§ 6.47 p.m.
§ Lord LOVELL-DAVIS
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, that the House do again resolve itself into Committee.—(Lord Lovell-Davis.)
§ On Question, Motion agreed to.
§ House again in Committee accordingly.
§ [The Earl CATHCART in the Chair.]
§ Clause 12 agreed to.
§ Clause 13 [Application for variation or revocation of recommendation]:
Lord JACQUES moved Amendment No. 9:
Page 10, line 25, leave out ("under subsection (1)(b)") and insert ("which is not a joint application such as is referred to in subsection (2)(a)").
§ The noble Lord said: This is a drafting Amendment arising out of an Amendment made in another place. I beg to move.
§ On Question. Amendment agreed to.
Lord JACQUES moved Amendment No. 10:
Page 11, line 9, after ("been") insert ("sufficiently").
§ The noble Lord said: This also is a—
The Earl of GOWRIE
I am so sorry. What with the alarms and excursions of the Statement, I misheard my Amendment. I would plead, if possible, that we go back over it. It is a very small and short point. I am in the embarrassing position now of having to apologise for my apology.
§ Lord JACQUES
Amendment No. 10 is a drafting Amendment. It seeks to bring Clause 13(2)(b) into line with Clause 15(1)(b). I beg to move.
§ On Question, Amendment agreed to.
§ Clause 13, as amended, agreed to.
§ Clause 14 agreed to.
§ Clause 15 [Complaint of failure to comply with recommendation]:
The Earl of GOWRIE moved Amendment No. 10A:
Page 12, line 31, leave out from ("he") to end of line 35 and insert ("has not—
§ The noble Earl said: The machinery for obtaining trade union recognition allows a union for whom recognition is recommended to make a request to the Central Arbitration Committee for unilateral arbitration on conditions of employment if an employer has failed to comply with the recommendation. The difficulty is that there is no definition of what constitutes compliance by the employer with that recommendation. It is being suggested in some quarters that an employer who wishes to prove he has negotiated may have to show that he has made a concession to a claim, however unreasonable, that is presented to him. Thus, if a union claim, for example, the issue of company cars to a group of employees, an employer will be able to prove that he has negotiated only if he shows that some transport has been made available.
§ It is undesirable that English industrial relations law should involve itself in the same technical difficulties as the Americans have experienced on what constitutes bargaining in good faith. These provisions would be made much more practical 94 if a definition of "negotiation" was included. The intention of our Amendment is precisely this. I beg to move.
§ Lord JACQUES
This Amendment would change the definition of non-compliance in relation to a recommendation of the Service as to recognition. If the matter is not resolved a complaint would be sent to the Central Arbitration Committee under Clause 16(2)(a) and that Committee would have to decide whether the complaint was well founded. The definition is therefore to be interpreted by the Committee if the matter goes that far, and depending upon their decision the union may or may not get an award as to the terms and conditions of employment. The Service also has to consider whether a complaint has been duly made if it is to conciliate under Clause 15(3). The Bill is drafted in this respect so as to leave a good deal to the common sense of the Service and the Committee. The concept of what an employer can reasonably be expected to do is included, and this will require consideration to be given to the circumstances surrounding the complaint.
The Amendment, on the other hand, would impose much more precise criteria, which would undoubtedly be easier for the Service and the Committee to interpret. But we must be cautious not to impose a too rigid requirement that might not be fully appropriate to all the circumstances. For example, an employer is to be held in non-compliance if he has not replied to a representation by a trade union. Is he to have time to reply, and, if so, how long? This immediately comes back to the question of what is reasonable in all the circumstances. Supposing an employer says that before he negotiates on any matter he would like to set up a procedure by agreement with the union with conciliation and arbitration provisions. This would be sensible and, although it would not bring him into non-compliance with the recommendations as the Bill is drafted, he might be at fault if the Amendment were carried. For these reasons the Government are not willing to accept the Amendment and hope that, with this explanation, it will be withdrawn.
The Earl of GOWRIE
I cannot say I am ecstatic with that reply. It seems throughout these deliberations that if 95 something is not put in the Bill common sense is presumed to be applied, but in fact the common sense of most employers is not assumed in very many provisions of the Bill. And the rigidities of which the noble Lord is complaining in connection with this Amendment are made very clear elsewhere. I am not so wedded to the Amendment that I am not prepared to try again or look again before Report, but I think the noble Lord, Lord Jacques, slapped me down a little harshly, because the form of my Amendment was in fact taken from another part of the Bill for which he is speaking—from Clause 90(7). In that point the definition is used to describe consultation, but we feel that it would be broad enough so that most people would regard it as an adequate definition of negotiation to satisfy the requirements of Clause 15. Is the noble Lord able to hold out any hope to me if I return to this question on Report?
§ Lord JACQUES
I am quite willing to look at the drafting of Clause 15(2) in the light of what has been said in the debate, and to consider whether some of the points which have been strongly advocated can be incorporated in the Bill.
The Earl of GOWRIE
Sweetness and light having been restored to the Committee, I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
§ Clause 16 agreed to.
§ Clause 17 [General duty of employers to disclose information]:
§ 6.57 p.m.
§ Lord TERRINGTON moved Amendment No. 11:
Page 15, line 24, at end insert—
("(6) Where an employer is required by virtue of this section to disclose any information to any trade union representatives he shall at the same time disclose the information to the members of the undertaking.")
§ The noble Lord said. This simple Amendment has exactly the same purpose as those which the House accepted during the proceedings on the Industry Bill; namely, to ensure that by law any information required to be given to trade union 96 representatives shall also be given at the same time to shareholders. I am afraid that a good deal of repetition of what I said during consideration of the Industry Bill is inevitable because the arguments concerning the disclosure clauses in both Bills are very similar, but I will be as brief as possible in the circumstances.
As I explained during consideration of the Industry Bill the Stock Exchange, of which I must declare my membership, attaches considerable importance to a legal obligation to publish information for the benefit of shareholders if there is a statutory obligation to make disclosure to trade union representatives. The overriding reason for this is of course to ensure that price sensitive material is not disclosed by companies in such a way to create what would amount to special insiders so far as the stock market is concerned. Nothing could be clearer evidence of this than the wording of the introduction to the Stock Exchange listing agreement from which I should like to quote. It reads as follows:
Directors should not divulge price sensitive information in such a way as to place in a privileged position any person or class or category of person outside the company and its advisers".
Nothing, surely, could he clearer than that.
§ During our Second Reading debate the noble Lord, Lord Jacques, expressed surprise that I raised the matter at all. He drew my attention to remarks made by the Leader of the Opposition in another place. I am afraid that all I can say in reply is that I have carefully studied these remarks and, so far as I can see, no reference was made by anybody to this vitally important question of disclosure of price sensitive material. The noble Lord, Lord Jacques, also said during Second Reading that in this Bill there are safeguards which he will spell out in detail if I were to raise the matter again during Committee.
§ I am not absolutely clear what the noble Lord meant by "safeguards". But if it is safeguards against the risk of creating a new class of insider, I am afraid that neither I nor my Stock Exchange colleagues can see any evidence of this. I imagine the noble Lord has in mind practical guidance referred to in subsection (2) of Clause 6 and possibly 97 representations which are referred to in subsection (3) of the same clause; presumably also in subsection (9) which refers to revision from time to time. That may be relevant. But do these really constitute proper safeguards when there is no guarantee that what this Amendment sets out to achieve will ever be included in the Code of Practice? In my view, something far more positive than guidance and representation is now required in the Bill and I should like to develop my arguments for this Amendment a little further.
§ The major case for it is the need to take care of a situation if unintended leaks take place once the information has been released to trades union representatives under Clause 17. As I explained during the Industry Bill, a good deal of information may not, on the face of it, be price sensitive and may not, therefore, be within the scope of the Stock Exchange listing agreement. If, however, the information were to fall into unauthorised hands and be subjected to distortion and rumour, then it could most certainly be proved price sensitive and possibly be detrimental to the price of the company's shares. In fact, I gave some examples of this kind of situation which I do not want to spend time today repeating, but I can assure your Lordships that they could create very real problems for companies trying to conform with the Stock Exchange listing agreement.
§ The central issue for our consideration is this. We are contemplating legislation in a very delicate area which creates an entirely new situation for companies and the Stock Exchange authorities. We are proposing compulsory disclosure of information to trades union representatives which would not necessarily have been disclosed to them or, indeed, in the past to anyone. At the same time we are leaving shareholders without statutory rights to the same information.
§ I have heard it argued that there is nothing in any of these Bills connected with disclosure of information to trade unions which prevents companies from making disclosures at any time to their shareholders. I do not dispute this, but what I do say is that here we are providing the right to information on demand for one group and leaving the other group dependent on a difficult decision by 98 directors as to whether or not price sensitive material is involved. This is the crux of the matter because until now the issue has been clear cut and companies have had no difficulty in complying with the listing agreement under a voluntary system.
From this point, however, the task becomes much more difficult in view of the wide-ranging area of compulsory disclosure implied by the words in Clause 17(1):
all such information relating to his undertaking as is in his possession"—
that is, the employer. This is a very different matter compared with the disclosure clause in the Industry Bill which is more specific about the information to be given and which in any case is unlikely to be used except on rare occasions. None the less, the House decided that an Amendment to the Industry Bill was required to take care of this problem and I submit that my Amendment to this Bill is even more necessary. It is certainly the wish of the Stock Exchange authorities. I can say that with their full authority, and as they have the responsibility for operating these disclosure clauses in the best interests of the investing public their views must surely carry some weight.
§ Perhaps I may summarise by emphasising three points for consideration by the Committee. First, I refer once again to the Stock Exchange listing agreement from which I have quoted. Secondly, I stress that as this Bill creates greater problems than the Industry Bill in the area of price sensitive information it is for the Bill itself to ease the situation by requiring information disclosed under it to be released to shareholders. Thirdly—and this is important—it would be entirely inappropriate for the listing agreement to include such a provision since the whole tenor of that agreement, so far as disclosure is concerned, is based on the price sensitive nature of the information to be disclosed. The Stock Exchange is not concerned with information that is not price sensitive. Furthermore, it would be inconsistent with the rest of the agreement for there to be incorporated in it a reference to a Parliamentary Statute not strictly being company legislation. As I see it, therefore, the only way out of this difficulty is to make it a statutory 99 obligation for companies to inform shareholders at the same time as they disclose to trade union representatives. In that way there could be no risk of creating special insiders.
§ Having explained the position from the point of view of those responsible for maintaining a fair and efficient market, I must now wait to hear exactly what safeguards exist or what I am going to be offered as safeguards which will make my Amendment unnecessary. As I have already said, I realise that eventually the Service will formulate a Code of Practice relating to the disclosure of information. Also I appreciate that Clause 18 lays down certain restrictions on an employer's general duty to disclose. However, I find it hard to believe that price sensitive material could come within paragraph (e) of that clause because such a restriction would be far too severe and would defeat the whole object of the disclosure for collective bargaining purposes. Therefore I come back to my central theme which is concerned with the timing and the point at which an employer is required to make a disclosure under Clause 17. At this point I can see no safeguards in the Bill to protect price sensitive information.
§ The House supported my similiar Amendment to the Industry Bill and this Bill has much wider ranging disclosure obligations with much greater risk of creating special insiders. Therefore I respectfully suggest that it would be inconsistent not to accept this Amendment which in no way interferes with the proposed disclosure of information to trades union representatives. In my view, this is the only logical and fair way of dealing with a very real problem which, quite frankly, I do not believe has been sufficiently considered so far in this Bill. I beg to move.
§ 7.7 p.m.
§ Lord CULLEN of ASHBOURNE
The noble Lord, Lord Terrington, has again made his case very completely and very clearly and there is very little that I need to say in support. I realise that the reason for the disclosure clause is to ensure that the trade unions obtain as much information as possible for collective bargaining purposes. So long as 100 this information can be provided without injury to the nation or the undertaking or without any other untoward effect, there seems to me to be no reason for opposition—not that trade unions have been inhibited in any way through lack of information in recent years, judging from the benefits that they have secured for their members. However, the better informed they become the better equipped they will be to judge what terms and conditions of employment are reasonable in the prevailing circumstances. There is no doubt, however, that difficulties will arise in respect of price sensitive information and that the Bill will disrupt the system which is at present working smoothly.
No personal group has been placed in a privileged position with regard to price sensitive information. The management of an undertaking judges what information can he freely given to whomever they wish and which information is price sensitive and can be released only to all shareholders simultaneously, together with anybody else to whom they may wish to disclose it. Under the provisions of this Bill and also those of the Industry Bill the initiative passes from the management to the trade unions who would obtain a statutory right to all kinds of information. Some of this information will naturally be price sensitive and if it is demanded by the trade unions it must be given to shareholders at the same time, or previously, in order that the trade unions do not become insiders.
My contention is that difficulties are bound to arise owing to this change in the system. As the noble Lord, Lord Terrington, has just said, it is often difficult to decide whether or not information is price sensitive. Also it is true that an item of information might not appear to be price sensitive when taken in isolation, but could become so in combination with other items. Until now managements have taken care not to divulge information in a way that would create insiders. In future, they will be forced to give to the trade unions information which they might not have published until the annual report. Therefore, the only way to prevent the trade unions from becoming insiders is to make public whatever information they have been given, in case any of it proves to be price-sensitive.
101 I do not believe that the Government will disagree with this argument. They may, however, say that it is the job of management to do just what I have suggested and that there is no need to enforce such action in this Bill. This point of view would leave out of account the fact that companies will be burdened by considerable expense in circulating all their shareholders each time trade unions demand information. They will wish to avoid this expense, especially companies which do not have happy shareholder relations. If the noble Lord, Lord Terrington, is right in assuming that the safeguards to which the noble Lord, Lord Jacques, referred on Second Reading are those which may in due course appear in the Code of Practice, this is just as unsatisfactory as the argument put forward by the Government on the Industry Bill, when similar problems were to be put right in a Companies Bill. It is obvious to me that if this Amendment is not accepted it will be only a matter of time before some insider scandal occurs for which the City is blamed, quite unfairly, when the real culprit is faulty legislation. Therefore, I support this Amendment.
§ Lord HOUGHTON of SOWERBY
With great respect to the noble Lord, Lord Terrington, I believe that this Amendment is entirely misconceived and the arguments in support of it are untenable. The difference between the Industry Bill and this Bill is that disclosure under the Industry Bill goes far wider than disclosure necessary solely for the purpose of collective bargaining. This disclosure under Clause 17 of the Bill is what many employers do already. Indeed, in many cases it would be impossible to conduct the negotiations on pay and conditions of service unless the employer disclosed information which was material to those negotiations. Clause 17 lays upon the employer the duty of doing what many employers find is desirable, if not necessary, in order to get their negotiations with the trade unions on a frank and constructive basis.
If it is now proposed that when a disclosure is made to a trade union for the purpose of collective bargaining—I stress that subsections (1)(a) and (1)(b) have to be fulfilled in regard to this disclosure—it must be information with 102 out which the trade union representatives would be to a material extent impeded in carrying on with such collective bargaining, and information which, in accordance with good industrial relations practice, should be disclosed to them for the purposes of collective bargaining, that may be comparatively narrow information. It may be quite confidential information, material to the negotiations but scarcely suitable for circulation to all the shareholders of the undertaking. Still less might it be desirable to give wide publicity to some aspects of a company's affairs which are material to collective bargaining.
So I think it would be a mistake to make this proviso to disclose to members of an undertaking at the same time as the disclosure to trade union representatives. It would not be necessary, it would be dangerous; it could almost be disastrous on some occasions. Speaking from considerable experience in this matter, I do not believe that disclosure to trade union representatives for the purpose of collective bargaining normally runs any risk of disclosure elsewhere. I emphasise the sense of responsibility of trade union representatives who are engaged in negotiations with an employer upon which will rest the satisfaction, or otherwise, of their demands on pay and conditions of service. I think it would largely destroy the value of disclosure to the trade unions, if at the same time disclosure to the members of an undertaking was made obligatory.
It would be a mistake to press this Amendment. It is not requiring employers to do more than many employers do already, without any serious risk of leaks or misuse of information to other people; and, where employers find that the information they give is misused, they then have a pretty strong case for declining to give that kind of information in the future. But if the negotiations on collective bargaining matters, which are pay and conditions, are to be undertaken in a spirit of mutual understanding with a comprehension on the union side of what the employer is up against—which I think is desirable—then I am certain that it is better to leave the obligation and duty upon the employer, which Clause 17 does, to make this disclosure, voluntarily in most cases and where requested in other 103 cases, and let them get on with their collective bargaining. That, after all, is what this clause is all about.
§ Lord BROWN
I thought the arguments in favour of this Amendment were presented reasonably, and I am sure the whole Committee is sympathetic to the danger of an extension of the circle of people with price sensitive information. But I thought the noble Lord, Lord Cullen of Ashbourne, skated rather lightly over the dangers of this Amendment. When one considers that many of our large companies now have thousands or tens of thousands of shareholders, and that information given during the process of what may be a prolonged negotiation does not all come out at once—in many negotiations further requests are made for information as the negotiations proceed—and, of course, on each occasion it would be necessary to circulate 10,000, 20,000 or 50.000 shareholders with this information, that is no light burden to place on industry. So I doubt whether industry would be enamoured of this Amendment, if it were included in the Bill, when it had experience of it.
Another point which I should like to make is that during the debate in this House on the Companies Act 1967 a great deal of additional disclosure was asked for. Turnover was to be disclosed for the first time; export figures were to be disclosed and directors' salaries were to be disclosed. I am bound to say that this raised very serious emotion on the Benches opposite. Speaker after speaker sought to point to the dangers in Stock Exchange terms and in many other terms, too. However, I understand that there has been not a word of criticism of those disclosure provisions. Therefore, it is possible to exaggerate the dangers envisaged arising from this Part of the Bill.
I am not altogether with my noble friend who has spoken, in his absolute assurance that no trade unionist would ever disclose the information he received. I think it is beyond the hope of human perfection that that would be so. But noble Lords who supported this Amendment are well aware—and I am not making an attack on the City or the Stock Exchange or anything else—that there is a great deal of price-sensitive information which gets into the wrong hands, 104 and, one is sorry to think, which will continue to get into the wrong hands because it is widespread in the ranks of accountants and managers near the top of industry, and it can leak out in that way. Yet the extent to which it gets out is happily fairly limited. This price sensitive information is not going to people who regularly deal on the Stock Exchange—the "bears", the "bulls" who invest thousands of pounds, but to men who, on the whole, are poor. Therefore, I think the dangers can be very greatly exaggerated. Trade union officials might pass on remarks to some of their colleagues, but I cannot sec them running to those who make a practice of making large amounts of money—or losing it—on the Stock Exchange, and saying, "I can give you a tip". With great respect, the burden of argument put forward is somewhat exaggerated.
I hope that the noble Lord, Lord Terrington, will not press this Amendment, because it puts an intolerable burden on the boards of companies. I can quite see the theoretical point, but the vast bulk of this information will be pettifogging stuff. The trade unions will want to know what the saving will be when the company puts a new machine in plant A. This is not of the slightest interest to any shareholder. It will be an intolerable burden to have to circulate this kind of information, and an expensive one at existing postal rates, and if the Post Office really gets in its stride in putting up the price, the burden of circulating such information to the shareholders will be an intolerable one. This sort of information is not of the slightest use to the shareholders, and is something they do not want at all.
§ Lord WIGG
One point about this has interested me. The noble Lord, Lord Terrington, thought—and this is clear from his Amendment—that any information given to the trade unions should be given also to the shareholders. I do not know whether the converse applies—that any information given to the shareholders should be given to the trade unions—but taking the statement of the noble Lord on its merits, and not delving too deeply into it, I would ask the noble Lord whether he read the proceedings recently of the Rank Organisation, because it seems to me that the shareholders 105 there were a little short on information. After all, this is not just one swallow; it is happening all the time. The lack of information from the point of view of the shareholders is quite grotesque. Apparently, the shareholders are told just what the company choose to tell them, and in the form that the company can get away with.
§ Lord WIGG
It was not only lack of votes. I am not concerned with the lack of votes. I do not believe that the shareholders, had they known what was going on, would not have "squealed" at some time or other. The Rank Organisation is just the last case in the shop window, but this sort of thing is going on all the time. The movements of shares, the operations of the "Bulls", the "Bears", the "Stags" and so on obviously are based on what someone believes to be true, but whether or not it is true one would not know in each particular case.
I cannot think it is right, as the noble Lord, Lord Terrington, said, that trade union officials are any less responsible, any less honest than the population as a whole. The noble Lord, Lord Brown, is right. To say that at no time in the future will someone accidentally, deliberately, or whatever you will, disclose information is to expect from humans rather more than one will get. But it seems to me that in the light of the argument put forward by the noble Lord, Lord Houghton of Sowerby, he has answered completely the technical case. The information wanted here is information to enable the union official, on behalf of his members, to be able to carry on meaningful negotiations. I should have thought that the Conservative Party, even assuming they take any element of meaning what they say, would have imported that view with enthusiasm.
I agree that if every time a trade union official goes to the managing director or the company secretary and asks for information, forthwith it has to be circulated to the shareholders, the cost of postage and printing will go up. It may well be that disclosure to all who are interested needs to be looked at again, perhaps when the Company Acts come up for revision. So far as this Amendment is concerned, it would be wise if 106 the noble Lord, Lord Terrington, withdrew it.
§ 7.25 p.m.
§ Lord JACQUES
Perhaps if I butt in now, we might get to dinner at 7.30! I would point out that the Amendment says, "any information", but the arguments which have been put forward in support of the Amendment have been based entirely upon price sensitive information, which is entirely different. Secondly, reference was made to what I said on Second Reading about the Second Reading in the other place of the Bill we are now considering. On the Second Reading of this Bill in the other place, on 28th April 1975, the Shadow Minister leading for the Opposition said that this was all taken from the Industrial Relations Act 1971, and therefore they have no objection to it. That was confirmed by the Shadow Minister who wound up for the Opposition. The point that I am making is that the Back-Benchers on the Opposition side were quite happy to accept it in the 1971 Act, but are unhappy with it in this Bill.
§ Lord JACQUES
I have no evidence of the vice versa. There are three reasons why this Amendment is both unnecessary and undesirable. First, if the information would have an adverse effect on the interests of the undertaking, the employer does not have to disclose it. That is made perfectly clear. Secondly, there is nothing in the Bill which prevents employers from giving information voluntarily to shareholders, or anyone else; so that if, on the very rare occasion—and I would stress "very rare"—price sensitive information is given to the trade unions, there is nothing to prevent the company from circulating that information to the shareholders, and it could do so before informing the trade union. So there is nothing at all to prevent any company voluntarily doing what the Amendment calls for.
The third reason against the Amendment is that it would require all employers to give all information to shareholders which they pass to unions. This would create an enormous burden for companies, with little benefit. This is entirely different from the Industry Bill. 107 First, the Industry Bill would affect only some employers, the selected companies for planning. This would affect all employers who give information to trade unions; so the companies affected are different. In addition, the kind of information will be different. Noble Lords can imagine the embarrassment and expense which will be inflicted on a company negotiating, say, with the engineers union, on piece rates. This company has to give information affecting these rates which has nothing whatever to do with the price of the company's shares on the Stock Exchange, but it has to go to the trouble to circulate that information to all its shareholders. This would create an unnecessary burden.
In our view the Amendment is potentially damaging because it would require employers to spend greater time and resources than are necessary on disclosing information. This could well have the effect that much information which could be withheld on the grounds that it would involve excessive work or expenditure, could in fact be of little or no interest to the shareholders—for example, plans for the allocation of work within a plant. In any case, the effect would be an unnecessary increase in the load upon the company, and would impose additional costs. It is difficult to see how this can be held to benefit either the company or to be in the best interests of the shareholders.
In this context, it is worth noting, that, unlike the Industry Bill, this Bill applies to all employers who recognise unions, however small their workforce, and to every sector of industry. I hope that with this explanation, the Amendment will be withdrawn.
The Earl of GOWRIE
It is, of course, a matter for the noble Lord, Lord Terrington, as to whether or not he presses this Amendment, but on behalf of my noble friends on this side of the Committee and on these Benches I think I should make our position clear. At the time of the Industry Bill we supported the noble Lord, Lord Terrington, in his Amendment vis-à-vis these disclosures. My natural instinct, of course, would be to say that the situation has not radically changed, and therefore we should support him on this occasion. On the other hand, I have listened very carefully to the arguments, 108 and I recognise that on both sides there may have been overstatements of the case and that perhaps we should look at it again. If the noble Lord, Lord Terrington, from the Cross-Benches, chooses to press his Amendment, for my own part I feel that consistency compels me to support him. If, however, the Government can give him some reassurance that we can come back to this on Report, I would tend rather to welcome that alternative.
§ Baroness SEEAR
I think I ought also to say from these Benches that, while I sympathise with the idea behind this Amendment, I entirely accept that it would involve disclosure of a wide range of information which is of no relevance whatsoever to shareholders and in no sense price sensitive. If the Amendment were drawn in much narrower terms, referring only to price sensitive disclosure, that would be another matter. But as it stands, it seems to me to be impracticable, and we would not be able to support it from these Benches.
§ Lord CULLEN of ASHBOURNE
I think there is considerable difficulty here. I quite see that there is no point in shareholders being given a whole lot of information in which they are not interested. The difficulty is really to decide what is price sensitive and what is not. It is a question of judgment. Various things taken together can become price sensitive. I am speaking as a simple stockbroker and not as a politician. I should like to think that between us we can somehow work out a way by which, quite unintentionally, we do not have a whole lot of insiders created and difficulties occurring. This may not be the right Amendment. Let us look at it again on Report stage, if the noble Lord decides to withdraw it.
§ Lord TERRINGTON
I have listened very carefully to the remarks from all sides of the Committee and I think it has been an interesting discussion. This is a very difficult problem. I accept the remarks of the noble Lord, Lord Jacques, and I appreciate the context in which everyone has taken part. I should rather like to reserve judgment on this matter. I have discussed it carefully with the Stock Exchange Council. We are most anxious to have this in the Bill. I am sure the Council will read very 109 carefully what everybody has had to say, and I shall be going back to them for further discussion. I will reserve my position until the next stage, and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 agreed to.
§ [The Sitting was suspended at twenty-five minutes before eight and resumed at five minutes past eight.]
§ Clause 18 [Restrictions on general duty under s.17]:
The Earl of MANSFIELD moved Amendment No. 11A:
Page 15, line 39, leave out ("substantial").
The noble Earl said: The effect of this Amendment would be to remove the word "substantial" from the subsection. Clause 18(1) provides the restrictions on the general duty by which an employer is bound under Clause 17 of this Bill. Your Lordships will see under paragraph (e):
any information the disclosure of which would cause substantial injury to the employer's undertaking for reasons other than its effect on collective bargaining, …".
When the paragraph refers to "the employer's undertaking", when one thinks of it in terms of damage it is, of course, not only the employer's undertaking, it is also the employees' undertaking, and any disclosure of information which will do damage to the undertaking as a whole is going to damage the viability of that undertaking in so fax as the employees just as much as the shareholders are concerned.
§ When this Bill first saw the light of day in the other place the phrase used was "seriously prejudicial to". The matter went into Committee in another place and was discussed on various other grounds, but nobody proposed that the words "seriously prejudicial to" should be disturbed. It was only on Report, late at night, in fact at midnight or thereabouts, that this Amendment was winkled through. I do not say that in any particularly contentious spirit, at least not at the moment. It was only at that stage that, without any debate, the phrase was changed from "seriously prejudicial to" to "substantial injury".
§ I should like to ask the noble Lord who is to reply, Why the difference? 110 Why the change? There was no debate and no explanation. What is different, in the view of the Government, between information which is seriously prejudicial and information which would cause substantial injury? If "substantial" in this context equals "serious", and I suppose it does (it certainly does in the legal sense when it comes to grievous bodily harm), are the Government suggesting that disclosure in this circumstance is more important than the serious injury which will be caused to the undertaking, that is to say to the welfare of everyone concerned with it, not least the employees?
§ I must mention the fact that, according to the provision as it now stands, if the information is required, even if it would cause substantial injury to the employer's undertaking, and the reason for causing that substantial injury is in connection with its effect on collective bargaining, then the restriction does not apply. In my submission, that is putting far too high a burden on the employer and it is in those circumstances that this Amendment came to be drafted. I will leave the matter there until I hear the reply. But, in any case, I beg to move.
§ Lord JACQUES
The phrase "substantial injury" replaces the original concept of "seriously prejudiced", which was used in the 1971 Act. The wording was introduced to enable the measure of harm to be assessed independently of the size of the undertaking. Previously, the harm might have been interpreted as being measured relative to the size of the undertaking. "Substantial injury" means that information can be withheld if any substantial absolute amount of damage is likely to result from the disclosure. This is the reason for the change.
This Amendment as it stands would mean that an employer was able to refuse to disclose information no matter how small the injury caused. In practice it would provide the employer with an excuse on virtually every occasion, as every request from a representative of a trade union is likely to involve a company in some expense or trouble in extracting the information, or in putting it into a suitable form for handing it over. Clause 18(2)(b) already allows the employer to refuse to compile or assemble 111 any information where this would involve work and expenditure out of reasonable proportion to the value of the information. If this Amendment is accepted he will be able to do so in any case where he could incur any expense, no matter how small, and it could be held that this caused injury to the undertaking.
In considering a complaint about failure to disclose, the Service would have to find that such a complaint was groundless if any expenses would be incurred which would mean that the undertaking would suffer some damage. The Government have attempted to strike a balance between the industrial relations benefits which would accrue from greater disclosure of information, and the cost which, of necessity, must be incurred. However, the Amendment, would wreck this delicate balance and enable an unscrupulous employer to avoid the provisions of these clauses. The present draft leaves it to the Service to decide in the circumstances of each case whether there is risk of substantial damage.
Many employers already disclose a great deal of information voluntarily without there being any compulsion in law, and the Government hope that they will continue to do so. There are, however, many cases where this does not happen, and if the word "substantial" is deleted it will enable such employers to quote these clauses as a justification for not giving the union representative the information which is necessary for collective bargaining. The effect on industrial relations would be to encourage strikes and disputes because there would appear to be legal backing for the employers' action. A similar Amendment to the Industry Bill was successfully moved by the noble Lord, Lord Campbell of Croy, but this, of course, was in an entirely different context. We hope that with that explanation the Opposition will withdraw their Amendment.
§ Lord DRUMALBYN
In opposing this Amendment, the noble Lord said that there would be a risk of substantial injury. This is not what the Bill says. The words in the Bill are,Any information the disclosure of which would cause substantial injury …".So that the employer would have to prove that certainly and beyond any 112 doubt it would cause substantial injury. I am not certain whether my noble friend wishes to stick to this Amendment, but I should have thought that it would be very much better to use the words, "would be likely to cause substantial injury", which I think would get over the difficulty. I am not at all certain that it is fair on the smaller employer to remove the relativity, as, according to the noble Lord's answer, this would do. It makes it an absolutely substantial amount. I am not certain that this is fair and I think this needs looking at again.
§ Lord JACQUES
There are two issues here. First, there is the issue as to why the wording has been changed from "seriously prejudiced" to "substantial injury". I have explained that and I think it is a reasonable explanation. I do not think it carries the right of the trade union any further it merely solves the problem of size which I said needed solving. The second question is this. Is it right that in the 1971 Act you should use the words "seriously prejudiced"—that is to say, you have the qualifying adverb "seriously"—while in this Bill noble Lords object to the adjective, "substantial injury"? It would seem that if they insist on this kind of Amendment they are acting very inconsistently.
§ The Earl of MANSFIELD
I hope the noble Lord will not take it amiss if I repeat the phrase that came into my head when I heard his explanation, which was "semantic waffle". It was almost too much to say that if an employer is put to any expense to disclose information it must cause him injury. That is giving the word "injury" far too high a meaning for the purposes of this argument. Equally, it would he true to say that any cost would be prejudicial. It is not the word "injury" as I understand it. Injury denotes something which is causing an injurious effect to the employer or the undertaking, not being put to the expense of finding out or disclosing certain information.
I have a suspicion—and it is no more than that—that this Amendment came about without explanation, because somebody thought it would tidy up the position and bring this Bill into line with the Industry Act, which as the noble 113 Lord, Lord Jacques, observed, has been amended in the interim period. If that is the real purpose behind this—and I suspect it is—the purpose of collective bargaining which is set out clearly in Clause 17(1) is quite different from the purpose under which information is gathered under the Industry Act. The latter is for the sake of co-operation in planning the future of the undertaking and its employees. Collective bargaining is a very different concept and I would suggest that disclosure for the purposes of collective bargaining is tantamount to public disclosure.
I was interested in the argument over the last Amendment, before we adjourned, regarding the use to which such information could be put. In my view, by its very nature collective bargaining depends on comparison and it would be wishful thinking to expect that information which is disclosed by one company will not be used by a union in negotiation with another. The temptation would be almost too much, especially when the officials of that union would feel it was their duty to use the information to further the interests of their members in another undertaking. Thus, when we are here talking about substantial injury it seems to me that injury could be caused very much more easily and have greater consequences than perhaps appears at first blush.
As I have said, I hope not too offensively, I am far from impressed with the noble Lord's explanation of how this Amendment came to be made on Report in another place. I would have hoped that he would be prepared to take the matter back to see whether substantial injury really means what he tries to allege it means as to opposed to what I have suggested it means. With the promise, if not the threat, that I may return to this issue at a later stage, for the moment I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 agreed to.
§ 8.21 p.m.
§ Clause 19 [Complaint of failure to disclose information]:
Lord DRUMALBYN moved Amendment No. 12:
Page 16, line 36, after ("part,") insert ("or unfounded,").
The noble Lord said: We are here dealing with the clause which deals with a complaint of failure to disclose information. This subsection says:
If the complaint is not referred to the Service under subsection (2) above, or, if it is so referred, on the Service informing the Committee of its opinion in accordance with subsection (3) above, the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether it finds the complaint well-founded wholly, or in part, and stating the reasons for its finding.
That seems to exclude the possibility that they find the complaint ill-founded or, as I put it in the Amendment, unfounded, and certainly excludes the possibility of their stating the reasons for finding it unfounded. The noble Lord may say that in the view of the draftsmen this is clear as it stands, but it is certainly ambiguous and we might as well make it clear.
§ Lord JACQUES
This clause as it stands specifically mentions only that the declaration shall state whether the Committee finds the complaint wholly or partly well-founded, and the reasons for its findings. However, it also says that the Committee shall hear and determine the complaint. It is inconceivable that the Committee would fail to announce its decision or give the reasons for its findings if it considers the complaint groundless. We do not feel that the Amendment is necessary.
§ Lord DRUMALBYN
I regret that, but if the noble Lord says it is inconceivable on the advice he has received, then that means that the Government cannot conceive of it happening. That seems to me to be the literal meaning of his words. I would have hoped that this could have been cleared up, but as legal advice has been taken, this is not the sort of point on which one would wish to make a stand, and I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 agreed to.
§ Clause 20 agreed to.
§ Clause 21 [Determination of claim and award]:
Lord JACQUES moved Amendment No. 13:
Page 18, line 34, leave out ("12(8)") and insert ("15").
§ The noble Lord said: This is a drafting Amendment consequential upon an Amendment made on Report in another place.
§ On Question, Amendment agreed to.
§ On Question, whether Clause 21, as amended, shall stand part of the Bill?
§ Lord DRUMALBYN
This clause deals with the determination of a claim for improved remuneration and conditions of work where information has not been disclosed which the trade union thinks should have been disclosed and where there has been a further complaint when the information is still not disclosed. Subsection 3 says that if the Central Arbitration Committee… finds, or has found, the further complaint wholly or partly well-founded, it may, after hearing the parties, make an award that in respect of any description of employees specified in the claim the employer shall, from a specified date, observe either—My purpose in raising this is to find out how the Government look at this provision. Is it intended to be a punitive or penal one or is it intended to enable the Central Arbitration Committee to decide what the wages should have been had certain information which has not been disclosed been disclosed, in other words, to find out what the wages should have been in the event of the negotiation reaching a conclusion in the ordinary way? It is important that we get this clear. I know this is the second time this provision has come in the Bill because it came also in Clause 16 relating to failure to comply with a recommendation for recognition. It has to be recognised that when an employer refuses to give information he does that in most cases for very good reasons, one reason perhaps being that it falls within one of the conditions set out in Clause 18 or else in accordance with the Code. He probably does it for the protection of the business as a whole, including the employees and shareholders, and he probably does it in perfectly good faith.
- (a) the terms and conditions specified in the claim; or
- (b) other terms and conditions which the Committee considers appropriate."
It would seem very odd in those circumstances if, simply because the Central Arbitration Committee disagreed 116 with him about whether the information should be disclosed, and came to the conclusion that it should be disclosed, the employer was sentenced, so to speak, to pay a much higher remuneration than he otherwise would have expected to do.
It has to be borne in mind that, whatever the Central Arbitration Committee may decide on, this may also be reflected in the wages and conditions that other employers are called upon to pay. So this could be a fairly wide-reaching decision. I quite understand that, if information is not disclosed, the trade union may be unwilling to go on with the negotiations and that a difficult situation may arise. This may be as good a way of settling the matter as any other, but what I am asking is how do the Government view this? Do they view it as a means of getting out of that difficult situation or as a means of penalising the employer for not disclosing information which he may in good faith for perfectly good reasons have decided not to disclose?
§ Lord JACQUES
It is expected that the Committee would use common sense. Your Lordships must bear in mind here that the Committee is dealing with what the outcome would be if information which has not been disclosed had been disclosed. Therefore, a good deal of common sense is called for. In general, it will set the terms at the level which would have been reached through free collective bargaining as if the information had been disclosed.
§ Lord DRUMALBYN
In other words, the Government do not envisage this as a penal clause but only as a means of reaching a conclusion where one has to be reached in a difficult situation?
§ Clause 21 agreed to.
§ Clause 22 agreed to.
§ Clause 23 [General exclusions from right under section 22]:
§ 8.32 p.m.
The Earl of GOWRIE moved Amendment No, 13A:
Page 20, line 10, at end insert ("or of an interruption in the supply of fuel and power which is beyond the control of the employer.").
§ The noble Earl said: The purpose of the Amendment is to ensure that employers who, due to lack of fuel or power as a result of industrial action in the public sector, are unable to provide work, should not have to make guaranteed payments to their workpeople. In recent years there have been examples of this sort of situation which have been caused by national rail strikes or by disputes in the coal mines or the gas or electricity industries. It is no part of my purpose to go into the rights and wrongs of such disputes or to say that they need never or should never occur in the public sector, but I believe that it will be appreciated on all sides that in this situation the ordinary private employer is helpless. He has no say in the negotiations and can have no influence on their outcome. He is already losing business and he has no income from which to pay his workpeople guaranteed payments.
§ All these situations involve disputes in the nationalised industries where the responsibility is primarily on the Government as employer to try to solve them. It is only right, therefore, that the State should, through the social security system, foot this particular bill. Let us take, for instance, the situation under the present counter-inflation policy. If the unions in one of the nationalised industries decide to strike for an increase in wages above the £6 limit, one presumes—and, indeed, hopes—that the Government will resist the claim. It is, after all, the Government's pay policy and the Government are the employer. Yet all other employers throughout the country will be expected to foot the bill by paying wages to workers who might be laid off as a result of the Government's policy both as a Government and as an employer. This will surely lead to great increases in the costs of production. How can industry, as it is so often exhorted to do, be expected to invest more when its resources are dissipated through meeting directly such bills of Government? I doubt, also, if we would be likely to continue to attract overseas investment in that kind of situation.
§ Arguments were put forward in another place on various Amendments which sought to widen the let-out for employers where lay-offs were due to industrial disputes. I recognise that this could provide too wide a door, but the present Amendment 118 seems to me to be narrow by comparison. It refers only to lay-offs due to lack of basic prime mover materials—fuel and power, in short—without which very few companies can operate. In these cases surely there can be no doubt where the responsibility lies. It lies with the Government, and the Government must therefore hear the ultimate financial responsibility.
§ Lord MELCHETT
The purpose of the scheme with which this Part of the Bill deals is to provide some statutory minimum form of protection to all employees against fluctuations in earnings resulting from short-time or lay-offs. The Amendment seeks to extend the trade dispute suspension beyond that in Clause 23(1) as it now is. It is the Government's view that the present form of Clause 23 represents a fair and equitable compromise between the interests of employers and employees. Indeed, as the noble Earl will no doubt know, the TUC has said that the suspension of the guarantee should be no wider than the disqualification from unemployment benefit, which, incidentally, they consider to be drawn too widely. In our view, it would not be equitable to penalise employees who are laid off through no fault of their own as a result of industrial disputes in which they are not concerned and in whose outcome they have no interest and nothing to gain.
Of course—and here I am afraid that I must differ from the noble Earl—the Amendment goes further than that, in that it seeks to penalise employees laid off through the interruption of fuel and power supplies resulting from any reason. That would, of course, include Acts of God. While the employers are also affected by events over which they have no control, we would argue that they are in a better position to take alternative action; for example, by arranging for different sources of supply, rescheduling work, and so on. Such options are not open to laid-off employees, who have no power to institute such action and who are dependent upon their wages. I think it would be fair to say that the noble Earl pointed out in some detail the difficulties which employers would have in this sort of situation, and employees would be in exactly the same boat but possibly sinking faster.
119 I acknowledge the difficulty of the subject, and the fact is that the positions taken by the two sides of industry are a good distance apart. The position the Government have taken in this clause is, I believe, some way between those two sides. The Government are not, as some would like, providing the very restricted definition of "trade dispute" in the unemployment insurance legislation, under which the disqualification would apply only if the dispute were actually at the employee's place of work. We are going much further than that, so that a trade dispute at any establishment of the employer, or even of an associated employer, will prevent payment of the guarantee. I believe that this strikes the right balance and I hope that, with that explanation, the noble Earl will see fit to withdraw the Amendment.
The Earl of GOWRIE
I welcome the noble Lord, Lord Melchett, to these discussions. I can see that he is forsaking the relative comfort of tents at "pop" festivals for the stormy and nail-strewn beds of industrial relations legislation. I feel for him and I remember my feelings when I first became involved in this kind of thing. However, in spite of his usual lucidity and courtesy, I am afraid that I am not at all happy with his arguments. The Act of God argument will not meet my point at all. It is far too wide-ranging. It is quite clear from my Amendment that I am referring to the effects on ordinary employers and employees of disputes in the public sector and, unless the noble Lord can satisfy me further, I am very loath to withdraw the Amendment.
§ Lord MELCHETT
It seems to me that the noble Earl has supported me in what I have said. He has said that Acts of God go very wide, and that is exactly what I said about the Amendment. In fact, it goes much wider. As he said, similar Amendments were discussed in another place at great length and ultimately not included in the Bill for the very reason that it was felt that they were extending the suspension of these payments to too great an extent. I have said to the noble Earl that by including Acts of God—in other words, going beyond trade disputes—he is going much further than the Amendments previously discussed. I think that in what he just said he was perhaps agreeing with me. I hope that in view of the fact that this Amendment goes wider than the previous Amendments which have been withdrawn, the noble Earl will at least reconsider this.
The Earl of GOWRIE
I do not feel that I can because my contention is that my Amendment is narrow. As I said, it refers only to lay-offs due to a lack of basic primary requirements of fuel and power, and it refers to situations which no company can control. I do not see how companies can be penalised for situations which they cannot control. Therefore, I shall press my Amendment to a Division.
§ 8.40 p.m.
§ On Question, Whether the said Amendment (No. 13A) shall be agreed to?
§ Their Lordships divided: Contents, 36; Not-Contents, 31.121
|Aberdare, L.||Gainford, L.||Rankeillour, L.|
|Balerno, L.||Gowrie, E.||St. Aldwyn, E.|
|Belstead, L.||Inglewood, L.||Sandford, L.|
|Brooke of Cumnor, L.||Kemsley, V.||Sandys, L.|
|Brooke of Ystradfellte, B.||Kinnoull, E.||Strathclyde, L.|
|Cathcart, E.||Lindsey and Abingdon, E.||Strathcona and Mount Royal, L.|
|Cork and Orrery, E.||Long, V.|
|Cowley, E.||Malmesbury, E.||Terrington, L.|
|Craigavon, V.||Mansfield, E.||Vickers, B.|
|Cullen of Ashbourne, L.||Molson, L.||Vivian, L.|
|Denham, L. [Teller.]||Mowbray and Stourton, L. [Teller.]||Wakefield of Kendal, L.|
|Drumalbyn, L.||Ward of North Tyneside, B.|
|Exeter, M.||Northchurch, B.|
|Balogh, L.||Brockway, L.||Collison, L.|
|Beaumont of Whitley, L.||Byers, L.||Crowther-Hunt, L.|
|Birk, B.||Champion, L.||Foot, L.|
|Harris of Greenwich, L.||Peddie, L.||Segal, L.|
|Henderson, L.||Pitt of Hampstead, L.||Shepherd, L. (L. Privy Seal)|
|Houghton of Sowerby, L.||Platt, L.||Strabolgi, L. [Teller.]|
|Jacques, L.||Popplewell, L.||Taylor of Mansfield, L,|
|Lee of Newton, L.||Ritchie-Calder, L.||Wigg, L.|
|Lovell-Davis, L. [Teller.]||Robson of Kiddington, B.||Wigoder, L.|
|Maelor, L.||Seear, B.||Winterbottom, L.|
Moved accordingly and, on Question, Motion agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 23, as amended, agreed to.
§ Clause 24 agreed to.
§ Clause 25 [Limits on amount of and entitlement to guarantee payment]:
§ 8.49 p.m.
§ The Earl of MANSFIELD moved Amendment No. 13B:
Page 21, line 29, at end insert—
( ) The amount of guarantee payment payable to an employee in any one week shall not exceed the amount, which taken together with his actual earnings for that week (excluding overtime premium), is equivalent to a week's pay for that employee, as defined.
§ The noble Earl said: This Amendment seeks to alleviate the somewhat ludicrous position which could be reached that a man would earn—if that is the right word—more money in a week for not working than he would actually earn for working. Possibly in these times of liquidity troubles the Committee may be generally sympathetic to this idea. Most voluntary guarantee wage agreements as they now exist are based on guaranteeing every weekly paid employee a minimum weekly wage. I should like to quote from the nationally agreed guarantee in the engineering industry, which probably covers a larger number of people than any other single agreement, and which in my submission is typical in this respect.
I quote this extract from the agreement between the Federation and the Confederation of Shipbuilding and Engineering Unions. It is dated December 22nd, 1964:
All hourly-rated manual workers who have been continuously employed by a federated firm for not less than four weeks shall be guaranteed employment for five days each normal pay week. In the event of work not being available for the whole or part of the five days, employees covered by the guarantee will be assured earnings equivalent to their time rate for 40 hours.
This would seem to be a logical, and indeed a fair, way of dealing with what
we on this side of the Committee concede can be, and frequently is, a problem. Since this agreement I anticipate that both the unions and the employers agree that the arrangement is equitable and, as I have said, logical.
§ We now have a situation where the Government propose to graft on a weekly rate so that we are then left with the position that if an employee between Monday and Thursday had already earned sufficient to bring him above the guaranteed weekly wage, he would not be due to receive any more money if he were laid off on a Friday, except that under this Bill as it now stands he would receive his rate which might well be more than the weekly rate which he would normally get if he did have the opportunity of working. I submit that the statutory scheme as contained in this Bill, which is really designed to impose or set out what I might call the minimum standards to be improved on by voluntary agreement, might well follow the same basis as that which has been generally adopted by agreement in industry.
§ It may be said—and it was said in another place—that the system as designed by this clause is simple and that any other system, while logical, would be too complicated to work. At various moments, both in Committee and later, the Minister of State expressed sympathy—if that is the right word—and he agreed to examine it further; but eventually on Report it was finally turned down on the ground that it raised too many complexities and that it was in the interests of everyone to keep the scheme simple. Perhaps I can say that this entire scheme is the brain child of the Government and therefore if the choice has to be between the manifestly absurd and the over-complex, then it is up to the Government to go away and think of something which is not absurd and not too complex. That should not be beyond them.
§ As I have said, the scheme which has been agreed between the Federation and the unions with the hourly-rated manual 123 workers in the shipbuilding and engineering industries has worked perfectly simply, and I should have thought that it would not be outside the Government's ability to make a scheme which is reasonably comprehensive and, at the same time, fair both to the employers and the employees.
§ If I may sum up the attitude of noble Lords on this side of the Committee, this is another part of the Bill which seems in a way to be one-sided and unfair. I appreciate that the whole aim of the Bill is to tilt the balance in a way which the Government conceive to be just; but no employer is going to accept that in the interests of simplicity—and that is what the argument seems to be—he must pay by way of guarantee more than a man's weekly earnings. I beg to move.
§ Lord MELCHETT
The basis of the guarantee payment scheme embodied in the Bill is that the guarantee should be a daily guarantee. The Amendment would, in our view, graft on to the daily guarantee system part of a weekly guarantee system, and it is this which leads to the considerable complexities which, as the noble Earl has mentioned, have already raised objections to a similar Amendment in another place. It also has other objections to which I will return later.
To try to graft the weekly limit on to the daily scheme would give rise to considerable problems both on principle and of drafting. For example, if an employee were laid off for two days but for the three days worked the employee's earnings were £1 short of the employee's normal week's pay, his guarantee pay would be only £1. Should the two days then count towards the five days' entitlement ill that quarter? Should the employee be paid £1 for two days in which he is being paid this entitlement in that quarter period? Obviously, it would be unfair if they counted. Other employees would be getting £6 for each of their five days in the quarter when they were not working.
The only way to deal with this problem would be to modify the whole entitlement provision by relating it in some way to the amount of guarantee pay actually paid. It is this which would lead to complexities. The noble Earl's suggestion 124 in our view is both unfair and would lead to complexities. The weekly limit would introduce considerable complications to the scheme which, as we acknowledge, is already unavoidably complicated enough. It would be neither in the interests of the employers who would have to administer the scheme nor of the employees who ought to be able to understand what they are entitled to.
I hope noble Lords will accept that circumstances in which an employee will, by virtue of the guarantee payment scheme, exceed his normal weekly pay are likely to arise only very rarely indeed. We are talking about a problem which is more theoretical than practical in our view. Further, if an employee by working hard, say, on piecework during a short working week, brings his earnings up to his normal weekly pay, that is no reason why he should lose the benefit of any guarantee pay for days he is laid off.
There is another point that I should like to make. I do not think the noble Earl entirely represented accurately what happened at the Report stage ill another place. It has always been the Government view that this was a problem and it has always been our view that any of the solutions put forward have made matters worse and not better. At Report stage in another place the noble Earl's colleagues acknowledged these difficulties which were raised by an Amendment similar to that which the noble Earl is now moving; but the noble Earl's colleagues added that it would be open to interested associations and organisations to make further representations to the Minister between then and the Committee stage here. I have to tell the noble Earl that no such representations have been received. It therefore remains our view that while it is acknowledged that there is this theoretical problem with what is in the Bill, it is a great deal better than any proposed alternative. I would ask the noble Earl to withdraw his Amendment.
§ The Earl of MANSFIELD
Perhaps I can say to the noble Lord, Lord Melchett, that there is such a thing as banging one's head against a brick wall. It is no good making ceaseless representations if one knows that they are going to be received unsympathetically and not be given a fair or logical hearing which is going to lead 125 to anything. Such representations as have been made are concealed—if that is the word—or, at any rate, contained in the Amendment that I have just moved.
The noble Lord says that any difference to the scheme proposed by the Government is going to make the whole system too complex. My complaint is this. Why should we have a scheme which works perfectly well so far as the engineering industry is concerned, a scheme based on hourly rates, muddled up with weekly rates? There is no need for it. If the Government had thought up a scheme which would take into account, let us say, a guaranteed week of 40 hours, it would be easy to graft that on to a scheme which guaranteed 40 hours' pay for a 40-hour week, whether or not the 40 hours were worked.
The next matter which the noble Lord went into—and he quoted a case—is another red herring: somebody who works hard on piecework for the first few days of the week and then finds himself without a job for the last day, and does not get any money because he has already come up to his weekly hourly rate. That is avoiding the issue so far as this Amendment is concerned. It is taken with his earnings for that week, excluding overtime premium and, in parenthesis, that means piecework, bonus rates, or whatever. If he is already over the earnings plus those bonuses, they would not he taken into account. Therefore he could work as hard as he liked and the position so far as he is concerned would be no worse.
I cannot say that I am entirely surprised by the noble Lord's attitude, but I am slightly disappointed. It is making an absurdity in this Bill. There will come a time when employers are going to tot up the absurdities and refuse to go along with them. It happened in the case of the trade unions, as they say, with the trade union law. It will happen just as assuredly with this Bill when it becomes an Act. It is pointless for me to argue any further. The Government have acknowledged the fact that it is difficult, but do not seem able to produce any more satisfactory arrangements. In the circumstances, and for the moment, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 25 agreed to.
§ Clauses 26 to 33 agreed to.126
§ Clause 34 [Unemployment benefit]:
§ On Question, Whether Clause 34 shall stand part of the Bill?
§ 9.2 p.m.
§ Lord MELCHETT
In advising the Committee to omit Clause 34 from the Bill I will, if I may, speak to Amendment No. 97, the new clause which the Government hope will replace Clause 34. In addition, I should like to speak to Amendments Nos. 43 and 101, which are consequential to the new clause contained in Amendment No. 97. The need for the new clause introduced by Amendment No. 97, and the consequential Amendments, arises because the Bill establishes entitlement to a number of payments equivalent to wages which can be awarded by a tribunal in respect of a past period for which unemployment or supplementary benefit may have been paid. In such cases the tribunal award would have the effect retroactively to disqualify the employee for receipt of benefit. It would obviously be against public policy to allow the employee to retain the money paid in benefit on top of the other payment, for example guarantee pay, arrears of wages, and soon. The new clause gives the Secretary of State power to make regulations which will enable the benefit in these cases to be recovered from the employer, so that the employee will receive from the employer the amount awarded by the tribunal less the benefit the employee has already received. The details of the procedure for recovery of the money will be laid down in the regulations.
Subsection (1) of the new clause replaces and extends Clause 34. It obviates the need to submit in draft to the National Insurance Advisory Committee regulations providing that a day for which wages or the other payments set out in subsection (7) are payable shall not be treated as a day of unemployment. Clause 34 was more limited in that it related only to regulations about dual payments of benefit and guarantee payments and medical suspension remuneration. Subsection (2) gives the Secretary of State power to make regulations to provide for the recovery of unemployment or supplementary benefit in a case where a tribunal award would lead to double payment to the employee. Recovery is possible in three ways: first, from the 127 employer; secondly, by requiring or authorising the tribunal to order the payment of a sum representing the benefit payment to the Secretary of State and not to the employee; thirdly, by requiring the tribunal to order payment to the employee only of the excess of the gross amount awarded by the tribunal over the benefit payment and enabling the Secretary of State to recover the amount paid in benefit from the employer.
Subsection (3) of the new clause provides that the regulations made under subsection (2) may, first, apply to one or more or all of the payments to which this clause applies, and either to unemployment or supplementary benefit or both; secondly, confer powers and duties on tribunals, the Supplementary Benefits Commission and insurance officers or other persons; thirdly, give an employee dissatisfied with the recovery of supplementary benefit the right of appeal to an Appeal Tribunal under the Supplementary Benefit Act 1966; fourthly, provide in tribunal proceedings for proof of benefit paid; and finally make different provision in different cases. Subsection (4) extends Section 114 of the Social Security Act 1975 in line with this new clause.
Subsection (5) provides that specified sections of the Social Security Act 1975 and Supplementary Benefit Act 1966 shall not apply to the recovery of benefit under this clause. Subsection (6) provides that any unemployment benefit recovered under this clause shall be paid into the National Insurance Fund. Finally, subsection (7) specifies the classes of payments to which this clause refers—that is, wages or compensation for loss of wages and any payment from an employer to an employee under this Bill and any similar payments from employer to an employee. I hope that this proposed extension of the present Clause 34 will answer some worries expressed by the colleagues in another place of noble Lords opposite, and that your Lordships will agree to this useful tidying-up of this important clause in the Bill.
The Earl of GOWRIE
It is not every day, or even late every night, that a Government delete an entire clause in a major Bill, and we must be grateful on 128 the principle that nearly every omission is liable to yield an improvement. We will have to take our own advice and our own time to consider what the noble Lord very clearly but in some detail, as he will appreciate, substituted in its place. I do not say that I have followed all the arguments though I did my best to do so. I should like to consider the new clause between now and Report.
§ Clause 34 disagreed to.
§ Clause 35 [Dismissal on grounds of pregnancy]:
§ On Question, Whether Clause 35 shall stand part of the Bill?
§ Lord WIGG
When we were on Second Reading the noble Baroness, Lady Vickers, raised the point—and I supported her argument—that it was important to know whether Clauses 35 to 45 should constitute a charge upon industry or whether in fact the matter should be dealt with by other methods, say, the Social Security Fund. I would submit to the Government that it would be an advantage if we could have a statement from them on this point at an early stage, because I believe this would facilitate our considerations. The noble Baroness, Lady Vickers, will speak for herself, but I personally have no objections to any part of Clause 35, which is the one we are discussing now, or to Clauses 35 to 45, provided that the charge does not fall upon industry. It seems to me, at a time when we are doing our best to get on our feet from an economic point of view, that a great deal of the success of the next stage in this country's economic development will depend on the viability of the smaller concerns. Therefore, particularly in the part of the world which I once represented in another place—that is the Black Country, the West Midlands, an area of small industries—to impose a charge of this kind on the smaller employer, particularly when he employs a large amount of female labour, is in fact to invite bankruptcies, inefficiency, and so on.
I am quite sure that, following what the noble Baroness had to say on Second Reading—and others supported her—the Government will have had second thoughts, and it seems to me it would be reasonable if the Minister was now able to tell us the Government's views 129 on this point. Have they considered what was said on Second Reading, and are they considering removing this charge from industry and tackling it in another way? I understand quite well that here we are moving towards the end of the Session and it may be very difficult indeed to amend this Bill as it stands; but, of course, one way would be to delete the whole of Clauses 35 to 45 and give your Lordships an assurance which perhaps would be repeated in another place to take this away and reintroduce in the next Session another measure which would deal with the point in a way which, whilst doing all that the Government want and all that every one of us wants to do in making it possible for a woman engaged in industry to have a child in a civilised way and not have to meet the grinding economic consequences of a shortfall in the weekly income, would recognise that this is a charge which ought to be borne by the community as a whole and not by particular industries, and particularly the smaller industries which are struggling for economic survival. Therefore, I would ask the Minister if he would find it convenient to give an indication of the Government's thinking on this matter at this stage, because I am sure this would facilitate our deliberations on these clauses.
§ Lord JACQUES
If your Lordships feel that that would be helpful and would expedite our business, I am quite willing to make a statement.
§ The Earl of MANSFIELD
So far as I am concerned, this is a debate—if it is to be a debate—on whether Clause 35 shall stand part of the Bill, and my copy of this Bill deals with dismissal on the grounds of pregnancy. I do not think there is any argument in the Committee that an employee should be treated as having been unfairly dismissed if the principal reason for dismissal is that she is pregnant, or for any other reason connected with her pregnancy. So far as I am concerned, the question of payment or anything of that kind does not arise until we come to the next clause, Clause 36. Therefore, I am wondering just what sort of manoeuvre the Government's side of the Committee is getting up to. Perhaps it would be better to debate Clause 35 as it stands, and thereafter get on to the rights of the good lady who happens 130 to be pregnant when we get to the proper place.
§ Lord WIGG
I can assure the noble Earl that I am not indulging in any manoeuvre at all. It seems to me—and I said this on Second Reading—that Clauses 35 to 45 are wholly acceptable, provided that the charge is not imposed upon industry. Therefore, it seems to me that if the Government would say, "No, we do not accept that argument", or, "Yes, we do" or, "Yes, we have it under consideration", then we should be able to get on and perhaps make greater speed. I do not manoeuvre, unless the application of common sense to your Lordships' procedure is a manoeuvre, in which case I plead guilty.
§ Lord WIGODER
Can the noble Lord, Lord Wigg, find any reference in Clause 35 to any charge to be paid by anybody for anything?
§ Lord WIGG
On the Question, Whether the clause shall stand part, I entirely agree. On the letter of the law, of course I absolutely agree. If it is inconvenient and your Lordships wish to look at Clause 35 strictly in terms of what is in the clause, I agree. I rose as soon as I could to say that, as we had on Second Reading taken Clause 35 and Clause 45 together, it might be convenient. If it is not convenient, we do not do it. All right. I do not mind.
§ Clause 35 agreed to.
§ 9.16 p.m.
§ The Earl of KINNOULL moved Amendment No. 13C:
After Clause 35, insert the following new clause:
.—(1) An employee who is the father of an expected child and who is living in the same household as the mother shall be entitled to three days leave from his employment without loss of pay, at the time of, or within four weeks after, the confinement.
(2) The Secretary of State may by order vary the period of three days referred to in subsection (1) above, or that period as varied from time to time under this section, but no such order shall be made unless a draft has been laid before Parliament and approved by resolution of each House of Parliament.").
§ The noble Earl said: I beg to move, but I would say at once that this Amendment affects neither Clause 35 nor Clause 36. The purpose of this Amendment concerns an issue which could be known affectionately as paternity leave. 131 Perhaps it is strange that in a very carefully worded set of clauses in this Bill concerning maternity, which gives protection to mothers against loss of their jobs and loss of income during confinement, no apparent thought has been given to the role and position of the father. Dumas once wrote that so heavy is the chain of wedlock that it needs two to carry it, and sometimes three. I believe those words are pertinent today. Today no longer can a proud father stand back and be congratulated, leaving the grandmothers, the sisters and the aunts to help his wife. Today the pattern of life has changed and one knows that so many female relatives of the family are working. We know that home helps are extremely scarce and the father is often left not only as an alternative, but as the only alternative, to holding the baby. I speak as the proud father of four children, and of course other noble Lords have far greater experience. But all fathers will know not only of the joy of the birth, but also of the pressure imposed at this time—helping with the baby, helping with the cooking and housekeeping and looking after the older children.
§ This Amendment, which would form a new clause, seeks to give the right to a father to be granted by his employer up to three days' leave without loss of earnings, in order to assist at home during the four-week period immediately after the birth of a son or daughter. I suggest to the Committee that this is a very small concession but is a humane right. The three-day period has been drafted into this clause, first to recognise the principle of paternal leave and the need for it; and secondly, not to place on the employer and industry too great a burden—and this is very much a point that the noble Lord, Lord Wigg, raised on the Question, That Clause 35 stand part.
§ What are the precedents for paternal leave? Is it accepted, for instance, in other countries? If one cites the excellent Second Reading speech on this Bill of my noble friend Lady Vickers one notices that Sweden recognises paternal leave as a legal right, and fathers may claim sickness benefit for looking after their children, up to 10 years of age, during their wife's confinement. How do employers regard paternal leave at 132 present? The Greater London Council—and I am glad to see the noble Lord, Lord Pitt of Hampstead, here—include it in their employment contracts. They grant up to, I believe, five days without loss of pay. The Civil Service include it under provisions termed "urgent domestic circumstances". And I am sure that 99.9 per cent. of employers would respect and voluntarily grant leave. But in a Bill which safeguards one parent against loss of job and loss of income, is it right to discriminate against the male parent?
§ The second part of my Amendment would give the Secretary of State power to vary this period of three days by order before Parliament. I hope that both the Government and indeed this Committee will consider this Amendment with sympathy, and will recognise the pressures that fathers often bear at times of a happy event. I beg to move.
§ Lord SEGAL
Will the noble Earl perhaps, for the sake of clarification, inform the Committee whether his Amendment is intended to include also the putative father in cases where paternity may be in doubt?
§ The Earl of KINNOULL
I am a little puzzled by the noble Lord's medical question. Will he put it again?
§ Lord SEGAL
In the case of a child who may happen to be born out of wedlock, would the noble Earl's Amendment also include the putative father of the child? In some cases, of course, the paternity of the child may even be in doubt and the subject of legal disputation.
§ The Earl of KINNOULL
If the noble Lord will read the Amendment, I think I am correct in saying it would cover the unmarried father.
§ Lord JACQUES
The Bill proposes to establish for the first time in this country a statutory right to paid maternity leave and the subsequent reinstatement of those women employees who wish to return to their work. An increasing number of employers already make some provision for their female employees under voluntary arrangements. The Government have never ceased to give this kind of thing their blessing. They believe the time has now come to take it a little further and to make it 133 compulsory that, provided a woman fulfils the conditions laid down in the Bill she shall have maternity pay and the right to return to work. In the case of the father there are fewer firms which grant the paid leave which this Amendment seeks to provide. We have never doubted or denied the fact that the Bill as it stands will impose some cost upon industry. We believe that at this point we have reached the limit and that in the present circumstances we should be unjustified in going as far as the noble Earl wishes. Let us learn to walk before we run.
§ The Earl of KINNOULL
The noble Lord is certainly poetic, but I am sorry to say that I find his answer very unsympathetic. One is asking for a minimum period of three days and one would hardly have thought that would impose an enormous cost on industry. Supposing that the Government have a change of mind and that this section, Clauses 35 to 44, moved away from being a charge on industry to the creation of a new fund, can the noble Lord say whether he would support this Amendment?
§ Baroness SEEAR
We hope that the Government will consider very seriously this proposed Amendment. It is not imposing a very large additional charge; it is a way of providing a service which is very badly needed at times when childbirth is taking place. It may be that the presence of the father in the home would ease the strain on the community social services which would otherwise have to step in to assist in a home in which a birth is taking place, or because the mother is away when the birth takes place elsewhere. If the father is able to have the charge of looking after the children during the time that the mother is in childbirth, this could be a saving rather than a cost so far as the community is concerned.
§ Lord WIGG
Regarding this section of the Bill, I am wondering whether the Minister could tell us something about costs. I am sure that he must have been able to do a few sums. Given the statistics we have about the birthrate and its distribution in this country, could the Minister tell us what the charge on industry would be if this Amendment were accepted? If he does not respond to my well-tentioned invitation to cut 134 short the discussion, perhaps he would consider what we could be told at a later stage regarding the charge of these commitments on industry. I am sure this information must be available.
§ Lord JACQUES
These costs were given twice in Second Reading. They were given when the Second Reading was moved and they were referred to again in winding up. My noble friend was not here on either occasion. He was here only during the middle period when he was querying why he did not get the costs. Here I am speaking from memory, but I think the costs of this Bill are 10p per week per worker. Eight pence of that 10p is in respect of the guaranteed payments and the 2p is the remainder, and that is largely the maternity benefit. So far as the costs of this Amendment are concerned, we just cannot get these costs overnight. I received the brief on thin Amendment only about two hours ago. When noble Lords submit their Amendments they expect to receive answers, but they do not allow time for them to be obtained. It is quite impossible for me to give the costs on this or to promise that they will be available in a day or two.
§ 9.26 p.m.
§ Lord HOUGHTON of SOWERBY
I do not think one needs more than 10 minutes to consider this Amendment. The Amendment proposes to make statutory provision for a compulsion upon employers to provide for these three days' leave with pay. In moving the Amendment, the noble Earl referred to certain sections of employees who have this concession. It has been obtained by negotiation on conditions of service, taking this kind of concession into account with other conditions of service, including pay, and when the pay of the public sector goes through the machinery of the Pay Research Unit and fair comparability is applied, then these additional concessions applicable in some sections of the public service are taken into account. There is a plus and a minus. There are plusses in the Civil Service and there are minuses, because civil servants do not get free holidays and other benefits in kind which are frequently given to employees in private industry. So one thing is taken along with another in reaching conclusions on different elements in conditions of service. That is all right.
135 If we reject this Amendment, as I think we should, that does not rule out any trade union or body of employees negotiating a concession of this kind with their employer, and it may be that the employer will say, "If I am to give this concession I must set it off against other parts of your conditions of service". But if there is to be a statutory provision for leave with pay at the expense of the employer, I think we have to consider whether it is reasonable as an obligatory and statutory requirement for the employer to bear the cost.
After all, the woman bears the child; there is no argument about maternity in her case. The father does not bear the child and different considerations may apply in individual cases as to whether the father wants three days' leave either at the time of the confinement or within four weeks of it, but the woman requires to be absent when she is having the child. There is no argument about that. I suggest that if employees want this it can be negotiated through the normal machinery. Alternatively, if it is regarded as something which is a matter of social service, of social benefit—a community right to have this kind of leave at the time of the woman having a child—then it should be provided for through the social services, and I believe that when we come to it the maternity payment should be provided by the social services. That is a matter which we shall reach shortly.
The unions have been saying for about three years that they do not want the law to interfere with free collective bargaining, free negotiation, and all the rest of it, but we have Bills before us at the present time which are littered with statutory intervention in the normal course of free collective bargaining. There are some things which we can justify being there but, with great respect to the noble Earl, I do not think this is one of them.
§ The Earl of KINNOULL
The noble Lord, Lord Houghton of Sowerby, said that so far as the male was concerned and as regards maternity leave, this could be negotiated, and we should leave it alone. I suppose he would agree that this should also apply to maternity, because in many cases the maternity benefits are agreed by negotiation. Does the noble 136 Lord agree with that? Does he see the necessity for having these clauses in the Bill? I do not know whether he wishes to reply to those questions now, but so far as the reply of the Government is concerned, the noble Lord said the whole thing would be too costly. Then, when asked by the noble Lord, Lord Wigg, to produce figures, the noble Lord said it was impossible to produce any figures. One would ask him on what basis does he come to the conclusion that it is too costly if he has no figures to justify it?
I withdraw my Amendment with unhappiness. In view of the time and the necessity for making progress on this Bill, I withdraw the Amendment, but do so with the right to return to it later.
§ Amendment, by leave, withdrawn.
The CHAIRMAN of COMMITTEES
Before I call Amendment 13D, I should point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 15.
§ Clause 36 [Rights of employee in connection with pregnancy and confinement]:
§ 9.32 p.m.
§ Baroness VICKERS moved Amendment No. 14:
Page 28, leave out lines 41 and 42 and insert—
("(a) from the Maternity Pay Fund to be established in accordance with Schedule (Provisions relating to the Maternity Pay Fund) of this Act to be paid a sum to be known as maternity pay and determined in accordance with that Schedule;").
§ The noble Baroness said: As the noble Lord, Lord Wigs, reminded us, I raised this on Second Reading, and was grateful for the support of the noble Lord. As the Bill is drafted, and will become law, I consider it will not help the employment of women. In view of the implementation of the Equal Pay Act due to come in in December this year, if employers of small and large firms have to pay both maternity benefit and equal pay, especially in those industries which employ large numbers of women, those women are unlikely to obtain employment.
§ With high unemployment among men, women of child-bearing age will not have an easy chance of getting a job. But if they do get a job, and it is essential that they work in a factory, it is likely that the cost of what they produce will have to 137 be put up because the employer will have to pay the extra amount. Since the Second Reading debate, I have had backing from women's organisations, including women in the media and women's rights campaigns and others. I should like to mention some of the points they have raised.
§ In view of the present economic situation, it is understandable that the Government should wish to put the cost of paying further maternity benefits, in addition to the maternity allowances already provided by the State, on the employers instead of on the State. However, under this Bill, the burden will be distributed very unevenly. Only employers of pregnant women would have to pay. This is bound to have a harmful effect on small firms and industries such as the textile industry which employ large numbers of women; whereas those industries like steel and coal which employ men will not have to pay any tax at all. They will not have to bear any of this cost.
§ I suggest, as I did on Second Reading, that childbearing is a function which benefits the whole nation as well as the family. This should be recognised by providing that employers throughout the nation should not bear the cost of maternity pay regardless of whether or not they employ pregnant women. The concept of providing maternity leave and the right to return to work for expectant mothers has a double function; it benefis the woman by giving them some security in their work and it benefits the nation as a whole. It encourages women, which is desirable, to remain in the labour force. If this responsibility for payment is left solely to the individual employer, the effect may well be the opposite to that intended.
§ If employers know they are liable to pay maternity benefits if they employ women liable to become pregnant they will be strongly discouraged from employing women of child-bearing age. I believe it may come to the fact that an employer may say to a woman, "Do you intend to have your family early or are you willing to work a number of years without having children?", therefore bringing pressure on the woman in a very undesirable manner. Therefore, I think employers will be tempted to cut 138 down the number of women in their employment, because they will not be able to afford it.
The National Council for One Parent Families is also worried about the present provisions of the Bill. They would like a form of maternity levy collected from all employees throughout the National Insurance Fund and paid out as enhanced maternity benefit allowance. Noble Lords may have seen an article in the Sunday Times which also comes out in favour of a State-funded scheme. Having discussed what happened in the other place, it says:
But a far more fundamental change ought to be pressed by all women and those concerned with their welfare …
and they go on about the difficulties of getting employment. They suggest that it is unfair that all the payment falls on the employers, and therefore they would like to have some maternity pay funded by the State.
§ I am advocating something slightly different from either of the proposals I have just mentioned, and that is a maternity fund based on the lines of the Redundancy Payments Act 1965. The effect of the scheme I am suggesting would also eliminate the women's need to go before an industrial tribunal if their employers are unwilling to pay them the maternity benefits to which they are entitled. Going to law, as we all know, is very expensive and time-consuming, both for the complainant and for the country. Women could apply directly for their maternity pay in the same way as for their maternity allowance. The individual employer would not be involved in this and therefore would not—I think this is very important—be in a position to withhold payment. If the provisions for maternity pay are left unchanged so that individual employers are liable to make maternity payments, employers will employ fewer women. I think this would be very unfortunate indeed in view of the clauses in the Sex Discrimination Bill. I think it might undermine that Bill.
Therefore, I have suggested in the Schedule on page 20 certain specific points. I do not wish to go through them all because I mentioned at the beginning that it is based on the Redundancy Payments Act 1965. But I think
I should point out paragraph 4 in particular:
Every person who, in respect of any week beginning on or after the commencement of this Schedule is liable to pay Class 1 or Class 2 contributions under the Social Security Act 1975, shall in respect of that week be liable to pay a contribution to be called a 'maternity fund contribution'.
This is based on Section 27 of the Redundancy Payments Act 1975, but it was limited in that case to the employers' contribution. It is my intention that the sum should be paid by employees as well, and the payments made by persons liable to pay Class 1 or Class 2 contributions under the 1975 Act. Class 1 contributions under the 1975 Act are contributions both from the earners and the employers. Class 2 contributions are the flat-rate contributions payable by self-employed earners.
§ The other paragraph I would draw attention to is paragraph 5 which is a provision enabling the Secretary of State to determine by regulations the amount of contributions and the period of maternity pay. This corresponds with the present Clause 37, the method of calculating the maternity pay, and this corresponds with Clause 38, and the conditions subject to which maternity pay is to be paid. Clause 110 of the Bill provides that any power imposed by the Act to make regulations shall be exercisable by Statutory Instrument subject to annulment in pursuance of a Resolution of either House. Therefore, there will be Parliamentary control over these regulations.
§ Paragraph 6 is based on Section 28 of the Redundancy Payments Act 1965, and applies to the provision of the Social Security Act with a view to enabling contributions to be collected. Paragraph 7 excludes certain provisions of the Social Security Act 1975 which are not appropriate, and corresponds to Section 28(3) of the Redundancy Payments Act 1965. There may be other provisions of the 1975 Act which should be excluded. If it is suggested that this is not the correct way of doing this, I could put down Amendments to the Social Security Act 1975 at Report stage, so as to make maternity payments payable under that Act. But I hope that what I have said tonight may receive the blessing of the Government, and that they will give me the assurance that they will consider this 140 suggestion, as I think it is much fairer than putting the entire payments on the employer, especially in view of the employment of women, which is of equal importance, particularly now that the Government are implementing the Sex Discrimination Act. I beg to move.
§ 9.42 p.m.
§ Lord JACQUES
I think that it would be useful to the Committee if I spoke on this Amendment now, and it might save some time. We are all grateful to the noble Baroness for giving us the opportunity of considering the financing of maternity pay. Your Lordships will be aware that this Bill was amended in another place so as to remove the obligation on a woman to notify her intention to return to work in order to qualify for maternity pay. In consequence, maternity pay becomes the right of all women with the requisite service qualifications. Obviously, this raises questions about the way such a scheme should be financed. I would not, however, wish to give the impression that we think the present arrangements do not have merit. In our view, they have very considerable merit. In any such scheme as that proposed by the noble Baroness, there would be substantial expenditure out of the public purse and a considerable increase in the bureaucracy needed to operate it. The present scheme involves no increase in public service and no expenditure by Government. It is straight forward and simple to understand and is comparable to many employers' sick pay arrangements.
It is, of course, true that it would bear heaviest upon those employers whose labour forces were predominantly female, but I would point out that employments which are predominantly female are usually lower paid than employments which are predominantly male. This position will continue without discrimination after the operation of the Sex Discrimination Act. Consequently, there is a good deal to be said for leaving the cost where it lies.
§ Lord JACQUES
What I am saying is that employments which are predominantly female usually have a lower standard of wage than employments which 141 are predominantly male, and they will continue to do so without in any way breaking the Sex Discrimination Act, because they are dominated by women in the one case and by men in the other. In the industry dominated by women the men will get the same wage, and where dominated by men the women will get the same wage when they do that job. What I am saying, and this cannot be denied, is that in those employments where women dominate the rate of pay is lower than in those employments where men dominate, and statistics prove that. There is, therefore, a case for the cost remaining where it lies.
I am, however, aware that fears have been expressed that it will tend to militate against the employment of women. The Government believe that those fears, if they are in any way justified, are exaggerated. We acknowledge that there have been misgivings on this score. It is also true that if the financing of the scheme can be spread over employers in general instead of being concentrated on those who employ women the benefits of the scheme could be improved. This would be an important advantage. Your Lordships will be aware that in another place these provisions were criticised on the grounds that six weeks' maternity pay was insufficient and the two year qualifying period was too long. We might get away from those standards more quickly if the costs were spread. In the light of these factors my right honourable friends in another place undertook to examine whether some arrangements could be reached for spreading the load more widely among employers. I must emphasise in particular the words "among employers".
The Opposition spokesman in another place, in response to questions from my right honourable friend, confirmed that they were not seeking to shift any part of the cost of the scheme to employees. In the light of the discussion the Government have been considering what might be done. That consideration is continuing. I regret that I am not in a position today to make a definite response to the proposition advanced by the noble Baroness, except to say that I see quite substantial objections to the method which she has proposed for achieving her objective. However, if the noble Baroness is 142 willing to withdraw her Amendment I will undertake that between now and Report stage the Government will carefully consider, in the light of what has been said here today as well as what was said in another place, whether it is practicable, having regard both to the stage the Bill has reached and to the implications for public expenditure, at a later stage to introduce provisions which would have the effect of spreading more widely the financial burden of these provisions.
§ 9.47 p.m.
§ Baroness SEEAR
In his statement the Minister has not explored all the possible options for dealing with this problem. Clearly, we are embarking upon a new development in social policy and it is important that we get it as near right as possible and highly desirable that the matter should be considered again at Report stage when all the options have been laid before us, and when indeed the costing of the various options has been gone into in greater detail.
So far the options have included the one in the Bill which put the whole cost on employers who are employing women, the option of spreading the cost among all employers, and there is the third option contained in the proposal put forward by the noble Baroness, Lady Vickers, that it should become a social security charge financed through a special scheme similar to redundancy payment. I should like to suggest a further possible option which I hope the Government will consider while considering the proposals already presented. There is one point in favour of the option which I wish to present. All the options so far discussed are losing sight of one argument which lies behind the case for maternity benefit; namely, that where a woman intends to continue working and regards maternity as a short interruption while she is child-bearing, it should be regarded as a period off similar to sick pay and she continues on the books of the employer and this is a charge on her employer. It is distinct from the idea that the employer is responsible for maternity pay for all women he has employed, whether they return to work or not.
I should like to suggest that when a woman leaves employment temporarily to have a child the charge for maternity pay in the first instance is borne through 143 social security payments, however those may be financed, through some system of financing on a national scale along the lines proposed possibly by the noble Baroness, Lady Vickers. But in those cases where a woman takes up her option to return to employment and has in her mind intended all along to return, then the employer takes financial responsibility in that he then has to pay back into the Social Security Fund the amount that for six weeks has been paid out in maternity pay. This means that he is financing the woman who regularly continues to be his employee. That is, I think, the spirit which lay behind the idea of charging the employer with the cost of the woman's maternity pay. This seems to be equitable; but I see very little equity in charging to the employer the cost of maternity pay for a woman who has ceased to have anything to do with that employment.
It is clear that this evening we are not going to reach any conclusion on this matter, and it is highly desirable that we should not because there are all these various options and, for all I know, there may be other options which have not been put forward. It is quite plain that people are not satisfied to consider only the options contained in the Bill; that these are in a sense very radical changes of considerable cost, and that it is reasonable to ask the Government to consider all these proposals, their value in terms of social policy and their cost, and that we should be able to look at them again in detail on Report.
§ 9.52 p.m.
§ The Earl of MANSFIELD
It is to be welcomed that following the attractive, indeed compelling, argument of my noble friend Lady Vickers the Government have extended some sort of a hope, if not an indication, that they will think again over this rather difficult and vexed question of maternity payments. The next time this Bill comes before your Lordships it will be on Report, which is a much more formalised stage than that which we are conducting at the moment, and it will be much more difficult then to go into all these options again and really to discuss the Bill in the way one does in Committee; so to the extent that the noble Lord is, as it were, 144 putting off the evil hour until Report, he may be compounding the difficulties at a later stage.
One of the reasons I rise to speak now is to make perfectly plain the feelings that noble Lords on these Benches have on this whole question of maternity pay. I reinforce that we do not oppose the provision of maternity pay, but we do object to the fact that the scheme as propounded by the Government puts it on the individual employer who employs the individual lady in question, and that divides us from the Liberal Benches and possibly from the noble Baroness, Lady Seear. As my noble friend Lady Vickers pointed out, as opposed to some industries, including building and civil engineering, there are certain industries which use female labour; so that is one inequality. That means that an employer in the food, clothing or textile industry, for example, would have a very much heavier burden by virtue of the composition of his workforce. Thus, an equal contribution through the whole social security range would in our view be a more equitable means of satisfying an obligation which really should rest on society as a whole, even if, in the view of the Government, that obligation should rest on only one side of the industry.
Secondly, payments by the individual employer would also bear particularly heavily on the smaller employer and more particularly on the self-employed. Dare I mention too, on Members of your Lordships' House with female secretaries? A large firm, even if it does employ a certain number of ladies in its workforce, may not find it too oppressive to pay maternity pay; but a self-employed person with only a handful of employees would find that the payments become disproportionately onerous on his cash flow. As my noble friend succinctly pointed out, the eventual result of this would be that those of us who are self-employed would inevitably not employ women of child-bearing age. I cannot resist the facetious comment that that would be unfortunate. Indeed, that would also be a negation of the principles underlying the Sex Discrimination Act to which this House has devoted many hours. So that quite apart from any other consideration which has already been ventilated in this House, we believe that the burden should be spread over employers 145 as a whole, and to that extent the commitment of the Government to look at the whole matter again is to be welcomed.
§ 9.56 p.m.
§ Lord WIGG
It is a sad heart that never rejoices, and I am delighted that I stayed late enough to hear that the Government are reconsidering the matter. However, I must say that I did not think that my noble friend Lord Jacques did himself justice in trying to ride off my questions about cost. In the Second Reading debate, my noble friend Lord Hughes ventured the view that the cost would be of the order of £100 million to £120 million spread over industry as a whole. He then broke it down a little and said that it would be 10p per employee per week. He thought that that was inconsiderable. My noble friend Lord Jacques also gave the figures, but all he did was to repeat the 10p a week. The point which I made then, and which I now repeat, is that one cannot possibly assess what will be the burden on industry unless the matter is quantified. It has not been quantified and the only reason, I believe, why this has not been done is that the Government have not known how to do it. We want to know what the cost of the maternity charges will be spread right across industry.
§ Lord WIGG
I am sorry, but my noble friend can keep that to himself. I do not want that. He said that it would be a total of £120 million to be spread over the whole of this Bill on the basis of the previous year's figures, and that it would be £120 million if the Bill were applied as a whole. He then went on to say that it would be 10p per employee per week. The noble Lord, Lord Jacques, now says that the difference is 2p. I want that broken down. The Government have the figures. Why be coy about it? They either know what the figure is or they do not. What is the total charge on industry of the maternity clauses—Clauses 35 to 45—and what will industry have to bear? If the Government have been doing some sampling, perhaps they can ascertain whether the incidence in terms of cost will fall on the larger firms or on the smaller ones. I 146 entirely agree with the noble Earl, Lord Mansfield, and I made this point on Second Reading. My concern is with the small industries in the West Midlands. This will undoubtedly have the effect of making life much more difficult for them and, ultimately, it must work adversely to the interests of women employees. That goes without question.
I want now to turn to the practical considerations. We are now getting towards the end of September. This House and the other place have to consider the Bill. When we come back it will have to go back to the other place. With all this there is such a pressure time-wise that the operation really cannot be done properly. That is why I suggested what I did in the early stages in practical Parliamentary terms. Take Clauses 35 to 45, and take them right out. Then go away and think the matter through. Come back and tell us what the cost is and what the impact will be. The Minister has the support of the Conservative Opposition. They say that it should be spread right across industry. Come forward with a practical scheme which marks a step forward in terms whereby a woman bearing a child will be treated in a more civilised way from an economic point of view. But also look at the needs of industry and balance the two. See where the cost should lie and come forward with a scheme which has been worked out and which has not been produced as a result of a last-minute conversion on the part of the Government, because they feel that they will face an awkward political situation. Please do some sums and come back and tell us what the total cost will be. Do not try to ride it off with 10p, 8p and 2p a week.
§ Lord MOLSON
I am sure that the whole Committee will welcome the indication that the Government are prepared to look again at this problem. The representations have come from all three political Parties in this country, and notably from some supporters of the Government. I wish to raise only one point. It is a point of procedure, but none the less a point of some substance. The suggestion that the whole of this Part of the Bill—10 clauses—should be dealt with on Report stage surely is entirely wrong from a procedural point of view. I have frequently criticised the procedure in this House which puts too much detailed 147 work on to the Report stage. No noble Lord is really entitled to speak more than once on the Report stage. If this extremely complicated and important matter is to be revised by the Government, surely it ought to be dealt with on a recommittal of these clauses of the Bill. It need not take up any more Parliamentary time.
If the matter is thrashed out properly in a recommittal stage—which will give an opportunity again for points of importance which perhaps the Government are prepared to agree to to be reconsidered, and some slight redrafting to take place on the Report stage—that should not take any longer than the proposal that the noble Lord, Lord Jacques, has made that it should be dealt with on the Report stage.
Therefore as the Government have gone so far as to show a certain flexibility of mind in looking at this matter again, I hope that they will deal with it in a procedural way which enables it to be dealt with properly by a recommittal of these clauses, and that they will not attempt to push the thing through on the Report stage.
§ Lord HOUGHTON of SOWERBY
I am sure that the Government must have been giving more consideration to this matter than perhaps the remarks of my noble friend Lord Jacques implied. After all, it is many weeks now since Mr. Harold Walker, the Minister replying for the Government on the Report stage of the Bill in another place, said that the Government would consider this matter, although he entered a cautionary note that it was rather late in the day to begin to consider major changes of the Bill. But I am sure that the Government must have anticipated that this matter would be raised in your Lordships' Committee. They were not born yesterday.
Therefore I hope that consideration of this matter is quite well advanced, and if it is, surely it is not beyond the capacity of the Parliamentary procedure to introduce a new scheme into the Bill, even as late as this. But I sincerely hope that while the matter is under consideration the Government will bear in mind the comments being made from all parts of the Committee at the present moment. I am sure that Ministers concerned will have read the article in the Observer 148 newspaper yesterday, which drew attention to some of the weaknesses of the proposals as they now stand: that they would benefit the better paid women in steady jobs rather than the lower paid women in less secure jobs who would not qualify on the qualifying service condition for a benefit. They perhaps were going to be at a disadvantage. There would be the unmarried mother, for example, who might be holding employment for only short periods and who would be in serious difficulties.
There are suggestions there which I believe emphasise the desirability of doing something better, provided that the cost can be more widely spread. The real difficulty—I believe I commented on this during the debate on Second Reading—is that if the cost is placed on the shoulders of an individual employer, there is a limit to the burden which can fairly rest upon him. He is entitled to ask. "Why should this fall upon me? If it is going to fall upon me, then I must be permitted to take such action as I fairly can to avert too heavy an imposition on my resources." I think, with respect, that my noble friend Lord Jacques is underestimating the degree of discrimination that could follow the introduction of the scheme which puts the burden on the employer. I can understand the employer asking some rather personal questions. "How many children have many more?" "Are you on the have many more" "Are you on the Pill?" He has to measure his risk in terms of maternity. He has women employees and wants to know what the incidence of absence on account of maternity may be.
I think that we underestimate the effect of this on shopkeepers and on small businesses of one kind or another where the burden resting on one employer can be quite serious. I thought that a long time ago the Government had made up their mind to provide a comprehensive family endowment policy and put everything together instead of having family allowances here, tax relief on children there and now maternity pay somewhere else, or maternity benefits somewhere else. It seems to me that we have not yet got it right. We were going to have a tax credit scheme. That was going to sweep up the family allowances, the income-tax relief. That did not happen; 149 something else was substituted for it. It does not seem to me that we are getting anything coherent out of it. That is why I think something comprehensive should be considered in this connection.
I do not agree with my noble friend—and I am sorry that I seem to be in disagreement with him so much on the first day back, so to speak—in saying that this is a burden which should necessarily fall on the employer. He said that he emphasised those words, "the employers". Frankly, maternity is no business of the employer. He does not, so to speak, create this situation.
§ Lord JACQUES
Those were not my words. Those were the words used by both the Government spokesman and the Opposition spokesman in another place. The Government spokesman asked the Opposition if it were pooled whether they were seeking to unload some of the costs on the employees and they said, "No". They said they were content for it to be on the employers. I was quoting. I was not giving an opinion
§ Lord HOUGHTON of SOWERBY
I acquit my noble friend of that absolutely and I blame whoever said it from one side of the House or the other. If this is to be made a social benefit, which I think it should, then one considers separately how it shall be financed, out of the National Insurance Fund or otherwise. We have family allowances paid with contributions out of State funds. They are not part of a charge on the National Insurance Fund. It may be that a maternity pay scheme should be treated similarly or it could go on the Social Security scheme on the normal basis of contributions from employers and employees, and a contribution from the State. There are various options. But I do not think we ought to let pass the suggestion that maternity has anything to do with the employer.
The normal incidence of sickness applies to both men and women. Men have not yet begun to have children. The incidence of sickness is part of the hazards of employment. A man can get 'flu at work by reason of the conditions by which he is employed. A woman could contract some illness. But in the normal course of work women do not become pregnant. That differentiates the 150 normal incidence of sickness from the normal incidence of pregnancy.
I think there is a distinction between the two. Therefore, there is no reason at all why employees, as a matter of principle, should not contribute something to their own or their wife's maternity benefit. It is a question of how you look at the whole system of payment for a social benefit. I do not think anyone need take a dogmatic stand on a matter of this kind. At the end of the day if the benefit can be spread—whatever basis is acceptable for spreading it—it should be accompanied by improved conditions for the grant of maternity pay. That is the important part from the employees' point of view. Those are my observations on this delicate matter.
I was very interested to hear what noble Lords had to say, especially the noble Lords, Lord Houghton of Sowerby and Lord Wigg. I am grateful for their support. I was disappointed by the answer of the noble Lord, Lord Jacques, particularly that women in certain industries will always be low paid. They will not get the pay rises which they might get if employers have to pay these extra insurance contributions for their maternity benefit. I should like to remind him that in the EEC countries it is usually done through social security, and it seems a pity that only the Republic of Ireland and ourselves have a different method at the present time.
I meant the majority. I think you will find that that is so. I do not see why we cannot have a major change. There are 46 new Amendments put down by the Government to this Bill; it is a completely different Bill since it came from the other House, and I do not see any difficulty in making a further change which will be beneficial and which is desired by women. The noble Lord has no reasons for fearing their anger over this. It would help industry tremendously. Therefore, during the few days that he has at his disposal, I hope he will take the suggestion of my noble friend Lord Molson and deal with the matter under 151 the procedure which he put forward. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 10.12 p.m.
§ The Earl of KINNOULL moved Amendment No. 15A:
Page 28, line 45, at end insert—
("( ) In determining entitlement to any benefit connected with pregnancy or confinement, whether or not that benefit arises under subsection (1) above or under a contractual or other agreement made by the employer, no distinction shall be made concerning the marital status of the employee, so that all such benefits shall be granted equally to employees irrespective of their marital status.")
§ The noble Earl said: This is a short but, I believe, important Amendment. Clause 36, as the Committee will recall, concerns the rights in connection with maternity and confinement, all of which are specially well-timed in view of the fact that it is International Women's Year. As the clause is drafted, fears have been expressed by a number of women's organisations concerning the unmarried mother and how she will find herself treated under this clause. The cause for that concern is not that the rights under Clause 36 will exclude unmarried mothers—and perhaps the noble Lord replying for the Government will confirm this—but that discrimination between married and unmarried mothers already exists in certain negotiated arrangements for paid maternity leave. In the case of the teachers' profession, the regulations for paid maternity leave extend to 18 weeks, which is far more generous than the statutory period suggested under this Bill of six weeks. These regulations apply so far as unmarried mothers are concerned only at the discretion of the local education authority.
§ These discretionary powers are used in varying ways, and in certain cases unmarried mothers have not been granted this 18 weeks maternity period. This discrimination is hurtful, unkind and patently unfair. The effect of this Amendment would be to clear up any discriminatory arrangements already in force and prevent any in the future. Some fears may be expressed that this Amendment, if accepted, would interfere with negotiated contracts already in being. My answer to that criticism is that if any interference to an existing contract occurs, 152 it will be very minor in character but would safeguard a section of our society, the unmarried mothers, who do not deserve the indignity of being treated as second-class citizens. I beg to move.
§ Lord JACQUES
Under the maternity clauses as they stand, an employer will have an obligation towards his employees in respect of both maternity pay and reinstatement, whether or not such employees are married. There is no way in which he will be able to avoid his obligation under this head by reference to the marital status, or lack of it, of the employee. The only quarrel we have with the Amendment is that we feel it is unnecessary and we hope that, with this explanation, it will be withdrawn.
§ The Earl of KINNOULL
I know the hour is late and, obviously, it is my fault if there has been some misunderstanding about this, as perhaps I did not explain the purpose of the Amendment clearly enough to the noble Lord. It is not that under this clause the unmarried mother is not looked after; it is that in the case of the teachers' negotiated contract a mother may not get the benefit of that negotiated contract because she is unmarried. What I am suggesting by this Amendment is that instances under Clause 36 and also outside negotiated contracts should be covered. Perhaps the noble Lord would be good enough to look at that again. I am waiting for an answer. Perhaps the noble Lord would wish to look at that again.
While the noble Lord is looking at this point, I should like to support this Amendment. I have previously raised this point in connection with the Sex Discrimination Bill. As I understood it then, the reply from the Front Bench opposite was that they were going to circulate some local authorities who were known to take this action, in order to prevent it happening in the future. We now have a definite Amendment, which might be helpful in consolidating any action which is to be taken. Perhaps the noble Lord would let me know whether local authorities have been circulated, since these are known to be the chief offenders, as I understand it, in regard to education, or whether any further action is necessary on the lines suggested by the noble Earl.
§ Lord JACQUES
I will undertake to write to the noble Earl, and to send a copy to the noble Baroness.
§ The Earl of KINNOULL
May I ask with what sort of comment? Having received that undertaking, I am happy to seek leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
The CHAIRMAN of COMMITTEES
Before I call Amendment No. 16, I should point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 16B.
Lord JACQUES moved Amendment No. 16:
Page 29, line 12, leave out from ("and") to ("she") and insert ("(c)").
§ The noble Lord said: With the permission of the Committee I will speak to Amendments Nos. 16, 17, 18 and 20 together. All of these Amendments are to correct a drafting error. An Amendment was promised in the other place. It was moved and in fact the promise was fulfilled, but the Amendment was badly drafted and it is hoped now to correct that drafting.
Page 29, line 15, after ("practicable") insert ("(i)").—(Lord Jacques.)
Page 29, line 17, after ("and") insert ("(ii) in the case of the right to return,").—(Lord Jacques.)
§ Clause 36, as amended, agreed to.
§ Clause 37 [Maternity Pay]:
Page 30, line 16, leave out ("or (3)") and insert ("(c)").—(Lord Jacques.)
§ Clause 37, as amended, agreed to.
§ Clauses 38 and 39 agreed to.154
§ Clause 40 [Right to return to work]:
§ 10.22 p.m.
Baroness VICKERS moved Amendment No. 23:
Page 31, line 35, after ("job ") insert ("or a job similar to that").
The noble Baroness said: I should like to move Amendment No. 23 briefly. In the clause, at line 35, it is stated that a woman must come into
the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent.
I agree fully that the terms and conditions should not be less favourable, but it is asking a great deal of employers to require them to put a woman back in the job she occupied under the original contract. There may be other equally good jobs—indeed, there will have to be if employers keep to terms and conditions which are not less favourable—but they need not necessarily relate to the original job in which the woman was employed under contract. As I understand it, during the months of her pregnancy other persons will have to be employed to take her place. It will be very unsettling for both if the person doing the job is unnecessarily changed. It is also very unfair to the employer, who has had to retrain somebody for the job concerned. The woman who held the job originally probably knows more than one job in the firm, whereas the one who is taken on in her place will have to be trained for that specific job. Therefore, I hope that the noble Lord will accept my suggested Amendment. It is quite simple. It clarifies the position in regard to the employer and also will help the employee. I beg to move.
§ Lord JACQUES
The definition of "job" in Clause 40(2) already ensures that the clause will give effect to the intentions behind the noble Baroness's Amendment. By stating that "job" means "the nature of the work which she is employed to do", subsection (2) provides that the definition is not narrowly tied to the identical post which the employee had occupied before taking maternity leave. In our view the intentions of the noble Baroness are already achieved by subsection (2), and we hope that with that explanation she will feel able to withdraw her Amendment.
I am not very satisfied with that reply because it is not clear. One has to look at another part of the Bill. Any woman reading Clause 40(1) would consider that she was going to be given back her exact job again—that if she was a secretary she was going to get that exact post. If, however, the noble Lord tells me that it is not the same, I hope that both the employer and the employee will have the same understanding. I suggested in the Second Reading debate that in view of this highly complicated Bill it might be necessary to have a simple pamphlet pointing out the rights of the employee under this Bill, as the employer will obviously get legal advice. I am not very satisfied with what the noble Lord has said. If, however, he can convince me that this can be done, I will withdraw the Amendment.
§ Lord JACQUES
The noble Baroness is seeking to amend Clause 40. I am saying that Clause 40 achieves the objective which she has in mind. The same clause, not some other part of the Bill, achieves her object.
This is where I beg to differ, but if I am not going to get any further with the noble Lord I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 40 agreed to.
§ Clauses 41 to 43 agreed to.
§ Clause 44 [Interpretation of sections 36 to 43]:
§ 10.26 p.m.
Baroness VICKERS moved Amendment No. 26:
Page 35, leave out lines 9 and 10.
§ The noble Baroness said: This provision will be very difficult to implement; "expected week of confinement" means the week in which the confinement is expected to take place. It will be extremely difficult for the woman to know exactly when this is going to take place. One knows that infants do not appear at the exact time when they are expected. If a woman has to give notice in advance concerning this, it would be very much better if these lines were left out of the Bill because I do not think they are workable. I beg to move.156
§ Lord JACQUES
I must apologise to the noble Baroness. We had understood that Amendments Nos. 14. 24, 26, 27 and 107 had one objective. When the noble Baroness withdrew Amendment No. 14 on the undertaking given to promise the pooling of the cost between now and Report stage, I thought she had withdrawn the whole batch of Amendments.
I am afraid that these Amendments are completely different. They do not tie up at all with the others. If, however, the noble Lord will consider them before Report stage, I shall be only too pleased to put them down again.
§ Amendment, by leave, withdrawn.
Baroness VICKERS moved Amendment No. 27:
Page 35, leave out lines 22 to 32.
§ The noble Baroness said: I presume that what the noble Lord has said refers also to these two lines. Therefore I will withdraw the Amendment on the assurance that he has given me.
§ The Earl of MANSFIELD
Before my noble friend withdraws her Amendment, is the noble Lord, Lord Jacques, saying that Clause 44, which is what I might call a mini-interpretation clause, is not worthy of debate at this moment as opposed to when the Government have had a chance to look again at and to rethink all these clauses relating to maternity payment? As I understand the position, what my noble friend is seeking to do is to discuss what is meant by "the expected week of confinement". That is quite irrespective of who will pay for the lady's maternity payment when eventually she gets it—whether it is her own employer or whether it will be spread among the field of employers as a whole. I do not want to go over old ground, but I should have thought it would be wrong to say that it should not be discussed as of this moment because the Government are going to review the whole method and type of maternity payments. Similarly, with respect to the noble Lord, Lord Jacques, I should have thought that if my noble friend wants to discuss the meaning of "a week", and so on, it is 157 up to her to discuss it at this stage and up to the noble Lord, Lord Jacques, to answer any such questions as she may have.
§ Lord JACQUES
I suggest that it would be convenient for the Committee to adjourn now and for us to resume tomorrow with Amendment No. 27. That will give me a chance to look at the issue which has been raised.
§ Lord PITT of HAMPSTEAD
Before the Committee decides on that I am not quite sure that I realise why we should be having a long debate on the definition of the term "expected week of confinement". I must admit that these days I do not do much midwifery, but when I did I was always signing certificates for the expected date of confinement; so every pregnant woman has an expected date of confinement, and the week in which that date occurs is the expected week of confinement. I cannot see why we are having this long debate.
§ Lord JACQUES
I am suggesting that we now adjourn at Clause43 and resume tomorrow at Clause 44, when the first Amendments will be Amendments Nos. 26 and 27.
The CHAIRMAN of COMMITTEES
As I understand the position, the noble Baroness, Lady Vickers, has moved Amendment No. 27 and she has not at the moment withdrawn it, so that the Committee is in the position of discussing Amendment No. 27.
§ The Earl of MANSFIELD
My understanding is that, with the leave of the Committee, my noble friend has withdrawn Amendment No. 26 and we are therefore unfortunately precluded from discussing that particular Amendment; but I leapt to my feet in time and, if my noble friend so wishes, tomorrow afternoon we can continue with the exciting Amendment No. 27.
§ Lord STRABOLGI
This may be a convenient moment for the Committee to call a halt, and I beg to move that the House he now resumed.
§ House resumed.
§ House adjourned at twenty-seven minutes before eleven o'clock.