

I must make it clear, however, and this is a point about which the noble Lord, Lord Houghton of Sowerby, was particularly concerned, that the continuing existence of these unions will be lawful after the end of the transitional period is no question about that. All they will be required to do at that time is to admit members of the opposite sex if the case arises in the same way as for other Clause 12 bodies. My Lords, I beg to move.

Lord HOUGHTON of SOWERBY

My Lords, may I express my thanks to the noble Lord, Lord Crowther-Hunt, for having met the point made by the noble Lord, Lord Alexander of Potterhill, and myself.

Lord ALEXANDER of POTTER-HILL

My Lords, may I add my thanks I am pleased with this result, not because of the problem, but because of the problem which it avoids. A period of two years will enable the organisations to come to amicable arrangements, and to avoid difficulties which otherwise might be experienced.

Viscount COLVILLE of CULROSS

My Lords, it would be right for me to join in this chorus of praise and gratitude. Certainly there will be one solicitor to whom I have spoken who will, I think deservedly, derive some little satisfaction from the way in which the Amendment has come out in this clause, because it seems to have a strong family resemblance to one seen before, which was mainly his work.

As on a number of other occasions, we see here the result of a sensible compromise. We are providing for a reasonable transitional period. This is as a result of sensible arguments produced by people who have been able to state their case and to show why they need a little time in order to get the thing straight, and in order to get a situation where equality can really work. The Government have listened, have met the case, and are now doing something about it. This is a most admirable approach to the problem we are facing in the Bill. It is exactly the sort of thing that the noble Lord, Lord Houghton of Sowerby, has been preaching, when he has said that we should take things gently, sensibly, and that we should take account of people's susceptibilities. If I may say so, it is very satisfactory to see the Government moving this paving Amendment to Amendment No. 60. From this side of the House, we are all very grateful.

On Question, Amendment agreed to.

Clause 38 [Discriminatory advertisement]:

Lord JACQUES moved Amendment No. 22:

Page 25, line 37, after ("publication") insert ("of the advertisement").

The noble Lord said: My Lords, Amendment No. 22 and the following Amendment, No. 23, are drafting Amendments. They arise from Amendments submitted on Committee stage by the noble Lord, Lord Drumalbyn. We have since discussed the whole question with the noble Lord and, as a result, we have put forward these Amendments. We are grateful to the noble Lord for having raised the issue.

Lord DRUMALBYN

My Lords, may I just thank the noble Lord. Lord Jacques, for moving these Amendments, which meet some of the points already made. I should also like to take this opportunity of thanking the noble Lord for the assistance he has given to me in the interpretation of this clause and how it is likely to work out in practice.

On Question, Amendment agreed to.

Lord JACQUES

My Lords, I beg to move Amendment No. 23.

Amendment moved—

Page 25, line 38, leave out ("it was effected") and insert ("the advertisement was published").—(Lord Jacques.)

On Question, Amendment agreed to.

Clause 47 [Discriminatory training by certain bodies]:

Lord JACQUES moved Amendment No. 24:

Page 30, line 4, after ("regular") insert("full time").

The noble Lord said: My Lords, at Committee stage I moved an Amendment which would allow discrimination in respect of the provision of training to people who are in special need of training by reason of the period for which they had been discharging domestic or family responsibilities to the exclusion of regular employment. We have since discovered that there are cases where the woman is not wholly out of regular employment but has been working part-time. We think the House would agree that she also should be covered, and that is what this Amendment does. I beg to move.

On Question. Amendment agreed to.

Lord CROWTHER-HUNT moved Amendment No. 25:

Page 30, line 11, leave out ("person") to ("being") in line 12.

The noble Lord said: My Lords, during the discussion in Committee of Amendment No. 45, which now appears in the present draft of the Bill as Clause 47, the noble Baroness, Lady Fisher, spoke of the role which polytechnics and other further education colleges could play in the provision of courses for married women, and the noble Viscount, Lord Colville, asked why educational institutions as set out in Clause 22 were excluded from being a training body under Clause 47. We have considered the position in the light of the discussions in Committee and have come to the conclusion that it is right to omit the words "other than a body mentioned in Section 22".

The effect of this Amendment will be that if a polytechnic or further education college or any other educational institution wishes to provide discriminatory training within the terms of the clause, it will be able to apply to the Secretary of State to make an order designating it as a training body for the purpose of Clause 47. I hope that this Amendment will be acceptable. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, I do not know whether I do the noble Baroness, Lady Fisher, an injustice, but I do not think that she came that day from Birmingham in order to make that comment about polytechnics. It is merciful that she happened to be in the Chamber at the moment that this was being discussed, because I think it was an impromptu remark. I put an impromptu interpretation, and the result is that the Government have found something that could be improved. I suspect that she will be very pleased about this, because she was plainly right. It shows how the experience of noble Lords in all parts of this House can be brought to bear. I think we have made what is probably a significant improvement by this Amendment, which looks very small but will have a formidable effect in producing courses for the retraining of those who have been out of regular full-time employment for some time.

Lord CROWTHER-HUNT

My Lords, I am grateful to the noble Viscount for what he has just said. I think the point is that we believe it would have been possible for the sort of training we have in mind in this clause to have taken place anyway. But to remove all possible doubt on the subject, we thought it better to move in this direction.

On Question, Amendment agreed to.

6.45 p.m.

Lord AVEBURY moved Amendment No. 26:

After Clause 52 insert the following new clause:

Certificates of exemption

". The Secretary of State shall have power to issue to any person or body a certificate of exemption for a given period of time from the requirements of Parts II to IV or any part thereof, if it should seem desirable to him for the more orderly elimination of discrimination and the promotion of equality of opportunity: provided only that no such certificate shall have effect after the expiration of five years from the passing of this Act."

The noble Lord said: My Lords, may I make it clear once again that we are not in favour of discrimination of any kind whatsoever, whether positive or negative? In this Amendment we are not trying to hold up the beneficial purposes of this Bill. Nevertheless, the more one looks at the Bill, the more it becomes clear that in a number of cases common sense would indicate the need for some kind of transitional provisions. Examples have already been identified, such as political Parties, trade unions, elected bodies of trade unions, teachers unions, and people in schools going co-educational, all of which have been allowed for in the Bill.

Then there was the case discussed the other day of the Oxford and Cambridge Colleges, where the Government did not consider it necessary to make any Amendment as proposed. One of the reasons given by the noble Lord, Lord Crowther-Hunt, for rejecting that Amendment on the Oxford and Cambridge Colleges was that in logic, if one were to permit reverse discrimination in the Colleges, where would the process end and what other cases might be discovered where equally good arguments could be made out in favour of positive discrimination? I think similar points were also made in the debate by the noble Lord, Lord Houghton, and the noble Baroness, Lady Gaitskell. That is precisely the case for the new clause which we are proposing here, because we believe that it is impossible in the nature of things to foresee all the cases where positive discrimination might be considered desirable. This is the reason why we are proposing that the Secretary of State should be given this power to grant an exemption certificate in appropriate cases.

It might well be argued that we are making this power too broad, and if that is the objection I would invite the attention of your Lordships to Clause 80, where the Secretary of State is going to be given powers to amend parts of the Bill itself by order, a power which is, I think, very nearly unprecedented but nevertheless may be considered necessary by your Lordships, bearing in mind that we are moving in virtually unchartered waters in this Bill. On the other hand, it might be said that no circumstances could ever be envisaged in which the Secretary of State would feel it necessary to use the kind of powers we are proposing to confer on him here, so in that case the new clause is redundant. I would point out that one cannot use both arguments, because the two possible objections are mutually contradictory, and the Government would have to make up their mind which of the two is their case. If it is the latter, then of course the Government have to say that, apart from those instances already identified in the Bill, they do not believe any positive discrimination will be necessary, even for a transitional period.

Under the Colleges Amendment, it was for the Equal Opportunities Commission to decide how long the exemption order should run. The noble Lord, Lord Crowther-Hunt, suggested, very reasonably, that to have an indeterminate length of transition was objectionable in itself. He said one could not tell whether it would run 15 or 20 years, if one had to wait for natural wastage in the teaching posts for the positive discrimination to result in a reasonable balance of the sexes in those institutions. There may well be some cases where positive discrimination is theoretically necessary over a longer period than the five years allowed in this new clause. But I think we must agree with the noble Lord that there is an overwhelming argument for certainty, and that is why we have put in this five-year period in the new clause, and also had regard to the fact that the general opinion of your Lordships is that discrimination of all kinds must be eliminated as soon as possible.

Other things being equal, I would also agree with the noble Lord, Lord Crowther-Hunt, that a candidate should be appointed to a position on his or her merits and that the best candidate should get the job, invariably irrespective of sex. But that assumes that the choice is always a clear-cut one, but one knows that in practice it frequently happens that two or more candidates who are of equal merit present themselves. If in those circumstances one were always to pick the woman, then there would be, I suggest, a prima facie case that discrimination had taken place, and in the absence of the new clause, which gives the employing authority power to discriminate in that way, it would be illegal.

In conclusion. I should say that my noble friends who drafted this Amendment recognise that if the principle were accepted it would require to be considerably tidied up: in particular, I do not think they would wish to give the Secretary of State such sweeping powers as these without coming hack to Parliament. I personally think, supposing the Minister felt disposed to accept it, that it should be made subject to the Affirmative Resolution procedure in a similiar manner to other clauses in the Bill. I beg to move.

6.50 p.m.

Lord HARRIS of GREENWICH

My Lords, the noble Lord, Lord Avebury, has defined the intention of this Amendment. It is that during, a transitional period of five years the Secretary of State would have power to issue certificates of exemption from its provisions making discrimination unlawful. Certificates would he given to the recipient, a person or a body, and they would be excluded from the provisions of this Bill if the Secretary of State gave such a certificate. The noble Lord said that he thought his noble friends who drafted this Amendment would be rather anxious to reconsider its precise terms. I think that that is right, because it is a most remarkable, sweeping series of powers that the noble Lord is going to give to a Secretary of State. Quite apart from these fundamental objections of principle, which I shall come to in a moment, I should like to begin by discussing some of the practical problems which would be involved were an Amendment on these lines to be passed by the House.

The Secretary of State's powers would he unlimited, yet there are no criteria laid down for either giving or not giving of a certificate. No clear rule is laid down in this Amendment, no definition of why he should decide to give a certificate to a body, or an individual, or decline to give it. It is a remarkable power to give to a Minister, and I shall come hack to it in a moment, but I think for that reason alone it is objectionable. Secondly, I should like to come to the practical problems. How would the new clause deal with the situation during the period in which the application had been made by a body, or by an individual, but not yet processed so that no decision had been arrived at? What would happen? If the logic of the provision contained in the noble Lord's Amendment is to enable people to move towards non-discrimination in an orderly way—and I am sure that it is—the Bill would have to provide that they would not have to take any action against discriminatory practices in their own area until the Secretary of State had made a decision. This would create a massive loophole in the Bill. There could be thousands of applications, some of them frivolous, some of them from people who knew that they stood no chance whatever of obtaining a certificate, but while that certificate was being processed, for a period of many months, they would be excluded from the provisions of the Bill.

However, as the noble Lord will no doubt point out, there is an alternative course; that is, that the Bill bites at once, but then the application will be processed and at some stage what is un lawful one day in the terms of this Bill will mysteriously become lawful as soon as the Secretary of State has adjudicated upon an application. A case may be before a court and the action may take two days. At the end of the first day somebody might say, "We now have a certificate from the Secretary of State, so there is no cause of action." I know that the noble Lord has a most distinguished reputation in the field of civil liberties and civil rights, but that does not seem a particularly sensible provision to write into this Bill.

Thirdly, and this is the most fundamental objection of all, it seems to be clear that this Amendment is in violation of the Bill of Rights. It was established at the time of the Glorious Revolution that the pretended power of suspending the laws, or the execution of laws, by regal authority without the consent of Parliament is illegal. It is clear that there is no consent of Parliament involved in this; it is entirely at the discretion of the Secretary of State. He, and he alone, would decide whether an act was lawful or unlawful in relation to an individual or a body. There might be a wholly inconsistent series of decisions. We would make an absolute nonsense of this Bill, and create an extremely disagreeable situation, to put it mildly, for any Secretary of State. As the noble Lord will by now realise, I fear that we are not completely enthusiastic about this Amendment and I hope that he will decide not to press it.

Viscount COLVILLE of CULROSS

My Lords, I do not know what my noble friend Lady Vickers thinks about this, but it seems to me that the noble Lord, Lord Harris, has made out a formidable case. May I suggest in passing that he makes quite certain that the Law Commission knows that the Government still find it necessary from time to time to rely on the Bill of Rights, because I heard a nasty rumour a little while ago that in one of those Statute Law Repeal Bills they were going to do away with it as being otiose or obsolete. I always thought that that was wrong, and I was glad to hear the noble Lord, Lord Harris, with all the weight of the Home Office behind him, saying that it is still useful in order to resist Amendments proposed by the noble Lord, Lord Avebury, and therefore we must keep it on the Statute Book for as long as possible.

I do not base my argument entirely on that. What occurs to me is to see whether there is any practical solution to the problem that the noble Lord, Lord Avebury, has in mind. We have dealt in this Bill with all the transitional problems that anybody has been able to think of, and I suggest to the House that we have dealt with them fairly satisfactorily. The noble Lord said that more will turn up which nobody so far has been able to put a finger on. I wonder, therefore, whether the House might apply itself—and I am thinking aloud in view of what the noble Lord, Lord Avebury, has said—to the way in which the conciliation procedure is to work.

If we have a case that goes to the industrial tribunals, we have built into the Bill the procedure that the Conciliation Service shall have a look at it and try to settle the matter. I wonder whether I am right in thinking—and I should be genuinely grateful for help on this, and I am sorry that the noble Lord, Lord Jacques, is not here but perhaps the noble Lord, Lord Harris, could say a word by leave on this—that it will be possible, if a real, practical difficulty arises, for the Conciliation Service to see whether it can solve the problem not by excluding the discrimination instantly, but by seeking to arrange for it to be phased out, because this may be the sort of way in which one gets over the unforeseen problems that the noble Lord, Lord Avebury, and my noble friend had in mind.

Similarly, when we get to the part of the Bill where the conciliation is not written in but will be dealt with by the lawyers—and I am delighted to see in a later Amendment that legal aid will enable them to carry out this sort of work within its terms—will they be able to try to arrange a solution which allows a period of time over which a probably very firmly entrenched, and perhaps not fully realised, act or practice of discrimination can be gradually got rid of, so that we shall not, in practice have violent overnight changes in acts which people have been used to?

I think that the noble Lord, Lord Avebury, has a genuine point here. But since there are plainly defects in this Amendment, and we do not have a great deal of time to get them right, we shall be told that there will be a row whether a Statutory Instrument is subject to the Affirmative or Negative Resolution procedure, the Bill has to go back to the Commons tonight, and one thing and another, I should be rather glad if one of the noble Lords opposite could tell us that we can achieve very much the same thing within the machinery already built into the Bill. As I have gone on for a little while and the message has come back, I think that I can now sit down.

Baroness GAITSKELL

My Lords, I felt very sympathetic to this Amendment until I heard my noble friend Lord Harris and also the noble Viscount, Lord Colville, give their explanations. This Amendment touches a core among people who feel that there is a danger that if this, the most far-reaching Sex Discrimination Bill, or Act, that has so far been produced will have to obliterate centuries of prejudice, unless something like this Amendment is somehow incorporated, then while I am no lawyer and I do not understand the absolute legal niceties of drafting a Bill, we feel that unless something of this kind, a conciliation procedure, is incorporated in the measure, the country will have an avalanche of litigation. We cannot overturn centuries of prejudice all at once, but some of us would like to see the sentiment expressed in this Amendment incorporated somewhere in the Bill.

Lord AVEBURY

My Lords, I entirely accept the criticisms made by the noble Lord, Lord Harris of Greenwich, about the drafting of the Amendment, and indeed I said at the conclusion of my remarks that my noble friends did not pretend that it was perfect. One of the major points made by the noble Lord was that this Amendment, if passed in its present form, would be an infringement of the Bill of Rights. I thought I had taken care of that by suggesting that if the principle were accepted, my noble friends would of course like to have added to this Amendment the Affirmative Resolution procedure, and that would have avoided the danger of our usurping the power of Parliament by giving the Minister certain powers to do things without the consent of either House.

I will address myself to the practical points which the noble Lord, Lord Harris, made. First, he said that it was a remarkable power to give the Minister. I am afraid this is the trouble one has in looking at the problem; since we are not able to define in advance by definition the circumstances in which the power might be required to be used, we have to make it as general as possible, and I do not think that either the noble Viscount, Lord Colville of Culross, or the noble Baroness, Lady Gaitskell, disputed the need for a provision of this nature. If we are not to confer such a power on the Minister, subject to the Affirmative Resolution procedure, we must think of some other way of dealing with the issue, otherwise there will be, as the noble Baroness said, a constant stream of cases, which nobody had anticipated, coming before the courts and perhaps requiring amendments to the legislation, and that may absorb valuable Parliamentary time. I am sure that if the noble Lord, Lord Harris, could avoid that, he would be only too happy to do so.

As to the noble Lord's comments about the interim period while an application was being processed, I would say that it was fairly obvious that until a person or body had made an application and a certificate had been issued, then obviously they would have to comply with the law as it stood, and afterwards if such an order were granted any cases that were at that moment before the courts would fall to the ground. However, if the noble Lord thinks that this is a practical difficulty, then I suggest that we turn our minds to some alternative, I do not want to prolong the proceedings on this Bill, because I am as anxious as anyone to get it on the Statute Book, but I hope that the noble Lord will be able to give the matter some further consideration before it is too late. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn

Clause 62 [No further sanctions for breach of Act]:

7.4 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 27:

Page 38, line 12, leave out subsections (2) and (3) and insert—

"(2) In subsection (1) "sanction" includes the granting of an injunction or declaration, but does not include the making of an order of certiorari, mandamus or prohibition.

"(3) Subsection (2) does not affect the remedies available under section 63(2), notwithstanding that subsection (2) would prevent those remedies being obtainable in the High Court.

(4)In relation to Scotland in subsection (1) "sanction" includes the granting of an interdict or of a declarator or a decree ad factum praestandum, but otherwise nothing in this Act shall affect any right to bring any proceedings, whether civil or criminal, which might have been brought if this Act had not been passed."

The noble Lord said: My Lords, this Amendment is designed to put right two defects in Clause 62. First, the clause as drafted does not ensure a proper demarcation between the tribunal and the court in the case of an injunction or a declaration. Secondly, as drafted it would be possible for an aggrieved party to bypass the county court and go direct to the High Court for a declaratory judgment. That is obviously undesirable and that is why we have tabled this Amendment.

Viscount COLVILLE of CULROSS

My Lords, I have been looking at this Amendment and I regret to say that I have been looking at it for the first time because I thought that it was perfectly straightforward. However, I do not think the noble Lord, Lord Harris of Greenwich, has explained the Scottish provision. I am not one who readily recognises a decree of reduction when I see it, nor do I know what a decree ad factum praestandum is, but I imagine that one of them is probably quite similar to what we know in England as one of the prerogative orders; it may be something like mandamus or prohibition. We have in fact a change of substance in the Scottish provision, because as the Bill stands, Clause 62(3) allows a decree of reduction to be sought and the Amendment, the new subsection (4), does not mention this, so I therefore wonder what the situation is. It may be that the decree of reduction is still comprised in the last limb of subsection (4), which continues to allow the bringing of …any proceedings, whether civil or criminal, which might have been brought if this Act had not been passed. Could the noble Lord tell me why there is this change, and could he also tell me what are the other civil or criminal proceedings which do not fall within the definition of the word "sanction" and are therefore forbidden under the new subsection (4)? This does not seem to be clear, and I ask this question not because I am trying to be tiresome but because somebody is going to wish to avail themselves of this Bill in Scotland and I am not at all certain, without further explanation, that they will know what it is they are entitled to do. They will have to try some cases out in the sheriff court to see what their rights are and what are the sort of proceedings they are entitled to bring. I suspect that the noble Lord will have been given a rather fuller explanation than he has so far given us, and I think it would be for everyone's convenience if he would tell us about the Scottish provision and the change which I think I have spotted in the new subsection.

Lord HARRIS of GREENWICH

My Lords, I think this is dealt with in the last part of subsection (4), but I am bound to say that at the moment I am not sufficiently well acquainted with that precise Scottish point and I will, if I may, deal with it on Third Reading.

On Question, Amendment agreed to.

Clause 74 [Help for aggrieved persons in obtaining information etc.]:

Lord HARRIS of GREENWICH moved Amendment No. 28:

Page 46, line 10, leave out from ("manner") to ("omitted") in line 25 and insert ("the Secretary of State shall by order prescribe—

1. (a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant;
2. (b) forms by which the respondent may it he so wishes reply to any questions.

(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not)—

1. (a) the question, and any reply by the respondent, whether in accordance with such an order or not, shall, subject to the following provisions of this section, be admissible as evidence in the proceedings;
2. (b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse".

The noble Lord said: My Lords, it may be for the convenience of the House if we deal with Amendments Nos. 28 to 34 inclusive. These Amendments modify the clause to take account of a series of points made by the noble Viscount, Lord Colville of Culross, at an earlier stage of the Bill. As Clause 74 stands, the problem is that it renders otherwise inadmissible evidence admissible in proceedings under the Bill. The noble Viscount drew attention to the fact that this was undesirable. The drafting was at best ambiguous and could lead to a highly disagreeable situation for a number of innocent parties and therefore we thought it right to table these Amendments. The second point is that the recipient of questions should not have adverse inferences drawn from a failure on his part to reply or to reply properly because the questions were served otherwise than on forms. The noble Viscount made this point with some vigour at an earlier stage of the Bill. We looked into it and these Amendments are the result.

Viscount COLVILLE of CULROSS

My Lords, again, I am very grateful to the noble Lord for this series of Amendments. I believe that I can spare the House, as the noble Lord has done, any detailed discussion of the Amendments, but I entirely agreed when he said that the clause was not exactly right as it stood. I admire the ingenuity with which we have now subdivided this matter so that, in the first place, the forms upon which the question and answer are to be based are to be dealt with by a Statutory Instrument which can be perfectly happily ignored without having any effect, whereas the question of admissibility in evidence of the result of that procedure by way of the use of the forms or otherwise can be tested in the courts in the ordinary way.

This seems to me to be a satisfactory way of dealing with what was previously a problem whereby the rules of court could apparently be flouted with impunity. I hope that it will have the desired result and will enable people to get the necessary information for them to be able to bring actions, if it gets to that, but more particularly I hope that the use of these forms will enable discriminatory practices to be looked at, examined and brought to the attention of the employer or other person concerned. He will have to think before he fills in the answer and this may draw to his attention matters of discrimination which had not previously occurred to him. Therefore, in the end, we may actually be avoiding litigation by the use of this expedient. I always thought that it was a good idea, and I am sure that it will be a much more satisfactory way of doing it under this series of Amendments. I repeat that I am most grateful to the noble Lord for the Amendments.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH

I beg to move Amendments Nos. 29 to 34 en bloc.

Amendments moved—

Page 46, line 30, leave out subsection (3) and insert—

("(3) The Secretary of State may by order—

1. (a) prescribe the period within which questions must be duly served in order to be admissible under subsection (2)(a), and
2. (b) prescribe the manner in which a question, and any reply by the respondent, may he duly served.

(4) Rules may enable the court entertaining a claim under section 66 to determine, before the date fixed for the hearing of the claim, whether a question or reply is admissible under this section or not.").

Page 46, line 35, leave out ("or the admissibility of evidence").

Page 46, line 36, at end insert ("and has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.").

Page 46, line 37, leave out ("and section 75").

Page 46, line 38, leave out ("or regulations").

Page 47, line 1, leave out paragraph (c).—(Lord Harris of Greenwich.)

On Question, Amendments agreed to.

Clause 75 [Assistance by Commission]:

Lord HARRIS of GREENWICH moved Amendment No. 35:

Page 47, line 22, leave out from ("of") to end of line 26 and insert ("advice or assistance by a solicitor or counsel").

The noble Lord said: My Lords, it may be for the convenience of the House to take also Amendment No. 36. These two Amendments are designed to cure the clause of some obscurity and of the "disease" of legislation by reference. It is especially important that the clause, which specifies the kinds of assistance which the Commission will give to indi viduals should be as self-contained and comprehensible as possible. The Amendments make no change whatever to the substance of the clause; they clarify the position. I beg, to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH

My Lords, I beg to move Amendment No. 36.

Amendment moved—

Page 47, line 27, leave out from ("person") to end of line 30 and insert— including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings, but paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings."—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 37:

Page 47, line 35, leave out from ("Commission") to end of line 41 and insert—

"—

1. (a) on any costs or expenses which (whether by virtue of a judgment or order of a court or tribunal or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given, and
2. (b) so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

(4) The charge conferred by subsection (3) is subject to any charge under the Legal Aid Act 1974, or any charge or obligation for payment in priority to other debts tinder the Legal Aid and Advice (Scotland) Acts 1967 and 1972, and is subject to any provision in any of those Acts for payment of any sum into the legal aid fund.

(5) In this section "respondent" includes a prospective respondent and "rules or regulations"—

1. (a) in relation to county court proceedings, means county court rules;
2. (b) in relation to sheriff court proceedings, means sheriff court rules;
3. (c) in relation to industrial tribunal proceedings, means regulations made under paragraph 21 of Schedule 1 to the Trade Union and Labour Relations Act 1974."

The noble Lord said: My Lords, this Amendment deals with two quite separate points, and it may be convenient to deal first with the proposed new subsection (5), the addition of which to the clause is purely consequential on the amendments to Clause 74.

Turning now to the effect of the Amendment on subsection (3), the purpose is two-fold. In the first place, we again think it desirable to avoid, so far as possible, legislation by cross-reference. Accordingly, the Amendment substitutes for the references to certain sections of the Legal Aid Acts a description of the subject matter of the EOCs charge. Apart from one exception which will help the applicant, there is no change in the policy behind this subsection. The exception—and this fulfils the second purpose of the Amendment—is the removal of a reference to "property", which is inappropriate in the Bill as drafted. Accordingly, I beg to move.

On Question, Amendment agreed to.

Clause 77 [Validity and revision of contracts]:

Lord HARRIS of GREENWICH moved Amendment No. 38:

Page 49, line 25, at end insert— (4A) An order under subsection (4) may include provision as respects any period before the making of the order.

The noble Lord said: My Lords, this is entirely a clarificatory Amendment. Subsection (2) of Clause 77 provides that a term in a contract which is discriminatory against a party to the contract shall be unenforceable against that party; and subsection (4) that such terms are to be capable of revision by a county or sheriff court on the application of either party to the contract. There will be cases where justice and equity require that an order revising a term should make provision for the period between the time when the term became unenforceable and the date of the making of the order. The first part of the Amendment achieves this clarification. The second part simply adjusts the order of subsections. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH

My Lords, I beg to move Amendment No. 39.

Amendment moved—

Page 49, line 26, transpose subsection (5) to after subsection (3).—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 80 [Power to amend certain provisions of Act]:

7.18 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 40:

Page 51, line 31, leave out ("32 to") and insert ("32, 34").

The noble Lord said: My Lords, the House will recall that we spent a certain amount of time on this Amendment in Committee. It refers to political Parties and trade unions and, essentially, to the situation of the reserved seats for women. The House will recall that this question was not dealt with in the Bill when it was first produced by the Government and introduced in another place. It was raised by the right honourable gentleman who leads for the Opposition on Home Office affairs and a Back-Bench Labour Party Amendment was put down in Committee in another place to exclude political Parties from the Bill so that reserved seats could continue. The matter then came to this House and objection was taken to this provision which was said to be inconsistent with one of the purposes of the Bill.

There has been some discussion of this general question and it has been felt right in the circumstances to deal with trade unions and political Parties in the same way by adding a provision to the Bill giving a power to put down an Affirmative Order at some stage to remove the exemption for political Parties and trade unions. This seems right. It is clearly difficult to get this matter precisely right, but the Government feel that the proper way of proceeding is that, when the time comes when it is clearly unnecessary to continue the provision any longer, resolutions would simply be put to both Houses and, from that day, political Parties and trade unions would have the exemption withdrawn. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, without making a speech on this, may I ask whether we should not consider Amendments Nos. 41 and 42 together with this Amendment? Perhaps this would be the opportunity for the noble Lord, Lord Avebury, and for my noble friend to discuss their Amendment to Amendment No. 42 because it is about the political Parties and the trade unions and the period of time for the transition. If nobody else wants to make a speech about this, and if the noble Lord, Lord Avebury does not intend to speak—

Baroness VICKERS

My Lords, I was going to move this, but I had not had the nod from the noble Lord opposite that he was not going to propose Amendments Nos. 41 and 42. I hope that he will accept Amendment No. 43 because I thing it very important that political Parties should not be exempt. The noble Lord said it was precisely right. I believe that it is precisely wrong that they should be put in this order.

I should be grateful if the noble Lord would convey my gratitude to his noble friend Lord Jacques for the letter I have received saying that one piece of discrimination had been removed and that we can have married women ambassadors. I should like to put it on record that I am very grateful.

I cannot see why it should be left to the Home Secretary to decide on this point. It would be extremely difficult for any Home Secretary to make up his mind on this matter. If we have had an acceptance regarding the teachers' associations I cannot see why we should not have the same in regard to political associations. I do not at all understand why these associations should be tied up with trade unions, because all these associations are independent bodies, all with their own different regulations. Therefore, we suggest a period of 10 years, because we thought it would be advantageous to them and would enable them to make up their minds. As I said in the original debate, I cannot see that there will be any progress so far as women getting into Parliament are concerned, if they are to remain completely separate in all these political sections.

I was interested in a debate in the House of Commons on 29th July, on the Royal Palace of Westminster (Appropriation) Bill. I shall not say that I am in favour of the entire Bill, but it showed that there are many anomalies or loopholes in this matter. I should like to quote from column 1518 of the report of the debate on the Royal Palace of Westminster (Appropriation) Bill: One can list a whole series of Acts under which the legislation we pass to provide benefit for the working population of 20 million does not apply"—

Viscount COLVILLE of CULROSS

My Lords, is my noble friend quoting from the Official Report of another place a speech by a Member other than a Minister? If she is, it is out of order in this House.

Baroness VICKERS

I am sorry, but one has to learn the procedures of this House. I am not quoting a Minister, I am quoting a Private Member—

Viscount COLVILLE of CULROSS

In that case, my noble friend is out of order.

Baroness VICKERS

Therefore, I shall not continue to quote, but I shall point out that there are a number of Acts, such as the Public Health Acts, the Offices, Shops and Railway Premises Act, as well as the Sex Discrimination Bill which do not apply to people who work in this House. I understand that, for instance, they cannot get maternity leave, and I gather there is a section in this House where women do not come under this Sex Discrimination Bill.

Naturally, one is very wary that the matter which we have been discussing should he left entirely to a Home Secretary. Therefore, I wonder why we could not have a period of 10 years from the passing of this Bill. This could give everybody a considerable time to advance. It is a great mistake to have political Parties which are sexually divided. I understand that for the younger generation, in the Young Liberals, the Young Conservatives and the Young Socialists, there are mixed organisations, and that is proceeding in the right direction. I do not think there will be progress until people can be admitted to the various political organisations regardless of their sex. That is not to say that we should not have women's luncheon clubs or women's meetings, but men could be invited to these and could become members.

The other day I was speaking at a luncheon club in one of the London districts, and there were quite a number of men there. It was called a women's luncheon club, but men had joined as members. There will not be much progress in terms of co-operation and working together in politics until men and women get together in organisations. As I have previously stated, I think it is the women in all political Parties who do the majority of the work and the canvassing, and who raise most of the money for the various organisations. This is left to them because they are in separate sections. It may be said that in the past women had more time to go to meetings which were specially for them and in the afternoons, because in those days women did not work. But conditions have completely changed and now most women are working, and the best time for a considerable number of them to meet—except the more elderly—is in the evenings. I can see no reason why the men's and women's sections should not come together.

I hope that the noble Lord will be gracious enough to reconsider this point, because I cannot see on what basis he can justify allowing the teachers a definite period while not making the same provisions for the political Parties. Unless this is done the situation will remain at the whim of the Home Secretary, and this would be a great mistake. I hope that the noble Lord will consider the matter and will accept what I propose.

Lord HOUGHTON of SOWERBY

My Lords, I have a great deal of sympathy with the Amendment. I criticised the exception for political Parties in Clause 33, and if I did not I intended to criticise the provision regarding trade unions in Clause 49. It is obvious that these clauses were inserted in the Bill by the conservatives in the Labour Party. What seems to me so strange is the aggressive way in which this Bill pursues discrimination in so many different directions, and then apparently blesses discrimination in areas so close to the heart of the movement. This is what I find ambivalent. I know all the arguments—most of them out of date—for retaining those women's sections and reserved places for women on executive councils and so forth. But the Amendment proposes that they shall be dispensed with within 10 years from now. It would be foolish for any of us to predict what will happen within 10 years from now. The whole structure of society may change in the next decade. I think that events will move with alarming rapidity in the next 10 years in more directions than perhaps we realise. Certainly, if we go on as we are now we shall not see the kind of society which we are clinging on to at the present moment.

Indeed, the great army of women may have swamped all the places where men held sway in the past and, indeed, where they hold sway at present. The ruthless pursuit of equality by the women's liberation movement—with which I mainly agree—may sweep away the decadent and complacent elements in the male community who seem quite unable to solve the nation's difficulties, or indeed, to justify their place in positions of power and responsibility. One can sec this great sweep coming if only because we have not tried women before, after all the centuries of having men in positions of power and responsibility. After all, a nation in despair may try anything once, and this may be what the nation will choose to have. There is great merit in thinking in terms of 10 years from now. Not all of us will then be here to witness the great event, but I hope to be here myself. I am sure that all the excitement of the occasion will bring us great joy. At least, if your Lordships pass this Amendment there will be an additional reason for striving on for another decade.

Baroness BACON

My Lords, at times we are getting into difficulties with this Bill, because it attempts to go too, far and to legislate on matters which probably are not suitable subjects for legislation. As I said when speaking to an Amendment at a previous sitting, I am not quite as happy with some Parts of this Bill as are some of my colleagues. Quite a lot of exceptions are to be made, and we are getting into difficulties because the Bill has been drawn much too widely. We wanted some type of Bill, but it is getting out of hand and has gone wide of what some of us intended a year or two ago. Perhaps I ought to declare an interest here in that, with my noble friend Lady Summerskill, I sat in one of the reserved places for women on the National Executive of the Labour Party for many years—indeed, for 30 years. I shall not go into the various reasons why those places were reserved. I do not think that it could always be said that they were reserved out of a desire to see women sitting on the National Executive of the Labour Party; there were other reasons as well.

The Amendment of my noble friend Lord Harris seeks to leave this matter to the Secretary of State who could do it in three, four, 15 or 20 years—and, as my noble friend Lord Houghton said, who knows what will happen precisely in 10 years' time? We are being asked to decide between a definite time of 10 years, and leaving it to the Secretary of State. Because of that, I think it will be better to leave it to the Secretary of State than to have an arbitrary 10-year period.

Lord AVEBURY

If this matter is left to the Secretary of State it could, as the noble Baroness herself recognises, continue for an indefinite period. We would then be in the situation which the noble Lord, Lord Crowther-Hunt, complained of when he was talking about the Amendment relating to colleges; that the indeterminate nature of the change was in itself objectionable. While we welcome the move that the noble Lord, Lord Harris, made towards the case made out in Committee, I would not agree that he has gone far enough; because I think that if the Amendment standing in my name and in that of the noble Baroness, Lady Vickers, were accepted the House would at least have the opportunity of looking at the case within the period of ten years; during which time, as the noble Lord, Lord Houghton asked: "Who can say what changes will be effected in the face of society?" Trade unions and political Parties might within that period have relinquished these provisions voluntarily; they might have come forward to the Equal Opportunities Commission and to the Secretary of State and said: "We have no objection to your exercising the powers you gave yourself on Report stage." But they might, if they knew that there was no time limit at all, continue to drag their feet.

If I might refer to the situation in the political Parties, about which I may claim to know a little, one finds that the women's sections are always given the mundane jobs to do. Any noble Lord who has been involved in a constituency organisation will agree that what I say is true. The women, as the noble Baroness, Lady Vickers, said, do the majority of the canvassing; the women are made to do a great part of the money raising; and one always finds whenever some social function is proposed that the women are compelled to make tea and carry out the catering arrangements. It does not seem to be realised by any of the political Parties that men should have a role to play here as well. These are trivial matters, but the end result is that we get too few women coming forward and taking a prominent part in political activities.

It is no accident that one compares the treatment given to women at constituency organisations, and the subservient role that they are forced to play, with the failure of the political Parties to bring forward enough women to their national leadership. The noble Lord, Lord Harris, said, when the matter was discussed in Committee, that the only immediate result of eliminating the clause relating to trade unions would be that you would get fewer women serving on the Labour Party National Executive. I would regret that, particularly if it meant that women of the calibre of the noble Baroness who has just spoken would not be serving on that body. If we are giving them 10 years to make the adjustments, I cannot see that this imposes too great a difficulty on the Labour Party to make provision for adequate representation of women without these special provisions which I think are degrading: to have to reserve places on the National Executive because people would not elect them in any other circumstances. You are going to force women on to the National Executive who would not get there by merit, when in other circumstances—

Baroness BACON

My Lords, perhaps I may interrupt the noble Lord here because evidently he does not know the constitution of the Labour Party. The whole of the National Executive is sectionalised. It is not just women; places are reserved for trade unionists, for the Co-operative and other societies and others.

Lord AVEBURY

My Lords, I am grateful to be reminded of that; but the trade unionists themselves could be women, and the Co-op representatives could be women. It is foreign to the purpose of this Bill to say that, apart from these various sections which are represented on the National Executive, there will be one particular series of places exclusively reserved for women. You are thereby confessing that inadequate representation of women would be obtained through other channels.

I am sure that in a period of 10 years those matters can be taken care of. Supposing that they were not; and that everyone agreed at the end of the 10 years that it was reasonable for the trade unions and the political Parties to continue this discrimination and to continue with special sections for women, all that the Government have to do then is to vote down the draft Order that they have laid before Parliament. It would not be the first time that that has happened. I am not suggesting that it is a practice widely to be encouraged, and I think that the Government in fact would be unhappy about bringing forward a draft Order and having to advise their supporters to vote against it. But that could be done if, in the last resort, people agreed unanimously that it was not the time to make such a change. I believe that we will all look back on this debate and say: "How could we ever have thought that these discriminatory provisions could last as long as 10 years?" I hope that that is so; and I should like to place a time limit on it now.

Lord PANNELL

My Lords, the noble Lord who has just spoken does not understand anything about the federal constitution of the Labour Party which goes back a long way. If you take the constituency organisation of the women's section, they are people in their own right. In the main, they meet at times when their husbands cannot meet. They are people apart. The women's section, as such, are people apart. It is all very well for the noble Lord to say, with no knowledge at all, that women can get on to the trade union section of the Labour Party. They can; but they are not so normally nominated because it is a federal constitution. People have got on to the constituency section; but I have a great fear that, with the academic enthusiasm of the noble Lord, women are going to find themselves in a far worse position at the end of the Bill than they were at the beginning.

Baroness GAITSKELL

My Lords, although I am a little hazy about the constitution of the Labour Party, I should like to come out entirely in support of the noble Baroness, Lady Vickers. I do so not because I think the Government have not gone some way to meet this point; but I think it would be a terrific education to men trade unionists. We say we have some women trade unionists but there are very few of them there. Generally, this Bill is very far-reaching. Why does it stop at this point? That is all I want to say on it.

Lord HARRIS of GREENWICH

My Lords, at the beginning may I say that there is one point on which we are all agreed. This was the point made by Lord Avebury when he said there are far too few women active in public life and in the political Parties and the trade unions. That is true. We must endeavour to ensure that that situation is improved. I should like to come to one point made once or twice during this debate. It is right to say the Government have made a fairly significant move since we last considered this Bill. We have brought forward an Amendment which says that the power to maintain the reserved seats in political Parties and trade unions can be brought to an end by an Affirmative Resolution of both Houses. That is a significant move from the position we adopted when this matter came before your Lordships in Committee.

The choice before us today is whether we are going to leave the timing of that Affirmative Order to the Government of the day, the Secretary of State, or whether we are going to impose a rigid 10-year time limit. I see no reason why 10 years is chosen and, with respect to the noble Lord, I feel the improvement we have made, and which I recommended to the House today, is in itself a fairly major departure from our previous position. I hope that the House will accept this, and reject any attempt to impose this rigid time-scale upon us.

Viscount HANWORTH

My Lords, having listened to the arguments, on balance I am in favour of leaving things as they are. This is probably because I, and a number of other people who are equally keen on not seeing sex discrimination, think that this Bill is a ghastly mistake in trying to legislate in detail. I would have preferred a two-line Act simply saying: Thou shalt not unreasonably discriminate on grounds of sex. The further we go and the more we tie this down, the less useful it is going to be, because in the end it is going to depend on how people react in trying to remove sex discrimination. It is not something that is going to be improved by cases in the courts. I am frightened of the side effects of this Bill. If you get a man and a woman applying for a job and the woman has superior qualifications, there will be trouble. If either of them have adequate qualifications, what you select on is personality. Right the way down the line I do not believe that this legislation in detail is useful. It is even worse on this Amendment if we start to get down to a period of 10 years when a period of two years is much more appropriate.

Lord AUCKLAND

My Lords, I served as chairman of the young organisation within a political Party (it shall be nameless!) for some time in the 1950s. My first two years of service was under a woman chairman—and extremely able she was too. I have no objection to serving in those circumstances. Several years later a very great friend of my wife and I, a lady, stood for a marginal constituency in London. When the vote was taken as to whom should be short-listed, the men on the executive voted exclusively for our friend, and the women voted exclusively against, and she lost out to the majority of two. So I am bound to say with respect that this Amendment does not hold water. Of course the answer to any political Party—I will not comment on the trade union side because I have had no experience of it—even if it is an oversimplification, is to get the best person, whether a man or woman, to take on the post. An arbitrary period of 10 years, whichever political Party or other organisation may be chosen, will lead to insoluble difficulties.

Baroness VICKERS

My Lords, I was surprised at one or two things that the noble Lord, Lord Pannell, said. He said that women were a people apart. We are not a people apart, we are trying to take our equal share in the organisation.

Lord PANNELL

My Lords, the noble Baroness does me an injustice. I have been on her side so many times in these sex affairs, she should not throw those things about—

Several Noble Lords

Order, order!

Baroness VICKERS

My Lords, I gave way, as I was used to doing in another place. But the noble Lord did say that and I wrote that down at the time. I am surprised that the noble Viscount, Lord Hanworth, talked about politics because he is an Independent and has no Party organisation behind him.

I was interested in what my noble friend Lord Auckland said, although it was not a conclusive argument. Clause 33 says: …it has as its main object, or one of its main objects, the promotion of parliamentary candidatures for the Parliament of the United Kingdom… This was one of the reasons why I put down my Amendment, because so long as we keep the sexes divided, there is going to be no particular wish to have more women Members of Parliament. Once, when I applied for a constituency, they regrettably mistook my application and offered it to my brother—a slip in my handwriting perhaps. He had some fun with them when, on the telephone, they offered the constituency to him in the "old boy" way. Eventually he said: "I am sorry, it is not for myself, but for my sister". There was a long pause at the other end of the telephone, a clearing of the throat and the chap said: "I am not going to see any man over 45 years of age, any Roman Catholics or any women." Frankly, he did not have the courage to say: "I am not going to see any women." I want to get rid of this kind of situation.

I do not seem to be getting much support for my Amendment. I think the subject has been well aired and I hope that many people will read what has been said. All we can do now is to put down plenty of Parliamentary Questions to try and get the Home Secretary to make a change within the 10 years.

On Question, Amendment agreed to.

7.42 p.m.

Lord HARRIS of GREENWICH

My Lords, I beg to move Amendment No. 41.

Amendment moved—

Page 51, line 31, leave out ("49") and insert ("48").—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Lord HARR IS of GREENWICH

My Lords, I beg to move Amendment No. 42.

Amendment moved—

Page 51, line 33, at end insert— (aa) amend or repeal any of the following provisions, namely, sections 11(4), 12(4), 33 and 49 (including any such provision as amended by a previous order under this subsection)".—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 81 [Orders]:

Lord HARRIS of GREENWICH

My Lords, I beg to move Amendment No. 44 which is simply a correction to Government Amendments made in Committee.

Amendment moved—

Page 52, line 10, leave out from ("80(1)") to ("shall") in line 11.—(Lord Harris of Greenwich.)

On Question, Amendment agreed to.

Clause 83 [Transitional and commencement provisions, amendments and repeals]:

7.48 p.m.

Lord JACQUES moved Amendment No. 45:

Page 56, line 19, at end insert— (5) An order under this section may make such transitional provision as appears to the Secretary of State to be necessary or expedient in connection with the provisions thereby brought into operation, including such adaptations of those provisions, or of any provisions of this Act then in operation, as appear to the Secretary of State necessary or expedient in consequence of the partial operation of this Act.

The noble Lord said: My Lords, this Amendment relates to the Secretary of State's powers to bring in the Sex Discrimination Act by commencement order, and seeks to empower him to make transitional adaptations of provisions in the Bill. This power is desired because of amendments made to Section 6 of the Equal Pay Act by the Committee in connection with the equal access of occupational pension schemes. It is intended that the Equal Pay Act, including all other amendments made to it by this Bill and most of the rest of this Bill, will come into operation on 29th December 1975. The provision relating to equal access to occupational pension schemes is intended to come into operation at the same time as the corresponding provisions of the Social Security Act in 1977 or 1978.

I regret that I mistakenly informed the Committee on 17th July that the provisions relating to equal access to occupational pension schemes now incorporated in Section 6(1A) of the Equal Pay Act would come into force at the end of this year. However, the new subsection (1A) of Section 6 of the Equal Pay Act does not contain the equal access provisions, but contains the exclusion of other matters relating to death or retirement from the operation of the Equal Pay Act. It is necessary that these other provisions of the subsection should be brought into operation at the same time as the commencement of the remainder of the Equal Pay Act without bringing in the equal access provisions. A transitional Amendment will therefore be needed to be made to Section 6 of the Equal Pay Act to provide for the Act to operate as intended between 29th December 1975, and the date from which the equal access provisions come into force. I beg to move.

On Question, Amendment agreed to.

Clause 85 [Application to Crown]:

7.50 p.m.

Lord HARRIS of GREENWICH moved Amendments Nos. 46–54:

Page 56, line 31, leave out ("Subject to section 17")

Page 56, line 34, leave out from ("a") to end of line 36 and insert ("statutory body, or a person holding a statutory office")

Page 56, line 37, at end insert—

("(1A) Parts II and IV apply to—

1. (a) service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or
2. (b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body,

as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.

(1B) Subsections (1) and (1A) have effect subject to section 17.")

Page 56, line 38, leave out ("Subsection (1) does") and insert ("Subsections (1) and (1A) do")

Page 57, line 1, leave out subsection (3) and insert—

("(3) Nothing in this Act shall render unlawful discrimination in admission to the Army Cadet Force, Air Training Corps, Sea Cadet Corps or Combined Cadet Force, or any other cadet training corps for the time being administered by the Ministry of Defence.")

Page 56, line 30, at end insert—

("(8) In this section "statutory body" means a body set up by or in pursuance of an enactment, and "statutory office" means an office so set up; and service "for purposes of" a Minister of the Crown or government department does not include service in any office in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975 as for the time being in force.")

After Clause 85, insert the following new clause—