Equal Pay (Hansard, 16 December 1983)

§ Lord McCarthy
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie)
My Lords, the Equal Pay (Amendment) Regulations will become operative on 1st January 1984. We remain firmly convinced that the amendment takes full account of the 1982 decision of the European Court of Justice, and is therefore in conformity with European Community law.

§ Lord McCarthy
My Lords, I thank the noble Earl for answering the Question in a rather uninformative way. Is he not aware that severe disappointment will be bound to follow in all parts of the House from what he has just said? Does he not recall that, in the debate that we had on 5th December, an unusual number of distinguished Members of the House told him that what he had in his hand were incoherent, protracted regulations which did not discharge our obligations to the European Court or under the EEC directive? Would not the noble Earl agree that on that occasion he said what he is now saying: that his advisers have told him that we shall be all right on the night?
Can he tell me today what he did not then tell me; namely, how the new Section 2A(1)(a) can provide for a dismissal case without reason and without giving appeals? How can that be a judicial process? How can the new Section 1(3)(b), which allows for a general labour market defence which will run through the regulations like a coach and horses, take into account the terms of the equal pay directive? Can the noble Earl please give us those reasons, and not say to us merely, "My advisers tell me that it is sound"?

The Earl of Cowrie
My Lords, I am afraid I am too old a hand to be drawn into debating amended regulations during Question Time. The fact is that the noble Lord, Lord McCarthy, was perfectly at liberty to invite the House to throw out the amended regulations. He did not do so and therefore they went through.

§ Lord Campbell of Alloway
My Lords, does my noble friend agree that, notwithstanding these drafting defects there is absolutely no reason to suppose that our courts will construe this regulation contrary to Community law? Will my noble friend agree that this is particularly so having regard to decisions such as Clay Cross and Albion Shipping which, in fact, apply a stricter standard than that required by Community law, and that the concept that the courts would apply a general market labour defence is misconceived?

The Earl of Gowrie
My Lords, I am most interested to hear the view of my noble friend. As I said, it remains the conviction of the Government that, in spite of the views expressed by the House on 5th December, we are, in fact, in conformity with European law. The object of the exercise of bringing the amended regulations before your Lordships' House was as expeditiously as possible to close the gap between our domestic legislation and the European equal pay directive. I know that it is the view of the noble Lord and others that we have not adequately done this but, nevertheless, we are convinced that we have.

§ Baroness Seear
My Lords, is the noble Earl saying that, although there was a vote in this House which made it quite clear that these regulations, as they stood, were not acceptable and were not in conformity, the decision of your Lordships' House is being ignored by the Government?

The Earl of Gowrie
On the contrary, my Lords, the vote in this House was on an amendment stating: that this House believes that the regulations do not adequately reflect the 1982 decision of the European Court of Justice". Therefore, I register the beliefs of the House, but the House did not seek to overturn the amended regulations.

§ Lord Shinwell
Is the noble Earl aware that, apart from this specific issue, my noble friend Lord McCarthy has raised a matter of substantial importance to this House of which I hope the Chief Whip will take note? Time and again it happens that the opinion of the House takes a certain form which seems to indicate that a majority of Members of your Lordships'House favour a particular line in policy affecting legislation on some matter arising out of debate, but the Government pay no attention. The opinion is completely ignored. Therefore, the point that my noble friend Lord McCarthy raises is not only on the specific issue involved. That is very important but I know nothing about it; he is the authority on the subject. I am concerned about the implementation of ideas of substantial importance ventilated in this House. Is the noble Earl aware of that?

The Earl of Cowrie
My Lords it is not the case that the Government do not take into account the views expressed in this House. They take them most seriously. The Government also take into account the fact that all this legislation is subject to scrutiny, by statute, by the Equal Opportunities Commission. Our job was to try to get our law into line with the European directive. The job of the Equal Opportunities Commission, by statute, is to keep equal pay legislation under review. I am sure that the Commission and, indeed, also the House and people outside the House will want to get this working as soon as possible and see that we are in conformity.

§ Lord Diamond
My Lords, will the noble Earl be good enough to reconsider his first answer to the noble Lord, Lord McCarthy, which suggested that the noble Lord, and those who thought as he did, had had an opportunity, which they did not exercise, to vote against a substantive Motion? Will the noble Earl reconsider that, in view of the fact that if he does not he is suggesting to both Oppositions that it would be proper for this House to engage in a deliberate constitutional confrontation with the other place on a matter such as this?

§ The Lord President of the Council (Viscount Whitelaw)
My Lords, perhaps it would be appropriate for me to reply to this point. What my noble friend said was, of course, correct. Equally, I accept what noble Lords have said and how they feel, that in constitutional terms when another place has passed regulations it is the normal practice of this House not to vote against those regulations. Perhaps I could at the same time make it clear, as I believe my noble friend was seeking to do to the noble Lord, Lord Shinwell, and others, that far from not paying attention to the House. it is my job as Leader of the House, and I accept it absolutely, to pay strict attention to what this House says and to the votes on that particular occasion.
The noble Baroness, and noble Lords, know that I took considerable trouble over the procedural regulations and withdrew the original regulations in order to make it better for this House. I did that quite deliberately because that was the view of this House, as I understood it, before the vote. I shall certainly make sure that my right honourable friends fully appreciate the feeling of this House. That is my job and that I shall do. However, I must stand by what my noble friend said: that this House constitutionally, and correctly as I see it. did not vote against the regulations, but did express a view. Of course, that is not the same. The regulations do come into force, as my noble friend said, and I shall make sure that my right honourable friends realise the feelings of this House. Again, I shall draw that to their attention.

§ Lord McCarthy
My Lords, while thanking the noble Viscount the Leader of the House for that clear exposition of the constitutional position, I hope we can have from the noble Earl that he also accepts that position and that he knows why we did not divide the House last Monday week. May I put this question to the Leader of the House? He said that he made changes in the procedures and rules. I accept that. 396 There are further changes he could make. Will he include a passage in the procedural rules allowing appeal against the giving of reasons in the case of the new Section 2A(1)(a)? Will he write, or have the noble and learned Lord the Lord Chancellor write, to the Industrial Tribunal so that it does not have to take the "general labour market" defence which was put up in another place? There are still ways in which the Government could make this order a little better if they tried to improve the procedural regulations.

§ Viscount Whitelaw
My Lords, I am too old a bird to be drawn or allowed to fly in the face of those sort of accusations on points of detail. I am sticking firmly to the constitutional position which I set out. I said I would represent the views in general of this House to my right honourable friends, and that I will most certainly do. I do not think it would be right or proper for me to be drawn any further into the details, particularly as I know that the noble Lord knows all the details and I do not.

§ Lord Wedderburn of Charlton
My Lords, whatever our ages, would it be proper for the Government to clarify a matter which is perhaps of profound constitutional importance? Is it the Government's position, in the light of the obligations of Community law, that legislation is nevertheless valid at Westminster if it passes through the customary stages of both Houses, even though one or more of the Houses clearly expresses the view that it is not in accord with our Community obligations?

The Earl of Gowrie
My Lords, there are, of course, and rightly so, procedures for testing the law and for testing whether our legislation is now, as we believe, in conformity with European legislation. As I said earlier, what the Government have sought to do, taking the views of this House, is to try to bring our legislation into that conformity. We are confident that we have done so, but I have to tell the House that, of course, only time will tell whether we are right. We believe we are right but only time will tell whether our belief is well founded.

§ Baroness Burton of Coventry
My Lords, we had a good debate on this matter and perhaps I may raise one point, without wishing to seem at all self-important. Does the noble Earl recall that I raised one or two matters in that debate which I think were relevant to the substance of the case the Government are putting forward? Will the noble Earl be kind enough to look at the reply he made at the end of that debate and refer to a couple of questions which I asked and which were not answered? Will he write to me about them? Is the noble Earl aware that this is an honest query and that I think my questions were right? If the Government can convince me that I was wrong, I shall not say that I will be happy but I shall be understanding. Will the noble Earl write to me on those questions?

The Earl of Gowrie
My Lords, I apologise to the noble Baroness and to the House if I have been dilatory in any way in replying to a point she made in the debate. I shall, of course, look into the points that she has raised and consider them again.

§ Lord Cledwyn of Penrhos
My Lords, before we finish this matter I should like to thank the noble Viscount the Leader of the House for his helpful response to the points that have been put by noble Lords from all sides, and to ask him whether he would be good enough, after consultation with his right honourable friend and bearing in mind the points of detail that have been made by noble Lords, to make a further statement to the House?

§ Viscount Whitelaw
My Lords, of course I must respond to the noble Lord by saying that I will speak to my right honourable friends. I do not think that I can give a guarantee to the noble Lord, but I will do my best to see what further help I can give to the House as regards this matter. However, as my noble friend has stated, under our constitution as it stands the regulations come into force on 1st January 1984.