§ 3.56 p.m.
§ Debate resumed.
§ Baroness Seear
My Lords, I, too, should like to thank the noble Earl, Lord Gowrie, for introducing these regulations and for his explanation of the changes that have taken place in the procedural rules. There is no doubt that mark 3, which we have now arrived at in these regulations, is a very great improvement on mark 1 and an improvement on mark 2. In particular, we are very glad that the Government have seen fit in the procedural regulations to make it possible for plaintiffs to cross-examine the expert. The extraordinary proposal under the previous arrangement that an expert should give a report but should not be cross-examined by the tribunal was, I believe, contrary to all precedents as to the use of specialists in British tribunals or courts. So far so good, but I fear only so far.
One cannot but regret that the Government have not seen fit to withdraw these gamma 3 regulations which are again presented to us—and in my view gamma 3 is a rather generous marking for them. The complexity and inadequacy of the drafting, quite apart from the contents, alone justify a rewrite of the whole exercise. I should like to ask your Lordships to play the parlour game of writing down without consulting your neighbour what you think is meant by the new Section 2A:Where on a complaint or reference made to an industrial tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the 895 tribunal shall not determine that question unless…it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned".I am not a betting person, but if I were I should bet that no two noble Lords sitting on the same Bench would arrive at the same conclusion as to what that sentence really means.
When we recall that in an industrial tribunal there is no legal aid, and that the woman on the Clapham bus—if anyone ever travels on the thing, or, indeed, if there is one these days—is supposed to be able to interpret this kind of thing herself I think your Lordships will agree that this is not the kind of regulation which should be put on to our statute book. It seems tome that it is the greatest pity that, for constitutional reasons which I accept, we in your Lordships' House are unable to amend the regulations and to do a proper job as a revising Chamber in pointing out the inadequacies of them.
We are asked to accept not only the wording, bad though that is, but also the content of the regulations. The noble Lord, Lord McCarthy, has raised a number of points showing that the regulations are still inadequate in terms of the requirements of the European Court, let alone in terms of the requirement genuinely to introduce in this country equal pay for work of equal value. The noble Lord, Lord McCarthy, pointed out the possibility of introducing market forces in general as an argument against the case for equal pay for work of equal value, but if the acceptance of market forces were to become the general rule one would be driving a cart and horses through the whole principle of equal pay. Because women are confined to such a limited number of jobs, because they are unable to apply for many of the jobs, or are unsuited for them, very frequently there is a market forces argument that can be used. We have never accepted, upon the basis of like work or the Equal Pay Act, that the argument of market forces is by itself an adequate reason for an employer paying differently a man as against a woman. If that principle becomes enshrined, the regulations, far from taking us forward, would take us backwards in the whole application of the principle of equal pay.
Moreover, as I understand the new subsection (3), which deals with the matter of the material factor, it becomes easier for an employer to refute a case based on equal value than to refute a case based on like work, due to the difference in the word "must" in relation to the like work claim and the word "may" in relation to the equal value claim. Quite apart from whether or not that argument should be accepted, Article 1 of the directive surely makes it quite clear that it is the equal value claim which is the primary right, and that a claim based on equal value should certainly be as easy to establish as a claim based on like work. Preferably it should be easier: it should certainly not be less easy. If it is less easy to establish a claim based on equal value than one based on like work, how can the Government maintain that they are recognising the primary right of equal value? I believe that the regulation does no such thing.
Then there is the question of the tribunal being able to dispose of a case on the basis that there are no reasonable grounds for assuming that there is before it 896 an equal value issue. The noble Lord, Lord McCarthy, has already dealt with a number of points in this connection, but I want to emphasise a point which I think he did not mention and which I believe was not mentioned in another place. "Reasonable grounds" presumably means that it strikes the common sense of the tribunal that it is ridiculous to go further with a case of this kind; that it is a matter of the common sense of a tribunal. But in a case based on equal value arising out of a job evaluation scheme, or concerned with the need to apply the principle of equal value, common sense will not be very much help, because common sense largely means what people accept as being reasonable in the light of ordinary practice, what most people would do. We are back to our man on the Clapham bus.
But the whole point about equal pay for work of equal value and the job evaluation schemes which will have to be used in order to implement it is that in some cases the results will be an affront to common sense, because they will be quite contrary to what in the past has been normal practice. That is what it is all about. That is why the equal value argument is a far more radical argument than anything that we have had up until now in the equal pay area. A great many of the decisions (or at any rate some of them) which will be made as a result of applying equal value will be an affront to the common sense of many people who have assumed the customary relativities in the traditional hierarchy inside an organisation, in which women appear very much lower down the line than do men. It will be thought that the situation will continue as before, but in fact it will not. The whole point about equal value is that it will reverse the pecking order at any rate in certain cases, and will not at first sight seem reasonable to a great many people.
Thus, so far from it being possible to introduce the argument about reasonableness before the case has been heard, as has been suggested, it will be more difficult, simply because the new system will bring about far more radical changes than have been brought about in the past, and it will not appear to the common sense of a tribunal that that is the way in which the matter should go.
Those are reasons—strong reasons, it seems to me—for saying that the regulation is inadequate in terms of Article 1 of the directive on equal pay and inadequate for the purpose of bringing about in this country a genuine system of equal pay for work of equal value.
It seems to me that it is a pity that the argument was not more about the matters to which I shall refer in a moment than about the details of the regulations. I do not deny that the introduction of equal pay for work of equal value is extremely complex and difficult, and will create a very great many problems. It is to that aspect that we ought to be directing our attention, accepting that it is right that we should go down this way but that it will not be at all easy. It will not be easy, first and foremost, because equal pay for equal value involves making comparisons across pay structures within the same organisation. That is very difficult to do, and it is fraught with difficulties in terms of industrial relations. That is why many of us have urged, and continue to urge, that the CAC should be 897 brought into it because it has a degree of experience in handling these matters which nobody else has.
The noble Earl has told us that employers have been consulted and have said that they do not wish to have such an arrangement. I can only believe that many employers have not yet fully thought through the implications of the real application of equal pay for work of equal value. I think that they probably hope that it will just quietly go away. They may even hope that, given a regulation such as this, it will go away. But I assure your Lordships that that will not be allowed to happen.
Had I been concerned from the employers' point of view, I would have urged, first, the introduction of the use of the CAC, and, secondly, a five-year implementation period to get the scheme really right, for I do not believe that it will get right quickly, and I think that there may be very serious industrial relations problems arising from it. I expect that in the minds of many employers, and of the Government, there is a fear that the genuine introduction of equal pay for work of equal value will be inflationary. I say that because if women are given a rating equal to, or above, that of men, where previously they have been at a very much lower level, the men will, by a variety of devious means, try to recover their lost ground. That has happened in the past. I certainly do not put it past men, and the people who advise them in the trade unions, to turn a blind eye to that kind of devious attempt to recover their position.
It would help us greatly if the trade unions, which support the idea of equal pay for equal value, would say outright that they will not back any attempts to put the position into reverse when equal pay claims have been established. It would also help us greatly if the Labour Party would say that it will advise its colleagues in the trade union movement to do just that. I believe that it would make the genuine introduction of equal pay for work of equal value a great deal easier.
I should like to suggest one further point for consideration. I have a certain amount of experience in the whole area of job evaluation. I feel great apprehension at the idea of an individual job in an individual organisation taken out of context being considered by an industrial tribunal and then, perhaps, ultimately, from that tribunal, finding its way to the High Court. These are not issues that are best handled in that manner. I should like to urge—I hope that this would comply with the requirements of the directive, and it should be our purpose to see that it does—that we work in the direction of ensuring that job evaluation schemes are free of sex discrimination.
The Equal Opportunities Commission has already issued some documentation about schemes free of sex discrimination. Those schemes should be approved for a period of time. Once schemes are approved, with any conditions attached that it is agreed are appropriate, such as independent chairmen for appeals in the scheme, claims should be settled within that scheme, and only the scheme should be the subject of an appeal to the tribunal and not the individual case. If we did this, we would move much more quickly in the direction of genuine equal pay for work of equal value, and would do so in a manner that would cause far less disruption. As a by-product, we would greatly 898 improve the quality of job evaluation schemes in this country.
§ 4.12 p.m.
§ Baroness Platt of Writtle
My Lords, I must from the start declare my interest as chairman of the Equal Opportunities Commission, although it is not, of course, a personal or financial interest. The Equal Opportunities Commission has, as one of its duties under the Sex Discrimination Act, to keep under review the working of the Act and of the Equal Pay Act. Hence, it takes this matter very seriously. It would have been preferable if the draft regulations before us this afternoon had been in the form of a straight forward amendment to the Act so that it would have been capable of further amendment in your Lordships' House. As it is, we can only accept or reject these draft regulations.
The European Community has a long-standing commitment to the achievement of equal opportunities for men and women as laid down in Article 119 of the Treaty of Rome and subsequently updated in succeeding Council directives in 1975, 1976 and 1978. The European Court of Justice in Luxembourg gave judgment in July 1982 to the effect that the United Kingdom had failed to fulfil its obligations under the Treaty of Rome,by failing to introduce into its national legal system in implementation of the provisions of the Council directive of February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principles of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists, to obtain recognition of such equivalence.This afternoon is for me an oxymoron, or what might be more easily described as the curate's egg—good in parts. The draft regulations put before us have been the subject of long negotiation between the Department of Employment and the Equal Opportunities Commission, and other institutions have also put their point of view. These negotiations were started before I became chairman of the commission by my predecessor, the noble Baroness, Lady Lockwood, and changes were made in respect of the date of implementation, the burden of proof and the matter of the existence of a job evaluation scheme not being discriminatory. For that, the commission was grateful.
The commission, however, is still very concerned about the operation of the draft regulations before the House today. Its first anxiety is that, although the burden of proof has been removed from the employee, there is still a difference in the test to be applied between applicants doing like work and for work rated as equivalent in Regulation 2(2). The commission sees no convincing grounds for the introduction of different tests and would prefer that the employer's defence remained the same for both, as it is at present in Section 1(3) of the Equal Pay Act. We are advised that the consideration of objective economic or commercial factors in accounting for differences in pay is, in fact, already a part of existing law as a result of the Employment Appeal Tribunal decision in the Jenkins v. Kingsgate case.
The commission's second objection to the regulations is directed to Regulation 3(1)2A1(a), about which lawyers are already arguing over the interpretation. I am only a lay person in this matter 899 and feel rather like Alice at the Mad Hatter's tea party when,She felt dreadfully puzzled. The Hatter's remark seemed to have no sort of meaning in it, and yet it was certainly English. 'I don't quite understand you', she said, as politely as she could.If lawyers are already not agreed, I feel that many applicants and small businessmen, who are potential respondents, will agree with Alice and will desperately wish, as I do, for the emergence of a new Sir Ernest Gowers, who believed in the importance of plain words. As Lord Justice Lawton said in the Clay Cross case;Parliament intended that industrial tribunals should provide a quick and cheap remedy for what it had decided were injustices in the employment sphere. The procedure was to be such that both employers and employees could present their cases without having to go to lawyers for help. Within a few years legalism had started to take over. It must be driven back if possible. If the wording of the relevant statutes has opened the door to legal subtleties, there is nothing the courts can do to stop what I regard as an unfortunate development. The remedy lies with Parliament".We are concerned that Regulation 3(1) could be a hindrance to the applicant in obtaining access to the judicial process. The commission considers that industrial tribunals currently possess sufficiently wide powers to enable them to dispose of cases that are frivolous, vexatious or scandalous and therefore does not see the necessity for 3(1 )2A1(a), which could leave an applicant without right of appeal if her case was dismissed on these grounds.
The date of implementation has been brought forward to January 1984, which is an improvement, but there is no provision for applicants to claim two years' back pay, as there is under the present Act, until January 1986, a very long time after the European Court judgment in July 1982. For these reasons, members of the commission are concerned that the present draft regulations could fail to comply with European Community law requirements, although that is for the European Court itself to decide.
My right honourable friend Mr. Tom King, Secretary of State for Employment, made time to meet a delegation from the commission during a very full first week in office, for which we were grateful. At the meeting, we made these points and were disappointed that he felt compelled to adhere to the present draft regulations that had already been passed in another place. However, we then went on to discuss the attached procedural regulations that are not before your Lordships' House today but which have nevertheless been published and which are of great importance in connection with today's draft regulations.
We were very concerned that the proceedings in the industrial tribunal could be entirely dominated by the opinion of the expert, whose report at that time could not be subject to questioning by other experts nor indeed, except under certain circumstances, by the tribunal itself. As we said when we met the Secretary of State, we know of no other area of law in which the judgments of the expert witnesses are shielded from scrutiny in this way. My right honourable friend the Secretary of State listened with his customary careful attention to the various suggestions that we made for alteration of the procedural regulations so that they should pay closer regard to the principles of natural justice, and he had considerable sympathy. He 900 promised to look at them again to see how they could be improved.
I am very grateful and pleased to say that my right honourable friend met our main points of dissatisfaction with the procedural regulations most generously and altered them accordingly. As my noble friend has said this afternoon, he took our representations very seriously indeed. The expert must now attend the hearing so that he may be cross-examined by the parties concerned, and they, too, now may each bring an expert of their own. He may now be required to explain any matter contained in his report and will have to incorporate in it the representations of one party on the representations of the other. They may also demand written replies from him upon which they can comment.
The material factor defence has been clarified in the procedural regulations by the removal of a double negative in Rule 8(2E). The tribunal is now also given discretion as to whether it will hear evidence upon the issue of the defence of genuine material factor whereas before it had to proceed to hear that evidence. That is a significant improvement. Most important of all, the tribunal now has the power to reject the expert's report even if the parties do not so request. It is a most important prerequisite of natural justice that the industrial tribunal, having heard all the evidence, should itself make the decision, and now the decision does lie in its hands.
In The Times last week I read that two Government departments, those of the Inland Revenue and Social Security, received awards for good, plain English and the simple attractive design of the forms that they had produced. In receiving the award on behalf of his department, my honourable friend the Minister for Social Security—himself for 20 years a schoolmaster teaching English—declared:It's a winner, this form. Only one person in 20 now has to come into an office for help in making their claim".It is generally accepted that this legislation suffers from complexity of wording. There is still a chance for the department to win next year's prize for good, plain English as regards the explanatory document and associated paperwork. I hope that they will make every effort to win it.
There are also more hurdles put before the applicant in obtaining justice as a result of the regulations than there are in the present Act. The Commission feel that this will inevitably lead to protracted and costly litigation which will prove to be a drain on the resources of applicants, of employers, of tribunals and of the public generally. It is very difficult for ordinary men and women to understand, and will be a feast for lawyers—not the quick and cheap remedy for injustices in the employment sphere which Parliament intended.
We as a country, and indeed particularly the Government, are deeply committed to the European Community and intend to remain within it. The European Community has a long-standing commitment to the achievement of equal opportunities for men and women as laid down in Article 119 of the Treaty of Rome. It is important that the Government should make clear their support for that principle too—and I am glad that my noble friend did that this afternoon—and that they are not just grudgingly 901 obeying the Community law. My honourable friend the Parliamentary Under-Secretary of State for Employment, in his letter to me of 24th November, when he explained the changes in the procedural regulations that the department proposed to make to meet our representations to the Secretary of State on the matter of natural justice, concluded his letter by saying:Finally, I should say that I accept the helpful suggestion you put to me…that in the explanatory document we should reaffirm our commitment to the principle of equal pay for work of equal value and underline our expectation that the procedures will be operated in a spirit which ensures that all receive a just hearing".I was very grateful indeed for that statement and I hope that it is made absolutely clear to industrial tribunals in the guidance issued (as he promised) so that they have no doubt of the Government's intention. I hope then that industrial tribunals and their experts will interpret this law as fairly as possible, and will help both employee and employer to find a clear path of justice throughout their hearings.
Women today are increasingly going out to work and proving of great commercial value to their employers. Fair employers will pay them well, but they need means of redress against unfair employers. I cannot pretend that this draft order satisfies the Commission as it stands. The great improvement made by the Government in the procedural regulations is, however, a considerable step forward. I am glad that my noble friend stated quite unequivocally that the Government will now make it clear to all concerned that they wholeheartedly support the European principle of equal pay for work of equal value and, most important of all, will see that it is carried out in practice.
§ 4.26 p.m.
§ Lord Denning
My Lords, when I sat in the Court of Appeal I heard most of the cases concerning equal pay for equal work which is prescribed by Article 119 of the Treaty of Rome and by a directive of the European Commission which laid down equal pay for work of equal value. Those enactments are binding on our national courts. Our national courts and tribunals must obey in the first place the treaty, and then the directives under it. We found in quite a number of cases—and one went to the European Court—that our legislation did not carry out the enactments in the treaty and in the directives. We quite clearly saw that the European Court would hold that our legislation did not conform to the treaty as it ought to have done. We foresaw what was going to be done by the European Court.
While the enactments of the treaty and the directives are reasonably clear and can be understood, our own enactments are deplorable, especially the Equal Pay Act 1970. We have suffered a large number of headaches in order to understand that statute. Its tortuosity and complexity is beyond compare. No ordinary individual can understand it. We in the Court of Appeal had the greatest difficulty. These regulations are no doubt a bona fide attempt to comply with the European Court's decision and with the directives. But they ought not to be so complex as all this. Ordinary individuals who are affected by equal pay for work of equal value ought to be able to read and understand the regulations. Not one of them would be able to do 902 so. No ordinary lawyer would be able to understand them. The industrial tribunals would have the greatest difficulty and the Court of Appeal would probably be divided in opinion.
It is difficult to know what to do in this situation. I have wondered whether to give the Government credit for good intentions or to give the noble Lord, Lord McCarthy, and his colleagues credit for pointing out the tortuosity and obscurity of these regulations. I do not know upon which side to come down as regards this issue. These regulations have either got to be thrown out altogether or accepted, and, on the whole, I am not sure whether it would not be better to throw them out altogether and make those concerned think again so that we get something clear and intelligible which ordinary people and ordinary tribunals can understand.
§ 4.29 p.m.
§ Baroness Lockwood
My Lords, I find myself in a very anomalous position because for over three years, as the noble Earl will appreciate, I have been pressing the Government to amend the Equal Pay Act to include equal pay for work of equal value. Now I find myself in a position where I cannot support the proposals which the Government are putting forward. I am very grateful to the Government for the changes which they have made since the first consultative document was put out, and I am equally grateful for some of the changes that have been made in the procedure regulations during the past week or so. However, I would suggest that it is no good concentrating on the procedure regulations. They are largely irrelevant until we amend the main regulations themselves.
I am very grateful to the noble and learned Lord, Lord Denning, for his forthright condemnation of the regulations as they are at present and for his request to the Government to take them back and bring forward something which is more in keeping with common sense and the general understanding of the public.
I think that there are a number of reasons why the regulations need to be changed. First, as the noble Baroness, Lady Seear, has said, European legislation provides for a primary right to equal pay for work of equal value. These proposals from the Government have hedged that right and have built in a number of obstacles. In the first place, they suggest that equal pay for work of equal value should be the third definition after the first two definitions of the present Act have been exhausted. But, more importantly, the regulations and the procedure regulations taken together provide a new set of procedures for equal value cases, and equal value cases alone.
The present procedures will continue to operate for equal pay cases under the definition of the same, or broadly similar, work or work which has been rated as equivalent under a job evaluation scheme. It seems that it would be possible to start a case under the present procedures and then to move over to a completely different set of procedures if one's case was transferred from being one of the same, or broadly similar, work to an equal value case. What kind of confusion will this bring, not only for the tribunals but for the individuals concerned?
903 Then there are the differences in the proceedings for equal value cases under the new Section 2A, which gives the tribunal the power to dismiss a case without hearing the substance of the application. As other noble Lords have indicated, this is a new and additional power to the ones which the tribunals already have to warn against frivolous or vexatious cases or even to strike out a case in certain circum stances. In her remarks the noble Baroness, Lady Seear, made the point that in equal value cases we shall require a new approach to the traditional relativities. We are looking now at a completely new situation. I think that this will be particularly important in relation to this new power which the tribunals have been given.
The courts have already advised on equal pay and sex discrimination cases that a case should not he dismissed without hearing the two sides—in other words, without hearing the applicant's side and the defendant's side in case there should be defects in the defence. That applies under the present definitions of equal pay. But, under this more complicated definition of equal pay, the tribunals will have the power to dismiss a case without hearing the substance of the case. One wonders—and perhaps the noble Earl could enlighten us on this—on what grounds would an individual be able to appeal against such a dismissal of her case if she wanted to appeal before the EAT. It seems that there would be no grounds at all.
Then, as has already been indicated by noble Lords, we have the new Section 3 of the Equal Pay Act, which introduces a new material difference defence—a material factor, as it is now called, and a factor which my noble friend Lord McCarthy and the noble Baroness, Lady Seear, both indicated could nullify the effects of the equal value provisions.
I shall not go into the market forces argument in detail because I think that that has already been explained fully. However, in his remarks, the noble Earl the Minister put the emphasis on skill and scarcity of skills, whereas his colleagues in another place put the emphasis on market forces. I would suggest to him that it is possible to build the skill content into the equal value assessment. Indeed, in its consultative document in September 1982—the document which was the first contribution to this discussion on equal value—the Equal Opportunities Commission suggested that in equal value cases the material difference defence would almost disappear because the factors which, under the previous or the present definitions, might constitute a material difference—such as red circling, being a time-served apprentice, or even skill shortage, to which the noble Earl referred—would be built into the equal value equation. It is not so much that side of the question about which we need to be concerned, but we need to be concerned about the individuals, as in the case of Clay Cross, who are trying to sell their skills for a different price from that which women have traditionally been prepared to accept.
Therefore, we have this very difficult, complicated and, indeed, negative set of proceedings. These proceedings will have three consequences. First, they will defeat the object of the amendment by discouraging applications in the first place, as applicants will 904 be both unsure of their rights and put off by the very complicated process to which they are subjected. Secondly, where cases proceed, they will be likely to involve complicated and expensive litigation involving appeals to the EAT, the High Court of Justice, this House and, of course, to the European Court of Justice, because Community law will be involved. The Equal Pay Directive, as well as our own amended Equal Pay Act, will be involved. If market forces are such that they can defeat the objective of our own Act, they will also defeat the objective of the Equal Pay Directive.
Thirdly, the complicated procedures will impose a further burden on the industrial tribunals. The noble Baroness, Lady Platt, referred to this and to the comments by Lord Justice Lawton in the Clay Cross case. It seems that the quick and speedy remedy which the industrial tribunals were established to mete out will be undermined by complications of this kind.
Therefore, I would hope that for all these reasons even at this late date the Government would feel prepared to take the regulations back and have another look at them. The Minister who succeeded the noble Earl as Minister of State at the Department of Employment suggested that the European Court had identified a small lacuna in our provisions. If it is only a small lacuna, the Government have constructed a very elaborate and complicated structure to bridge this small gap.
Seeing the noble Earl at the Dispatch Box reminds me, as he will probably be reminded, that we have been here before. Over three years ago, when he was at the Department of Employment and I was chairman of the Equal Opportunities Commission, I offered the advice of the Commission that our equal pay legislation did not meet European requirements. The Minister and his department disagreed. Subsequently we had the infringement proceedings against us and the judgment went against the United Kingdom Government. Recently we had a further set of infringement proceedings against the United Kingdom in relation to sex discrimination and equal pay matters. Again the judgment went against the United Kingdom. For a second time the legal advice of the Department of Employment was found to be faulty.
I suggest that if these regulations go forward we shall find, once again, that the legal advice of the Department of Employment has been seen to be faulty. I believe that these regulations can and will be challenged in the European Court. If the Government do not agree to reconsider them again today, I am afraid that they will have to have a subsequent look at them in years to come. I ask that the Government reconsider them before it is too late.
The Earl of Gowrie
My Lords, before the noble Baroness sits down—I am most grateful to her—may I point out that the Government are proceeding in the light of the full legal advice of their own Law Officers, not simply the law officers of one department?
§ Baroness Lockwood
My Lords, may I also include then the Law Officers as well as the Department of Employment.
§ 4.42 p.m.
§ Baroness Hornsby-Smith
My Lords, I rise to support my noble friend on the Motion that he has presented to the House with his usual skill, particularly as it is a matter of great complexity, as many speakers have pointed out this afternoon. The Government have taken a more realistic approach to ensuring the introduction of equal pay than did the original decision of the EEC.
As a spinster who has worked all her life, I fully support equal pay for equal work, but it was not until I was elected to another place that I ever received equal pay. The debate today has spread a little wider than the limited basis on which both the EEC and our own regulations are based; that is, discrimination on grounds of sex. We may deplore the fact that the other considerations that come in—skill, experience and so on—are not provided for in the EEC measures, nor in our own. We are considering regulations which are based on discrimination on grounds of sex—claims by a woman against a man or by a man against a woman. There is no provision, of either authority, for a woman to challenge inequality in pay with another woman, nor for a man against a man. There is no European obligation to conduct an evaluation of two jobs where the difference in pay is genuine for a reason quite other than sex discrimination. Yet one can have "aggro" of a woman against a woman in a factory as one can have a man against a man. Anybody who thinks that does not exist is not living in the present world.
Members opposite, not least the present and former chairmen of the Equal Opportunities Commission, are seeking a judicial evaluation before the tribunal considers whether the difference in pay can be justified on other grounds. To accept this would be to turn this legislation as it exists in the EEC and in the United Kingdom on its head. Rightly or wrongly, it deals with discrimination on grounds of sex.
Your Lordships all know that thousands of pay agreements are worked out on the shop floor week by week with a variation for skills, the difficulty of the job and so on. They are worked out between the trade unionists in the factory and the employers. Indeed, the noble Baroness, Lady Seear, did not hesitate to point out that these problems would arise. To impose the procedure of a job assessment before taking a case to the tribunal would create a totally unnecessary disturbance to agreed pay structures and to industrial relations. A woman going straight to the tribunal would almost undoubtedly seek the advice and aid of her trade union. She will get sage advice about whether or not it considers that she has a case.
Job evaluation is not, and never will be, an exact science. Indeed, many Members have most frankly pointed out the problems that will arise. It is far more than the issue of sex. There are skills, long service and experience to be taken into account, and there is the shortage of certain skills and the value of somebody who can deal with one highly sophisticated piece of machinery and perhaps keep everyone else in the shop at work. That is not something one can just assess on the basis of "this man is doing a job" or "that woman is doing a job".
It is within the knowledge of everybody in this House that many United Kingdom industries are 906 fighting for their lives against the fiercest competition. I have had some experience in the textile industry. I know the shop floor arrangements that are made week by week with the full agreement of the union and the employers. They have a fine record of being practically strike-free. To bedevil industries that are climbing their way back with negotiations after those shop floor negotiations and before going to the tribunal proceedings would I believe lead to chaos within stable pay structures, honourably negotiated within the factory between employers and unions.
My noble friend gave an example of someone punching a typewriter or punching a computer. The stenographer—I was one—may be faster than the chap punching the computer, but she is probably dealing with scripts that were provided for her, dictated or put on an audio machine. If the stenographer makes a mistake it will be in front of her to correct when she reads what she has typed. If a computer operator makes a mistake—many of your Lordships will have had comic bills, as I have—that can cause absolute chaos and probably requires more intense and consistent concentration.
I must give one more example of the tremendous difficulty of being too rigid. A newcomer in her mid-twenties arrived to join a team of five other people in a design department. Her skills in drawing, her skills in making a prototype, were quite comparable. But in six months three of that young lady's designs were snapped up by larger chains. She had, in short, flair far exceeding that of her companions, even though they might be years older than her. The ensuing orders enabled the firm to employ more staff. Technically, her male colleagues could have complained that she should not have her salary uplifted; but the choice of the employer was that, with three or four competitors trying to entice this brilliant young woman away, she was worth a boost in salary because of the orders that she brought in and the extra people that they would be able to employ. As the noble Baroness, Lady Seear, has pointed out, it is fraught with difficulties if we try to be absolutely rigid; because it can be for the benefit of employers and for the workers alike where flair or genius, extra effort or skills necessarily demand a differentiation. I think we have got to be wary of falling into the trap of legalistic rigidity.
On equal pay, frankly, I am far more concerned about the cheapjack operators who pay women working in their own homes an absolute pittance. Many of them, unfortunately, are immigrants who, because the average wage in their own country was £3 to £5 a week, think that £20 for doing a job for which they should probably be paid £60 is adequate recompense.
In our industries we are climbing back against enormous competition. I have seen the relationships and the day-to-day negotiations where the foreman works out the rate for this line of production of whatever it is—and particularly so in an ever-changing situation like a garment factory. I believe that my noble friend has struck the right balance in these regulations, which I fully support. I do not deny for a moment that the actual legislation, the EEC legislation and our own which followed it, is too rigid and has got to be considered at some time in the light of all the other factors which apply to equal pay, and not just 907 that of sex. But for the moment, when we want to get these regulations in as early as possible in the new year, I believe the Minister has struck the right balance.
§ 4.53 p.m.
§ Lord Wedderburn of Charlton
My Lords, since the European Court ruled against the United Kingdom legislation on 6th July last year, the Government have tried three times, if not four times, to get it right. On that evidence, looking back, one is bound to say—and I say it not in any necessary condemnation of the noble Earl, because the House knows that the noble Earl is deeply interested in this area—that the Government have not shown any great enthusiasm for the principle of equal value which they must now submit to and which this country is now obliged to adopt. It is a great pity that Community legislation on a matter of this sort has to go through this House and another place by way of regulation which cannot be amended. That deprives certainly this House and it may be, in certain senses, another place of any function in relation to it in terms of getting it right. I suggest to the Government in this respect that, because it is impossible to amend, the Government should pay more attention to argument today perhaps even than to votes.
If it be the case that the Equal Opportunities Commission, some of their noble friends and many different interests are still dissatisfied with this most important matter, then surely the Government should be prepared at any rate to think again on the arguments, whatever the votes may he. I accept that what is put forward now is better than the three previous versions, which (as the noble Baroness, Lady Seear, rightly said) were clear failures. Whether this is a pass or not, only the European Court will tell. I suspect that, as the noble Baroness, Lady Lockwood, has said, it will he there in not too long a time, because there are, I submit, four headings under which this legislation is defective.
The first is something on which nothing so far has been said in this debate—that is, that the new amendments say nothing about collective bargaining and collective agreements, whereas Article 4 of the directive clearly says that member states must take the necessary measures to ensure that provisions in collective agreements may be declared null and void if in conflict with the principles of equal pay. It may be said, and often is said, that this matter is dealt with by Section 3 of the existing Equal Pay Act 1970, which gives to the Central Arbitration Committee the power to nullify provisions in collective agreements if they offend the principles of equal pay.
But this was a golden opportunity for the Government to give a proper power to the CAC on this matter, more particularly because, in the case of The Queen v. The Central Arbitration Committee ex prate Hy-Mac in 1979, the Divisional Court has so confined the power of the CAC under existing legislation that the CAC cannot strike out any parts of collective agreements unless they are clearly and overtly discriminatory—and that surely is not the intention of the directive. The Government should, as the noble Baroness, Lady Seear, has said, have given a central role to the CAC; in this field. But the Government are not very fond of the CAC; it gets in the way of market 908 forces that price jobs and price people into them and, more particularly, out of them. I will come to the CAC later.
The second reason why the House should reject these regulations if it had the opportunity is what I might call the absurdity of the employer's defences. It has already been explained in the debate that the employer has different defences in respect of the genuine material difference that may be proved in the case of a claimant in respect of a claim based on like work where the factor must be a material difference and a claim based now on equal value where it need be only to the effect that it may be a material difference. Why has that alteration been made to the law and is it in accordance with the directive? The first reason why it has been made, and this should be clearly said, is that it is the quid pro quo of the Government giving up what can only be called their impudent attempt to put the burden of proof on the claimant and to relieve the employer of it, which they tried to do, of course, in their early draft. Instead of doing that, and in the light of that improvement on the burden of proof, they have now put in this different defence for the equal value cases.
It is clear what the Government intend by this because the Under-Secretary for Employment, on 20th July this year, in another place said (in column 486) that the new defence would relate to the cases where the difference was—and I quote:due to skill shortages or other market forces".Nothing has been said to withdraw that rationalisation or reason by the Government for these new defences.
It had already been explained to the Government judicially in the Court of Appeal in 1979 in the Clay Cross case which has already been referred to. I quote Lord Justice Lawton in a short passage which has not been put to your Lordships in this debate. Lord Justice Lawton said in that case in 1979 that the market forces argument was one in respect of which—and I quote:The European Court of Justice was most unlikely to evolve an exception"—that is, a defence—based upon such a vague conception as economic factors or market pressures. To do so would strike at the object of the article. In the labour market women have always been in a worse position than men. Under both Article I 19"—of the treaty—and the Equal Pay Act 1970 that was no longer to be so".But under these regulations it is apparently expressly to be so.
One cannot look forward with great confidence to the ruling of the European Court on this matter. Indeed, the Government have gone very widely, as the noble Earl explained to us, in their consultation on legal questions. They recently had the incoming permanent Secretary at the Department of Employment consult Mr. Anthony Lester, QC, as has now been made public. Mr. Lester wrote in the New Law Journal on 28th October of this year as follows:the defence will swallow the principle of equal pay and allow the perpetuation of wage discrimination based on discriminatory market forces".I say in passing in relation to those market forces that of course it is true that employers and men trade unionists sometimes go round the back of arrangements for equal pay. Of course, it is true; but I think it 909 should be said, and I have no doubt that the noble Baroness, Lady Seear, would accept, that among those who have fought long and hard for decades have been many trade unionists in this country whose record is an honourable one in trying to achieve this particular objective.
In relation to the employer's defence of "material difference" it has been said by my noble friend Lord McCarthy that there are two bites at the cherry. It may be that there are three, if not four. This brings me to the procedures, because the argument that there is a material difference that is relevant in the claimant's case can clearly come up on the pleadings in what is called the pre-hearing assessment, which is the existing procedure. Secondly, it can come up in the new hearing under the famous Section 2A(1)(a)—the famous double negative provision—where a tribunal has to determine whether there are reasonable grounds for the complaint, it not being clear exactly what evidence is adducible at that hearing. Thirdly, it can come up at the substantive hearing before the industrial tribunal refers the question to the expert. Lastly, it can come up after the expert's report.
Why is it necessary to have all those parts of the procedure? Again, I put it to the Government that there is grave doubt in many circles whether the procedure regulations are even intra vires, whether the Act as it is proposed to be amended allows for a tribunal to determine a case on which there are reason able grounds—and, therefore, it has passed over that hurdle—but before it is referred to the expert after hearing the employer's "material difference" defence argument. And if it is not open, as the procedure regulations appear to allow, ultra vires, to the tribunal to do that, what is the point of allowing the employer to argue the case before it is referred to the expert? These are procedures which are extremely ill thought through.
Had there been a proper occasion on which to move amendments, I would have urged the noble Earl to look with us at the new procedure regulations, Regulation 7A and Regulation 8, because the noble Earl, quite candidly and frankly, put it to your Lordships that one cannot understand the new regulations which we are technically debating now without putting them into the context of the new procedures. What we are debating now is the skeleton; the new procedure regulations are the flesh and living blood. If one looks at those new procedure regulations one finds a point of departure where a party cannot call evidence on facts in relation to the expert's conclusions, and then seven qualifications, many of which qualify the other qualifications, and which show quite clearly that the Government have not gone back to the drawing board in their procedural regulations after changing the rules about cross-examination of the expert.
On procedure, too, how will these matters work in practice? Obscurity has been mentioned in the debate; and the other learned lawyer whom the Government arranged for the incoming Permanent Secretary of Employment to see was the Master of the Rolls—thereby, in my view, imperilling and risking a compromise of judicial figures with a current controversy, but nevertheless they did it—and Sir John Donaldson, said something with which I an sure most 910 of your Lordships would agree. He took the opportunity, says the memorandum,of mentioning a different subject—his own concern with the obscurity of most labour legislation. He thought this a field where reasonable comprehensibility to the man in the street was of above-average importance".Not only is this obscure but it also offends another principle. There is an old adage that, "justice delayed is justice denied". I have taken advice from many of those experienced in the practice of the tribunals. They tell me that the average tribunal case now takes eight to 10 weeks from the first application. But they were unanimous that under these revised procedure regulations an equal value case will take at least 26 weeks and more likely eight months or more. The reason is quite clear: it is because there are 10 if not 11 separate stages. First, there is the normal tribunal pre-hearing assessment; secondly, there is the normal attempt at conciliation by ACAS; thirdly, there is the new invitation to an adjournment, special to equal pay; fourth, there is the new preliminary hearing on whether there are reasonable grounds; fifth, there is the first hearing of the employer's defence on material difference or material factor; sixth is the new reference to the expert; seventh, the report back from the expert, which may be up to 42 days later, or more if there is the need for a new or amended report; eighth, there is the new hearing on the report; ninth, the second hearing on the defence of genuine material difference; and tenth, possibly at that hearing but possibly later, there is the substantive question, at long last, on equal value. After that comes the judgment and maybe a question of costs in certain cases, appeals and so on.
I suggest this is likely to be justice delayed and denied, at least to those 38 per cent. of applicants whom the Equal Opportunities Commission report showed last year to be unrepresented by a lawyer, trade union representative or friend in the tribunals. With that procedure, with this complexity and with these obscure regulations, for the complainants who come to a tribunal—helped as much as possible, I am sure, by the tribunal's valiantly struggling with this absurdly complex law—what hope is there for speedy and informal procedure and for a quick and cheap remedy which the tribunals are supposed to provide?
Lastly, there is a list of defects which could have been debated by amendment. For example, I am sure that the noble Baroness, Lady Seear, whom I have heard speak many times on this matter, would have wished to talk about the way in which the expert is told to go about his job. He is told to take account of effort, skill and decision, for instance—legislation by "for instance" is not a very good way of doing things but I suppose it is better than nothing. One wonders whether that is the best formula.
I turn to another, more important, matter, in my view. Those I have talked to about job evaluation always make the point that one of the ways you can get at the nub of the question is by going to the workplace and seeing what really happens. Indeed, the Industrial Relations Review and Report, a journal of some authority in these areas, on 27th September, put it like this on a previous draft of the regulations:It may be assumed the expert will visit the premises to see the jobs in actions but one would have expected an explicit provision allowing this to be done regardless of the parties' consent. Job evaluation involves seeing the work being carried out and it is hard 911 to imagine how an expert refused access to the place of work could reach such a conclusion".The Government may say that most employers would of course permit access. I expect they will; but have the Government forgotten the name of Grunwick? I am sure noble Lords on this side have not. What will happen when the errant employer, not devoted to the principle of equal value—if the noble Baroness who raised the point likes, perhaps in collusion with some workers—refuses access to the place of work? I ask that more particularly because (and this is a paradox of the Government's improvements) that employer can now bring along his own expert who has had access to the place of work as a witness at a later stage in the proceedings.
There is one body which does not have a place in any of the Government's proposals and that is the trade union. For all the faults of the trade union movement, I say that it has a part to play in this matter—a critical part, a part which would have been better played and more easily played, and which could have been played as a party in discussion and proceedings, if the Central Arbitration Committee had been made a central body in these procedures. Indeed, it is ironic that the noble Baroness, Lady Hornsby-Smith, spoke of the need to have regard to stable pay structures, to the general pay structure position, in regard to these complaints about equal pay and equal value.
It is interesting that in their report for 1982 the Central Arbitration Committee themselves, in paragraphs 3.11 and 3.12, pointed out that individual cases, however justified, could be apotential threat to the stability of the overall (pay) structure"—unless one acknowledged—the wider collective issues that are at the basis of that structure".They went on to warn that making the minimum changes necessary to remove individual discrimination could cause a considerable number of new anomalies and dissatisfactions, unless one looked at that pay structure as a whole, thereby displaying the sensible approach of the CAC to these matters.
But by insisting that the only channel for determination on equal value should be the industrial tribunal with its expert, and by attempting to relieve employers of the burden of proof and then to give them the special benefit of multiple and market forces defences, the Government have been led into amendments and procedures that are highly likely to be denounced by the European Court of Justice, which more than justify the very moderate terms of the amendment in the name of my noble friend, and I urge your Lordships to support that amendment in the Lobby.
§ Lord Mottistone
My Lords, before the noble Lord sits down, may I ask him whether I heard him say that he thought Grunwick was an example of experts not being allowed into a firm by the management? Was there any case of experts not being allowed into Grunwick?
§ Lord Wedderburn of Charlton
My Lords, I took the parallel that ACAS had certain powers to make 912 recommendations in that type of situation, which they could most easily do if allowed to go into the workplace and consult everybody within the workplace. That facility was never given to ACAS in that case. It was one—only one—of the causes of the difficulty. It seems to me that a similar position might arise with the expert in this case, because he is an expert of ACAS and is appointed by the tribunal.
§ Lord Mottistone
My Lords, does the noble Lord really think that he can stretch wide and draw in a parallel which does not have any relevance and say that it does have some relevance, and thereby try to persuade us that the whole thing is upside down in that way?
§ Lord Wedderburn of Charlton
My Lords, I have obviously failed to make the point clear to the noble Lord. Let me try to do so in one sentence. If you are asking someone to do a job, to make an assessment of a situation, he ought to have the right to go in and look at it.
§ 5.13 p. m.
§ Baroness Burton of Coventry
My Lords, as a layman admirer of the noble and learned Lord, Lord Denning, for a great many years, I should like to say how cheered I was to hear his remarks today and to listen to what he, with his great expertise, thought of the present business before us—a point of view which I thought was obviously held by the noble Baronesses, Lady Seear and Lady Lockwood. I should like very much to join them in that wish, I think expressed by most people in this House, that if it were possible to take these regulations away it would be a useful service to everyone.
I prepared my notes for this debate on the assumption that it would take place on 27th October. But I must say, having looked at what transpired in another place, it seemed most unlikely that the Government could expect a reasonable passage in this House, if a passage at all. The more I looked at it, the more unlikely this seemed, and obviously the Government reached a similar conclusion. As we know, the business suddenly disappeared from our Order Paper. Today, almost six weeks later, it has returned, presumably because ratification is required by 31st December.
But before moving on to that I have a bone to pick with the noble Earl, Lord Gowrie. I do not suppose that it is his fault, but he is in the unhappy position of replying for the Government today and I should like to know what he thinks about it. When I saw today's business on the Order Paper, I did what I expect most other noble Lords did. I went to the Printed Paper Office and asked for the new and current draft statutory instrument.
In my ignorance, while realising the peculiar constitutional relationship of this House with another place in so far as orders are concerned, I assumed that some way must have been found for making some alteration and I took the instrument home to study. That was a week ago. Perhaps this admission further illustrates my ignorance, but I was surprised to find no alteration at all—so much so that I came back to the Printed Paper Office the next day to ask whether they had 913 made a mistake and given me the old instrument instead, as though our own Printed Paper Office would ever make such a mistake! Perhaps here I might, as it seems apt, pay a tribute to the wonderful service given to us by Mr. Fryers and his colleagues. I am now coming back to the noble Earl.
Anyway, there was no mistake. The instrument was exactly the same. What I did get were 17 pages of The Rules of Procedure, as amended. That was last Monday—a week ago. It seemed to me then, as a layman, that one needed to be at least a QC to understand what was set out in those 17 pages, so I decided not to waste my time. It is always sensible to realise one's limitations. Then, seeking sustenance from the wisdom of my noble friend Lady Seear, I produced my 17 pages. She did not have these at all. What she had evidently had to be added to what I had—and I thought that that at least moved me up to Lord Chancellor level! I hope that the noble Earl is listening, because this is important and I shall want an answer.
Today I was in the Printed Paper Office and, quite by chance, I saw Amendments to the Laws relating to Equal Pay, so I took them along to the Library. I thought that I had never seen anything like that before. But before tackling the noble Earl, I thought that I had better get my facts right, so I went back to the PPO and I asked, "Can you please tell me when this paper became available?" and they replied, "Only on Thursday or Friday of last week".
I do not think that is good enough. I think that those people who are expected to take part, and who would like to take part, in a debate should have this ready. I do not wish to accuse the noble Earl, but I think that this was produced only because the Government were hounded by the Printed Paper Office, who had been inundated by inquiries as to whether there was any information. Perhaps the noble Earl would comment on that.
Leaving those difficult matters for those experienced in the legal profession, I decided that it was sensible to stick to what I know, or at least to what I personally had prepared. In particular today, apart from the point which I have just raised, I have three questions for the Minister and if he can set my fears at rest as we go along that will at least be some measure of progress. They are three very simple questions. I shall not be long and I shall soon come to them.
Thirty-six years ago seems a long time and it is, of course, a long time. Yet in 1947 I wrote a pamphlet entitled What is she worth? Apparently, by 1983 we have not yet found the answer. I want to say straight away, as I think is obvious, that I do not think a great deal of the amendment to the regulations that we are discussing today and in this—as must have been obvious to the noble Earl, Lord Gowrie—I am certainly not alone. I think he has had one lukewarm appreciation, one semi-lukewarm and the rest of us are against. My feeling was summed up admirably in another place on 20th July by the Member who said that, if one considered the procedures set out in these regulations, their sole object appeared to be to deter the maximum number of applicants from seeking remedy, and to provide the greatest possible resistance to those who persisted. The Government must know 914 that many people feel that the suggested revision makes it even harder to claim equal pay than did the original Act.
If we go back to 1975, the Act was hailed as a landmark. It was to close differentials between men and women doing similar work. But this did not happen. Only last year, in 1982, as the House is well aware, the European Court declared it to be inadequate. Is it inadequate? How justified are those who state that this amendment will make it even harder to claim equal pay than did the original Act? And what are the reasons for this attitude?
First, and speaking generally, women are not now getting equal pay without having to put up a fight. Many fewer applications are being made. I expect the House knows that these fell from 1,742 in 1976 to 39 in 1982. I understand that only two claims were upheld last year. Could we be told whether the remaining 37 failed or were not heard? That is the first question which I ask the Minister today.
The Under-Secretary of State had a stormy passage (if "passage" be the correct word) in another place when bringing in this amendment. Members seemed to object to it as much as do we in this House. The whole statutory instrument was described as legal gobbledegook, which neither the Minister nor Members could understand, much less any would-be claimant. If he would allow me to say so, in much better language that is what the noble and learned Lord, Lord Denning, implied today.
Mr. Alan Clark, the Under-Secretary of State for Employment, spoke of criticisms made by the Equal Opportunities Commission. Included in those criticisms was the fear that too much power was being given to industrial tribunals when judging equality cases. As the House is aware, tribunals at present can either rule in favor of an equal pay claim or reject it, but now it is proposed to give them a third option: namely, to rule that there are no reasonable grounds for determining the question. Several noble Lords who have spoken today have mentioned this point. It arises in Clause 3. It was argued at considerable length in another place, where Members felt that tribunals already have powers to deal with trivial, frivolous or vexatious cases. Could the Minister inform the House: where are the guidelines to determine what are and what are not "reasonable grounds"? Are there any? If not, surely the tribunals have a basis that becomes unchallengeable. That is the second question which I leave with the noble Earl.
I have a third question before moving on to a final point. I read in Hansard of another place for 20th July last about independent experts. They arise in this same Clause 3. Perhaps I might ask three detailed questions on this aspect. First, what weight will be given by the tribunal to an expert's report? Secondly, is the Equal Opportunities Commission correct in its belief that an equal pay applicant will not have the right to cross-examine the expert about the report or to call expert evidence of her own? It was felt in another place that this was far from clear. Thirdly, is there to be an opportunity for the claimant to challenge the reasoning against her case?
In conclusion, the more I studied the debate in another place the more unhappy I became. Those 915 qualified in such matters felt it was entirely wrong to proceed by way of secondary legislation in a matter so complex as this. I believe that to be true and that there are many issues here which this House, too, would wish to debate. But what I believe to be even more serious is the contention made in another place that the Government, far from succeeding in their stated objective of bringing our law into line with that of the European Court of Justice, have failed to do so, with the result that we shall face further action from the court. We have heard that today from speakers in this House.
In introducing the Motion, the noble Earl, Lord Gowrie, was quite convinced that this would not be the case, but Mr. Hugo Young, writing in the Sunday Times on 24th July, said of these measures:In bare form, they comply with the European Court's judgment. But in practice this is rendered almost null by the small print".Well, what is she worth? Going back those 36 years I see that my last sentence was:The point at issue is the problem of translating the political equality of the vote—gained after the first world war—into social and economic equality, which must be the next stage".How old-fashioned and how true!
I was always of the opinion that we could not just let these regulations go through without some obvious protestation, whatever the constitutional issues involved, so we on these Benches shall support the amendment moved by the noble Lord, Lord McCarthy.
§ 5.26 p.m.
§ Baroness Gardner of Parkes
My Lords, I find myself in a very difficult position today. I speak for many women and women's organisations who are not at all happy about the amendment of the regulations, the Motion which is before us today. I am pleased the Minister said that the Government are fully committed to this principle, but I do not believe the regulations bear out that commitment.
I am, perhaps, unusual in that I sit as a member of an industrial tribunal. I believe that very few Members of your Lordships' House are members of industrial tribunals. I was not allowed to sit as a member of an industrial tribunal for quite a long while after I was granted my peerage. The reason for the delay was that investigations had to be made into whether it was in order for me to do so. It took so long to get an answer that I feel I must have been the first test case.
For nine years I have sat as a lay member of an industrial tribunal. I am well aware of the complexities of the cases which come before us. I am also well aware of the fact that during those nine years I have heard only one case brought on the grounds of sex discrimination. At the conclusion of that case the representative of a major company in this country said, "We'll never have this worry again. We have reorganised our work structure so that there is no basis of comparison now". Sure enough, this is what has happened. Throughout most industries there has, I believe, been job segregation. The noble Baroness, Lady Burton of Coventry, referred to the very small number of sex discrimination cases which have been heard during the 916 last year. The reason, no doubt, is that people who otherwise would have wished their cases to be considered have found themselves so re-classified or so reorganised within departments as to have no basis upon which they could successfully bring a case under the present regulations.
As the noble and learned Lord, Lord Denning, said, this will be an extremely difficult matter in legal terms. As I am sure all Members of your Lordships' House know, two lay members are appointed to industrial tribunals one from the trade union side and the other from the CBI. The chairman is always an independent and legally qualified person, of considerable standing. However, according to the noble and learned Lord, Lord Denning, somebody even more brilliant would be required to be able to determine the finer points of these cases. This causes me great concern. The lay members have only their chairman to look to for guidance on legal points. The lay members are there to assess the case in common sense terms and according to the facts.
The noble Baroness, Lady Burton of Coventry, asked what weight would be attached to expert evidence. I have no doubt that a great deal more weight would be attached to expert evidence if the expert had been allowed access to the property (a point raised by the noble Lord, Lord Wedderburn of Charlton) because the tribunal would consider that the employer was trying to hide something if he did not allow access to the expert. I do not consider that that is a point worth worrying about.
A great deal was achieved earlier this year when a number of the women's organisations met with the then Parliamentary Under-Secretary of State for Employment to discuss changes in this amendment. I was delighted that as a result of that meeting—a direct result, but as a result of other pressures applied, too, I am sure, through other women's groups and the Equal Opportunities Commission—the onus of proving the case was removed from the woman. That is an absolutely vital point. Had the onus remained on the woman to prove the case, it would have been almost hopeless. I cannot see how any woman could ever have won, because it would have been so difficult and she would not have had access to all the necessary documentation and facts. The onus of proof now being on the employer, that is a most valuable change from a woman's point of view.
The change was made also to provide that if there was sex discrimination in a job evaluation scheme a woman covered by such a scheme could still claim under the equal value provisions. The third point I thought was good was that all this was to come into force in January next. I am much less happy about the fact that any claims for compensation do not appear to be possibly backdated before January 1984. That is an unsatisfactory element, and it is a point that has been made by a number of speakers. I would also mention to my noble friend the Minister that when it comes to appointing experts I hope he will have an equal number of men and women among them, and thus set a good example in terms of having no sex discrimination there.
It is very important that guidelines of a clear and simple nature be produced. The complexity of this 917 regulation has been made clear, but every person who considers bringing a case looks for a simple handbook to follow in learning how to bring their case and follow the procedure, especially if they are bringing a case for themselves. I would say to noble Lords here present who are members of the legal profession and who have represented such cases that I often think that cases in which there is no representation get the best hearing and the fairest hearing. Quite often, the panel of three find that the legal arguments going backwards and forwards between the two respective counsel can become very tedious. It almost reaches the point where they are overlooking the human being who is bringing the case and whose facts and situations should be heard. I do not see any difficulty as far as being unrepresented goes, provided there are excellent guidelines and procedure books available.
I was interested in the comment of the noble Lord, Lord Wedderburn of Charlton, that an estimated 26 weeks will elapse before a case can be covered. Our tribunal is a particularly efficient or rapid service tribunal, and we expect to have cases through in about four weeks at the present time. Our estimate is that the new procedure will take 17 weeks. The slight simplification in the procedural regulations today might reduce that 17 weeks, but it will still take four times as long as the present case which comes before a tribunal, so it is still a very lengthy procedure.
In respect of the phrase "material factor", those of us sitting on industrial tribunals recently underwent a training session at which we were addressed by a professor of law who made a great point out of the phrase "material factor". The word "factor", he said, meant something entirely different from a "material difference"; it was much wider and much looser, and could he much more harmful to the applicant. Although great comment has been made about "material difference", no one seems to have laid the same emphasis on the word "factor" which I see in the regulations and which the professor of law thought was so important.
I would also ask my noble friend the Minister—and this point has not come through quite so clearly to me in studying the document—whether it will remain necessary to have a man working somewhere in the company in order to bring a case. At the training session I mentioned we were told also that if there was no man working anywhere within the company one would still not be able to bring a case. I should like my noble friend to say whether or not that has been changed.
I must make it clear to your Lordships' House that women are still very anxious about this amendment and about the regulations, and they are also very disappointed that the main order has not been changed. I flew back from Paris specifically to take part in the last debate. It was a rather hazardous journey because an industrial dispute had cancelled my British Airways flight and I was made to queue for one and a half hours to get a "no show" ticket with Air France. I arrived in your Lordships' House just in time to discover that the debate has been cancelled. In fact, I thought that that was not too bad because it meant that the Government were taking the matter back to reconsider it. So I am very disappointed that the regulations have not been changed.
918 Although I accept my noble friend's goodwill on the point that he believes in complying with European law, it would be very sad indeed if time passes and we find that that is not so and Britain is taken once more to the European Court and loses again. That would be most unfortunate, and I know that many other people feel concern about that point.
Having given my views on both sides of this matter, I feel that I cannot support the amendment of the noble Lord, Lord McCarthy. But it will take some very convincing arguments from my noble friend the Minister to cause me to support the Government on this matter.
§ 5.36 p.m.
§ Lord Houghton of Sowerby
My Lords, the noble Lord, Lord Mottistone, and myself are the only two laymen in this debate. We have heard from the women and we have heard from my two visiting noble friends on this side of the House—the noble professors Lords McCarthy and Wedderburn of Charlton. They both have not been content to floor the Minister but they have driven him into the ground. We have heard also from the noble and learned Lord, Lord Denning, who has surely shown that the English language can be used to express principles and ideas, provisions and regulations in terms which people can understand.
If I may say so with respect to the noble and learned Lord, Lord Denning, the trouble about many of his judgments was that people understood them and agreed with them. It was only the lawyers who disputed them. The noble and learned Lord has cause to feel aggrieved at what this House has done to some of his judgments—but he is here with us tonight to play his part in overthrowing your Lordships' House.
The noble Earl the Minister said that the Government were fully committed to the principle of equal pay for equal work. Right! The noble Earl said the Government were fully committed to the principle of equal pay for work of equal value. Right! He then went on to say that the Government were fully committed to obeying the directives of the European Community. He added that he believed our legislation of 1970 and 1975 did in fact do that and was a little surprised to find that the European Court decided otherwise. Nevertheless, the noble Earl swallowed his disappointment and said that the Government are committed to complying with the judgment of the European Court. What, then, are we arguing about?
Surely all that stands between us are the words to be used and the provisions to be made in complying with the judgment of the European Court. That is all there is to it. That may be difficult and it may be complicated but it is not insuperable. We have passed the stage in this debate where the Minister can be further affected by the weight of argument; I believe he can only be impressed now by the volume of dissent. That is where the two laymen in this debate can perhaps add a little influence to the weight of argument that has already been imposed upon the Minister.
I am one of the few survivors of the signatories of the equal pay agreement of the Civil Service of 25 to 27 years ago. It was so simple then. In this vast public service of nearly 1 million people we found it possible to introduce equal pay on the basis of equal work. 919 Admittedly, of course, in the organisation and grading and structure of a public service you have common grades with men and women with common duties, common lists for promotion. It was perhaps the A, B, C of equal pay. When we met difficulties, as in the case of the Post Office, we seemed to face them in simple terms. The women telephonists were not required to work at night. We said to them, "If you want equal pay you must work at night, whether your mothers or your husbands like it or not, and whether the wives of the male telephonists on duty at night like it or not. You must work at night. We will not impose it upon you because it is not in your existing conditions of service, but if you do it you will get equal pay and if you do not you will not. It is as simple as that. And for the future we will recruit on the basis that you work at night". I believe that is the last I ever heard of any real trouble in applying the principle of equal pay.
But in the public services there are no dirty tricks departments; they are all honourable men, and difficulties are overcome by negotiation. Surely most of the problems in industry, complex as many of them are, are overcome by negotiation, complying with the principles which have a superior writ in the field of employment. As I see it, the complications of this situation have arisen from adopting the principle of equal pay for work of equal value. Then you have to bring in assessment and rely on experts to advise you, and in examining the nature of the work done, evaluating it, in the jargon of the regulations, it is not only desirable, or perhaps necessary, to look at what is, but why it is, and should it or could it be different?
I think probably in industry it is possible to come across a good deal of contrived discrimination, contrived changes of work which favor the discrimination between men and women. Therefore, I think it is desirable to have in the evaluation process an examination of whether the premises upon which the differential in the pattern or processes of work which justified the discrimination are in fact justified. This may be a nuisance to an employer, but I think he has to be willing to defend—as, indeed, he is given an opportunity of doing—the differences in work processes as between the men and the women upon which he relies for the differences in pay.
I do not think that, in applying the principle of equal pay for work of equal value, any job evaluation which discriminates on the ground of sex can rest upon premises which are not justifiable. I think that is the essence of the matter. What the Minister has to satisfy the House about is whether that principle, among others, is firmly entrenched in the combination of the legislation and the regulations. The Minister cannot really feel satisfied about forcing these regulations through the House tonight in face of so much bewilderment as to what they mean, criticism of what noble Lords think they mean, and disappointment at what some noble Lords think they do not mean. In those circumstances the Government should be prepared to take them away and have another go.
That, I am sure, is the wish of the House, because those who may support the Government in the Lobby on these regulations surely cannot feel happy about them, they cannot feel convinced that this does what 920 should be done and they understand is to be done. Goodness me, anybody who has spent his life reading the income tax Acts makes claim to a certain understanding of legislative complexity, but here one has only to see the regulations and really one wonders what words mean.
The Minister, I thought too briefly, in introducing the regulations, set about the job of explanation; he probably thought it was better to wait to hear it all and then deal with it at the end, so I think he has that task to come. If he is going to convince the House that these regulations should be passed tonight, then he has to convince us more than we are convinced at present that they are understood to do what we believe they should do, and nothing short of that can possibly give satisfaction. I hope, therefore, that the noble Earl the Minister will accede to what I believe is the will of the House. A little time may be lost, but better to get it right, even if we have another go, than do something which is inadequate and proves to be inadequate in the course of its application.
I do not think I have any more to say. I cannot vote for these regulations, and it is obvious that noble Lords on both sides of the House will not be able to do so either. If there is so little between us, if there is in fact nothing between us, is it not nonsense to go on with regulations which we are not satisfied apply what is agreed between us? That is my difficulty. If the Minister says, "I am in favor of this, I am in favor of that, we are fully committed to that, we are complying with the judgment of the Court of Europe", and yet when he produces the paper which does so he meets with all this difficulty, does he not want to overcome it somehow; does he not want to explain it or to replace it?
The Earl of Gowrie
My Lords, I am most grateful to the noble Lord for giving way. The fact of the matter is a little bit simpler than the noble Lord is describing. The Government thought that the legislation was fully in conformity; it was found not to be. They introduced proposals which were found unsatisfactory by various representations and bodies. They went away, as we are again being appealed to do, and thought again. They brought back proposals which have been widely welcomed by the bodies consulted though, understandably perhaps, they would like some other ones. All the weight of the Government's legal advice is that it is now in full conformity with the law as defined by the European Court. This is not really quite such a complexity as the noble Lord is making out.
§ Lord Houghton of Sowerby
Well, my Lords, I will not detain the House any further. It is obvious that the Minister has something more to say. I think I have made my point. I can only conclude by reinforcing the appeal I have just made to him. This House is noted for reaching agreement where accommodation is possible. I think that the attempt should be made, because it will be a great pity if this important addition to the regulations is issued in face of the discontent, and indeed positive dissent, of so many people who believe they understand them, who are not satisfied with what they read, and who are entitled to have their wishes met, especially if there is no real grievance to be overcome, no real difference to be overcome between the Minister and the rest of us.
§ 5.50 p.m.
§ Lord Mottistone
My Lords, as always it is a privilege to follow the noble Lord, Lord Houghton of Sowerby, and I am so pleased. I had not spotted that he and I are the only lay contributors to this debate. There are other features your Lordships will see on which we are surprisingly well agreed, except that, having heard all the arguments and my noble friend's introductory remarks, as well as those he has just made, although the new regulations obviously are not satisfactory in several respects, they do—and I take my noble friend's word for it—legally meet the requirements of the European Court. Therefore, it would seem that a possible way through this is—and I strongly agree with the examples given by the noble and learned Lord, Lord Denning, that the actual wording is so abstruse, and has become more abstruse as it has been amended—that surely there could be an opening for clearing it up. Perhaps the Government could take advantage of the system of legislating by regulation. Many noble Lords opposite have objected to this, as I have for much the same reason when I was sitting on the Opposition Benches. But the system of legislation by regulation has the advantage that it can be further amended quite simply. Therefore, perhaps my noble friend will listen to the general theme of the debate and say to himself, "I got the message from all sides of the House that further amendments are necessary, but this has to be brought into force by 1st January 1984, so there is not time to amend it now. I will give full consideration to amending it thereafter".
If that is the case, he could go ahead with these regulations, which are all right so far as they go, and tell us that he will have another look at rewording them so that they make sense to the common layman. That is the key feature. If they are legal, fine, although I know that noble Lords opposite believe that they do not meet the European Court's requirements. The Government do. However, we are all agreed that, even if the Government are right, the actual wording—and I would go so far as to say the Equal Opportunities Act itself—is so unclear that the whole legislation requires reconsideration to put it in terms that ordinary people can understand. That is something that the Government could undertake, because it is ordinary people who have to understand it.
Having said that, I am concerned, as my noble friend is aware because we have exchanged correspondence, that there is still inadequate definition of what is "equal value", even if one accepts that Section 1 of the Equal Pay Act, 1970 must be tightened to meet the court ruling. Perhaps the pamphlet produced by the noble Baroness, Lady Burton, in 1947 gave a definition of "equal value". If so, perhaps she could give it to my noble friend so that he may learn from that. Loose definition and the reliance on experienced experts within the tribunal, like my noble friend Lady Gardner of Parkes, and in support of it, as is provided in the regulations, is perhaps acceptable if the law itself is sufficiently broad to allow for all the vagaries of real life employment situations. However, if the law must be tightened, as we are told by the European Court, then it must, but it can become unfair to some parties to potential disputes if the definition of "equal value" is not tightened in parallel. If it is not, I suggest that that is not good enough.
922 Here I tend to follow the same lines as the noble Lord, Lord Houghton of Sowerby, as the other layman. The problem that the European Court ruling has caused, remind me of difficulties that we experienced when introducing job evaluation for the staff of the Distributive Industry Training Board in the mid-1970s. Happily, both the employers' and the employees' side of the special committee that was set up to do this worked well together and readily obtained agreement on practically all the jobs. However, there were one or two on which there was great difficulty. I remember thinking. with regard to those job evaluations which were exceptionally difficult to fit fairly into the framework of our agreed joint evaluation system, "If only we did not have to start from here". However, these were not cases which involved any discrimination between the sexes. Indeed, we never had any difficulties of sex discrimination. I believe this was because we started the formation of the DITB's staff from scratch with the firm intention of making men and women eligible for each and every job. That is the key to the difficulty before us. Organisations starting from scratch with a deliberate policy of equal opportunity, or those which have introduced such a policy, do not have the problems of equal opportunity that others have. It is interesting that this very point was made by the noble Lord, Lord Houghton of Sowerby, and, if I now continue with my speech as I have prepared it, I go on to say, "I suspect, for example, that sex discrimination is not now a problem in the Civil Service because for many years it has adjusted to a policy of equal opportunities for women". That is exactly what the noble Lord, Lord Houghton, said just before I started my speech.
There are, however, many sectors of industry where discrimination on many grounds, including that of sex, has been normal personnel policy until very recently. Often the representatives of the workforce are even keener than the management to continue discrimination. Perhaps the noble Lord, Lord Wedderburn of Charlton, will agree with me on that. I was rather depressed to hear my noble friend Lady Gardner say that this is being continued by having a deliberate policy of job segregation. That seems to be a move backwards of the worst possible sort. It is not unfair to say that companies and other organisations which have not had a deliberate policy of equal opportunity will take a lot of time to get used to it, particularly if they do not have both sides of industry working towards it. It has been my experience that when this sort of situation occurs it can take up to 15 years, or half a generation, for attitudes to change.
There must be an impulse from the top to make sure that they do change. It is sad to realise that that is something the legislation of the past 15 years or so has not managed to achieve. In the meantime, one has to do one's best in adjusting the law where necessary. Thus, although I have my misgivings over the precise wording of the regulations, I accept that the Government are doing their best, so far as British law writing practices permit, gently to adjust to the needs of the times. I therefore propose to support my noble friend and not support the amendment in the name of the noble Lord, Lord McCarthy.
§ 5.59 p.m.
The Earl of Gowrie
My Lords, this has been an extremely interesting debate; one of the most interesting I have heard in your Lordships' House. The difficulty is that all of us, wherever we sit in this House, tend to be swimming in rather unknown waters with this kind of legislation. As he has done so often throughout such a distinguished career, the noble and learned Lord, Lord Denning, put his finger on the dilemma. He was kind enough to accept that the Government's intentions on equal opportunities for women were good and worthy. Noble Lords on all sides of the House have been kind enough to echo the noble and learned Lord, Lord Denning, in that, and have also been kind to me in respect of my personal commitment in this area. As I said on another occasion in your Lordships' House, I appear at this Dispatch Box only by courtesy of the support of a full-time professional in the form of my wife. Otherwise, I should find it extremely difficult economically to work here. I certainly have an interest in this field of achievement and activity.
The noble and learned Lord, Lord Denning, while patting us on the back for our intentions, was worried about the complexity of the regulations. This worry has been echoed by almost every speaker in the debate, even those who, like my noble friends Lady Hornsby-Smith and Lord Mottistone—and even, though perhaps with more modifications, Lady Gardner of Parkes—have wanted to give the Government the benefit of the doubt. These complexities are not because the Government are trying to rush the regulations through, or because they have not had sufficient time to think them through. As I am sure the noble and learned Lord, Lord Denning, will recognise, the difficulty is that apparent simplicity can often mask real difficulty. In any case, the very concept of equal pay for work of equal value is simple only on the very surface. We may all think we know what it means, but it is clear from the enormous amount of discussion and consultation in which the Government have engaged that not everyone takes the same view as to what it may mean in practice.
This fact was echoed by my noble friend Lord Mottistone when he asked that its meaning be drawn rather more precisely. When I said that it was my view that the existing Act covered the European concept and the attitude of the European Court (which it is now clear I was wrong in thinking) what I meant was that we felt that our Act was drawn in terms of our legislation to give a fairly precise and narrow meaning as to what equal pay meant—a meaning that could be easily interpreted by courts and tribunals. But we found that we were wrong. The European Court took another view.
This very concept of equal pay for work of equal value is a very complex one in practice, as I believe the noble Baroness, Lady Seear, and others acknowledged. The noble Baroness acknowledged that whichever way the Government drew up the regulations there were bound to be difficulties and complexities in them when translated into practice. Against this background it has been the lot of Parliament to try to create a well-defined right which can be enforced with reasonable certainty and consistency. We accept that this effort 924 as led to complexity, but in our defence we would say that this complexity is inherent in the very right which we are seeking to give in response to the ruling of the European Court.
The noble Baroness, Lady Burton of Coventry, also expressed her dissatisfaction on these grounds of complexity. I say to her that of course it is difficult to lay down regulations that can be precisely defined. We will expect to see a body of case law emerging. Tribunals will need to judge the circumstances of individual cases, and in time case law will emerge. Where the rights of individuals are concerned, in any case, applicants will be able to appeal on any points of law to the Employment Appeals Tribunal.
We are also working on what I would call a child's guide to these regulations. I, too, am a lay person, and am much in need of a child's guide to most legislation. In preparing its revised guide and leaflet for employers and employees, the Department of Employment will have very much in mind the need to make clear and simple the admittedly complex provisions of the amended regulations.
The noble Baroness, Lady Seear, is an experienced and skilled old hand in parliamentary tactics. I say to her that it is possible to take almost any piece of legislation, read out one or other of its provisions and ask people to provide an immediate gloss on it. We have to accept that in spite of all that we feel about plain English and the work of the late Sir Ernest Gowers, parliamentary drafting is necessarily complex. It has grown up for successive Governments, therefore, to try to issue accompanying guides for ordinary people which do not have the force of the legislation but which steer nine cases out of ten in the right direction.
I have dealt, at least in a preliminary way, with what I think has been the substantive objection made tonight—the complexity of the regulations. It is a complexity which, as I said in my opening remarks, is really conditioned by the problems of bringing British law in line with European law. Now may I come to some of the particular difficulties which have been raised and put to me? The noble Lord, Lord McCarthy, raised two issues in particular. He asked how the power in Regulation 3 to throw out a case where there are no reasonable grounds for finding equal value fits with the pre-hearing assessment already provided. As he himself said, the pre-hearing assessment provided by the procedural regulations is no more than a warning to the applicant that to continue may bring an award of costs against him. The new power to throw out the case is in recognition of the fact that to allow a hopeless case to continue will be expensive and time-consuming for all concerned. I stress that it is only the hopeless case that will be excluded by this regulation. If there is any doubt, it must be resolved in the applicant's favor and the case will proceed in the normal way.
The noble Baroness, Lady Burton of Coventry, asked how many cases were heard by a tribunal in 1982. The answer—and it supports what I have just said—is that 39 cases were completed last year. In all, 13 were heard by tribunals; and two of these were decided in favor of the applicant. The remainder, or 925 26, were withdrawn by the applicant or were settled as a result of conciliation without reaching a tribunal hearing. I am sure that noble Lords and the noble Baroness will recognise that this is the best and most sensible way. We can be too legalistic about these matters. Tribunals will continue in most cases to help settle matters without recourse to legal or further legal procedures. I am sure that we should all wish that to be the case.
To return to the noble Lord, Lord McCarthy, he also referred to the new and wider defence of "a material factor". He seemed convinced that this would be bound to perpetuate sex discrimination in pay. As I thought I had made clear in my opening remarks, the defence is drafted in such a way that the employer can never succeed with an argument which rests on there being a difference of sex. After all, that sexual discriminatory element is what we are really debating tonight. In the case of Jenkins v. Kingsgate, which the noble Lord quoted, the European Court made it clear that European law acknowledges an employer's right to take account of non-discriminatory economic factors when settling pay. We, of course, agree with that and recognise the force of it. It would help no one if women should find themselves priced out of jobs by legislation which admitted claims not tainted with matters of sex discrimination.
It has never been suggested that the existing material difference defence allowed an employer to argue matters grounded in sex, whether directly or indirectly, and so I fail to see why the new test is open to that charge. All the new test does is to widen the scope of the arguments open to the employer. In devising the test we have had regard to Article 1 of the equal pay directive, which defines equal pay in terms of the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
The noble Baroness, Lady Seear, thought that it would be easier for the employer to use the material factor defence in an equal value case than in a like work case. That appears to be so at first sight, but in fact it is not so. In a like work case there is normally little room for a defence based on market forces, principally because like work is being done and the job in question is therefore not being done in differing economic circumstances. The very essence of equal pay for work of equal value is that comparison between different jobs to which differing economic circumstances apply is in fact possible. Because of that, and contrary to the noble Baroness's suggestion, it is important that employers should be able to argue that market forces account for the pay differential between the two jobs provided—and again I emphasise this—that there is no direct or indirect discrimination on the grounds of sex.
I am very grateful for the speech made by my noble friend Lady Platt of Writtle, who I think acknowledged that the Government had really gone to very considerable lengths to try to meet some of the objections made and the cases put to them. I believe that one reason for anxiety tonight has been imperfect recognition that we have already gone away and thought again about this question—and not merely within our own enclave, so to say, but in full consultation with nearly all of the interested bodies involved.
926 My noble friend also said that the case of Jenkins v. Kingsgate establishes that economic factors can be a defence for the employer under existing law, and of course that is so in relation to the particular facts to which the case applied. Nevertheless, our view is that the case does not mean that the employer would be able to use the wider economic factor defence in other circumstances—the other circumstances which we want to cover, which we must cover, in equal value cases. Our new provision gives wider opportunities to bring claims to equal pay with wider implications for pay structures and for jobs. The wider defence protects employers from ill-founded claims which are not based on sex discrimination. As I said in my opening remarks—and this, too, is a reason for some of the complexity of the regulations—we must protect employers from ill-considered actions of that kind.
The noble Baroness, Lady Lockwood, who again was kind enough to pay some tribute to the meetings that we had together when I was the Minister directly involved in these issues, asked me what grounds of appeal would there be from a tribunal's decision to throw out a claim. As I said earlier, there would be an appeal to the Employment Appeals Tribunal on the basis that the original tribunal had reached a determination which was contrary to the evidence, or where there was insufficient evidence.
I believe that this is the stage at which to reiterate to the noble Baroness, Lady Burton, who appeared cautious as to whether she was satisfied by my mention of these points in my opening statement, that we have now allowed the parties the right to cross-examine the expert and to bring their own expert evidence. I hope that from that it will be apparent that the expert can be challenged and that his report is simply evidence on the question of the value of the jobs at issue. It is for the tribunals to decide what weight to attach to all the evidence, and ultimately to decide the issue. As I have just said in response to the noble Baroness, Lady Lockwood, the applicant can go on from there to the employment appeals tribunal on a point of law.
I come to the speech of the noble Lord, Lord Wedderburn of Charlton. How it took me back to several summers ago when the noble Lord and occupied much of your Lordships' time together debating industrial relations matters. The noble Lord said that the regulations say nothing about collective agreements. It is true that the regulations do nothing to amend the exisiting provisions dealing with discriminatory collective agreements, but it was not our purpose to deal with that issue. Our concern, the concern of the regulations, was solely to repair the breach in our compliance with European law, which was made known to us at the earliest opportunity by the European Court of Justice. Our concern was not to repair any other breaches which may or may not exist in the legislation. There are ordinary, approved and time-honoured ways of doing that. If there are defects in the rest of the law, we can of course look at them in a different context. It would not be appropriate to do so simply to bring our legislation into line with the European Court's ruling.
The noble Lord, Lord Wedderburn, has again made much play with complexity, but this time not so much 927 complexity of the wording, but of the procedure, suggesting that there are too many stages in the procedures. I believe that the noble Lord exaggerates the number of stages. He said that in some instances there will be two stages, whereas there will be only one. Indeed, most cases will go through some of the stages only because there will be no application for a pre-hearing assessment or no material factor defence. Again, I refer the noble Lord to the answer that I gave to the noble Baroness, Lady Burton, in respect of our experience in 1982.
Finally, I wish to turn to the remarks on equal value made by my noble friend Lady Gardner of Parkes. Comparisons on equal value can be made between employees employed by the same employer or associated employer of the same establishment, or one where the same terms and conditions of employment apply. That is, of course. the same as applies at present under the Equal Pay Act.
As I said in opening, this will be a difficult area until a volume of case law has been built up, but this evening our aim has been solely to implement the European Court's judgment and to have regard to our need, which we fully acknowledge, to comply with European law. I honestly believe that we have achieved that aim. It has been our wish to do so. We have the greatest goodwill towards the European Court in respect of the matter. Every consultation has been held. We have amended our regulations in very considerable detail in response to anxieties that have been expressed. We have consulted the Law Officers of the Crown as to whether we are now in line with the European Court. It is their full advice that we are. I hope that noble Lords will not throw this difficult issue further into doubt by following the noble Lord, Lord McCarthy, into the Lobby tonight.
§ Baroness Lockwood
My Lords, before the noble Earl sits down, will he remove a misapprehension that appears to prevail among some members of your Lordships' House—namely, that there is a time constraint of 1st January for this regulation to get through? I appreciate fully that it is the Government's own reaction to the European judgment. But will he assure the House that we are under no compulsion from Europe to get the regulation through?
The Earl of Gowrie
My Lords, as I said in my opening remarks, Europe wants us to do this as soon as possible and the European Communities Act suggests that we come in line through this process of regulation in order that there shall not be undue delay.
§ 6.21 p.m.
§ Lord McCarthy
My Lords, we have had a very distinguished, long debate. I do not wish to delay the House unduly. I think we can argue, on this side, that we have had the balance of the argument. We have certainly had the balance of the numbers. What we have been arguing can be summarised under a series of heads. We have been saying that this regulation is a miracle of complexity and obscurity and that simple men, and even non-simple men, cannot understand it. That is what the noble and learned Lord, Lord 928 Denning, said, as did the noble Lord, Lord Houghton, and many others. We have said that it is procedurally unfair and unbalanced. That is what, as I understand it, the noble Baroness, Lady Platt, said, and also what the noble Baroness, Lady Gardner of Parkes, said. It is especially so, I say, in view of what the noble Lord, Lord Wedderburn, called the double defence and what I call the a priori pre-hearing pre-hearing. We have said that it is of very considerable and unnecessary procedural length and will produce delay. It has also been said that there is now very considerable delay in hearing equal pay cases. Many Members of the House have made that point.
We have said that it is out with the EEC directive, particularly Article 1 and also Article 2. We have said that because of the material factor that is not a material difference, which allows the all round market defence, as stated in another place, it is therefore outside the EEC directive. We have also said that it does not refer to collective bargaining and that it rules out any productive role for the CAC. We have stated all these six or seven arguments as to how this regulation is unfair, discriminatory, complex and outside what we are asked to do by the EEC.
What has the noble Earl said? He told the noble Lord, Lord Denning, if I understood him, that these complexities were inherent and unimproveable unless we so narrowed the rights of equal opportunities that we were in a position where we were constantly challenged by the EEC. The House has to decide whether it accepts that. We do not accept it.
The noble Earl has promised us a child's guide to the future. But it cannot be a child's guide because it has to help the Master of the Rolls, the EAT and the industrial tribunals. They have to find their way through this extraordinarily complex piece of machinery. It will be a very adult child who can make head or tail of it. He told me that the pre-hearing pre-hearing is going to add to the existing pre-hearing, which makes it even longer. I repeat, "Why do we need it". What does it do that the pre-hearing does not do? And if it does something, why cannot one appeal against it? This is an unprecedented thing to put into a statute.
The noble Earl told me again that the material factor that is not a material difference will—he admitted it—widen the area of defence, but it will not let in sex discrimination. He did not tell me why it would not let in sex discrimination. He asked me to hope. The House must decide whether it can rely on that hope. He told the noble Baroness, Lady Platt, that there had been wide consultations on the regulation and that therefore we should accept it. The trouble is that most of the consultation produced a large number of groups, individuals and institutions who did not like the regulation. A large part of the criticisms remain valid because they have not been taken into account.
I would argue that virtually all the criticisms that have been mounted in this long debate have not been answered. So what are we asking the House to do? Let me first say what we are not asking the House to do. This regulation was passed by the Lower House. It is not our policy to invite the House to cancel, defy or reject regulations of this kind which are passed by the Lower House. What we are asking the House to do is something that we understand is quite normal and 929 customary practice—that is, to express a view. The objective of that view, if the House agrees with us, is, I suggest, that the Government should take some notice of that view and that they should take the regulation away. Of course, there are a wide range of things that they can do with the regulation. It is not for me to say exactly what they should do at this time of night. There are parts of the regulation that they could just drop—the pre-hearing pre-hearing. There are parts of the regulation that they could rewrite—the material factor that is not a material difference. They might decide to put something in. They might decide, indeed, to introduce a Bill if that is the way that they want to see it.
We are not saying how it should be done. We are saying that there are an overwhelming weight of thought and argument and, I believe, votes in this House to say that this regulation, as it is, will not do and will simply result in us coming back yet again, if not this year, then next year, or the year after, because the European Court has someone come before it to show that the regulation does not conform.
§ 6.27 p.m.
§ On Question, Whether the said amendment shall be agreed to?
§ Their Lordships divided: Contents, 108, Not-Contents, 104.930
|DIVISION NO. 1|
|Allen of Fallowfield, L.||Gladwyn, L.|
|Annan, L.||Glenamara, L.|
|Ardwick, L.||Graham of Edmonton, L.|
|Attlee, E.||Hale, L.|
|Aylestone, L.||Hampton, L.|
|Banks, L.||Harris of Greenwich, L.|
|Barnett, L.||Hatch of Lusby, L.|
|Beswick, L.||Houghton of Sowerby, L.|
|Birk, B.||Howie of Troon, L.|
|Bishopston, L.||Irving of Dartford, L.|
|Blease, L.||Jacques, L.|
|Boston of Faversham, L.||Jeger, B.|
|Briginshaw, L.||Jenkins of Putney, L.|
|Brimelow, L.||John-Mackie, L.|
|Brockway, L.||Kaldor, L.|
|Brooks of Tremorfa, L.||Kennet, L.|
|Bruce of Donington, L.||Kilmarnock, L.|
|Burton of Coventry, B.||Kirkhill, L.|
|Byers, L.||Leatherland, L.|
|Carmichael of Kelvingrove, L.||Llewelyn-Davies of Haste, B.|
|Cledwyn of Penrhos, L.||Lloyd of Hampstead, L.|
|Collison, L.||Lloyd of Kilgerran, L.|
|Cooper of Stockton Heath, L.||Lockwood, B.|
|Darling of Hillsborough, L.||McCarthy, L.|
|Darwen, L.||McGregor of Durris, L.|
|David, B.||McIntosh of Haringey, L.|
|Davies of Penrhys, L.||McNair, L.|
|Dean of Beswick, L.||Mayhew, L.|
|Denington, B.||Milner of Leeds, L.|
|Denning, L.||Mishcon, L.|
|Diamond, L.||Molloy, L.|
|Donaldson of Kingsbridge, L.||Oram, L.|
|Donnet of Balgay, L.||Peart, L.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Ewart-Biggs, B.||Plant, L.|
|Falkender, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.|
|Foot, L.||Prys-Davies, L.|
|Gallacher, L.||Raglan, L.|
|Gardiner, L.||Rea, L.|
|Roberthall, L.||Stone, L.|
|Ross of Marnock, L.||Strabolgi, L.|
|Seear, B.||Taylor of Blackburn, L.|
|Sefton of Garston, L.||Tordoff, L.|
|Segal, L.||Underhill, L.|
|Serota, B.||Wallace of Coslany, L.|
|Shackleton, L.||Wedderburn of Charlton, L.|
|Shaughnessy, L.||Wells-Pestell, L.|
|Shinwell, L.||Whaddon, L.|
|Soper, L.||Wigoder, L.|
|Stallard, L.||Wilson of Langside, L.|
|Stamp, L.||Wilson of Rievaulx, L.|
|Stewart of Alvechurch, B.||Wootton of Abinger, B.|
|Stewart of Fulham, L.||Young of Dartington, L.|
|Stoddart of Swindon, L. [Teller.]|
|Ailsa, M.||Long, V.|
|Allerton, L.||Lucas of Chilworth, L.|
|Atholl, D.||Lyell, L.|
|Auckland, L.||McAlpine of Moffat, L.|
|Avon, E.||Mackay of Clashfern, L.|
|Bellwin, L.||Macleod of Borve, B.|
|Bessborough, E.||Mansfield, E.|
|Broadbridge, L.||Margadale, L.|
|Caithness, E.||Maude of Stratford-upon-Avon, L.|
|Campbell of Alloway, L.|
|Campbell of Croy, L.||Melville, V.|
|Cathcart, E.||Merrivale, L.|
|Cockfield, L.||Milverton, L.|
|Coleraine, L.||Molson, L.|
|Constantine of Stanmore, L.||Monson, L.|
|Cork and Orrery, E.||Mottistone, L.|
|Craigavon, V.||Mountevans, L.|
|Croft, L.||Mowbray and Stourton, L|
|Daventry, V.||Nugent of Guilford, L.|
|Davidson, V.||Onslow, E.|
|Denham, L. [Teller.]||Orkney, E.|
|Drumalbyn, L.||Orr-Ewing, L.|
|Dundee, E.||Pender, L.|
|Ebbisham, L.||Peyton of Yeovil, L.|
|Elles, B.||Portland, D.|
|Elton, L.||Reigate, L.|
|Fanshawe of Richmond, L.||Renton, L.|
|Fortescue, E.||Rodney, L.|
|Fraser of Kilmorack, L.||Romney, E.|
|Gainford, L.||Rugby, L.|
|Glanusk, L.||St. Davids, V.|
|Gowrie, E.||Saint Oswald, L.|
|Gray of Contin, L.||Sandford, L.|
|Gridley, L.||Sempill, Ly.|
|Grimston of Westbury, L.||Shannon, E.|
|Haig, E.||Skelmersdale, L.|
|Hailsham of Saint Marylebone, L.||Spens, L.|
|Halsbury, E.||Strathcona and Mount Royal, L.|
|Harvington, L.||Swansea, L.|
|Hawke, L.||Swinfen, L.|
|Home of the Hirsel, L.||Swinton, E. [Teller.]|
|Homsby-Smith, B.||Teynham, L.|
|Hylton-Foster, B.||Trefgarne, L.|
|Inglewood, L.||Trumpington, B.|
|Kaberry of Adel, L.||Tryon, L.|
|Kilmany, L.||Vaizey, L.|
|Kinloss, Ly.||Vaux of Harrowden, L.|
|Kinnaird, L.||Vivian, L.|
|Lane-Fox, B.||Whitelaw, V.|
|Lauderdale, E.||Wise, L.|
|Lawrence, L.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ On Question, Motion, as amended, agreed to.