HL Deb 29 April 1986 vol 474 cc197-212

Read a third time.

Clause 1 [Private Households and small undertakings and partnerships]:

The Secretary of State for Employment (Lord Young of Graffham) moved Amendment No. 1:

Page 2, line 1, leave out ("such a person's private affairs") and insert ("intimate details of such a person's life")

The noble Lord said: My Lords, this amendment seeks to clarify the new exception for employment in private households which we are introducing in this Bill. The Sex Discrimination Act 1975 excludes all employment in private households from the requirement not to discriminate in selecting employees. The European Court of Justice ruled that this was too wide an exclusion, although it accepted that the principle of equal treatment must give way in some circumstances to the principle of respect for private life.

Clause 1 permits an employer to discriminate in relation to jobs which involve working or living in a private home and which entail physical or social contact with a member of a household, or knowledge of such a person's private affairs, such that there could be reasonable objection to a man, or a woman, having the job.

The phrase "knowledge of such a person's private affairs" has caused concern in your Lordships' House. My noble friend Lady Platt quoted from the Shorter Oxford English Dictionary on "affairs" at Committee stage and argued that the lack of a precise meaning could lead to unnecessary litigation.

The noble Lord, Lord McCarthy, asked what kind of private affairs a householder might have which one sex could reasonably find out about but not the other. He obviously moves in very broadminded circles.

My noble friend Lord Trefgarne explained the kind of situation we had in mind. I believe the disagreement is now about wording rather than the intention. The intention is to protect, for example, a woman who would suffer embarrassment and indignity to think of a man washing and ironing her underclothes or performing other very personal services even if she were out of the house at the time or bedridden upstairs so that there was no physical or social contact.

The new wording I am proposing refers to intimate details of a person's life instead of "private affairs". This is slightly more sharply focused and still close to the European Court's phrase "respect for private life". I hope that it will be acceptable to noble Lords. I beg to move.

Lord McCarthy

My Lords, I thank the noble Lord for his tribute to my broadmindedness. We welcome this amendment so far as it goes. We took the view that there was never any need for the second limb of Clause 1(2) and as a result of that we supported an amendment by the noble Baroness, Lady Platt, at Committee stage to delete the second limb.

We took the view that any justifiable exception to the application of the Sex Discrimination Act to private households was perfectly reasonably covered by the first limb, which refers to the degree of physical and social contact. Nevertheless, I suppose it may reasonably be argued that the effect of taking out "affairs" and inserting "intimate details" probably narrows the effect of this limb and certainly makes it somewhat less confusing. Therefore, we welcome the amendment.

Lord Monson

My Lords, I wonder whether the noble Lord, Lord Young, will assure the House that this amendment is absolutely and unequivocally necessary in order to comply with the EC directive? If it is not unequivocally necessary, I wonder what a Conservative Government, who purport to believe in the freedom of the individual and in the maxim that an Englishman's home is his castle, are doing by further circumscribing in this manner the freedom of the individual to decide whom he or she shall or shall not admit to his or her household.

Lord Young of Graffham

My Lords, with the leave of the House, I wish to assure the noble Lord, Lord Monson, that the amendment we are suggesting is one which I am advised will come within the ambit of the ruling of the European Court, and that is the reason why it is there.

On Question, amendment agreed to.

Clause 2 [Amendments of section 77 of 1975 Act]:

Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 2: Page 3, line 21, at end insert— ("(5A) Subject to the conditions in subsection (5B) below, where in any proceedings a court or an industrial tribunal has declared or otherwise determined that a term of a collective agreement or a rule made by an employer is void, unenforceable or otherwise unlawful by virtue, wholly or in part, of this section, the Secretary of State may refer the collective agreement or the rules of which the term or, as the case may be, the rule forms part to the Central Arbitration Committee constituted under section 10 of the Employment Protection Act 1975, to declare what amendments need to be made to remove any discrimination on grounds of sex and on what the date or dates any such amendments are to have effect, not being in any case earlier than the date of the reference. (5B) The conditions are:

  1. (a) that the consent to the reference has been notified to the Secretary of State—
    1. (i) in the case of a collective agreement, by an employer or a trade union party to it; or
    2. (ii) in the case of a rule, by the employer who made it or a trade union recognised by him in respect of persons to whom it applies; or
    3. (iii) in either case, by the Equal Opportunities Commission; and
  2. (b) that a period of not less than 90 days has passed—
    1. (i) where no appeal is made against the judgment of the court or industrial tribunal, commencing with the day following the last date on which such an appeal could have been instituted; or
    2. (ii) where such an appeal is made, commencing with the date of the final judgment in the proceedings.
(5C) Where under subsection 5(A) above the Central Arbitration Committee has declared what amendments need to be made then, in so far as the terms and conditions of employment of any person are dependent upon the collective agreement or the rules, whether by way of contract or otherwise, they shall be ascertained by reference to the collective agreement or, as the case may be, the rules as so amended.").

The noble Lord said: My Lords, as my noble friends and I are responsible for Amendment No. 2 appearing on the Marshalled List, it may be proper and courteous if I say a brief word about the difficulty which has overtaken it. We are advised that it is "undesirable"—to use the words of Standing Orders—to move it at Third Reading. In accepting that advice, as of course we do, we should not want your Lordships to think that we had ignored the problems of procedure. Indeed, we had hoped that we had—to use the words of Standing Orders—put down an "issue" which was not the issue that had been determined at a previous stage. However, as it turns out, we were wrong.

What we tried to do at the various stages was to devise a solution—acceptable, if possible, to the Government—through the Central Arbitration Committee for the enforcement of Clause 2. In doing it at this stage we have not succeeded. In our submission it is a matter of interpretation of some importance to your Lordships that this falls within the prohibition of the Standing Orders as to a Third Reading amendment, and it may be something at which your Lordships may wish to look.

We express the hope that the Government will look at something like this amendment in another place, where, after all, many changes will join the changes which have already taken place to the Bill here. In that hope and with that explanation of the considerations that we had in mind, I have expressed the reason why I do not propose to move the amendment.

[Amendment No. 2 not moved.]

Lord Young of Graffham

My Lords, I beg to move that the Bill do now pass. I said at Second Reading that with this Bill the Government were carrying forward their commitment to promote equal opportunities in employment between men and women. During the discussions in your Lordships' House we have heard differing views as to how some provisions should operate and indeed whether some should be omitted altogether. There has, however, been no disagreement over what I would describe as the essence of the Bill—that men and women should be treated equally in employment and that barriers should be removed which hinder either from making their full contribution to the economy.

Noble Lords know that my overriding concern as Secretary of State is to see a reduction in the unacceptably high level of unemployment. If new jobs are to be created, existing work must be done efficiently so that firms can grow and prosper. It is vital that jobs go to the people best able to do them regardless of whether they are men or women. The further measures against sex discrimination in the Bill will help towards this.

The first two clauses of the Bill had their origins in a judgment of the European Court of Justice. The House has already considered the private homes provision today, and I shall say no more about that. I have made it no secret that I do not welcome the obligation to extend the full complexities of sex discrimination legislation to employment in the very smallest firms. I therefore welcome the fact that the European Council agreed in December that priority should be given to action on deregulation in line with views expressed by the United Kingdom Government. We have found a wide measure of support among other European Community member states for reducing the administrative and legislative burdens on business. Meanwhile we have honoured our obligations under the Treaty of Rome by repealing the small firms exemption in the Sex Discrimination Act 1975.

Clause 1 also now contains a parallel provision on partnerships which was proposed by my noble friend Lady Platt. This is clearly a logical extension of the clause and I welcome it as such. Clause 2, on collective agreements and employers' rules, has also benefited from amendment by your Lordships' House. It is clear that noble Lords opposite would have liked further amendment, and that is a point of disagreement between us. But I am confident that the clause will meet our European Community obligations and encourage revision of collective agreements to remove discriminatory terms. It is an improvement, albeit a modest one, to our equality legislation.

I turn now to the second half of the Bill. Its main aim is to remove outdated and discriminatory restrictions on the hours women may work in factories. It will allow women in factories to assume their full role in the economy alongside men and also alongside women in other occupations who are not subject to such legal restrictions. The proposed repeal meant that the role of the Baking Industry (Hours of Work) Act 1954 needed to be re-examined. This Act regulates night baking for men only, so repeal of the restrictions on women's hours alone would create an anomaly within the baking industry. The hours of men would be controlled but those of women working alongside them would not. In the light of this we decided that this was the occasion to repeal the 1954 Act.

Putting these proposals into historical context, the 1979 report of the Equal Opportunities Commission had concluded that there was no longer any justification for maintaining legal provisions on hours of work which require men and women to be treated differently. Its overall recommendation was therefore that the legislation should be removed or—where health, safety and welfare demanded it—replaced so that it applies equally to men and women. Extension to women was the Equal Opportunities Commission's preference in the case of the baking Act. Since that time there have been extensive consultations on how best the overall recommendation should be carried forward and in particular on the extent to which restrictions continued to be valuable on grounds of health.

I have been at pains to emphasise in the past that we should not be making these proposals if we believed that there would be any risks involved to health and safety at the workplace. The available evidence on the effects on health of night work and long hours is inconclusive. But there is certainly no reason to think that the effects are different for women than for men. In reality many women in white collar jobs and in factories operating under special exemption orders currently work hours which would otherwise be prohibited by the legislation we seek to repeal. Yet there is no body of evidence that this causes difficulties for these women. The existing legislation, however, entails significant bureaucracy through the exemption order system and this constitutes a further important argument for repeal.

This briefly sums up how the original two clauses in this part of the Bill came about. However, the Bill will now leave this House with three additional clauses. There is a new procedure for the Secretary of State to make "equal protection orders" following reports and consultation. A further new provision incorporates the statutory restrictions that are to be repealed into the existing employee's contract of employment and ensures that dismissal for refusing to accept new hours of work would be treated by an industrial tribunal as automatically unfair. The final new clause imposes on all employers proposing changes in hours a significant new statutory duty in relation to the health, safety, welfare and interests of employees, particularly those with domestic and family responsibilities—and also empowers the Health and Safety Commission to issue a code of practice containing practical guidance on this duty. These clauses now form part of the Bill and will go to another place for consideration there.

The Bill is to undergo further changes in another place concerning retirement ages for men and women, which your Lordships will have an opportunity to consider in due course. In the meantime, I hope that noble Lords will agree that the Bill is leaving their House as a modest and welcome measure to improve equal employment opportunities for men and women. I beg to move.

Moved, That the Bill do now pass.—(Lord Young of Graffham.)

Lord McCarthy

My Lords, at the time of the Second Reading the obvious way to epitomise the attitude to this Bill on this side of the House would have been to say that it was a curate's egg of a Bill. The only problem was that the idea that it was a curate's egg of a Bill suggested that it was all mixed up, and it was not easy to say which bits of it were excellent and which bits were not so excellent. But of course this Bill was not quite like that because all the excellent bits were at the top of the egg. As you worked your way down the egg, the egg got worse.

We had no great objection—indeed, we welcomed it so far as it went—to the clause on applying sex discrimination to private households and to small undertakings. It was going in the right direction, even if it was not going quite far enough. We welcomed also the clause on avoidance of sex discrimination in the case of non-legal collective agreements, though we said that it did not go far enough in that we argued that there was no mechanism for effectively enforcing this part of the Bill in a collective way.

The rest of the Bill, we said (and still say) was quite illogical and totally unconnected with the decision of the European Court. It was, in fact, ideologically based, in respect of the provisions for the removal of restrictions on the hours of work for women and, in the baking industry, of the hours of work for men.

It is true that at Second Reading the Secretary of State sought, as I understood he also sought today, to argue that there was a connection between the first half of the Bill and the second half of the Bill. For example, at Second Reading, at col. 1176 of Hansard on 27th February, he said that the restrictions on women's hours restricts working women's employment opportunities, so that in a sense we are adding to the employment opportunities of women by abolishing those restrictions. He said, as he has said today in a rather more qualified way, that of course this part of the Bill was advocated in 1979 by the majority of members of the then Equal Opportunities Commission. However, it has become increasingly clear, as distinguished members and ex-members of the Equal Opportunities Commission have argued during this Bill's passage through the House, that that was not really what the Equal Opportunities Commission in 1979 said at all.

As the noble Lord himself said in the statement he has just made, in respect of the baking industry the solution of the Equal Opportunities Commission was not abolition but extension. It was always clear in the majority report in 1979 that extension was an equally available option to abolition. What the EOC were against in 1979 was discrimination, and they saw extension, as much as abolition, as a way of moving against discrimination.

It also became increasingly clear as the noble Lord went on, and as he said today, that the main reason for this Bill, and the part of the Bill about which the Government are most pleased and most unqualified in their support, is the second aim of the Bill. As the Secretary of State said at col. 1179, also on 27th February, the present legislation, stands in the way of modern employers who wish to staff their enterprises with maximum flexibility and efficiency". In other words, protections for workers—or, as he would say, regulations for workers—are condemned as one more example of Burdens on Business.

That was at the time of the Second Reading. Since then, as the Secretary of State has also said, we have had the Committee and Report stages, and we would argue that at each stage the Bill has been improved. Indeed, in the amendment that the Secretary of State himself put down at Third Reading he has marginally improved the Bill still further. It is still a curate's egg of a Bill. It is still a mixture of the fresh and the stale, the good and the bad, the edible and the inedible; but due to the process of amendment in this House it is a slightly better egg than it was.

7.45 p.m.

Moreover, now it can be said that the good parts of the Bill, the edible bits, pop up throughout the Bill. They pop up as a result of no fewer than six improvements that we have managed to secure during the passage of the Bill through this House. The first was of course the amendment moved by the noble Baroness, Lady Platt of Writtle, and accepted on Report. It included partnerships in the scope of Clause 1.

The second improvement was that something was done today about the second limb of Clause 1(2) of the Bill. Thirdly, in Clause 2 we have passed the amendments advanced in the first place by the noble Lord, Lord Wedderburn, on the application of the clause to applicants for work. That has been accepted by the Government. Most important of all, we have had another amendment moved by the noble Lord, Lord Wedderburn, which has introduced the new concept of the equal protection order. This has been introduced into the body of the Bill as the new Clause 3.

The part of the noble Lord's speech which worried me most was his failure, after mentioning the ways in which the Bill had been changed in this House, to give any indication of how the Government intend to look upon this new concept of the equal protection order when the Bill gets to another place. This will, if it stands in the Bill, make it possible for the Act to serve as an instrument of what the Equal Opportunities Commission wanted to see happen; the Act can serve as an instrument for extending the scope of worker protection in a genuinely non-discriminatory way. We would argue that that was the spirit of the 1979 EOC report. That was the fourth change made in this Bill.

The fifth is only less important because it is more limited: the new Clause 7 which achieves a right of unfair dismissal for existing employees forced to work at night. I would have wished that the noble Lord could have given us some indication of how this amendment is to be received by the Government. I would remind him that this amendment is in line with an amendment the Government introduced in their ill-fated Shops Bill. Therefore it can reasonably be argued that in precisely similar circumstances the Government accept an argument for some kind of acquired rights.

Finally, we come to the new Clause 8 which, as a result of successive attempts at amendment, has achieved the provision of a code of practice to be taken into account when any employer makes substantial changes in hours of work. I should like from my side of the House to pay tribute to the formidable collection of Peeresses, the pride of Baronesses, who have participated on this Bill. Between them they have taken a large part of the argument forward. They have enabled us to pass these six improvements to the Bill: six changes, all of which have improved the quality of the egg.

Yet we must record our failures either to move the Government or to move the House. Four of these are worth recall. The first—and in some ways not that important if the rest of our amendments stand—was the attempt of my noble friend Lord Wedderburn, without success, to make the working of the present Clause 4 more flexible and pragmatic. The second was his attempt to make the Government draw logical conclusions from their previous obsession with ballotamania; to retain the secret ballot provisions in so far as they exist in this field. Again we were unsuccessful. Thirdly, there was the attempt by my noble friend Lady Turner of Camden, helped by the noble Baroness, Lady Platt, to get the protection of the baking Act extended to women. Again, if the amendment we moved, providing for a new concept of an equal protection order, survives, we can argue that that amendment is not all that important or essential.

But the great failure we have had, and the failure that my noble friend Lord Wedderburn would have attempted to redress even now at Third Reading, if we had been able to do so, was the unfortunate, inexplicable, unjustified and ideological refusal of the Government to accept that there should be an effective enforcement mechanism for Clause 2. We tried this repeatedly. We tried in Committee but we failed. Despite the fact that my noble friend Lady Turner argued that there was no effective collective enforcement mechanism; that large numbers of women would not go to the tribunals to enforce their rights under the existing legislation proposals; that there was available and ready the CAC, which could provide an effective collective enforcement mechamism, we were totally unable to persuade the Government. The noble Lord, Lord Trefgarne, who conducted the debate on Second Reading, replied, as the House will remember, by concentrating heavily on the importance of the role of the industrial tribunals.

So we attempted, in returning to this matter on Report, to provide the House with an alternative which allowed the industrial tribunals the first crack of the whip: an amendment which protected the role of the courts and saw the Central Arbitration Committee as a residual stopgap. But I am afraid that on that occasion we had a quite different set of objections from the Secretary of State and, unfortunately, we have not been able to move a similar amendment at Third Reading.

I make three final points about the role of the CAC in the enforcement of this part of the Bill. The first is that it is an experienced body in this field. Until the scope of the CAC was limited by a High Court ruling several years ago it performed an important role in promoting non-discrimination in pay and related areas to the general satisfaction of both sides of industry. It was not simply the trade unions who were satisfied with the work of the CAC in this field. It was generally accepted that it combined the pursuit of non-discrimination with an appreciation of industrial relations realities. Its role in this respect was widely respected in industry. Therefore we are not talking about an unknown system operated by people whose experience and efficacy is in doubt. The distinguished chairman of the CAC knows better than almost anyone in the field how to combine the pursuit of non-discrimination with an appreciation of industrial relations realities.

My second point is that such a role is required to make reality of the rights which lie buried in the heart of Clause 2, especially those relating to indirect discrimination. Many of these rights will not be applied and effectively enforced unless there is an external prod, which is not dependent on individuals, and unless the solutions provided take into account the real problems of the firms concerned.

My third point on this is that if the Government are, as the Secretary of State has said, to deal with the results of the Marshall case then more than ever we shall need a scheme providing the kind of across-the-board approach which the CAC can achieve. Putting the Marshall case right will not be easy. We cannot say that all employers immediately will either introduce age 60 retirement qualifications for men or age 65 retirement qualifications for women. They will wait to see. Some will put some people up to 65 and some people down to 60. Some will be reluctant to move at all. A few will be devious because for them equalisation can have considerable consequences. The removal of discrimination could have serious consequences for employers if it is done in a piecemeal way, which is the only way that it can be done if it is to be enforced by industrial tribunals. Therefore, more than ever some kind of collectivist overall solution that respects back-up principles of collective bargaining and the rule-making necessities of employers must be found because of what the Government have to do in respect of the Marshall decisions.

We beg the Secretary of State, even at this late stage, not to be so ideologically bigoted and not to impose the same old tired individualist solution to the problem of the Marshall case that the Government have sought to impose on problems arising from recent European decisions.

Finally I should like to make one or two final comments on the overall aims of the Bill. At Second Reading the Secretary of State gave us four reasons for the Bill: the removal of discrimination, one; the promotion of opportunity, two; the removal of restrictions on industry, three; and the stimulation of competition in the labour market, four. I asked at Report stage whether these four objectives could be combined in one Bill and what would the Government's priorities be if one or another of these estimable ambitions—we are not against any of them—came into conflict with each other.

I suggest that despite the amendments that have been passed on the Bill, and certainly if they do not survive in their present state in another place, we all know only too well what the Government's priorities are. At the top of the list, removal of restrictions: Burdens on Business. Next, there is the stimulation of competition in the labour market; then there is the promotion of opportunity. Last and least the removal of discrimination. Thus the true measures to remove discrimination in Clauses 1 and 2 arise externally, out of the decision of the European Court, although the Government could have introduced them themselves. We were told when they were introduced by the noble Lord the Secretary of State that they were not welcome or acceptable in every respect. In relation to Clause 1, he found it particularly hard to accept this as his major policy aim was to remove burdensome restrictions from small businesses. We were told—and we have been told again today—that the Government hope that these things that they do in the first half of the Bill will only be temporary so far as small firms are concerned because they are trying to reverse the policy in Brussels. In fact they are only acceptable at all in minimum form and if they are accompanied by the second half of the Bill: namely, the abolition of restrictions, or protections, on women's nightwork and the abolition of restrictions, or protections, on men's nightwork in baking—all this on the formal grounds that neither of these things is applied universally either across industry or to both sexes.

I want to be fair to the Secretary of State. I am not saying that he and the Government do not believe in non-discrimination. I am certainly not saying that covertly they believe in discrimination. What I am saying, and what I think the evidence suggests and the record shows, is that they will pursue the goal of non-discrimination only in ways that do not interfere with, and can be shown to carry forward, their dogma of removing the Burdens on Business. Of course, that means that, whatever the evidence may be, the only way they can carry this forward is by abolition rather than extension. I do not say that when the Secretary of State is good he is very good and when he is bad he is horrid. I say that on the evidence of this Bill when he is good he is forced to be good and when he is bad he enjoys it.

8 p.m.

Baroness Seear

My Lords, I should like to say from these Benches that on the whole we welcome this Bill. We welcome the extension of non-discrimination to small firms and partnerships. I would again underline that this was omitted from the original 1975 legislation only because of administrative difficulties and not because at that time anyone thought there was any good reason for indefinitely excluding the small firm.

I also welcome the change in the outdated form of protection for women workers which was, I think, increasingly becoming a handicap to the development of equal opportunities. In line with the recommendations of the Equal Opportunities Commission, we have always argued from these Benches that what was needed was, where appropriate, common protection for both men and women. That protection would not take the same form as had been reflected in the Factories Acts which had developed over 150 years and were in many ways greatly outdated, but we do not see advance towards the removal of discrimination by the total removal of all protection and therefore regret the fact that we were unable to save the baking regulations.

However, it is to be hoped that with the provision of the code of practice (although I have certain reservations about the proper use of codes of practice) it may be possible to develop through custom and practice which, after all, remain a very powerful force in British industrial relations, the kind of common protection for both men and women which will be in line with the spirit of the recommendation of the Equal Opportunities Commission.

I very much hope, reflecting briefly some but not all the things that were said by the noble Lord, Lord McCarthy, that there is no intention on the part of the Government in another place to remove the improvements which were passed in this House. I think that would be an extremely retrogressive step, and I very much hope that the Government will refrain from taking it. I want to underline, however, what I think is the greatest weakness in this Bill now; that is, the omission of the CAC. To put it bluntly, I am bound to say I think that this is based on an inadequate understanding on the part of the Government Front Bench of how industrial relations really work. The idea, which seems to me to be exceedingly naive, that you can leave the enforcement of this kind of thing to industrial relations is not an approach which would be supported by anybody who has had practical experience of industrial relations on any side of industry. The CAC which, as the noble Lord, Lord McCarthy, has said, is in very high standing and much approved on both sides for the work that it has done is manned—if I may still use that phrase, with apologies to the noble Baroness, Lady Turner—by people of very great experience in the field of industrial relations. This is an opportunity thrown away to get a very good piece of machinery back into place.

Finally, I should like to say to the Government that I very much hope that in the development of equal opportunity between the sexes they are not always going to wait to be told what to do by the European Court of Justice. I find that singularly disagreeable since in 1975 we in this country produced the first piece of sex discrimination legislation of any of the European countries. No legislation of a similar kind had been produced anywhere. I find it very disappointing indeed that we are now trailing behind and reluctantly coming into line when we are forced to do so by the European Court. Surely the Government are capable—or perhaps they are not—of taking their own initiatives in this field. With those reservations we welcome the Bill.

Baroness Platt of Writtle

My Lords, I should like to take this opportunity on Third Reading of the Sex Discrimination Bill to welcome the improvements which have taken place since the original consultation stage. I shall keep my remarks brief. I should like to thank my noble friend the Secretary of State for initiating some of the improvements, notably the inclusion within the legislation of the principle of indirect discrimination and of small partnerships as well as small firms. Those are both very important matters to the Equal Opportunities Commission. Indeed, we believe that today's further amendment will reduce confusion and possibly subsequent litigation.

The majority of the Commission welcomes the general removal of restrictions on working hours and conditions for women, but we are glad that—as we recommended in 1979—safeguards are now included in the Bill; in particular that there is a duty placed on employers when changing substantially the hours of work of their employees, men as well as women, to consider their health, safety, welfare and interests, and to make appropriate provision having regard to the nature and size of their businesses.

In this connection also we welcome the fact that the Health and Safety Commission, after consultation with the European Commission, may make a code of practice containing practical guidance on this duty and that the extent to which an employer has carried out his duty under this provision shall be relevant in determining the reasonableness of his actions before an industrial tribunal.

I am grateful to my noble friend the Secretary of State for retaining this addition in Third reading and trust that it will now be part of the eventual Act. I also welcome the insertion of the provision for the protection of existing workers and I hope that it remains when the proposed Act comes into force. I am also grateful to my noble friend for his undertaking to issue notes of guidance after the passing of the Act, in particular in connection with the voluntary submission of collective agreements to the Central Arbitration Committee and the encouragement of employers' and workers' organisations to renegotiate and remove void terms of agreement to avoid confusion to all concerned.

We look forward to the inclusion of the new clause, or clauses, as a result of the Marshall case which will allow women to continue in public and private employment up to the age of 65 if they so wish. The Government have moved with commendable speed in this matter.

We hope that in the Social Security Bill in connection with the proposed flexible decade of retirement the Government will now take a similar opportunity to set a time scale to a programme of equalising pension ages. Judging from our research that would be a most popular measure and would remove many unfairnesses which frustrate and annoy both sexes. These feelings will become more acute as a result of the Marshall case. I have pleasure in supporting this Bill on Third Reading.

Baroness Turner of Camden

My Lords, as the noble Lord, Lord McCarthy, said, during the passage of the Bill through your Lordships' House there have been some notable improvements made as a result of the amendments that have been successfully accepted here. I hope that when they reach the other place they will continue to remain a part of the Bill; but problems remain, and the main problem I see is that of enforcement. It seems to me that in seeking to put into operation the decision of the European Court the approach taken by the Government has been a minimalist one. In other words, the Government, in presenting the Bill to your Lordships, have done the absolute minimum that seemed to be necessary in order to comply with the European Court judgment. We have improved upon that during the Bill's passage through the House but the issue of enforcement concerns me greatly. Unless there is a reasonable means of enforcing this legislation, I do not think that we shall be held eventually to have adequately complied with the judgment.

As I said earlier during the course of discussions on Report and in Committee, it would be a great pity if we were yet again to be found to be in default of European legislation. The enforcement question is important. I do not want to take up too much of your Lordships' time on this but, as previous speakers have said, the Central Aribtration Committee, of which I happen to be a member, has a substantial record of success in the industrial relations area. When we raised this on Report and in Committee, we were told that the attitude of the Government was that these issues could be dealt with in industrial tribunals. Let me say, as a working trade union official, that this is not an approach that is acceptable when dealing with collective agreements. The tribunal system was established to deal with individuals rather than with collective agreements and the Equal Pay Act acknowledged that when giving the CAC a role in the enforcement of non-discrimination in collective agreements.

The absence of such enforcement machinery will to some extent nullify the thrust of this legislation. Incidentally, I am glad to hear from the noble Lord the Minister that it is intended to introduce legislation to deal with the Marshall judgment. However, may I again ask that a minimal approach should not be taken in relation to Marshall; that we should not do just what is minimal in order to comply with that judgment, because there are other issues involved in addition to proceeding to the same retirement age as men? There is the whole question of pension entitlement and equalisation of pension rights, which is inseparable from the argument about the retirement ages.

When we have legislation to deal with Marshall it would be good to see that the Government had taken note of the desire that there should not be a minimal approach to the European Court judgment but that an attempt should be made to put into operation legislation that would adequately reflect the desire that there should be equal opportunity and equal rights for women and that the legislation should be drafted in terms that will meet those requirements.

Lord Young of Graffham

My Lords, I am pleased to discover at least that I am at the same time both horrid and naive in insisting perhaps on a priority of this Government, which as far as I am concerned will always remain a priority of this Government. It is simply employment. When this Government express concern about the burdens on business they do not do so for any reason other than the effect it has on employment. When the Government express concern about the provisions of some of the amendments which noble Lords opposite and other noble Lords have brought to this Bill, they do so not because they are concerned to promote discrimination. They are concerned to do all they can to eliminate discrimination, but they are concerned to do it in a manner consistent with the growth of employment and of jobs.

I was grateful to the noble Lord, Lord McCarthy, for a catalogue of the amendments proposed and rejected by your Lordships' House. At times I marvel at the wisdom of your Lordships' House. In the light of some of the points made in the debate today, I should like to reaffirm our commitment to repealing the Baking Industry (Hours of Work) Act 1954. Of the two possible courses open to us, repeal or extension of the Act to women, we are certain that repeal is the sensible way forward. It seems pointless to extend the Act at a time when more than two-thirds of the employees in the industry work hours set by collective agreements which bring exemption from the provisions of the Act.

The 1954 Act was introduced not on grounds of health and safety but to resolve the longstanding problems that the industry had in reaching effective agreements on hours of work. The industry now appears to have set its house in order. It is the Government's view that this Act is unnecessary. Hours of work will become a matter for collective and individual bargaining without the statutory underpinning which the Act has provided, as is the position in all other industries.

The noble Lord, Lord McCarthy, asked whether I could elaborate on the Government's approach to the new clauses. These clauses now form part of the Bill and they will go to another place to receive further consideration there. The noble Baroness, Lady Turner of Camden, raised the matter, as did the noble Lord, Lord McCarthy, of the Central Arbitration Committee and the enforcement of Clause 2. I must repeat that individuals who suffer unlawful sex discrimination—and that is the individual workers themselves—already have the right of full redress through the industrial tribunals. They can win compensation of up to £8,000 or two years' back pay. Section 4 of the Sex Discrimination Act 1975 protects the individual against victimisation for bringing a case.

The noble Lord suggested that even where one or more individuals has proved sex discrimination, the employer, possibly aided and abetted by the unions, will do nothing to remedy the situation of others in a similar position. I cannot accept that any sane employer would lay himself open to a string of cases on the same issue when he is not only bound to lose and possibly will have to pay compensation but also very likely will be faced with costs.

This Bill provides that unlawful discriminatory terms of collective agreements will be void, as required by the Equal Treatment Directive. I have said before that I consider that the renegotiation of collective agreements is best left to the parties who make them and who live with them and their consequences every working day. However, if employers and unions want outside help in renegotiation, this is available from ACAS and, if both agree, from the CAC. The Equal Opportunities Commission also has formal powers of investigation if any further back-up is needed. My noble friend Lady Platt raised the matter of Marshall and the retiring age. We issued our consultative document on 1st April and invited responses by tomorrow. A number of interested organisations have yet to respond, but the comments received so far indicate that the Government should go ahead with preparing amendments to this Bill on the lines set out in the document.

Your Lordships will have a chance to debate any amendments made in another place. The Marshall judgment was about sex discrimination in compulsory retirement from work. Not surprisingly, it has set people thinking about the wider issues related to retirement, including state pensionable age. Where responses to the consultative document have touched on pension issues, my department has brought them to the attention of the DHSS. I believe that that fairly deals with many of the issues raised, and I commend the Bill to the House.

Lord McCarthy

My Lords, before the noble Lord sits down, he will agree that he is not without influence in another place, let alone in Downing Street. Is his statement that he marvels at the wisdom of this House any indication that he may recommend that the Government accept that wisdom?

Lord Young of Graffham

My Lords, I was marvelling at the wisdom of the House when it rejected some of the amendments proposed by noble Lords opposite.

On Question, Bill passed, and sent to the Commons.

Viscount Long

My Lords, I beg to move that this House do now adjourn during pleasure until twenty-five minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.19 to 8.25 p.m.]

Back to
Forward to