Retirement Age: European Court Ruling (Hansard, 27 February 1986)

§ Lord Wedderburn of Charlton
My Lords, I beg leave to ask the Question of which I have given Her Majesty's Government private notice.

§ The Secretary of State for Employment (Lord Young of Graffham)
My Lords, we are studying the implications of the judgment of the European Court of Justice yesterday in the Marshall case. The court has decided clearly that a general policy operated by an employer concerning dismissal which involves the dismissal of a woman solely because she had attained or passed the qualifying age for a state pension, where this was different for men and women, constituted discrimination on the ground of sex contrary to a directive accepted by the United Kingdom in 1976.
The judgment established that that directive can be relied upon by an employee of a state authority. The Government's Sex Discrimination Bill is being considered on Second Reading in your Lordships' House this afternoon. We will be considering urgently whether any amendments should be made to that Bill 1167 to clarify the law and to comply with the directive in the light of that judgment.
I ought to make it clear that the directive and the judgment have no application to the determination of the qualifying age for state pension purposes, as that is expressly excepted by another European directive.

§ Lord Wedderburn of Charlton
My Lords, while I thank the Minister for his reply, and while I understand, as other noble Lords will do, the need to study the judgment more closely, I have questions to ask of the Minister in two areas.
First, does the judgment not open up a curious position that clearly requires legislation urgently? I refer to the fact, as the Minister made clear, that public sector employers may not now, without illegality, distinguish between men and women as to their dismissal or age of retirement from employment but that private sector employers may do so until legislation is passed. Surely that is not a gulf that any Government could leave open and have any remote doubt about filling.
Is it not the case that, in the light of the Government's own privatisation programme, the Government ought to be morally obliged to fill that gulf with legislation so that the new private employers are not able lawfully to take away the rights that public employees now have?
Secondly, will the Minister consider the wider thrust of the judgment, which suggests that if we are beginning to apply directly, with direct effect, the equal treatment directive, it is time for legislation that is far wider than it would be possible to put into the present Bill before the House? Do we not need a Bill that will deal with equal treatment for men and women in employment, with equal pension entitlement and with equal treatment in taxation, and deal with them all once and for all? That would entail—would it not—the Government ceasing their resistance to measures that are put forward by almost every other Community country, such as those relating to parental leave, and implementing measures to protect part-time and temporary workers in the labour market—many of whom are women.

§ Baroness Seear
My Lords, I am grateful to the Minister for answering this Question in your Lordships' House this afternoon. The judgment raises a number of questions. As the noble Lord, Lord Wedderburn, has already pointed out, the questions relating to private employers must quickly come to the forefront now that the issue of retirement age for women in the public sector has been dealt with. Although, as the Minister has said, only retirement age is dealt with, and not entitlement to pension, it will be impossible to continue ignoring the question of the pension age if the later retirement age is to be permitted.
The Government cannot say that they have not had warning of this problem. The Government know that the directive was issued in 1976, or not long after, and therefore they have had 10 years to take the implications on board. The implications were quite clear for all to see. I fear that this is only another 1168 example of the way in which so many people in this country, and indeed in the Government, do not take the EC's directives very seriously.
Also, some years ago the Equal Opportunities Commission published a suggestion concerning a common retirement age. It must have been absolutely obvious that this question was going to arise, and the latest judgment merely highlights one particular aspect of that question. I recognise that we are about to debate this subject at greater length on the Second Reading of the Sex Discrimination Bill, but will the Government state that they really will look at all the related issues, as they have been urged to do for so long by the EOC, the EC, and pretty well every women's group in this country?

§ Lord Young of Graffham
My Lords, I am grateful to the noble Lord, Lord Wedderburn, for his remarks. My Answer did say—and I shall repeat it—that we will be considering urgently whether any amendment should be made to the Bill that your Lordships will be considering this afternoon, to clarify the law and to comply with the directive in the light of the judgment. That must of course mean putting private employers in the same position as state employers, and that will be considered.
However, I would not wish to confuse that issue, which is a sensible and serious issue, with the desire from Europe to introduce such concepts as parental leave and statutory rights for part-time workers, which, it seems to me, are about something entirely different. They are, to my mind, about increasing the incidence of unemployment, which is already far too high. We must give all those matters very careful consideration.
I say to the noble Baroness, Lady Seear, and to the noble Lord, Lord Wedderburn, that we take very seriously indeed the directives that come from Europe. We are a full member of the Community; we take such directives very seriously. Indeed, the very Bill that your Lordships will be considering later this afternoon will do that. But in considering the directive of 1976, we should take into account also the equal treatment and social security directive, No. 7, of 1979, which specifically provides that retirement pensions should not be considered in this field. It specifically provides that in the matters with which we have been concerned, the judgment of the European Court excludes the matter of retirement pensions.

§ Lord Ardwick
My Lords, is the Minister aware that when the retirement pension—

§ Lord Denham
Order!

§ Baroness Platt of Writtle
My Lords, is my noble friend the Secretary of State for Employment aware that because of the interrupted nature of many women's careers due to responsibilities at home, 72 per cent. of pensioners on supplementary pension are women? Is he aware also that the Equal Opportunities Commission has constantly pressed for the equalisation of both retirement and pension ages between men and women generally? Does he not agree that it is a matter of great importance to women to be able to work longer in order to earn a better pension, if they wish to do so?

§ Lord Young of Graffham
My Lords, I say to my noble friend that it is not necessarily a matter of working longer. Indeed, within the Civil Service there is a common retirement age of 60. We are concerned with inequalities of retirement age, and that is very important. I would say also that I rejoice in the fact that in this country, in the United Kingdom, no less than 65 per cent. of all adults of working age, both men and women, are in employment. The comparable figures in Europe are, I believe, 60 per cent. for Germany and 59 per cent. for France. For a major country in Europe, we have as good a record as any other country, and that speaks for itself.

§ Lord Ardwick
My Lords, is the Minister aware that when the retirement pension was fixed at the age of 60 for women, it was intended to be positive discrimination in favour of women? In the mid-1950s, I had cause to inquire into this matter. I was informed that the reason why the age was fixed lower for women than for men was that married women, who were usually younger than their husbands, would participate in their husbands' pension, and it was wrong for a married woman of, say, 61 or 62 to be drawing a pension while her unmarried sister was working away from the age of 60 to the age of 65. What is now regarded as discrimination against women was in those days regarded as discrimination in favour of women.

§ Lord Young of Graffham
My Lords, I suspect that we are treading on very dangerous ground but this is a matter we will investigate. All I can say is that working practices have changed enormously during my lifetime, but despite any directive from Europe, I shall in my own lifetime and in my own private world, discriminate positively in favour of women.

§ Lord Nugent of Guildford
My Lords, is my noble friend aware that, apart from the interesting intrinsic merits of this point, there is a very important constitutional aspect to it? When the European Court hands down a judgment that places a direct obligation on any country to change its law to conform with such a judgment—and this directive will affect not only the United Kingdom but four other European countries also, because it is contrary to their present laws—that is to interfere with a basic principle of democracy: that laws are made by the wishes of the nation, which are translated into law through the majority party that is elected to government. Is my noble friend aware that when a judgment of this kind with such far-reaching implications is handed down it really does raise a very major constitutional point?

§ Lord Young of Graffham
No, my Lords. When we entered into the Common Market we did so knowing full well all the consequences.

§ Baroness Lockwood
My Lords, is the Minister aware that the different retirement ages for men and women were altered during the last World War? This was done, first, to encourage more women into the labour market; and, secondly, to take account of the fact that at that time women were largely financially dependent on their husbands. In the intervening 40 years there have been tremendous changes in that 1170 situation. Does the Minister not agree that the time is now ripe to bring about an equalisation of the pension ages between the sexes? If we did that we would be spared many of the proceedings which the European Commission seems increasingly to be taking against the United Kingdom.

§ Lord Young of Graffham
No, my Lords. There is a specific directive of the Community concerning equal treatment in matters of social security—No. 79/7/EEC—which says that pensions are excluded. Therefore, I do not think that we will find the European Court ruling on this. It is a matter which is being considered by the Government, certainly with regard to any proposed amendments to the Sex Discrimination Bill now coming before your Lordships' House.

§ Lord Harris of Greenwich
My Lords, in view of the scornful laughter from the Opposition Benches which greeted the noble Lord a moment ago, is the noble Lord the Minister not aware that it was quite obvious when we entered the Community what was the role of the European Court of Justice? Is he aware that in the light of that decision a Labour Government, and a Labour Foreign Secretary, asked the people of Britain, in a referendum, to vote in favour of British membership of the Community? The people did so by an overwhelming majority.

§ Lord Young of Graffham
My Lords, I can assure the noble Lord that I have a keen sense of hearing, and I was able to detect the source of the laughter.

§ Lord Boyd-Carpenter
My Lords, is my noble friend aware that the noble Lord opposite is right when he suggests that the national insurance retirement pension scheme discriminates substantially in favour of women, since the age of 60 does not compel them to retire but enables them to accumulate increments on their pension by working after the age of 60? If further consideration has to be given to equality of treatment between the sexes, will some thought be given to the present very substantial discrimination against men under that scheme?

§ Lord Young of Graffham
Yes, my Lords.

§ Baroness Turner of Camden
My Lords, is the noble Lord aware that as long ago as 1976 the Occupational Pensions Board recommended that there should be not only equal access to occupational pensions but equality of benefits? Does he not agree that now that there is an opportunity to equalise pension ages, equality of benefits ought to be looked at too?

§ Lord Young of Graffham
My Lords, the subject of the Question and the purpose of our deliberations later is really to deal with employment and not with pensions. Pensions are the responsibility of my right honourable friend the Secretary of State for Social Security. I have no doubt that he will be considering the matter.

§ Lord Wedderburn of Charlton
My Lords, I am sure the House is grateful to the noble Lord for his suggestion that the Government will make proposals 1171 In the course of the Sex Discrimination Bill. Without asking for any guarantee, may we know whether the Minister's present thinking is that that might be done by the Committee stage? Your Lordships can then discuss it at a suitable opportunity.

§ Lord Young of Graffham
My Lords, I have grown up with the principle that to act in haste is to repent at leisure. The decision was made only yesterday and I should like to give it a little more thought.

§ Lord Diamond
My Lords, is this not an especially appropriate and indeed auspicious day on which to be considering retirement? May I wish the noble Lord many happy returns of the day and a very happy retirement indeed?

§ Lord Young of Graffham
My Lords, I am sorry to disappoint some elements in your Lordships' House, but I have no intention of retiring for a long time. However, I do intend to celebrate my birthday.