§ 5.20 p.m.
§ Lord Monson
My Lords, I beg to move that this Bill be now read a Second time. In view of the ambitious-sounding title, I think the first thing to be said is that this is a modest and strictly limited Bill. Its aim is simply to remove one paragraph from the 1975 Sex Discrimination Act—namely, subsection (2) of Section 13, and that is all. It is complete in itself and is decidedly not the first step in some insidious attempt to water down, to undermine or to chip away at the 1975 Act in its entirety. I thought it right to mention this because I am on record as having quite strongly opposed a great deal of the 1975 Act.
I am and always have been wholeheartedly in favour of the voluntary and spontaneous sweeping away of all unnatural barriers to human achievement and to human fulfilment, a process which has been evolving over the past 60 years or more. The career of our present Prime Minister is a case in point, as are the careers of most noble Baronesses in this House. All of them got where they are today, as the saying goes, without any recourse to coercive legislation. I would concede that the law does have a part to play in ensuring equal pay for equal work, equal taxation treatment, equal social security benefits, equal pension provisions, and, I might add, equal retirement ages. 1295 But where the law starts to enforce social engineering I do not care for it one little bit, and have never pretended otherwise.
However, my undeniable lukewarmness about anti-discrimination laws in general has not, I would contend, clouded my judgment about subsection (2) of Section 13. Nor has it led me into exaggerating its unpleasant effects, because there are many noble Lords and indeed many honourable Members in another place, who, unlike me, are wholehearted supporters of 99 per cent. of what is contained in the 1975 Act but who feel as strongly as I do that the subsection is iniquitous. Indeed, it is quite possible that they feel this even more strongly than I do, and with good reason. Subsection (2) because of its intolerant and extreme nature casts a dark shadow over the entire Act, and provides wonderful ammunition for anyone who wants to damn the Act as a whole.
For the benefit of those of your Lordships who have not had the opportunity to study the subsection in detail, let me try to give the gist of what it says. Effectively, it imposes a specific obligation on highly-respected, old-established, autonomous, professional bodies such as the Bar Council, the Law Society, the General Medical Council, the Institute of Chartered Accountants in England and Wales, the Royal Institution of Chartered Surveyors and so on. The obligation which it imposes is as follows. When these associations interview candidates for admission into the profession in question to ascertain whether they are of sufficiently good character to merit admission—candidates who, of course, have studied for five or six years at least and who have passed all the relevant exams—they are obliged by this subsection to consider whether the candidate has ever committed an act of unlawful sex discrimination. If so, it must be counted as a black mark against him when assessing his character qualifications, with the clear implication that under certain circumstances the right of entry into the profession must he refused, and the candidate debarred from pursuing his or her chosen career.
The first, though by no means the most important, objection is that these respected and independent bodies are no longer allowed to exercise their good sense and the accumulated wisdom of many decades, but must instead submit to Parliament's conception of what constitutes "good character". But that is perhaps the least of the objections. Far more important is the fact that the candidate's future can be put at risk even though no positive proof of the alleged offence is submitted. The subsection merely stipulates "evidence tending to show", not "evidence showing", mark you, nor even "evidence tending to establish", but "evidence tending to show", and you cannot get much more tenuous than that. And, on top of it all, no provision whatever is made for the candidate to say anything in his or her defence.
Furthermore, there is absolutely no limitation of time, no requirement that the alleged offence must have been a recent one. Even an act of sex discrimination committed 10 or 15 years ago can count against a candidate. In other words, the writ of the Rehabilitation of Offenders Act 1974, to which all political parties subscribe, simply does not run as far as this subsection is concerned. Nor do the acts of discrimination have 1296 to be frequent or sustained—one single act will suffice to endanger the individual's future.
The act of sex discrimination need not be one which the average, fair-minded man or woman would consider particularly important or serious. Yesterday the House was debating Lord Houghton of Sowerby's Slaughter of Animals Bill, so let me pluck an example from that sphere of human activity. Let us suppose that the newly promoted manager of an abattoir were, in ignorance of the regulations—and of course ignorance is no defence—to advertise for "slaughtermen" instead of "slaughter persons" or "slaughtermen, male or female" or whatever the correct designation might be. He would undoubtedly be committing an offence under Section 38 of the Act. It may be argued that in practice, as opposed to in theory, an isolated incident like that would not put his future career at risk, supposing he was aiming for a professional career. Possibly this is so, but taken in conjunction with one or two other minor peccadilloes it could be enough to tip the scales against him.
It is not only acts of sex discrimination committed, or allegedly committed, by the candidate himself that count against him—worse is to come. His career is equally in jeopardy should his agents or employees commit an act of discrimination even without his specific instructions, even without him having any knowledge of the fact. There is no requirement that the agent should have been acting specifically on behalf of the individual when the alleged act occurred; nor is there any requirement that the employee should have committed his discrimination during normal working hours.
Let us take the case of a small jobbing builder, who hopes one day to become a qualified surveyor, and who employs a craftsman who is saving up to buy a house and who therefore has taken a part-time job in the evenings totally unconnected with his normal daytime employment. Let us further suppose that his evening job is that of a barman—if one is permitted to use that word—at that well-known Fleet Street establishment, El Vinos. In that capacity he will almost certainly run into trouble sooner or later with a militant feminist demanding to be served standing at the bar rather than seated at the table. When he politely but firmly declines, as the rules of the house oblige him to do, he will certainly be committing an offence under Section 29 of the 1975 Act—but both he and his evening employer and his daytime employer may suffer if at any later stage they wish to obtain a professional qualification. The examples which I have given may seem laughable and in a sense they are, but they are by no means light-hearted; they are deadly serious—deadly serious for the individuals who may suffer in consequence.
I hope that I have said enough to convince your Lordships of the extreme and, indeed, draconian nature of this subsection. In fairness I do not think that it was ever intended to turn out this way. In 1975 no fewer than 83 Public Acts reached the statute book together with a number of Private Acts as compared with the normal annual average of about 55. It is perhaps not surprising that not all of the Bills received the thorough scrutiny which is their due. That is the penalty one pays for a very heavy legislative 1297 Session, although it must be said that it is not usually parliamentarians who actually pay the penalty.
The subsection was never debated on the Floor of the House of Commons although a certain amount of disquiet was expressed in Standing Committee. It did not reach your Lordships until well into July, only a fortnight before the House rose for the Summer Recess. There was no separate Third Reading. Indeed, the Third Reading was taken on the same day as Report, which was most unfortunate because otherwise things might have turned out differently. By the time that the Race Relations Bill reached Parliament several months later everybody was fully alert to the implications of the subsection. When the corresponding subsection in the Race Relations Bill, which was Clause 12(2), came up it was violently attacked from all sides of the House in very strong language. And by a considerable majority, with many Back-Bench Members on the Government side—which was then the Labour side—crossing the Floor to vote with the Conservatives and the Liberals against the subsection, it was thrown out. Ultimately, the Government of the day accepted that.
Two questions may be posed. First, why not wait for a general review of sex discrimination legislation? The answer is that it may be many years before that takes place and when it does it is bound to be both controversial and prolonged. This Bill today is uncontentious, or relatively so; it is simple; and it takes up very little parliamentary time. Moreover, the longer one waits the more probability there is that grave injustice will be done to individuals.
Secondly, it may be asked: why try and delete the subsection altogether; why not simply water it down and remove its most objectionable features? Well, simplicity, which I have just mentioned, is one of the reasons, and the fact that it takes up very little parliamentary time, which is always at a premium. The other reason is that in 1976, when we debated the Race Relations Bill, Parliament took the view that the corresponding clause in that Bill was so inherently bad that it was better to scrap it altogether than try and fiddle about and make improvements to it. The Labour Government of the day at first resisted that, but subsequently they came round—although they had a sufficient majority in the Commons to reject the Lords' amendment—to agreeing that the subsection should go. I think that I could guess why they did so—because even if one were to eliminate from the subsection the candidate's agents and his employees, even if one were to confine consideration to repeated, major and, above all, proven offences, one would still be left with the fact that, if a proven act of unlawful discrimination has been committed, then presumably the person who committed it will already have paid the appropriate penalty.
Subsection (2) effectively means that he or she has been punished twice for the same offence, and this surely offends against natural justice, as reasonable men and women perceive natural justice. In 1976 the noble and learned Lord, Lord Hailsham, urged your Lordships not to perpetrate a second injustice by passing subsection (2) of Clause 12 in the Race Relations Bill. This House agreed with him, and so subsequently did the Government. We now have an ideal opportunity to put right the first injustice—the primary injustice—and I earnestly trust that your 1298 Lordships will take this opportunity. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a—(Lord Monson).
§ 5.31 p.m.
§ Baroness Birk
My Lords, in his opening remarks the noble Lord, Lord Monson—who is having a bit of a swipe at sex discrimination legislation altogether—mentioned that he thought that women—I took it that he meant perhaps in this House—had got to their present position without coercive legislation. On that particular point, it is fair to say that your Lordships' House is more equal than the other place, because in this House we have 43 women Life Peers whereas in the other place there are only 19 women Members of Parliament. So we start with an advantage here. But I cannot agree with the noble Lord that perhaps luck plus a few other things can take the place of legislation, which I certainly do not find coercive.
I must say right away that I entirely agree with the noble Lord's criticism of the wording of this section. I find it extremely, draconian and oppressive. Therefore, my noble friends and I are sympathetic towards the principles underlying his criticism. Noble Lords will probably be aware that, in fact, this particular section was almost entirely lifted from the Consumer Credit Act 1974, which in its turn relied on the Consumer Credit Act 1973, which was introduced by the Conservative Government of that day. Let me hastily say that it does not make it any better that sections should be passed from one piece of legislation to another. But in determining whether an applicant for a licence is a fit person—and Section 25 (2) of the 1974 Act reads in this way—it then goes on (and I shall not delay the House by reading the whole of the subsection) having dealt with the questions of fraud, dishonesty and other provisions, to say in subsection (c):practised discrimination on grounds of sex, colour, race or ethnic or natural origins in, or in connection with, the carrying on of any business".Perhaps the Minister when he replies will be able to help us on that. But if, as we do, we take exception to the wording now in the Sex Discrimination Act, do the Government have any plans—and the noble Lord, Lord Monson, may also have a view on this when he replies—on leaving this in the Consumer Credit Act as well?
To return to the subsection which the noble Lord seeks to delete, it is only fair to point out that in practice it seems to have worked out very differently. Fortunately, there does not appear to be any evidence to suggest that there has been a draconian interpretation of the clause. I understand from the chairman of the Equal Opportunities Commission—who I understand will not speak in this debate because, under the Addison rules, the procedures of the House will not allow her to do so—that the Equal Opportunities Commission has, in fact, drawn attention in two or three cases to the existence of this subsection, but, of course, it has no mandatory powers to activate it and nor is it aware of the subsection being invoked in any way. In other words, the subsection has just been there as a deterrent. Therefore, the fears expressed—and I say this not to make a debating point, but I say it with great relief—by your Lordships during 1299 the Committee stage of the Race Relations Bill have not so far been realised.
I think that I should give an example of why it is necessary that something should take the place of this gap in the Bill if the noble Lord, Lord Monson, is successful in deleting the subsection just like that. Local authorities have wide powers of licensing for a great variety of businesses; for example, employment agencies and entertainment premises. In both cases the present Section 13(2) applies. However, while evidence of past sex discrimination would not lead to an automatic refusal of a licence, it would be taken into consideration as one factor, especially if the person involved is likely to have frequent contact with the public. But in both cases the justifiably disliked Section 13(2) at present provides a method—even as a background method—of dealing with the problems of sex discrimination. But if this section were to be deleted without any replacement of any sort, the only remedy available would be for an individual to appeal to the Equal Opportunities Commission. But, if the commission was aware of sex discrimination in an employment agency and the owner wished to open another branch, the commission would still be powerless because it has no powers to deal with what would, in fact, be a different business and another business.
Therefore, the real purpose of this section—and I imagine that this is why it was put in the Bill, as it was then, in the first place—was to draw the attention of licensing and other authorities to the fact that unlawful discrimination in this area was a legitimate criterion to be taken into account when assessing a person's suitability for an authorisation or licence.
I do not believe that your Lordships would wish that a person who had been found guilty of discrimination against women in the provisions made for customers in a public house or hotel and who persisted in what is an unlawful act, should be given a further licence to continue to discriminate. I agree that the wording of the section goes much further than that, but rather than delete the clause, would it not be better to seek to amend it so that the real purpose of what it is trying to do would be in legislation but in a very much better and far less draconian manner? The noble Lord, Lord Monson, said, "Why not water it down?" and answered his own question himself. This is a very important matter. It is not a question of watering down the section; it would be a question of completely redrafting it.
However, there are further reasons for not dealing with this in isolation, however much we may dislike it as it is. However, I believe that the noble Lord, Lord Monson, has performed a valuable service in voicing, so articulately and so strongly, the objections to this subsection. Yet I would hope that something more constructive than just a sheer execution would come out of this debate.
I understand that the chairman of the Equal Opportunities Commission offered to the noble Lord, Lord Monson, to write to authorisation bodies to inquire the extent of their use of the section, any problems in use that they have encountered, and what their views would be on the type of legislation which would cover the point without overwhelming it in this particular way. This information would, of course, be made 1300 available to your Lordships. From the assessment then arrived at it would be possible to look at the section in a realistic way and see how best it could be amended, what was needed and whether, in fact, something was needed in quite a different part of the Act. I think it would be better that amendments should be looked at consistently and not in isolation.
There is also a further reason for not dealing with it in this way. Despite the passage of the Sex Discrimination Act 1975, and the enforcement activities of the Equal Opportunities Commission, as reported in its five annual reports to date, there is still substantial discrimination on grounds of sex. It still persists in this country, and I think that most people would agree that neither the Sex Distrimination Act nor the Equal Pay Act is adequate. Both these Acts are in need of root and branch revision, especially in the light of the carefully thought out and detailed proposals for amendment put forward by the Equal Opportunities Commission in January 1980, which the Government are still considering.
For example, it is still the case that you can have two firms both employing men and women doing the same jobs. In one firm they could be paid the same while in the other firm there could be differences in pay, but no appeal to an industrial tribunal is possible as the law stands at present because the comparisons have to be made with people working at the same establishment. Nor does the legislation have anything to offer to the vast majority of women who are working in what used to be known as "women's grades" because they have no men who are doing the same or broadly similar work. This affects hundreds of thousands of women in the country, and is one of the fundamental sources of discrimination and inequality.
Then all benefits relating to retirement are outside the scope of the legislation—and I think the noble Lord said he agreed that something should be done about this, or I got the impression that he thought it was in the legislation, when indeed it is not. This relates to different treatment of two people who have been doing the same job with the same demands and responsibilities, but because one is a man and the other is a woman the Sex Discrimination Act provides no remedy for the inequality. Many further examples, with which I shall not delay noble Lords, have arisen in the past six years during the working out of this Act.
Then, because all previous legislation has been excluded from the scope of the Sex Discrimination Act, there are profound problems of inequality of treatment in the field of social security and taxation; and these are just two inequalities which cannot be dealt with under this legislation, or any other as it is. There is simply no remedy. It must therefore be clear that there is a pressing need for a substantial revision of the Sex Discrimination and Equal Pay Acts if they are to serve the purpose which Parliament intended; namely, to promote genuine equality of opportunity for men and women.
Therefore, when the Minister replies I should like him to give some indication of Government progress on this important matter especially as, if I may remind him again, the Home Office has had the proposals put forward by the Equal Opportunities Commission since January 1980, which is coming to be quite a considerable time. Therefore, the proper course, I would think, 1301 is not to move for the wholesale deletion of Section 13(2) by means of a Private Member's Bill. I say this not only for the reasons I have now given but because I believe that, if this happened and this matter was brushed aside, there would be far less chance of getting further legislation under way.
I think that the noble Lord, Lord Monson, has provided an enormous service in bringing this matter forward, if we can get an undertaking tonight from the Government that there will be some expedition in dealing with this question of the Sex Discrimination and Equal Pay Acts, particularly the Sex Discrimination Act. Because this is a matter of such great concern, it would seem to me that in having brought this forward tonight it would really push the Government into rather more immediate action; for what is otherwsise likely is that, even if this Bill gets a Second Reading in your Lordships' House tonight, I doubt very much, knowing the amount of legislation that there is in both Houses and the way that the other place is loaded up, if it would get very much further. Therefore, I believe it is preferable to consider this amendment in the context of a major Government amending Bill rather than to attempt to deal with it section by section, and in dealing with it in a major Government Bill it would have a far better chance of success and the noble Lord would have achieved his very worthwhile purpose.
§ 5.44 p.m.
§ Lord Foot
My Lords, I have listened with the greatest attention to what the noble Baroness has just been saying. I was indeed anxious to know what advice she was going to give to her noble friends as to how they should deal with this Bill. I listened to her final remarks and I came to the conclusion that she is going to vote against the Second Reading of the Bill. I hope that I am wrong about that.
§ Baroness Birk
My Lords, I do not intend to vote against the Second Reading of the Bill. So far as my noble friends on our side are concernd, it is entirely a free vote. It is up to them to decide.
§ Lord Foot
My Lords, I am much obliged, and very relieved to hear that the noble Baroness at any rate is not going to oppose the Bill at this stage, because it would be perfectly possible at a later stage, if she so wished, to move an amendment which would introduce an amended form of the subsection which we find so objectionable.
When I was contemplating this debate I made the mistake of thinking that this subsection which the noble Lord, Lord Monson, wants to delete is so indefensible that there was unlikely to be any serious debate on the matter. I made the same mistake, as a matter of fact, a few days ago in another connection. I thought that something was going to go through on the nod and it turned out that there was a debate lasting, I think, about two and a half hours. It appears to be a failing, perhaps, of my family, that we sometimes do not foresee when we are running into trouble.
My intention, therefore, would be not to argue the merits of Lord Monson's Bill. Indeed, I foresaw, and foresaw rightly, that he would deal with the matter so adequately on that ground that it would be unnecessary for me to add anything to it, but what I had intended 1302 to do was to make three short points. I wanted to point out first of all, as the noble Lord, Lord Monson, has pointed out, that this wretched subsection got on to the statute book almost by inadvertence; certainly by oversight. As he has explained, it was never debated on the Floor of the other place, and when it came up here the noble Lord, Lord Monson, himself was the only watchdog who barked. Unfortunately, through no fault of his, it was too late in the stages of the Bill for the amendment to be accomplished, and so it got on to the statute book.
But when this House had an opportunity of considering the merits of the subsection, as they did have when they had an exactly similar subsection in the Race Relations Bill a few months later, they threw it out neck and crop without the slightest hesitation, and by an overwhelming majority. The only people who voted in favour of the subsection at that time were the Government of the day and their supporters, who were brought in of course in order to support the Government of the day. Everybody else, with one or two minor exceptions, was wholly opposed to it.
That was the first point I wanted to make. The second point was that if you leave it here as it stands, or even if you do as the noble Baroness wants us to do, you amend it, water it down, or alter it, you still have a fundamental conflict between the subsection appearing in this Act and the corresponding Race Relations Act. There is nothing of this kind in the Race Relations Act; it has been taken out altogether. If therefore you were simply to amend this Bill and put the subsection back in an amended form, you would still have the flagrant conflict between the two Acts of Parliament, and you would perpetuate that absurdity, as indeed it must be.
The third point I wanted to make was that this is the sort of occasion, when a mistake has been made—and I think it is almost universally agreed that the original subsection was a mistake—when it is pre-eminently suitable that the matter should be attended to and put right in this House. What justification is there for our existence unless we take advantage of our revisory powers and functions in order to delete from the statute something which, if it had been properly debated, would never have got on the statute book at all?
Those were the three points I wanted to make. But, when I arrived at the House this afternoon, I found myself in possession of a briefing document issued by the Equal Opportunities Commission, and I wish to comment on that. I would say with the utmost respect that three substantive arguments are advanced in this briefing document—to the subject matter of which the noble Baroness made some reference—against Lord Monson's Bill, all of which seem to me completely devoid of merit.
The first of the three arguments—this is the one with which the noble Baroness concluded her speech—is that, if you allow this Bill to go through, it will merely be diverting attention, says the document, from the need to introduce:a wide range of amendments which the Equal Opportunities Commission think are desirable".I do not understand that argument at all. Why should it divert attention from other matters which the 1303 commission and the noble Baroness want to have attended to? In what way will they be inhibited from bringing forward another Bill to deal with the matters with which they are concerned? As the noble Lord, Lord Monson, pointed out, if this Bill receives a Second Reading today, then unless somebody is inclined to introduce an amendment in Committee it could go through completely on the nod from then on. There would be no need for a Committee stage, unless somebody chose to table an amendment, and if there was no Committee stage, it could go through on the nod to Third Reading and Report, and it would occupy perhaps an hour of the time of the House.
§ Baroness Birk
My Lords, is the noble Lord aware that the argument I was putting was rather different, and I think it does not appear in the document to which he is referring? It was my own argument, a political one. The point I was making was that having been convinced myself, so far as one can be, that although it is there (I have said that it ought not to be there) and has not done any harm, the fact that it has been so highlighted in this debate can be used as a prod (one needs as many prods as one can have, whichever party is in power) to try to get the necessary legislation through. I am afraid that if this goes through on its own, there will be an even longer time before the inequities, which are just as great in their own way, are dealt with at all. That was my argument and it is not what the EOC said.
§ Lord Foot
My Lords, I understand the distinction, but, with respect, I do not understand that argument. I can see no reason, if this Bill goes through in a short period of time in this House and then goes to the other House—and I hope goes through on the nod there—why that should discourage the Government from introducing more general legislation incorporating the sort of amendments the noble Baroness wants. She is very much more skilled as a politician than I am—I am an innocent in these matters—but I do not see why the Government should be persuaded to hold their hand simply because the noble Lord, Lord Monson, gets his Bill.
The second point which the briefing document makes is its suggestion that the very existence of this provisionhas a cautionary effect on anyone who is likely to have to satisfy an official body as to his or her good character".That is beyond me. It seems quite fanciful to believe that any individual who is intending to perform an unlawful act of discrimination, or is intending to do something not realising that it is an act of unlawful discrimination, will stand back and say to himself, "I shall refrain from doing that because at some future time, when I make an application for membership of some authority or body, that might count against me and against my good character." That seems an absolutely fanciful notion so far departing from reality as not really to be a serious calculation. That argument is supported by a statement in this briefing document which I suggest, with respect, if manifestly inaccurate, for the document says:The true force of this section is not that undue weight should be given to isolated acts of discrimination but, rather, that evidence of persistent or overt discrimination should give rise to concern".1304 I suggest there is nothing in this provision to justify that gloss or interpretation. In fact, it says that the authorities or bodies concernedshall be under a duty to have regard to any evidence tending to show that he"—the applicant—or any of his employees or agents has practised unlawful discrimination".If it had been the intention of Parliament or the authors of the Act to say that discrimination should be considered by an authority only if it was overt and persistent, it would have been very easy to say so, but as the noble Lord, Lord Monson, pointed out, one single act of unlawful discrimination is not only something which these bodies can consider; it is something they are under a statutory duty to consider. Therefore, that supporting argument advanced by the commission is really without any substance or merit.
The third argument they put forward is to make a comparison between this provision and the Race Relations Act, and they say:A similar clause in the Race Relations Act was removed after considerable debate in the House of Lords. At the time it was felt that such a clause would have serious repercussions and could affect a person's livelihood or career for the rest of their lives. In the Commission's experience, however, Section 13(2) of the Sex Discrimination Act has not had such far-reaching and dramatic effects".It seems that two interpretations can be put on that. The first would be that the commission are saying that in their experience these various authorities and bodies who are under this duty have in fact simply disregarded it and have thought it so contemptible that they have not applied it at all. If that is the case, that is surely another ground for getting rid of the wretched thing altogether.
The other interpretation that can be put on the argument is surely that the commission have in some way or other assembled a body of evidence and statistics which show that these various authorities and bodies, when they have been considering candidates for membership, have come to the conclusion that there has been no discrimination, or at any rate the commission have been able to find out how these various bodies have interpreted their duty under the section. But how could they have done? The proceedings before authorities and bodies of this kind, who are under a statutory duty to see whether a candidate is a man of good character, are, by their nature, wholly confidential. The Equal Opportunities Commission is not privy to what takes place on these occasions. It does not know, and there is no way in which it can assemble any statistics. I suggest that for the commission to say that in its experience Section 13(2) of the Sex Discrimination Act has not had such far-reaching and dramatic effects is really unsupported by any kind of evidence.
I conclude by saying that I very much hope that the Bill will receive its Second Reading. I very much hope that it will hurry through this House and get on to the statute book. I say that largely for the reason which I think the noble Lord, Lord Monson, mentioned towards the conclusion of his speech. If one, single individual has had his profession, trade or career irretrievably damaged by being regarded as a person of bad character because he has committed an act of dis 1305 crimination of this kind, I think that that is one occasion too many. I can see nothing but good if your Lordships' House will consent to the measure going forward to its further stages.
§ 6.1 p.m.
§ Lord Beloff
My Lords, my interest in this matter is primarily as chairman of the Dicey Trust, a body which exists in order to promote the appreciation of the importance in our society of the rule of law. The rule of law requires that laws should be germane to their purpose, readily understood, and incapable of being used to perpetrate injustice. The noble Lord, Lord Monson, has shown beyond a peradventure that the subsection that we are discussing conforms to none of those desirable qualities. It is obscure. It is probably unenforceable, partly for the reason that the noble Lord, Lord Foot, gave, and if it stays on the statute book, it can do nothing but discredit the operation of the law.
Those who attach a much greater importance than perhaps I do myself to laws about sex discrimination ought to be warned that if they insist upon this kind of language and this kind of provision, or if they put up delaying actions in order to prevent its removal, they will cast doubt on the genuineness of their concern about what actually happens, rather than about their wish to have certain things on the statute book. For that reason it is very important that we should show that when its attention is called to a manifest piece of statutory injustice and manifest confusion, this House should remove it.
I have of course been considering the actual content of the subsection and what it could imply. I have consulted the leading authority, which happens to be Beloff on Sex Discrimination—the noble Lord, Lord Foot, is not the only person with a family—and I discovered there that on the whole it seems to me that the question about admission to professional qualifications is possibly less important than the commission to follow a trade. I say that because, after all, most of the people applying to be admitted to the Bar or to practise the profession of a solicitor or an accountant will be so young that they would hardly have time to go in for nefarious practices such as sex discrimination. What would be alleged against them?—that they had bullied their sisters in the nursery, or something of that kind. But as the noble Lord, Lord Monson, pointed out, this is a serious matter for certain branches of business, and it has been suggested by the author of another text book on this law that it could apply even to membership of a trade union, where, by reason of a closed shop, admission to trade union membership was a prerequisite of employment. So when one starts looking into the subsection one finds that there are almost immeasurable depths of probably unintended iniquity.
The legislation that we have for discrimination on grounds of sex, and the much more important legislation (in my view) which we have for discrimination on grounds of race might from time to time require bringing up to date, amending in the light of experience. After all, one of the difficulties is that in the last decade we have launched into a whole new area of English law—the attempt to remodel attitudes by legal action, something which Dicey himself probably 1306 never envisaged. Therefore, it is not surprising that we should make mistakes. But what I find difficult to understand in the argument of the noble Baroness opposite is the point that because there are other mistakes that should be corrected, we should not correct a mistake which is brought to our attention in this way. I very much hope that the House will give a Second Reading to Lord Monson's excellent little Bill.
§ 6.6 p.m.
§ Lord Harris of High Cross
My Lords, from the Cross-Benches I am very delighted to follow two powerful speeches from the Liberal and Conservative Benches. In congratulating my noble friend Lord Monson on his persistence in this matter, I hope that he will not mind my revealing that this Bill is the first modest fruit of an informal association of Peers from various parts of the House, who came together earlier this year under the name of the Repeal Group. The intention of the Repeal Group was to make a modest beginning, with a very long-term endeavour to slim down the statute book, and to slim it down by the direct and simple means of identifying subsections, sections or other provisions, or, as we become better, whole Acts which might be suitable for repeal, as having failed to live up to their good intentions, having outlived their value, or being unduly restrictive of individual freedom. Your Lordships might notice that already there have been read a first time and printed a number of Private Member's Bills which adopt this approach. These Bills are in the names of the noble Baroness, Lady Trumpington, the noble Lord, Lord Spens, and the noble Lord, Lord Rugby, and they will come up for Second Reading, presumably early in the new year.
I think that the case for repeal was made, in some ways unintentionally, by the noble Baroness, Lady Birk. An old parliamentary hand has told me that there are a number of ways of killing a measure by praising it with faint damns, and the tactics can cover a wide range, including initially expressing strong approval of the measure, but offering regrets that this is not the way to proceed, or saying that this House is not the place to start, or that the present is not the time to take it further, or that the proposed change is too wide or is too narrow. The noble Baroness took the view on the whole that the proposed repeal was too narrow. She then held out the daunting prospect of embarking on a wide-ranging review by all those concerned with the subsection in action, canvassing opinion, inviting proposals for the revising of the wording, and then stitching it all up with a major measure that would be incorporated in amending legislation—a Government Bill—which would then face the marathon, as a contentious Bill, of passing through both Chambers.
It seems to me that what is not disputed is the demerit, the offensive nature, of this particular subsection. It is not sufficient to say that grievances should remain unredressed until we have time, some time in the future, for a full-scale Government measure. I want strongly to commend the view of the noble Lord, Lord Foot, who said that this is the House in which to start. Your Lordships have special reasons, special authority, for giving a lead in welcoming the 1307 Bill. Even among your Lordships' critics we are regarded as having some importance as lofty guardians of personal rights; and also, in a more humdrum way, as a reviewing Chamber to check the details of legislation. Having failed to erase this subsection from the Bill when it went through the House in 1975, despite the best endeavours of the noble Lord, Lord Houghton, we now have the opportunity to strike this particular subsection from the Act. I hope we shall give this Bill a Second Reading and pass it expeditiously through this House in order to give this Government the opportunity to emulate, as I understand it, the example of their Labour predecessors, who supported the removal of an identical subsection from the Race Relations Bill in 1976.
§ 6.11 p.m.
§ Lord Balfour of Inchrye
My Lords, there is an expression, which many of your Lordships know, "Small is beautiful". This Bill is small and it is useful, and I would commend it on grounds of justice to the individual and of political consistency. I would submit two propositions. The first—and it applies very much to the words of the noble Baroness, Lady Birk—is that those who supported the 1975 Bill can justifiably support this one, because it really has nothing to do with the increase or the decrease of sex discrimination. In other words, some noble Lords may feel that if they support this Bill they are in some way weakening the provisions of the 1975 Act. There is no case for that. My second proposition is the description of this subsection, as it appeared in the Race Relations Bill, by the noble Baroness, Lady Elles. She said:This subsection will affect a man or a woman for the whole of their lifetime…grossly unfair, inhumane, contrary to all the elements of natural justice".Let me remind your Lordships, as the noble Lord, Lord Monson, said, that in the case of the 1976 Bill your Lordships threw out this subsection. It went to the other place, and there, the Government did not dare to rally their troops in its support. I depend much for my arguments on the noble and learned Lord on the Woolsack—and, naturally, in accordance with our usual courtesies, I informed him that I was going to quote him today. He said that there was no essential difference between the objections which were cited to the same provision in the 1976 Act and those which can be cited against the subsection as it exists today in the Sex Discrimination Act. Surely what was sauce for the Race Relations Bill is sauce for the Sex Discrimination Act. The comments of the Home Secretary Mr. Whitelaw, in respect of the same provisions in the Race Relations Bill—…horrified at the provisions…against the rules of natural justice"—apply just as much today as to the Bill in front of the Commons at that time.
I do not know what the Government reply is going to be, although I can have a pretty good guess. Is it going to be one of Government support? Is it going to be that the Government show that neutrality which your Lordships are so accustomed to listening to on the Second Reading of Private Members' Bills, tilted perhaps one way or another and this time pos 1308 sibly tilted against? Or will the Government advise rejection of the Bill on the grounds that the noble Baroness, Lady Birk, put forward: that one day, perhaps in 1983, 1984 or 1985, there may be some consolidation and then, no doubt, what is admittedly a wrong can be put right? To me, if there is any real wrong on the statute book it is the duty of both Houses of Parliament to correct it at the earliest possible time.
What is the Government's case for retention of this subsection? How can the Minister not condemn the provisions of this subsection? And if he condones and excuses it, how will he face the Lord Chancellor tomorrow? The Lord Chancellor said, referring to the Sex Discrimination Act,…if we made a mistake in not fighting those provisions, we are thereby bound to commit a second injustice in the Race Relations Bill?"—(Official Report, 29/9/76, Vol. 374, col. 509.)Finally, the Lord Chancellor said this [col. 518]:…the more I reflect about this the more I think we ought to insist on this subsection coming out, and I so recommend this to my noble friends".I hope that the Minister is not going to go away from that advice which his superior Minister has given. Surely he would not be able to face him tomorrow morning. What he has got to do is to support the Lord Chancellor in the very clear declarations he has made, and that is what I would ask the Minister to do tonight.
§ 6.17 p.m.
My Lords, I hope this House would agree that every law must be administered strictly in accordance with its provisions. If those provisions are unacceptable because (as I believe to be the case with the subsection that this Bill seeks to repeal) they are vindictive and because they seek to disqualify a person from membership of a professional body, not on proof of his misconduct but on hearsay of someone else's, then I fear that decent people will tend to disregard those provisions and so the law will not be enforced—and, unless I am very much mistaken, the noble Baroness, Lady Birk, has already suggested that this may be the case. In that case, the law will be in danger of coming into disrepute; and that is something that this House has a special duty to guard against, and something that we normally consider very carefully.
I think that this subsection is vindictive. We are supposed, in all our doings here, to take Christian principles into consideration. I should like to remind your Lordships that according to St. Paul the Almighty has exclusive rights to revenge. It really is a very nasty provision, born of the excess of legislation from which we have suffered so much in recent years and sired by fanaticism. I hope very much that the House will take this opportunity to get rid of it by giving this Bill a Second Reading.
§ 6.19 p.m.
The Earl of Selkirk
My Lords, may I say a word before my noble and learned friend replies? I should like to support Lord Monson's Bill for this reason. I think that this subsection, as it stands, is a reflection on this House. That we as an amending Chamber should have been so stupid, frankly, as to allow it to go through 1309 is something that we can put right. This is, in fact, creating a limited form of outlawry for life, and without any proof. This is an outrageous proposition. We have only one question before us. Do we approve in principle what the noble Lord, Lord Monson, is proposing? That is all we are asked to do. What happens afterwards is not our business. If we vote against that, then we are saying that we like this clause. For that reason, I would, if need be, support this in the Lobby.
§ 6.20 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, the Sex Discrimination Act 1975 has now been in force for about five years. I believe we can say that it has had an important impact in eliminating a great deal of blatant discrimination and in providing a framework within which attitudes are gradually changing. The Government are firmly committed to a policy of equal treatment for men and women, and to encouraging initiatives which promote this. Individuals, employers and trade unions as well as Government all have a part to play in making equality of opportunity a reality and in opposing unlawful discrimination wherever it is found.
This Bill seeks to repeal Section 13(2) of the Act. As has been said, that provision requires a small number of bodies who have legal duties relating to entry to certain trades and professions to have regard to evidence of unlawful sex discrimination not only by the individual whose character is being judged, but also by his agents and employees. The issue which your Lordships are being invited to consider is whether it is fair to continue to embody in law a requirement which may have the effect of preventing candidates for a small selection of trades or professions from entering their chosen occupations, perhaps on slight evidence of what we might call a misdemeanour, not necessarily done by him, but perhaps by other people albeit associated in some way with him—evidence perhaps going back some distance in time. In reference to what Lord Monson said, I doubt whether it can go back beyond the coming into force or the 1975 Act because it is unlawful discrimination which is in question. The Government agree this does have questionable implications. It is indeed a matter of record that members of the present Government questioned this provision when a similar clause was discussed on the Race Relations Bill in 1976. As was pointed out, that clause was eventually abandoned as a result by the then Government.
However, it is important to keep this matter in perspective. Section 13(2) applies only to those bodies upon whom the law has imposed a duty to take account of good character—and they are very few; and they are bodies that have a very important part to play in national life; but it is in the essence of the part they play that they have a very wide range of discretion and judgment. As I have said, they are very few. For example, a much larger number of professional and private bodies—doctors, dentists, et cetera, and even, your Lordships may be interested to know, the MCC—do not have such a requirement imposed on them by law. So the effect is really very limited.
1310 Moreover, while one can readily sympathise with the criticisms which draw attention to the somewhat imprecise nature of the duty which Section 13(2) imposes, I think we can safely assume that the bodies in question have the common sense and the integrity to take a balanced view of evidence of unlawful sex discrimination in assessing the merits of each individual candidate. What they are required to do is simply to have regard to such evidence. It does not mean that just because such evidence is before them and does not establish anything they must condemn the person applying. By the nature of matters, they are entrusted by the law with a very delicate discretion and it is therefore surely appropriate that if such a judgment is to be made it should be made only by a very limited number of bodies. Such bodies are already entrusted with the assessment of all other aspects of "good character". My noble friend Lord Beloff suggested that some of the matters referred to by this subsection could be regarded as nefarious practices. One would have thought that, even without a statutory provision, where there was a question with regard to the good character of someone and his having indulged in practices regarded as nefarious it would have some importance.
The Government well understand the case which the noble Lord has made out for the repeal of Section 13(2). It seems unlikely that such repeal could reasonably be presented as having any significant effect on the principle of non-discrimination—a principle to which, as I have said, this Government are firmly committed. But, equally, repeal seems unlikely to confer any significant benefits—we have no evidence that the provision is giving rise to any problems—while it might perhaps be seen by some as a symbolic victory for those who find pleasure in attacking the cause of non-discrimination, and at a time when the Equal Opportunities Commission and other influential bodies are arguing for the Sex Discrimination Act to be strengthened, and to whom the Government have so far been unable to hold out any prospect of early legislative change.
Your Lordships have already had your attention directed by the noble Lord, Lord Foot, to the note provided for your Lordships by the Equal Opportunities Commission. They have had in hand a review of the Equal Pay Act and the Sex Discrimination Act, in terms of their statutory duty to review both, and they have indeed presented proposals (I think in January 1981) and written to my right honourable friend the Secretary of State for Employment on 27th November last asking whether time might be found in the next Session. I do not know that the prospects are bright. However, it seems to the Government that the appropriate opportunity for dealing with the matters raised by Lord Monson and by those of your Lordships who support him would be in the context of parliamentary consideration of the Equal Opportunities Commission's proposed amendments. We do not see any prospect of time being available this Session in the other place for a Bill of this kind.
My Lords, we have had a very full and interesting debate and I shall draw the attention of my right honourable friend who is concerned with these matters to all that your Lordships have said. I would simply ask the noble Lord, Lord Monson to consider whether, 1311 in the light of what I have said, it is wise to press this Bill forward at this time. It is not our intention to vote against the Bill at Second Reading if the noble Lord, Lord Monson, wishes to proceed with it.
§ 6.29 p.m.
§ Lord Monson
My Lords, may I say, first, how extremely grateful I am for the warm and extremely effective support for this Bill given by the noble Lords, Lord Foot and Lord Beloff, by the noble Lord, Lord Balfour of Inchrye, and the noble Earl, Lord Selkirk, and also by my noble friends Lord Harris of High Cross and Lady Saltoun. I am particularly grateful to the noble Lord, Lord Balfour of Inchrye, for having mentioned what the noble Baroness, Lady Elles, said about the identical clause in the Race Relations Bill in 1976. The noble Baroness was kind enough to write to me regretting that she could not be here to support this Bill as she had to be in Brussels on European parliamentary business.
I am also grateful to the noble Baroness, Lady Birk, for her opening remarks—praising with faint damns, the noble Lord, Lord Harris of High Cross, called it—in which she agreed that the subsection was extreme, draconian and oppressive. Then she went on to cite such things as the Consumer Credit Act 1974. Indeed, that set a precedent—not a good one—but I do not think that any number of wrongs make a right. The Director General of Fair Trading is a Government appointee and he is bound to do what he is told by Her Majesty's Government. I scarcely think that he can be compared with respected, independent professional bodies, such as the ones that I have cited.
The noble Baroness went on to say that the subsection had hardly ever been invoked. But the noble Lord, Lord Beloff, rightly pointed out that if a law is not used, it makes a mockery of the law and it ought not to be in the statute book at all. The noble Baroness continued to put the point of view of the Equal Opportunities Commission, from whom I also had a brief which arrived very late last night—I have not had time to reply to it. It was that total deletion would be inadvisable, in that it would leave a gap in the legislation. As the noble Lord, Lord Foot, pointed out, the subsection is not found in the Race Relations Act. If it is thought necessary for some reason to have some similar type of subsection, however weakened, in this Act, the House would effectively be saying that sex discrimination is so much greater an evil than race discrimination that it requires unusually draconian sanctions to deal with it. I do not think that this is the impression that the House would want to give.
I am rather disappointed by the attitude of the Government, as personified by the noble and learned Lord the Lord Advocate. He said that the deletion of the subsection would be unlikely to confer any significant benefits. I think justice to individuals who may be in danger of having their whole career ruined is a significant benefit. He also said that he concluded that members of the present Government questioned the similar subsection in the Race Relations Bill in 1976. My Lords, they did not merely question it; they attacked it with the utmost vigour and passion. What applied in 1976 must surely apply today with 1312 equal force. I feel that if the House will consent to give this Bill a Second Reading today there will be time for more investigations to be made, as suggested by the Equal Opportunities Commission, so that the House of Commons will have all the facts in front of them if and when they come to consider it.
It is a legitimate duty of this House, if the House so wishes, to rectify the omission made in 1975. I hope very much therefore that the House will consent to giving this Bill a Second Reading tonight.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.