§ 4.1 p.m.
§ Lord Young of Graffham
My Lords, I beg to move that the Bill be now read a second time.
The Bill which I am introducing has two major objects: first, to make certain amendments to the Sex Discrimination Act 1975 to bring it into line with the European Community directives on equal treatment; and, secondly, to remove various outdated restrictions on women's hours of work. I intend to show that in pursuing both these objects the Government are carrying out their commitment to promote equal opportunities in employment between men and 1177 women and to eliminate all unreasonable discrimination on the ground of sex. Furthermore, they are doing so wherever possible in ways which are consistent with our aim of minimising the imposition of inappropriate legislative burdens on employers which might impede economic efficiency and competitiveness.
As noble Lords are no doubt well aware, the first two clauses of the Bill stem from a judgment of the European Court of Justice which ruled that certain provisions of the existing Sex Discrimination Act were contrary to the European Community equal treatment directive. I cannot claim that we found this judgment welcome or acceptable in every respect. In particular, we were, and remain, very seriously concerned at the ruling that the Act should be extended to very small firms (those with five or fewer employees) which have up to now been exempt. Nevertheless, we accept that the European Court judgment places an obligation on us to amend the Act, and this we would not seek to avoid in any way. The need to amend the legislation arises directly from our obligations under the Treaty of Rome, and it would not be in either the United Kingdom's or the general Community interest to take any step which might weaken the standing of Community law in member states.
The court judgment found the Sex Discrimination Act deficient on three counts, covering its exemption of private households and of small firms, its application to collective agreements and the rules of undertakings and of independent occupations or professions. Clause 1 and 2 deal with these in turn. The provisions in these clauses were drafted following an extensive consultative exercise last autumn on the way in which we could most suitably give effect to the court's judgment. I am grateful to the Equal Opportunities Commission, the CBI, the TUC and other bodies for the constructive ways in which they responded to our document, even if we were not able to accept all the points which they made.
Clause 1 repeals Section 6(3) of the Act which exempts private households and businesses with five or fewer employers from the requirement not to discriminate in employment. The clause goes on to make a new, more limited exception for private households. This will protect an employer's freedom to choose a man (or woman) for a job which involves living or working in a private home, where there could be reasonable objection to someone of the other sex having the degree of physical or social contact with a person living in the home or the knowledge of such a person's private affairs which the job is likely to entail.
The effect of the change would be to bring within the scope of the Act employees having relatively little physical or social contact with the householder; perhaps a gardener or a cook in a large household. This distinction reflects a statement by the court in its judgment that the principle of respect for private life was fundamental and for that reason could be a decisive consideration for certain kinds of employment in private households. The Government certainly concur with this view and believe that it would be supported by the overwhelming majority of public opinion in this country and, indeed, throughout the European Community. The law which governs our public employment relationships should not step over 1178 the threshold to cover private living arrangements; people should be free to choose the sex of employees who will be closely involved in their home life. For that reason, we would not wish to lift the exemption entirely.
Clause 1 also removes the exemption for small firms. As I have already said, this ruling was a particularly hard one for us to accept. We have made it a major policy aim to free such firms from burdensome or inappropriate restrictions. This does not, of course, mean that we would regard the practice of sex discrimination by such firms as in any way desirable or reasonable. On the contrary, it is obviously right and sensible for them, as for any other employer, to recruit the best person for a particular job, irrespective of sex. Sex discrimination by any firm is both unfair and inefficient, and I do not support it in any way.
However, I cannot believe that the law, with its complex structure of obligations and enforcement machinery, designed with the circumstances of much larger employers in mind, really offers the best way of securing this objective. As I have said, we are accepting this requirement as good members of the European Community. But by the same token, we would wish the Community to consider very seriously the conflict, as we see it, between this and other burdens resulting from Community directives and the growing wish among member states to encourage the development of small enterprises and to remove (and most certainly not to add to) legislative and administrative restrictions.
We have accordingly proposed within the Community that member states should have the power to exempt very small enterprises from national provisions which implement the equal treatment directive. I regard this as a modest proposal, leaving those member states who choose to maintain such restrictions free to do so, and we will continue to impress upon the European Commission and our fellow members of the Community the importance which we attach to minimising all unnecessary burdens on enterprise.
In the meantime, however, we are clearly bound to follow the court's judgment. I should like to make two points which I hope will bring some comfort to those affected. First, the change to the legislation will not restrict the ability of small employers to recruit the most suitable person for a given job. For example, they will not be compelled to accept a male applicant if a female applicant is better qualified or is genuinely needed because of the nature of the work. Secondly, we are very mindful of the difficulty which some small employers may have in grasping quite a complex piece of legislation. My department will therefore make it a priority task to produce new simplified explanatory guidance and also to see that our small firms centres are able to give appropriate advice.
Clause 2 of the Bill is again designed to bring our equality laws into line with European Community directives. It is concerned with contractual matters, and the House will have an opportunity to discuss its technicalities at the Committee stage.
The European Court judgment requires us to make void discriminatory provisions in collective agreements, internal rules of undertakings and rules 1179 governing the independent occupations and professions. The court accepted that our law was concerned with this aspect of the equal treatment directive through Section 77 of the Sex Discrimination Act. That section makes void discriminatory terms in contracts, which would include a legally binding collective agreement, but we need to make corresponding provision for non-enforceable agreements and rules.
Although the judgment concerned only the European Community equal treatment directive, there is a parallel requirement in the equal pay directive. Clause 2 therefore amends Section 77 of the Sex Discrimination Act to make void any term of a collective agreement (whether or not legally enforceable) and any rule made by an employer for his or her employees in so far as it would result in a breach of either the Sex Discrimination Act or the Equal Pay Act. The same applies to any rule made by an organisation of employers or workers, a professional or trade association or a body which confers qualifications. The voiding of discriminatory terms and rules will not impair employees' rights under their contracts of employment, which are specifically protected by the clause.
I do not expect the clause to have major practical effects. First, I know that the TUC, the CBI and our other main employers' associations are fully committed to eliminating sex discrimination, and I should be very surprised to find that negotiators had entered into collective agreements which were contrary to the Sex Discrimination or Equal Pay Acts since these Acts came into operation. Secondly, any employee who suffers discrimination (whether or not it flows from a collective agreement) has long had a remedy through the industrial tribunals. Similarly, the Sex Discrimination Act already makes it unlawful for trade unions, employers' associations and professional bodies to discriminate between male and female members or would-be members.
The European Court was aware of all this but held that collective agreements nevertheless have an impact on workers and set the tone for employment relationships: discriminatory provisions in them should therefore be made void by national law. Although the practical effects are likely to be minimal, we are amending the Act accordingly.
I turn now to that part of the Bill which provides for the removal of outmoded and discriminatory hours of work legislation. The repeals will bring into line hours of work legislation as it affects men and women in keeping with recommendations made as long ago as 1979 by the Equal Opportunities Commission. Clause 3 of the Bill repeals legislation affecting mainly factory work which prevents women working nights and on Sundays and limits their shift working and starting and finishing hours. Clause 4 repeals the Baking Industry (Hours of Work) Act 1954. Taken together, this legislation not only restricts working women's employment opportunities, but also stands in the way of modern employers who wish to staff their enterprises with maximum flexibility and efficiency.
It will come as no surprise to your Lordships that I should advocate removal of restrictions on women's 1180 hours of work, which are unnecessary and out of place in this day and age. As our White Paper Lifting the Burden pointed out, this Government see giving enterprise the chance to grow as the key to the regeneration of the economy. Only by encouraging enterprise will this country be able to exploit the opportunity afforded by our successes in keeping down inflation: and only by this means will we be able to reap the benefits by way of generation of jobs. As I have argued before and, I have no doubt, shall argue again, a vital element in encouraging enterprises is reducing the burdens imposed on business by unnecessary regulation.
The broad effect of the current Bill will be to remove the distinctions imposed by statute between adult men and women in the workplace as regards the hours they may or may not work. It will, in other words, remove barriers against the best use of the skills and abilities of a large part of this country's greatest asset, its working people. There are some 9½ million women in this country's workforce. Some 1½ million are in manufacturing where these restrictions on hours of work mainly apply. For all these women, the existing legislation may currently deny them the opportunity of working the same shifts as their male colleagues and accordingly of taking home the higher pay which these shifts often bring. Moreover, the legislation can hamper women's progress up the promotion ladder, for example, by restricting their access to a range of jobs involving nightshifts. For the employers concerned, a complex and awkward set of legal restrictions limits their ability to plan sensible manning schedules for nearly half their workforces. As I shall mention later, there are provisions under the existing legislation for exemptions. But these, perhaps paradoxically, also represent an unnecessary administrative burden on both employers and enforcement authorities.
The Equal Opportunities Commission whose recommendations have in part prompted this anti-discriminatory measure submitted its report, Health and Safety Legislation: Should we Distinguish between Men and Women? to the then Secretary of State for Employment in March 1979. As the report pointed out, the case for change has to be considered against the historical background.
Statutory restrictions on the employment of women in factories developed from legislation intended to protect children, beginning with the Health and Safety of Apprentices Act 1802. There have been many and various changes in the legislation since then. Women's hours of work were first regulated by the Factory Act 1844 for which one of our most eminent predecessors, Lord Shaftesbury, fought long and hard. This is far from the end of the story. In 1902 we saw the introduction of prohibitions against women's night working; 1961 brought the last major consolidating legislation, the Factories Act of that year.
We are left with legislation on hours of work for women aimed at dealing with last century's problems. Its main provisions limit the numbers of hours which may be worked in any day and in any week and normally prevent women starting work earlier than 7 a.m. or finishing after 8 p.m. on weekdays and 1 p.m. on Saturdays. At the same time, there are procedures for exemptions from any of these restrictions for which 1181 any factory occupier may apply and which are renewable annually. The factory inspectorate will almost invariably agree to such exemptions. In 1984–85, more than 4,000 special exemption orders were granted covering more than 200,000 of the 1½ million women in manufacturing industry. Almost half of those exemption orders allowed some night working by women. No application for an exemption has been turned down in the last few years.
The Equal Opportunities Commission recommended in its 1979 report to which I have already referred, its view that,there is no longer justification for maintaining legal provisions on hours of work which require men and women to be treated differently".It went on to say that itsoverall recommendation must, therefore, be that the legislation should be removed or, where health, safety and welfare demand it, replaced so that it applies equally to men and women".I am glad to say that my noble friend Lady Platt was able broadly to endorse these sentiments on behalf of the Equal Opportunities Commission when consulted about the proposals now before the House by my then Parliamentary Under-Secretary of State Mr. Bottomley late last year. The chairman of the Health and Safety Commission told Mr. Bottomley, when he wrote earlier last year, that commissioners took different views about the best way forward on changes of women's hours of work legislation. But the commission made no recommendation that health and safety considerations argued the need for different statutory provisions for women's hours of work than for men's.
I am particularly sensitive to the need not to expose women to greater hazards to their health, safety and welfare at the workplace through this measure. I should emphasise that there is no question of repealing those provisions in health and safety legislation aimed at protecting the unborn child or preventing the employment of women who have just given birth, which continue to be needed. There is, however, no conclusive evidence on the effects on health of night work or long hours. There is certainly no evidence that the health and safety effects of working shifts, or long hours, are different for men and women workers. Many women in white collar and service industries or in factories with the necessary exemption orders already work these hours without any observable adverse effects.
Finally, I come to Clause 4 which repeals the Baking Industry (Hours of Work) Act 1954. This Act, which regulates the hours which men may work within the baking industry and specifically excludes women from its provisions, would, with the repeals of other restrictions on women's hours of work, constitute a major anomaly if not repealed. It would prevent men working in night bakeries for which no exemption had been granted by the Secretary of State under the Act, while women's employment would be entirely unregulated as the result of the changes we are proposing in Clause 3.
Currently, exemptions are given under the Act by the Secretary of State. These in effect substitute for the statutory restrictions a regime of hours of work as set out in collective agreements concluded in the baking industry. This is in keeping with the Act's genesis and 1182 history. The legislation came into being not so much because of the need for statutory protection of bakery workers' health and safety as because of the difficulties the industry had faced in reaching sensible and workable agreements on hours of work.
This Act too is outdated and unnecessary in today's circumstances. The extent of collective bargaining in the baking industry has much increased since its introduction and today over two-thirds of the employees in the industry work hours set by collective agreement, and are therefore exempted from the Act's provisions.
Having considered the views of those whom we consulted on means to avoid this anomaly once the other repeals this Bill proposes are enacted, the Government have decided on repeal. The alternative course which was put to us of extending the Act's provisions to cover women as well as men working in the baking industry would have been totally inconsistent with the need to avoid unnecessary and burdensome restrictions on enterprise. There is no justification for singling out the baking industry for this sort of statutory underpinning of collective bargaining on hours of employment. This Bill will secure necessary and worthwhile changes in existing legislation and on those grounds I commend it to your Lordships. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Young of Graffham.)
§ 4.22 p.m.
§ Lord Wedderburn of Charlton
My Lords, we thank the noble Lord the Minister for his explanation of his Bill, for his birthday present to your Lordships, and note from earlier parts of today that there may be more goodies to come. However, it is a pleasantly packaged and wrapped-up present. But when one takes it apart a little it does not look like the wrappings which the noble Lord the Minister has described. It must be clear that in so far as it aims at real equal treatment it is doubtful whether it would be dissented from in any part of the House, and certainly not from these Benches. The question is the reality, not merely the semantics of its presentation.
I consider the Bill in two parts, as the noble Lord the Minister did, but in the opposite direction, beginning with the last part of the Bill, which he described to us, concerning what he always called "restrictions" and what I prefer to call "protections" which may, but need not, also be restrictions. There is a formal argument which tended to run through the speech of the Minister. That was that if we want equality we must do away with all pieces of legislation which deal with women and men differently. But it is a little more difficult than that (is it not?), as the Equal Opportunities Commission suggested in 1979. We can debate the precise terms of the report of 1979 when we come to Committee stage. But the Equal Opportunities Commission, as I read their report, acknowledged the fact that one could do the job in one of two ways. One could simply sweep away what was there and then see what happened; or one could sweep away parts of it and for the rest possibly equalise protective legislation for men and women. That is the serious approach to the matter.
1183 I take as an example of the lack of seriousness on the part of the Government the way in which the baking industry is being dealt with. The hours of work for bakery workers are a long-standing problem, especially night work. It is not only a problem in Britain but a problem in many countries of very different kinds. It is not just an exercise in formal logic. The baking industry Act applies to men workers in the industry and not to women, partly because provision is made in the Factories Acts to deal with at least many of the women workers in that very same industry, both in packing and in manufacturing. If the Government do their "Hey presto" trick they might say, "Let us get rid of all women's provisions in the Factories Act". Then, hey presto, we have an Act of 1954 which deals only with men, and they say, "Let us get rid of that".
That kind of conjuring trick can produce a reason for sweeping matters away. But if one looks at it a little more closely and asks whether there is evidence that night work in certain conditions, in certain degrees, in excess, is dangerous and that both responsible employers and trade unions wish to retain some measure of protection for both men and women, equally, the answer is, yes. I noted that the noble Lord the Minister did not say that all responsible employers in the baking industry wish to see all protective legislation destroyed. It would be odd if they did. That distinguished Minister of Labour, Sir Walter Monckton, in Sir Winston Churchill's government introduced the 1954 Act as a Bill against the background of a very long history of inquiry and attempts to legislate on this industry. As he said in 1954, the Bill represented a sincere effort on the part of the government to deal effectively with a serious problem which has disturbed relations between employers and workers in the baking industry.
That effort began many years before. It was an effort to build in collective bargaining. The reason that the noble Lord the Minister can say today that collective bargaining is so successful in the baking industry is because of, not despite, the Act which his distinguished predecessor introduced in 1954 and which he is now throwing out of the window.
The industry does not want all protective legislation to be destroyed. The situation is curious—perhaps not so curious when one realises the real history of the matter. Not only were there committees in 1937, 1925 and 1911 but the first measure was promoted in 1848, a time at which the youthful Mr. Gladstone, at 32, asked whether anyone could seriously conceive of such legislation. He said that such legislation would be so entirely abhorrent to the genius and constitution of our people that it would not be endured.
§ Baroness Seear
My Lords, will the noble Lord agree that at that time Mr. Gladstone was a Conservative?
§ Lord Wedderburn of Charlton
My Lords, indeed. I was going to join the noble Baroness in saying that at that time we know on the unimpeachable authority of the noble Earl, Lord Stockton, that the party opposite had given up the tradition of Shaftesbury, Mr. Disraeli and Sir Winston Churchill. We did not know that it had taken on the early exuberance of the rather conservative Mr. Gladstone. They have backtracked 1184 on a very long tradition—another tradition of importance in the industry and elsewhere.
In 1951 the Rees Committee and the other committees before it were serious attempts to look at the industry in which many different views were put forward. Where is the committee? Where is the evidence? Can it be put in the Library? Can we see something like the report of the committee of 1911? That was a pretty small document. We just have to rely on the fact that the Minister tells us that everything in the industry has changed.
I say that the evidence from the industry is certainly not uniformly in that direction. There are employers who want to get rid of regulation. They are the kind of employer who was found by others in Barnsley only last year and reported in the British Baker of 9th November: that is, a cowboy baker (as he was called) who was in fact employing young people at appalling hours and for very small amounts. The example refers to young people, not women. But, as one of the major employers in Barnsley in the baking industry said, this could damage the reputation of good employers, and they would welcome and back anything which stops this sort of exploitation.
I say that it is being commonly said and feared, both by some employers and by the trade union, that women will suffer exploitation, in particular in night work, in this labour market and in the kind of employment pattern which the Government have promoted. Whether they are right or wrong on this point at the moment does not matter, but the Government believe in more part-time jobs. Part-time and temporary work, insecurity in terms of general social and employment rights can and will give rise to exploitation and will give rise to undercutting which will be bad for good employers, bad for workers and bad for the industry and for the product that it produces.
The evidence as it stands so far makes it highly irresponsible of this Government to aim at anything other than equalising protections in the baking industry. It does not mean keeping the 1954 Act and the Factories Act which do not quite join, but it does not mean scrapping them, because such a course is wholly irresponsible and, as the Minister knows, the union has pointed out that it will damage collective bargaining.
If one reads Sir Walter Monckton's beautifully constructed speeches in 1954, one realises that the whole point of the legislation at that time was to give a floor from which collective bargaining could rise and then there could be an application to the Minister for an exemption order. Indeed, as the noble Minister says, the exemption orders are in place for a large majority of the industry.
However, there is a further point which links to the general protective legislation for women workers. The Bakers, Food and Allied Workers' Union has suggested—and I know that the Government are aware of this—that not only should protection be included and retained for both men and women in the industry, but also (to use their words) workers, and especially women, should have a chance of having a direct say on the granting of exemption orders. They said that it was their view that prior to an exemption 1185 order being granted the workers to be covered by such an order should be balloted on the matter.
There is a curious link between that and some of the legislation which your Lordships may not have noticed—but I am sure that you have noticed it—is being repealed by this measure. The noble Lord the Minister described to us how under Clause 3 of the Bill certain sections of the Factories Act and the Mines and Quarries Act are being set out for repeal. That clause repeals four sections of the Mines and Quarries Act and seven sections of the Factories Act. However, when we look at Clause 5 and the schedule we find that there are 17 other sections of the Factories Act which are being repealed and which are described in the Bill as being no longer of practical effect.
Let us just look and see whether all of those sections are no longer of practical effect, because they link with the bakers' union's suggestion. Let us take for example, Section 97 of the Factories Act. We find that the provision goes back a long way—in fact, to 1936 and to the Government of that other well known Tory "wet", Mr. Baldwin. The Act was passed in 1936 and orders were made which were then based on Section 97 of the Factories Act 1961. All of that is to be repealed. What does it do? It says that in the introduction of certain types of shift work which relate also to hours of work not too late and not too early that:The Minister"—before he gives an exemption—shall by regulation … make provision as to the manner in which workpeople concerned are to be consulted, and for the ascertainment of their opinions, by secret ballot before any application is granted under this section, and the Health and Safety Executive shall not grant such an application … unless satisfied that … the majority of the workpeople concerned consent to the granting of the application".Either that section is of practical effect or it is not. If it is of practical effect, then what do the Government do? They are very keen on imposing their style of secret ballots with their very meticulous rules which are mainly objected to in certain areas. But when they find a secret ballot provision which is protective as regards workpeople, which may perhaps do something—not a lot, but a little—to obstruct managerial prerogative, they repeal it without any argument.
We have never heard about that section although it has been raised in consultations. I do not know what replies were given. Why is that so? That type of section dealing with shift working in factories, night work and so on (which are dealt with by other provisions) is concerned with limitations on managerial prerogative, in particular in areas where there may not be very strong trade union organisation, or where this may be (as indeed it surely is in some situations) a perfectly sensible way of starting and then getting an exemption order in the course of collective bargaining.
It is not true that collective bargaining is always an alternative to legislation of this kind. Any experienced trade unionist knows perfectly well that it may form part of the structure of the industrial relations of an industry and we should look at it case by case. Taking the Minister at his word, surely the Government should look at the matter case by case to see whether in this industry it really is uneconomic and unjustifiable, or whether in that industry it should be retained and equalised between men and women. 1186 However, instead of that we get the clean sweep. That cannot be right unless you do not care—and the Government are supposed to care—about what is really happening.
I was interested that the Minister gave us his figures of women covered by exemption orders. The first sniff in the wind that the Government were about to do what they are doing was when they stopped publishing detailed figures on this matter in the middle of 1985. Since before the last war we have had a quarterly breakdown of the figures on extended hour exemptions, double-day shift exemptions, night shift exemptions and so on. Suddenly the figures stopped. In answer to a Question for Written Answer asked by me on 30th October last year, the noble Lord the Minister told us of the current position and said that there were some 185,000 women involved in exemption orders, but went on to say:Figures which would enable a detailed analysis to be undertaken are no longer readily available. The production of such information would involve a disproportionate cost".—[Official Report, 30/10/85; col. 1596.]I understand the structure of that reply, but it means that not only are we not going to get a case by case consideration of the real people involved, but we shall not be told the figures any more because the exercise is too costly. I suggest that that is unsatisfactory. In the real labour market part-time women workers have to respond from a bargaining position or, as the Government like to put it, by their choice, to the jobs that are going, and the principle of equality (which is admirable and must be pursued) may be different from the reality produced by laws that look like equality. We have no quarrel with the principle of equality. Indeed, we demand that it be real and not the equality of everyone having tea at the Ritz which is the well known falsehood of mere semantic equality.
Indeed, 40 per cent. of women workers are in insecure part-time jobs and 90 per cent. of part-time women workers are married. Family life alone is something which the Government should have considered more than they have before they made their clean sweep. Whose responsibility will it be to get all these women workers who work night shifts back to their families? A Government which have done what this Government have done in terms of public transport do not, in that respect, have a very good wicket on which to bat. Indeed, what about the problem of child care centres and creches? What will the Government do about these matters? They just repeal legislation and leave women workers, and in some cases men workers, in industries like the baking industry, on the labour market, and it is not their responsibility to see about child care, transport and even health. I join with the Minister in acknowledging that the evidence is not all one way about what happens in terms of long shifts or even night shifts, although I do not think that his argument in respect of night shifts really acknowledges the fact that there is surely evidence of certain types of illness—even in certain industries of incidence of accidents—being rather different at night from during the day.
The ILO report of some years ago pointed out the particular stresses for women involved in anything like long or frequent night shifts. It certainly will not do to suggest that the contract of employment is any defence 1187 any more, even if they get a job, because if we look at the authorities in the courts—and it may perhaps be better to do that in Committee—it is made quite clear that when the employer today says, "I want to reorganise the shifts", if the employee does not agree, then he frequently ends up by being dismissed, whatever his rights and his contract. We can look at that matter.
I am sure that the Minister did not mention this in his speech and therefore I imagine that he also accepts that the contract of employment is no defence. Therefore, as regards transport, health, family and contract of employment, where is the defence for such workers who are in such a weak position? It must make a case in some industries, and we shall want to press the Government in Committee in regard to certain types of protection that really should be retained.
Indeed, as the noble Minister hinted, the Bill does not repeal all discriminatory legislation. I have someone who counts as a special pressure group, who keeps pressing upon me the argument that women should be allowed to go underground in the mines, at any rate if they are doctors or specialists of that kind. I can see the argument, which of course has won out in the United States. I do not press it upon the Minister, but I imagine that he has heard it, too.
The line that you draw is not as easy as the one he suggested between those who are pregnant and nursing mothers and all the rest. There are things which the Government are retaining, like the Factories Act provision (Section 20) that women and young people should not be employed on cleaning moving parts in factories. Of course they are keeping a number of sections. Again that indicates: why not a better case by case approach to the legislation?
That part of the Bill to which I have wished to advance most of my remarks seems to us unsatisfactory. I limit myself merely to these comments in regard to the other clauses, Clauses 1 and 2, both of which arise from the 1984 European Court of Justice decision. So far as small businesses are concerned, we understand that the Government are reluctant to extend the protection of sex discrimination law to small businesses. I must admit that I find the argument very hard to follow, in the sense that the noble Lord the Minister in his own speech—I cannot quote it, but I hope I am not misrepresenting him—said that, "Sex discrimination in small firms is unsupportable. It cannot be accepted. And yet it is difficult, and the Government are reluctant, to support the extension of the Sex Discrimination Act to small firms".
That would seem to me to point to a particular solution, not that the two are head-on counterpoised. If there really are special problems for small business, and we can avoid sex discrimination in small business by acknowledging them and dealing with them, let us have a special section to deal with that. The Government have done that before. All the Government seem to be able to do is to think either of exempting you from the Sex Discrimination Act altogether, or else applying the judgment in the same way as to any other firm. I would apply it to small 1188 business in the same way as to any other firm, but even on the Government's argument their reluctance is strange.
More important is Clause 2, which deals with collective agreements and, among other things, employers' rules. The question we shall put to the Minister centres around the question of whether or not the Bill really accords with the judgment of 1984. Section 77 of the Sex Discrimination Act is a somewhat complex section, but it is simplicity itself compared with Clause 2 of the Government's Bill. This Government have a record of labyrinthine and tortuous drafting in their employment legislation which has been criticised by both the noble and learned Lord, Lord Denning, and the late Lord Diplock. If those two agreed upon something, there is a presumption that perhaps it was right.
The problem with Section 77 may be put quickly in this way: first of all the question which I hope the Government will affirm in Committee, because I believe it to be so, that the clause covers indirect as well as direct discrimination. As I read it, it does. Secondly, the problem of procedure. If a collective agreement becomes void for discrimination under Section 77, it can be proceeded upon in the county court so long as it is unenforceable against the party to it, because it is discriminatory against the party to it. Not that the county court would be the best forum. But of course that does not apply, because the collective agreement—and I suppose arguably the employers' rules—are not discriminatory by hypothesis against the party to the agreement; the employer and the union, or an association of the union.
There appears to be no procedure at all unless one says, "Well, we do have one successful experiment in the labour field in this area, the Central Arbitration Committee. The CAC". What do we find? Not that the CAC has had its jurisdiction under Section 3 of the Equal Pay Act extended into this area as would have been sensible, and as we shall press in Committee very hard. The CAC is one of the success stories in British labour law. We know that the Government do not like it, although for the life of me I am not sure why. It is a successful and sensible body.
But what do the Government do? They not only do not apply the CAC's jurisdiction to this new area of void, unenforceable collective agreements—a somewhat odd concept, but one understood at least by the European Court of Justice—they take away the CAC's jurisdiction even under the Equal Pay Act, Section 3, although of course you have to look at the schedule to see it. I noticed that in his speech the Minister did not say a word about the Central Arbitration Committee.
He came to this clause. He describe it. I accept his basic description. But why not say why they are abolishing the CAC's jurisdiction under the Equal Pay Act? People will say "Oh, it has not had many cases recently". That is true. That does not mean that it is not a success and should not be encouraged. Of course we see the real point when we look at the rest of the package. The rest of the package is in the other Bills; the Wages Bill; the Sex Discrimination Bill; and parts of the Shops Bill, which are part of the deregulation of labour relations upon which this Government are set 1189 as a matter of ideology. No wonder they do not take them case by case. As a matter of ideology they simply sweep away protection for workers. What is done away with in the Wages Bill? In the schedule it is the CAC in regard to its jurisdiction on wages councils.
Even when they accept the court's ruling, and even when they have a body to hand—not a particularly Bolshevik body; it is a very consensus, tripartite body—which could do the job of looking at wages orders (it does that already), unequal treatment across the face of employment in collective agreements, and so on, do they give them that job? No, not a bit of it. They leave the whole thing without a procedure for enforcement. There is no procedure for enforcement at all.
It is difficult to follow the Government's ways. I too do not want unnecessary regulation, but this surely is deregulation gone mad. We are told that this kind of deregulation will do something to help with unemployment. We were told that when employment protection legislation was first attacked in 1979; we were told it again when employment protection legislation was attacked in 1980 and 1982; we were told it again—and let noble Lords remember that it is not just the controversial employment Acts—in 1983 when the fair wages resolution was rescinded. That was not a great deal of help to low-paid or indeed many women workers. We are told it in all these measures of deregulation, and the Government produce higher unemployment figures—except when they are adjusted by other means.
This really will not do. This House would be failing in every duty that it had if it did not see this Bill through the framework of reality; sharing the principles, but looking at the underprivileged, ordinary workpeople, men and women who are protected by some part of this legislation and whose protections ought not simply to be thrust aside.
§ 4.48 p.m.
§ Baroness Seear
My Lords, I should like to give a welcome to the general intention, as I understand it, of this Bill, which is intended to give equal treatment, and to extend the Sex Discrimination Act in certain areas in which it was defective. To start with, I should like to look at the question of extension to the small firm. Unlike the noble Lord the Minister, I do not in the least regret the extension to the small firm. As I understand it, that exemption was given not because at the time of the passing of the Sex Discrimination Act anybody really thought that there was any difference of substance between what was required in a slightly smaller firm and what was required in a large organisation, but simply on the argument of practicality and enforcement; that when legislation was bringing in a totally new concept of equal opportunity it was going to be extremely difficult, with any sense of reality, to contemplate enforcing it right throughout all premises in the whole breadth of the land.
The straightforward and simple thing to do for the time being was to exempt the small firm. If my memory serves me right, that was why it was included at that time. When we argued it 11 years ago—I must confess that I have not turned up the debates—I do not believe we ever thought that it would remain as a 1190 permanent feature of the legislation. But it was convenient in the practical circumstances of the time when the legislation was introduced. For my part, I am glad to see the extension and that the Government have retained the sex discrimination exemption on a narrower basis where there are close personal contacts and where, for example, it is reasonable in a private household that an elderly single woman living on her own should be able to choose the sex of someone working with her. I do not think anybody would argue about that. However it is right that those exemptions should be narrowly drawn and that the requirement should be extended to the small firm.
I find the Minister's arguments in this connection difficult to understand and rather disquieting. If I may say so without disrespect, the Minister has a positive fixation, a fetish, about small firms. I have no particular objection to the small firm but in the Minister's mind there is something quite sacred and different about small firms. Something mysterious happens, in the eyes of the Minister, once below a certain number of people are employed. For the life of me, I cannot understand what it is or why the Minister has this extraordinarily tender feeling towards small organisations.
I know that I have argued with him before, but I do not accept that unfortunate slogan of Schumacher that "small is beautiful". I have known some large organisations that have been very beautiful and some small organisations that have been perfectly horrible. I should point out to the Minister that it is often in the smaller organisations that there are the most horrible conditions. They are the most difficult to deal with because they are the most difficult for trade unions to organise, and nowhere is exploitation easier than in the small firm. Apart from that, unhealthy working conditions are unhealthy however many people are working there. I cannot see the logic of saying that protection can be removed because there are not many people working somewhere. It does not add up.
There is no hope of curing the Secretary of State. We have heard the Secretary of State give his paean of praise towards smallness so often that there is not the slightest opportunity that he will change his mind between now and all the other birthdays that he will enjoy, which I hope will be many.
I was also surprised when the Minister said that small firms ought not to be burdened by this legislation. A couple of paragraphs before the Minister had been telling us that equal opportunity was good, that he believed in it and that the best person should have the job. I am entirely of the view that the best person should have the job. This has always been the basis of my approach to equal opportunity. I have never said that women ought to be given jobs, just because they are women, to adjust the numbers. The whole burden of the campaign for women is that the best people, when they have been women, have been excluded from jobs, so why should it be a burden on an employer of a small number of people that at last the employer will have access to women whom he previously had not thought of employing; or indeed the other way round?
There are circumstances in which the best person is a man in an occupation in which women have always 1191 previously been employed. There is the well-known case of how it has always been assumed that women have greater dexterity than men. After the legislation was passed, in an organisation in which women had always been employed simply because of their great dexterity objective tests were introduced and the end result was that 25 per cent. of the jobs then went to men. But this is an advantage. That firm, by exercising equal opportunities, had improved its labour force, not made it worse. So I do not understand why the Minister should say that equal opportunities for employers in small firms will be a burden. However, be that as it may, this quarrel will go on and no doubt will not be resolved.
On the change in the equal pay section—the noble Lord, Lord Wedderburn, has talked at considerable length about the disappearance of the CAC from the regulations—I had hoped, through having listened to Lord Wedderburn, this must be my greater ignorance or innocence, or both (I am not quite sure which) that the idea had been that by having a blanket requirement that anything that was discriminatory in a collective agreement or in any form of contract between employer and employee was automatically illegal might be a speedier way of dealing with the matter than the previous procedure which required reference to the CAC. I hope that the noble Lord the Minister, in replying to the noble Lord, Lord Wedderburn, will explain in more detail the purpose behind that change. I bow to Lord Wedderburn's judgment. There probably is a good deal more to this change than a mere clearing out of what has been a cumbersome procedure in the past; and if that is the intention it is something to be welcomed. However, if there is something more sinister behind it we ought to get at it at Committee stage if not now.
In principle I welcome the change in the hours of work, the removal of the protective legislation and night work. There is no doubt that the restriction on women—although it has been more a restriction in theory than in fact for a long time because of the relative ease of getting exemption—has made it difficult if not impossible for many women to have access to jobs which are better paid in themsleves than many of the other jobs that they could have on shift working. Getting those jobs gives them access in turn to still better jobs later.
This has been a discrimination which has operated unfavourably for women and it ought therefore to be removed. In studies connected with this I have found evidence (evidence that the EOC also found in studies) that for some married women there are advantages in shift working, because it fits in better with control over the domestic situation when they can adapt to their husband's hours and their own hours can be arranged in such a way that control and coverage over the family is better between the two parents than when both parents are working the same hours. Some women (in my experience a minority, but an important minority) find, strange though it may seem to some people, that there were advantages for them, and their families, in being able to work on shifts rather than being excluded.
It may seem odd that I am welcoming the removal of the restrictive clauses in the same week (or is it the 1192 week after?) that I, along with many others in your Lordships' House, enthusiastically supported the retention of the provisions of the Shops Act 1950 which are protective. But the contrast makes the point well, because the Shops Act applies both to men and to women. The objection to the existing factory legislation is that it is applied exclusively to women. This brings me to agreeing very much with the noble Lord, Lord Wedderburn, when he said that surely we should be considering the whole question of appropriate protection in the year 1986 for both men and women.
It does not follow that because we want to get rid of protection—which has built up over 140 years and which has been modified rather than examined in a fundamental way over that period—we are in favour of having no kind of protection at all. There is no logical connection between those two situations. What we have at present may be totally unacceptable but that does not mean that the only alternative is to have nothing.
I find it very odd that the Minister should take the line that he does. He must know that there is a long history, not only of campaigning, by worker representative trade unions, for a protective legislation of one kind or another, but also of very good scientific work, way back, such as all the work done through the Industrial Health Research Board, in the ILO, and in a whole variety of places, which has examined what is required in order to have healthy working conditions. To take the line that we now no longer need any kind of protection is to give the lie to whole libraries of work based on solid scientific study.
§ Lord Young of Graffham
My Lords, forgive me. I was making the point that there was no difference between men and women. Of course protection is required in working conditions.
§ Baroness Seear
My Lords, well, I am extremely glad to hear that. If the noble Minister is saying that he accepts that what we now need is not the total abolition but rather, following the abolition of the protective clauses in the Factories Act, a serious examination of what at the present day is appropriate protection for both men and women, then indeed this Bill will be a very great advance. Of course the best example of it would be to start straight away—did I misunderstand the Minister?
§ Baroness Seear
My Lords, the best example of it would be to start straight away on the baking regulations, which give us the best illustration of the error that the Minister is making and of the argument which we are putting forward. It is not the only case, but it happens to figure in this Bill, so let us take it as an example.
It seems to me quite plain that some kind of regulation is required for people, men or women, who, if there was no regulation, could be employed indefinitely on night work in bakeries. I do not think one needs to be a scientist or a doctor to realise that that is not an entirely satisfactory state of affairs. What we need is an up-to-date examination of what is 1193 required. As I have said, the legislation has grown up over 140 years. It is highly improbable that it is really appropriate today. Let us look at what we now need.
This brings me back to a point that I made in your Lordships' House, I think some time last week. We have not had the Sex Discrimination Act on the statute book for over 10 years. We have had the Equal Pay Act for 16 years. We have had this statutory legislation, which we are now unscrambling, going back 140 years. Is it not really the time—and would not your Lordships' House be the appropriate place—when we should get down to looking at what we require in this whole field in the year 1986? I hope that out of this discussion we are having today, we can settle down and have a thorough investigation of what is required to bring this piecemeal legislation up to date, rather than making piecemeal adjustments. We have had an example only today of how we shall have to make yet another adjustment to the Sex Discrimination Act because of the recent European Court judgment. Surely this points to the need of something like a House of Lords Select Committee to go through the whole matter and try to get an up-to-date approach to equal opportunity and employee protection appropriate for the year 1986.
§ 5.6 p.m.
§ Baroness Platt of Writtle
My Lords, as Chairman of the Equal Opportunities Commission it is my pleasant duty to welcome this Bill in general terms, although later on I shall also have specific reservations. The commission has for some time been pressing the Government to comply with the decision of the European Court of Justice in November 1983, when it found that our legislation was deficient on three grounds with reference to private households, small employers and collective agreements. This Bill is being introduced in the first instance to deal with these matters.
I think it will be best if I now go through the Bill giving the commission's opinion on the various clauses, starting with Clause 1, which we welcome as far as it goes. In our comments on the proposals we recommended that in removing the exemption for small firms, small partnerships should also be included. The directive refers to equal access to jobs at all levels of the occupational heirarchy. In the sort of partnership with which most of us are familiar, the professional form, the partners are the top tier—the equivalent of senior managers in a company. If the exemption does not include partnerships the Bill may fail to comply with the equal treatment directive. We hope that my noble friend the Secretary of State will reconsider this matter and introduce an amendment at Committee stage to deal with small partnerships as well.
With reference to Clause 1(2), the commission agrees with the Government and the European Court on the importance of reconciling the principle of equality of treatment with the principle of respect for private life. The first part of this clause achieves this, with its reference to the degree of physical or social contact with a person living in a home.
I should be grateful if my noble friend would, however, elucidate the second part of this clause 1194 referring to knowledge of such person's private affairs. While acknowledging that knowledge of private affairs might refer to sex, we cannot understand how it needs to be a determining factor with reference to the gender of the person employed. Surely the overwhelming factor in deciding who to employ must be their trustworthiness, which has nothing to do with their gender. We feel that this part of the clause, which has not been the subject of prior consultation, is not clear in its meaning, may therefore give rise to legal conflict, and would be better removed unless there is very strong reasoning behind its late inclusion in the Bill.
Clause 2 of the Bill amends Section 77 of the Sex Discrimination Act to void formally discriminatory terms in collective agreements, whether or not they are legally binding; or rules made by employers or organisations for application to their employees or members. There is, however, no machinery to remove such terms from the agreement, so that notwithstanding their formal voiding they will remain in existence unless they are removed following renegotiation of the agreement, or until amended following a decision of a court or tribunal as a result of an individual complaint.
We welcome the fact that as a result of the consultation process the Government have introduced in subsection (5) the very important principle of indirect discrimination as well as direct discrimination, which the EOC felt strongly was essential to the Bill. The Government rely on the rights of the individual to bring a complaint before an industrial tribunal with regard to the terms of a collective agreement, and in this Bill are proposing to abolish the Central Arbitration Committee's jurisdiction under Section 3 of the Equal Pay Act.
The Equal Opportunities Commission is concerned that the combination of individual litigation and collective bargaining envisaged by the Government could lead to inconsistencies, and that the outcome could lead to increased litigation and resulting confusion for individuals, trade unions and employers alike, in the random and piecemeal amendment of collective agreements. Whilst wishing, as do the Government, to preserve individual rights to take action in relation to collective agreements in courts and industrial tribunals, the commission, in its proposals, put forward the suggestion that the Central Arbitration Committee should have wider powers as a central body in scrutinising collective agreements and rules as a whole. We recognised that if that were the case it would need to become more judicial in its procedures and broaden its character and scope substantially. Otherwise, we suggested that really important cases might be transferred to the Employment Appeal Tribunal sitting as a court of first instance, so that the collective implications of individual decisions could be properly integrated.
We are concerned that the Bill will fail to deal with collective agreements at the collective level, and suggest that this matter should be reconsidered by the Government. If, as seems to be the case, particularly with reference to Clause 5 of the Bill, they are not at all sympathetic to our suggestions about the Central Arbitration Committee, we urge my noble friend the Secretary of State to encourage parties to all collective agreements to undertake a systematic review of them to identify and eliminate provisions which are either 1195 directly or indirectly discriminatory; otherwise, some terms, though technically void, will remain in agreements and may well be treated by the parties concerned as valid because no action has been taken to strike them out.
The Equal Opportunities Commission itself will be monitoring the operation of the legislation in the area of collective agreements in future, in the absence of better central provision in the Bill, in case its own power of formal investigation may be of value at the collective level.
With regard to Clause 3 of the Bill, certainly in 1979 the Equal Opportunities Commission stated its view that there is no longer justification for keeping laws on hours of work that mean men and women have to be treated differently. Its overall recommendation therefore was that the law should be repealed or, where health and safety and welfare demanded it, replaced, so that it applied equally to both men and women. The 1979 report was not unanimous, and in reiterating our 1979 opinion and so welcoming the Government's decision to repeal Part VI of the Factories Act 1961 and associated legislation, I should make it clear that there is still a strongly-held minority view among the commissioners. However, I should like to draw the attention of your Lordships' House to the commission's full recommendations of 1979, which include proposals for minimum standards of welfare and a code of practice in the longer term, and some transitional measures to protect women currently employed, subject to the present restrictions.
As was pointed out in 1979, the repeal of the Factories Act will mean that many contracts of employment in industry will need to be altered, as required by the Equal Pay Act, so that men and women will be treated equally. That will also now extend to collective agreements covering hours and conditions of work.
Consequently, employers will be obliged to alter men's and women's hours of work (almost certainly the latter). This will relate not only to shiftwork but to overtime, meal breaks, rest periods and length of working spell. While this will on many occasions mean a barrier being removed, so that women will be able to obtain higher pay and to be considered for jobs from which they were previously excluded, it will also mean that many women may be forced to consider significant changes to their hours of work, which may force them out of work.
Further, while the effect of repeal will be that women may not be refused shiftworking, some women who do not wish to do shiftwork may be made subject to pressure to undertake it. Some transitional measures would not only help protect women currently employed from such pressure but also might ensure a pace of change which could give time for an orderly revision of pay, collective agreements, and so on. It is, therefore, regretted that the Government have not introduced any transitional protective measures, nor empowered the Secretary of State to do so when appointing the time at which the various repeals are to become effective.
The commissioners have noted that the Government have made provision in a number of 1196 respects to protect existing employees in the current Shops Bill concerning the repeal of the prohibition of Sunday trading, in particular making it unlawful to take action against a women who refuses to work on a Sunday who was employed when the Bill was enacted. Indeed, the noble and learned Lord, Lord Denning, helped by my noble friend Lord Stockton, proposed an amendment which was carried in your Lordships' House so that protectve provisions should continue in perpetuity. The House on that day showed considerable sympathy for the rights of employees in a changing situation.
The commission recommended, in conjunction with the Sex Discrimination Bill, that those women currently employed in factories should be given specific protection in regard to their jobs and that general provisions for welfare and for those with dependants should be introduced. We feel that the introduction in the longer term of a code of practice on hours of work for industrial workers, for men as well as women, would be of considerable value.
Clause 6(3) of the Bill makes allowance for Section 3 and 4 of the Act to come into force on different days, as my noble friend the Secretary of State may, by order made by statutory instrument, appoint. It is the commission's hope that in doing this he will reconsider the question of transitional protection to existing workers, as we suggest.
This brings me to my final point on the repeal of the Baking Industry (Hours of Work) Act 1954. The original intention of the Act was to prevent permanent night working in the bread-baking industry, which we regard as still relevant and effective. We therefore, instead of repeal, recommend its extension to women as well as men, as we feel the introduction of permanent nightwork would in fact make it more difficult for many women to work in bread-baking.
My honourable friend the Minister, Mr. Ian Lang, in his comments to the press when the Bill was published, stated that the Government are unreservedly against sex discrimination. He said:Not only is it unfair but it is in the interests of the economy for jobs to go to the people best able to do them. The Bill will promote equal opportunities and save employers unnecessary time-wasting bureaucracy".The commission endorses these objectives.
The commission was set up with all-party support in 1975 under the original Sex Discrimination Act, with statutory duties laid upon them by Parliament to work towards the elimination of discrimination and to promote equality of opportunity between men and women generally. As the chairman of the commission, the statutory body responsible for those duties which has reached carefully and learnt by experience how to further those aims, I hope your Lordships' House and my noble friend the Secretary of State will take careful note of the commission's considered views on this Bill, and will reconsider certain sections so that amendments can be introduced at the Committee stage to ensure that its provisions will overcome the difficulties that the commission has highlighted. It will then, when it comes into force, become, in our view, a better Act.
§ 5.18 p.m.
§ Lady Saltoun of Abernethy
My Lords, I, too, should like to wish the Secretary of State many happier returns, when he will not be under quite such heavy fire as he has been this afternoon! I am also most grateful to him for the very understanding way in which he introduced this Bill.
There is a lot of this Bill that I do not like. I do not mind Clauses 2 to 6, but Clause 1 I really dislike very much indeed. Less than eight months ago, on 11th June last, I sounded a note of warning in this House to the effect that if women were too insistent that they should never be discriminated against they might have cause to rue it, for they would surely lose the benefits of a few remaining areas of discrimination in their favour. I am rather afraid that Clause 1 of this Bill is going to have precisely that effect.
Section 2 of the 1975 Act provides that Parts II and III of that Act, relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite, whatever that may mean.
I have not put my mind to what kind of small business a man might wish to run, employing five or fewer employees, where he might quite reasonably find it embarrassing or distasteful to employ a woman. I leave that to your Lordships. But I can give an example of the kind of business in which, were I to be running it, I might well wish to employ women only—a firm, for instance, making ladies' underclothes, or perhaps an employment agency for nannies. In fact, I would go so far as to say that were I to be obliged to employ men whether or not I wished to do so, I should think twice about starting a business of that kind—and that would do nothing to help create jobs.
I have been told that in practice it will probably be all right because men would not apply, and vice versa; and that if they did apply and you did not want them you would simply manage to find some excuse for not employing them. But, then, that means that the law will be flouted, and I do not think that that is a good thing.
Even worse is the additional restriction that Clause 1(2) imposes on employment in private households. Again, I expect that people will find ways and means of making sure that they get round the regulations, but then, again, they will be flouting the law. It was quite simple before, but this Bill is now introducing complications which may well lead to difficulties and to litigation. It is a great pity that the old unwritten law that an Englishman's home is his castle seems to be going straight out of the window, to be replaced by one that says that you may do what you please in your own home provided that nanny European Commission says you may.
This is a silly clause to amend the 1975 Act, which was in parts one of the silliest Acts ever to be passed by this House. I will not go into details of all the silliness, much of it not in the interests of women, which it contained; that would take far too long. If we are to amend the 1975 Act so as to make it less silly, I shall be delighted, but to make it sillier still seems to me insane. I think we should tell the European 1198 Commission to think again and not to produce any more such half-baked rubbish.
§ 5.21 p.m.
§ Baroness Lockwood
My Lords, I, too, should like to give the Bill a qualified welcome. My qualifications largely follow those of the noble Baroness, Lady Platt, who succeeded me as chairman of the Equal Opportunities Commission. Reading the Bill, it seems to me that it derives its inspiration from two sources: first, the European Commission in its proceedings against the United Kingdom; and, secondly, the Government's White Paper of last year Lifting the Burden.
It is a matter of regret that the Government had to be prompted by legal action from the EC before they began to amend the Sex Discrimination Act. It would have been far preferable to have taken a positive approach to equality between the sexes. In this context, I should also like to say that it is a matter of further regret that the Government appear to be dragging their feet on discussions which are taking place in Europe on further directives or legislation which would promote equality between the sexes. I refer, in particular, to parental leave, to which I know the noble Lord opposite takes great exception.
It is a matter of disappointment to me that the Bill is confined to the influences to which I have referred and appears to take no account of the careful monitoring of the first five years of operation of the Sex Discrimination Act and the Equal Pay Act. In accordance with their statutory duty, the Equal Opportunities Commission recommended to the Government in 1981 25 separate amendments to the Act. I should like to ask: what has happened to these recommendations? We know what is happening to three of them. The equal value recommendation—that is, widening the definition of "equal pay" on which a claim can be based—has now been implemented; but, again, only after proceedings in the European Court against the United Kingdom Government.
Two other of the recommendations are included in the Bill that we are considering today. One is the reference to collective agreements and the other is the reference to including small firms and undertakings within the scope of the Bill. Unlike the noble Lady who has just spoken, I welcome most warmly, in principle, these two amendments to the Act. But, again, like other noble Lords and Baronesses who have spoken, I think we need some clarification of Clause 2 of the Bill and what are to be the enforcement procedures for dealing with collective agreements.
As I understand the matter at the present time, only one, or both, of the partners to a collective agreement, or the Secretary of State himself, can refer a collective agreement to the Central Arbitration Committee. The Secretary of State has been very reluctant to refer agreements to the CAC, even on one occasion when he was prompted to do so by the Equal Opportunities Commission with the approval of the trade union involved. I am not, of course, referring to the present holder of the position of Secretary of State at the Department of Employment.
1199 As the Equal Opportunities Commission saw the situation when they were putting forward their amendments, they felt that it would be appropriate that, where there was a finding of discrimination or unequal pay in an industrial tribunal, then the tribunal could refer that agreement to the CAC so that the whole of the agreement could be looked at in the light of the finding. They also suggested that in certain circumstances, it should be possible for the EOC themselves to refer a collective agreement for scrutiny. From what the noble Baroness, Lady Platt, has said, it would seem that the Equal Oportunities Commission, in general terms, are still of that opinion. So I hope that when the noble Lord comes to reply, or, if not in his reply to the debate today when we get to Committee stage, we can have a little more illumination of the intentions of this clause.
But apart from the two amendments to which I have referred, there is no further reference in the Bill to the remainder of the EOC's recommended changes. When I submitted the proposed changes to the Government at the time, the then Home Secretary, who is now Leader of this House, replied that the Government would study carefully the recommendations from the commission. I understood that it was felt that the circumstances were not opportune for amending the Act at that time. But we now have a Bill to amend the Act. Can the Minister tell us why more of the Equal Opportunities Commission's recommendations have not been included in the Bill? Have they been studied carefully, and is there any intention to include any of them as amendments?
Earlier in the proceedings this afternoon, the Minister himself, referring to the Marshall case, indicated that it might be necessary at a later stage for the Government to come forward with an amendment. I suggest that had the Government studied carefully the Equal Opportunities Commission's recommendations of 1981 and acted upon them, we should not have had the Marshall case, nor some of the other cases that are now pending before the European Court.
I turn now to Clause 3 of the Bill—the removal of restrictions on working hours and conditions of women. This part of the Bill is very much concerned with the philosophy of lifting the burden. Like the noble Baroness, Lady Seear, I fail to see why we should regard matters of equality as lifting the burden and not as a positive approach towards equality. The Bill does not appear to rest on the basis of the 150-page report from the Equal Opportunities Commission. In 1976 the then Secretary of State asked the Commission to undertake a review of the discriminatory provision of health and safety legislation.
The commission set up a special committee to examine the legislation. The operation took some three years and became a fundamental inquiry into all aspects of the legislation. The committee took written and oral evidence from 124 organisations, including most of the industries concerned with night work and shift work. It commissioned a survey by the OPCS on the attitudes of women to shift work and to night work. It made a very careful study of 1,000 of the current exemption orders from the Health and Safety 1200 Executive. It commissioned a study on the economic aspects of the restriction on hours of work and it reviewed the available medical evidence. In addition it took evidence from 11 foreign countries on their hours of work. I am sure your Lordships will agree that this was a very comprehensive and fundamental review of all aspects of health and safety legislation. We had hoped to produce a report which had the unanimous support of the whole commission but again, as has been indicated by the noble Baroness, Lady Platt, there was some dissention. Two of the then three TUC commissioners dissented from the main recommendations on hours at work.
In his reference to this report the Secretary of State quoted the overall recommendation of the committee which was that the legislation should be removed or, where health, safety and welfare demanded, replaced so that it applies equally to men and women. What he did not quote was the further recommendation at paragraph 396 on page 96 of the report:In conjunction with such removal, we recommend that two further steps be taken".That meant that the two things would be done simultaneously. The two further steps were that,minimum standards of welfare should be specified under the Health and Safety at Work Act 1974 or other employment legislation.".The second step was that the job security of those involved should be preserved if night work or shift work was not suitable for them, and, furthermore, that there should be provision for workers with families. The recommendation admits that the workers would be mainly women at the present time but we talked about provision for workers with families. We recommended that these two concerns be included in a code of practice under the auspices of the health and safety legislation and not under the Sex Discrimination Act.
Our concerns on the welfare aspects were numerous. Perhaps I may draw your Lordships' attention to two aspects in particular. One was the inadequacy of managerial and welfare facilities, especially for night workers. It came through very clearly in all the evidence—evidence from both trade unions and employers—that on nightshifts you do not have the same managerial and welfare facilities, and that includes counselling and other personal facilities. Secondly, we looked at the difficulties arising from the lack of transport facilities, particularly for women who work nights. At paragraph 249 of the report on page 57 we referred to the findings of the OPCS survey which showed that 68 per cent. of women shift workers went to work by public transport or on foot, compared with 30 per cent. of their husbands. Only 14 per cent. of women drove to work, compared with 51 per cent. of men. I recognise that this problem is faced by all women who work at night—nurses and others—but it is particularly relevant to manual workers because women manual workers are least likely to have access to a car.
In the light of the growing number of incidents of personal violence, a subject discussed in this House only yesterday, it should be a matter of concern to us that this is taken into account when we consider the question of removing protective legislation. Therefore the recommendation of the EOC at that time was that 1201 there should be under a code of practice regulations governing the provision of transport and other supervisory and welfare facilities.
It may be outdated to protect women as such—we have been told on a number of occasions this afternoon that the legislation we are discussing goes back 140 years—but surely it is not outdated to take account of family needs. Other countries do this in their legislation. The competitiveness of industry should surely stem from its efficiency in terms of good management, applying modern technology and good industrial and personnel relations. I can see nothing of these influences in the recommendations contained in the Bill before us. Therefore, as I said at the outset, I give a qualified welcome to the Bill in that it is beginning to amend the Sex Discrimination Act, but I hope that it will not be passed in its present form without some protection which would apply to both men and women. I hope that it will be possible for us to look at other aspects of the recommendations that were put forward by the EOC in 1981 so that we can have a Bill much more comprehensive than the one before us this afternoon.
§ 5.40 p.m.
§ Earl Attlee
My Lords, until the noble Lady, Lady Saltoun, made her speech, I was beginning to think that possibly the name of the Bill should be changed to the Sex Discrimination for Women Bill. Time and time again, and as exemplified in the speech of the noble Baroness, Lady Platt, I received the impression that this Bill is intended only for women and not for men. It is not just that I am a male chauvinist pig—which I am—but in debates about sexual harassment it seems that it is always men who are sexually harassing the poor women in offices and on the factory floor.
However, if one speaks to men working in electronics factories, for instance, where there may be 100 or more women all working away at doing wonderful things—and I have always thought that they were so employed because they are far better, but this afternoon I learnt that they are not—one discovers that the sexual harassment suffered by men is such that your Lordships would not believe it. I am an ex-merchant sailor but still I blush when I hear about some of the things it is claimed that women say. If the men complain they are looked upon with scorn or amusement and told, "Don't be silly".
The noble Lady, Lady Saltoun, gave a very timely warning. We introduce legislation that has the objective of achieving fair play for women but in many instances we achieve exactly the opposite. I have only worked in small companies, and if there are two applicants for a job today, and one of them is a man and the other is a woman, and all other factors are equal, then because of the way that the law is at the moment this is what happens. If I employ the woman, then she may marry and become pregnant—which is a perfectly natural thing to do. She can take maternity leave and say, "I want my job held open". I am then bound to hold her job open for her. When the time comes for her to return to work, she may say, "I've changed my mind". Some companies cannot afford that. The result is that if I am confronted with two 1202 candidates for a job who are equally as good, then since the man is never going to become pregnant, I am safer selecting the man.
We are confronted by more and more legislation, and we now face the danger that exists in respect of race relations, where there are now certain councils who operate what they call positive discrimination in favour of racial minorities. Unless we are very careful, we shall have positive discrimination in respect of sexual matters. If one takes the example of race relations, positive discrimination sounds fine. But if one changes the word "discrimination" to "unfairness", one then finds out that positive unfairness is worse than ordinary unfairness.
Unless we are very careful, we shall find the same kind of thing happening in respect of equal opportunities for men and women. We seem to be considering all the wrong reasons. The fact is that women today are discriminated against in respect of basic issues other than employment. They are discriminated against in trying to obtain a mortgage, in trying to obtain hire purchase, and in matters of taxation. They are still discriminated against in those ways today, and that must be wrong.
A few years ago I worked in an advertising agency. I was employed in the production department, where the manager was a woman. Working there were four men, of whom I was one, and one woman. One summer there was an argument going on. The boss came in and asked what was the trouble. It was explained to her that some people wanted the window open while others wanted it closed. The female manager asked, "Who wants the window closed?" The men replied, "She does. We want it open". Our manager said, "Call yourself gentlemen? Close the window".
Why should she have done that? She should have asked how many people wanted the window closed and how many wanted it open. That would have been democratic. I am not saying that all women are so unfair but we are reaching the stage where such attitudes are commonplace. I thought that this Bill was going to be wonderful, and that we poor men were at last getting a Bill that would provide equal protection against the mass of women who are driving us into the ground. Really, we are not.
Turning from generalities to particulars, one point that worries me—I may say, for the wrong reasons—concerns Clause 3(1), which removes restrictions on the employment of women by night. I thought, in my innocence, that that was done away back in 1936 because of the danger of allowing women to travel to work by night and home by night or in the early morning. However, I found out today that I was wrong in that belief. I accept that it is right to remove that restriction but it worries me because, as the noble Baroness mentioned in our debate yesterday, we are witnessing more and more crime.
The average woman working at night probably has to use public transport. Are not such women travelling to work or travelling home placed in danger? Unless there is some kind of busing arrangement to take them from door to door, then I fear that there will be an awful increase in crimes and a real danger posed to 1203 those women: that is, real sexual harassment. That is a great danger, and I hope that the noble Lord the Minister, even on his birthday, will reassure the House that it is not intended that women will be allowed, singly or even in twos and threes, to travel to and from work by night without some form of protection.
§ 5.47 p.m.
§ Lord Monson
My Lords, like my noble friend Lady Saltoun, with whose excellent speech I wholly concur, I have no objections or strong feelings either way about the greater part of this Bill; that is to say, Clauses 2 to 6 inclusive. For what it is worth, I positively welcome yesterday's ruling of the European Court concerning the equalisation of retirement ages for men and women, which was discussed briefly in this Chamber earlier this afternoon. Such a move would be not only sensible and fair but could in no way be said to restrict personal freedom—unlike some other diktats emanating from Europe of which one can think.
Having said that, I find it astonishing and indeed shocking that a Conservative Government who, like all Conservative governments, purport to support individual freedom, to oppose excessive bureaucracy, and to uphold the maxim that an Englishman's home is his castle, should be responsible for introducing Clause 1 of this Bill. Some 11½ years ago the then Labour government's White Paper entitled Equality for Women, published in September 1974, asserted that:The law should not attempt to deal with relationships which are so personal or intimate that legal intervention is either likely to be ineffective, or is politically or socially unacceptable".The White Paper went on to state that the forthcoming Bill,will also contain several exceptions … designed to avoid manifest absurdities and anomalies".Those exceptions were to include private households, quite naturally, and firms employing fewer than 10 people. When the Bill was published the following year, the latter exemption had unfortunately been made more restrictive, in that only firms employing fewer than five people were to be made exempt.
Mr. Ian Gilmour, as he then was, replying for the Official Opposition on 26th March 1975, attacked the excessively restrictive nature of Labour's proposals. He pointed out:We restricted the operation of our proposals to firms with more than 25 employees. In their White Paper the Government unwisely reduced that figure to 10, and in the Bill, even more unwisely"—I stress that point—they have reduced it to five."—[Official Report, Commons, 26/3/75; col. 530.]It is noteworthy that the Liberals—I mention this in view of what the noble Baroness, Lady Seear, said earlier—together with the great bulk of the Labour Party, made no objection whatever at the time to the exemption for very small firms. The only speakers who did object were two honourable Members on the far Left of the Labour Party. When I say that one of those two honourable Members is on record as having defended the building of the Berlin Wall your Lordships will see that I am not exaggerating when I use the term "far Left". It is highly significant that not one speaker, not even the two honourable Members 1204 on the far Left, attacked or disagreed with the exemption for private homes. It would have been quite unthinkable at that time, particularly for the Conservative Party with its general support for the right of privacy and its commitment to family life.
When in October 1976 I moved an amendment to the Race Relations Bill—then on its way through this House—which would have excluded private homes from the scope of that Bill the amendment was carried by 111 votes to 67, a majority of 44. As well as receiving some gratifying support from one or two Members on both the Labour and the Liberal Benches and from all my noble friends on these Benches, virtually all the Conservatives present went through the Division Lobby in support of my amendment, including at least a dozen former Ministers or junior Ministers.
By the time my amendment reached the other place it had been effectively adopted by the then Conservative Opposition in the Commons. It was particularly commended from the Opposition Front Bench by the present Solicitor-General. Inevitably the amendment was lost, the Conservatives being then in the minority, but the point is that they did fight hard to retain it in the Bill.
My purpose in mentioning this is to show that 10 years ago the Conservatives were prepared to speak and act boldly against social engineering type legislation in so far as it extended into private homes. This seems to be no longer the case—a U-turn, indeed. We are of course told that our hands are tied in this matter and that we are bound by an EC directive. Indeed, the directive has all the hallmarks of the humourless bureaucracy which characterises officialdom on the Continent of Europe. It also has the hallmarks of what I think of as a 1946 style left-of-centre utopianism which still prevails in certain European quarters.
One remembers reading in 1946 about the Italian socialist deputy who exclaimed triumphantly, "Now we have abolished prostitution in Italy for ever more!" Anyone who has ever emerged from a main line railway station in a large Italian city during the hours of darkness can confirm the absurdity of that claim. Undoubtedly the deputy in question was quite sincere in her belief that one can utterly change human nature and human behaviour by passing a law, but, my Lords, it just ain't so.
The trouble with utopianism, or the attempt to put utopian ideas into practice, is that it almost always has to be illiberal and indeed authoritarian in so far as one is working generally against the grain of human nature rather than with the grain. It is not even as if the proposed tightening up of exemptions will help more than a tiny number of people to find jobs which they would not otherwise have secured. There cannot be many small firms which discriminate deliberately against male or female applicants. I cannot believe that there are tens of thousands or thousands or even hundreds of women aspiring to become butlers or private chauffeurs or that there are thousands of men panting to become scullery-persons. In reply, it may be said in public, or more likely in private, "What is all the fuss about? Are you not making a mountain out of a molehill? After all, it is all essentially window- 1205 dressing to appease the aforesaid humourless bureaucrats or the utopian fanatics. In any case, the clause is almost wholly unenforceable in practice".
If that argument is used I do not think that it is good enough. First, there is always some busybody around, with too much time on his hands, causing trouble by trying to enforce such a law spasmodically and, by doing so, to bring the entire law of this country into disrepute. Secondly, it represents a further erosion of our sovereignty and of our freedom—the thin end of yet another wedge. How much better it would have been if the Government had made more of an effort to stand up to the EC. As it is, it seems we have no option in this House but to agree to Clause 1. However, one hopes and trusts that there will be enough robust individuals in another place to give the clause the caning it deserves and, with any luck, throw it out altogether.
§ 5.56 p.m.
§ Baroness Turner of Camden
My Lords, as the noble Lord, Lord Young, said this afternoon, the Government are seeking to introduce this Bill because of a finding of the European Court. It is a pity that our approach to legislation on sex discrimination is so piecemeal and introduced only because of European pressure. We had difficult and complex regulations introduced two years ago in order to comply with European requirements on equal pay for equal value. Equality of treatment on taxation was discussed in your Lordships' House very recently. Pensions is another area where clearly something is going to have to be done. We discussed the Marshall case earlier and, quite clearly, we shall eventually have to come to legislation which will equalise retirement ages and equalise retirement benefits as well.
The Bill before us this afternoon attempts to deal with another aspect on which our legislation is held to be deficient. In my opinion it does not do this effectively and it introduces additional provisions which are not acceptable either. The equal treatment directive of the European Community requires that:provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended".The European Court was satisfied that Section 77 of the Sex Discrimination Act dealt adequately with legally binding agreements, but ruled that the directive covered all agreements and therefore that there should be corresponding provision for non-binding agreements. The Government are seeking to do this by proposing that there should be a provision voiding discriminatory terms in both present and future collective agreements.
I have a question for the noble Lord. It is not absolutely clear to me whether the wording in the Bill actually covers indirect discrimination, because indirect discrimination is contrary to the principle of equal treatment too. Indirect discrimination can arise where there are segregated jobs—jobs done mostly by women—linked to pay agreements where there are seniority requirements, mobility requirements, length of service or similar requirements, age barriers, and so 1206 on; in other words, situations where women find it more difficult to comply than do men. Moreover, as several speakers have said this afternoon, the mechanisms for dealing with complaints under this section are very unclear. In fact, I cannot find that any mechanism is provided at all except for possible reference to the county court.
The Equal Pay Act gave the Central Arbitration Committee the task of looking at direct discrimination in collective agreements. The task was a limited one and, generally speaking, has been reasonable well completed. The type of agreement showing one set of rates for men and another set of rates for women has now virtually disappeared. However, the Central Arbitration Committee has considerable experience of examining industrial relations issues in a relatively informal way. There is a case for saying that it should be given the task of examining collective agreements and dealing with indirect discrimination in such agreements. This proposition has repeatedly been put by the Trades Union Congress which is anxious, I should say, that discrimination, both direct and indirect, should be dealt with in collective agreements and that proper machinery should be established for doing this.
I am really very concerned about what are the Government's intentions as regards the Central Arbitration Committee. I have been a member of the Central Arbitration Committee for a number of years but it is some considerable time since I had an issue on which to sit in judgment. The fair wages resolution has gone and so has Schedule 11 to the Employment Protection Act. As far as I can see, we are now told that the CAC will have no role when it comes to sex discrimination issues. So I repeat the question raised by my noble friend Lord Wedderburn: What are the Government's intentions so far as the Central Arbitration Committee is concerned? In my view we have a body which has unrivalled experience of dealing with difficult industrial relations questions and certainly of handling collective agreement issues.
However, we welcome the fact that the Government have agreed to accept the judgment of the European Court and the Bill proposes to remove the exemption of small firms which has existed since the inception of the Sex Discrimination Act. In my view there was no good reason for such an exemption and it bears particularly hard on women, many of whom work in small firms. Employment is employment, whether it is for a large firm or a small one, and I commend the portion of the Bill which seeks to remove that exemption.
I now turn to those parts of the Bill which have little to do with the European directive since they were not originally relevant to it. I refer to the proposal to remove the restrictions on the employment of women on shift and nightwork contained in Part VI of the Factories Act 1971. It should be recalled that the restrictions—and I prefer to call them, as my noble friend Lord Wedderburn does, "protections" rather than "restrictions"—have existed for a very long time. This point has already been made in debate.
The first effective piece of protective legislation for adult women was enacted in 1844 when the Factories Act 1833 was amended to extend protection to women. It was followed by various other changes in 1207 legislation and by the end of the century there was an elaborate pattern of controls over women's and young persons' hours of employment. It should be remembered that, in addition to entrepreneurs of genius, the Victorians also produced some great reformers. These measures were among others produced for the alleviation of conditions among working people and for the protection of women from exploitation, which was a Victorian value worth retaining, I think.
The 1961 Act to which we refer is a consolidating Act and confirms the restrictions in certain broad areas: first, hours of work; second, permissible amount of overtime; third, shift work; and fourth, night shift-work. It is now claimed that these restrictions are out of date and that equality of treatment demands their removal. I hope that this will not happen.
All the unions representing women who work in manufacturing industry are absolutely against the removal of these restrictions and they are being supported in this attitude by the TUC General Council. The Women's National Advisory Committee of the TUC is against this measure. They do not see it as offering more freedom to women; on the contrary, they believe that it offers up another section of the workforce for further exploitation. Exemptions to the provisions of Part VI are already permissible. If Part VI no longer existed there would be many industries where it would be regarded as part of the job for women to work at night, whether they wished to do so or not. In current circumstances it cannot be argued that women would have a choice. Very few working people nowadays choose the job they wish to do. With high unemployment they take what is available.
In case it should be argued that the TUC leadership is out of tune with its membership because women do want to work night work, I shall tell your Lordships that it is the practice to have an annual conference of unions representing women workers and that this conference, which is widely representative of working women, has gone on record year after year against the removal of what it regards as these protective measures.
Of course it is argued that there are women who wish to do the work in order to boost earnings. That may well be true, but it does not mean that we should encourage an unsatisfactory practice. What we should be seeking to do—and this point has already been made by the noble Baroness, Lady Seear, and other noble Lords—is to limit night work for both sexes, and also to limit overtime working, as is already done in many European countries.
There is a need to reduce night work since many studies have shown that numbers of people find it very difficult to adapt to it. For both sexes night work is now restricted in Scandinavia, Belgium and Finland. The French Government have issued an order fixing a limit for undertakings entitled to adopt night- and week-end work, and these steps were taken partly in response to a study covering 80 per cent. of French industrial workers engaged in semi-continuous and continuous shift-work, which revealed that one-third of them had proved unable to adapt themselves to night work and had had to give it up within a month.
1208 If the restrictions are removed it will become the norm in many industries to require night working as part of the job. This will be particularly damaging for women with young children who will continue to have home caring duties as well as having to do night work. It is not acceptable to argue, as I am sure it will be argued, that in certain sectors night work has always been required, as in the National Health Service and in certain professions. There is no need to add to the population required to be on-call for night duty, particularly in an area where there may not be a social need for it and it is simply a question of having more workers available for profit.
Finally, I want to touch on the issue of hours in the baking industry. My noble friend Lord Wedderburn has dealt with this question at some length, but I simply want to reiterate that it is the view of the unions concerned that this protection should not be abandoned. Indeed they say, in a brief which I gather they put to the Minister, that it took 110 years of bitter and damaging action for the Hours of Work Act to be regulated by Parliament. The need for the Act was clear then and it is still clear now. The repeal of the Act would lead to a decrease in employment, increased industrial relations problems, increased social problems for the workforce, and ultimately a decrease in quality of the product and service to consumers. However, the unions would accept that some changes are needed to the 1954 Act. They say that it has long been their view, expressed to the Minister, that it is inequitable for women to be excluded from the Act. They agree with the findings of the Equal Opportunities Commission on that score.
So I emphasise to your Lordships that protective legislation to meet socially desirable ends must not be confused with sexually discriminatory legislation, but seen as a positive contribution to society's efforts to protect the health and working conditions of vulnerable citizens. I hope that the Government will take on board the criticisms of the Bill that have been made during the debate, and that we shall be able to pursue these further in Committee.
§ 6.8 p.m.
§ Lord Young of Graffham
My Lords, we have had a most valuable and informative debate this afternoon, though at times it appeared to me to be a rather curious way to celebrate my birthday. I was grateful for the contribution of the noble Lord, Lord Wedderburn, but it seems to me that in many ways he has been living in a time warp. He described the movement toward deregulation as merely a matter of ideology. If it is, it is an ideology shared by Germany, Italy and now the Benelux countries, the United States, our partners in the Community and our other economic allies.
Looking toward the regeneration and growth of employment we see that there is a very real need for it. Indeed, it gave me some slight concern that the noble Lord should accuse me of adjusting the figures. He said that we were no longer even producing the special exemption order figures. They are available. They were last published in November 1985 in the Employment Gazette; indeed, are published in today's issue of the Employment Gazette and are available for the noble Lord in that paper.
§ Lord Wedderburn of Charlton
My Lords, perhaps the noble Lord would allow me to say that I am very grateful to hear that. I was merely relying on his Written Answer to me last October.
§ Lord Young of Graffham
They were published in November—obviously, my Lords, the noble Lord's questions to me have an amazing effect. Of course, looking at this whole matter and the whole approach to it, it is very important indeed that we look very closely at what is achieved when additional burdens are imposed on that part of industry which can least afford to bear them.
We heard a great deal from the noble Lord about the history of various inquiries and pieces of legislation but, alas, nothing since 1964, with the sole exception of a case last year in Barnsley, I believe. But there are always exceptions. It was in connection with the baking industry. My father was a baker and I grew up being well aware of that industry. It has changed substantially. When it is said that there is a great need for crèches and for child care so that women may work at night, I am more anxious about the health of the child than of the mother. It is important to remove restrictions on night work and on night work for women, but we should remove any restriction with care, which is what the Government are about to do. We do not wish to take away necessary protections but only, where possible, to remove the unnecessary ones.
I have been asked several times this afternoon to confirm whether in our view the legislation applies to indirect discrimination. That at least is the intention. If noble Lords think differently, we can take that further at the Committee stage.
The noble Lord said that the Government are reluctant to apply restrictions to small firms. I accept that. One of the most disappointing aspects in the debate this afternoon was in listening to the noble Baroness, Lady Seear. I have fond memories of working with her during my time at the Manpower Services Commission. I am obsessed with small firms. They are important for employment, and employment is my obsession. As important as our large companies are, whether in the service sector, in industry or elsewhere, few show great signs of employing many more people. But we have a vast number of small firms, and the number is increasing all the time, and they are offering employment. That is true not only in this country but in the United States and other EC countries.
It is essential not to burden them unnecessarily. There is no inconsistency in opposing sex discrimination yet wanting small firms to be exempt from the law. They do not have legal and personnel departments and cannot easily devote time and resources to tribunal cases and understanding the complexities of indirect discrimination or height requirements. I agree that it is the very reverse of being under a burden to be able to choose the best person to do the job. If all small firms were able to have the advice of the noble Lord opposite, I suspect that their task would be very much easier. For that reason, we are endeavouring to persuade our partners in Europe to look again at the imposition on small firms.
In looking at that burden for small firms, we do not wish to increase the dangers for those who work in 1210 small firms. The Health and Safety at Work etc. Act 1974 imposes a general duty on all employers, either large or small. But we are not talking now about health and safety but solely about discrimination in employment.
I am grateful to the noble Baroness, Lady Platt, for her contribution. I am glad that she welcomed the "upstairs-downstairs" clauses which refer to the difficulties of outlawing sex discrimination when it comes to employing people in the home. I am intrigued by the suggestion of the Equal Opportunities Commission about partnerships. I shall certainly consider that. There are difficulties in private households, and that is the reason for the curious exemption in Clause 1. It is to cover the cases which admittedly are few in number, but which will be extremely important to individuals. There may be no contact with members of the household but objection may be taken, for example, to a man doing the laundry. I think that it is only fair that we should provide for the difficulties that may arise in certain instances.
We do not think that a cumbersome procedure involving the CAC or the employment appeal tribunal is necessary. That theme came into a number of speeches. We would certainly encourage negotiating parties to eliminate discriminatory provisions for collective agreements. Indeed, that should have been happening since 1975, and few should still obtain. We shall certainly consider the views expressed by the noble Baroness.
The noble Lady, Lady Saltoun, gave examples of difficulties in the real world. We are conscious of the difficulties for small firms in regard to the European Court. I hope that in due course we can find some way round them and persuade our partners so that we can lift the burden.
I did not hear the word "welcome" very often this afternoon, but I am grateful to the noble Baroness, Lady Lockwood, for her qualified welcome. I am not the world's greatest advocate of parental leave, but that is because of its effect on employment. In today's world we need to look closely at the social gains that we may get from a piece of legislation as against the cost in employment terms. The best social gain for any member of the community is a worthwhile job. I take on board the comments of the noble Baroness about Clause 2. No doubt we shall have an opportunity to look at it further in Committee.
The EOC report is now many years old and it was not a unanimous report. It is difficult to accept that it should be implemented by the Government. The world has changed, and it has changed so much in the past five years throughout the whole of Europe, that we have to consider what is appropriate today in the prevailing economic conditions. I am sure that is a consideration of which every noble Lord is aware.
I am grateful to the noble Earl, Lord Attlee, for putting a view about electronic factories which I had not before perceived. I may be more cautious now when I visit such a factory. He indicated some of the difficulties in a fast changing world, though he will accept that I cannot agree with all that he had to say.
The noble Lord, Lord Monson, thought it curious that a Conservative Government should introduce the 1211 provisions in Clause 1. Indeed, I believe that he said that he was astonished. It is hardly astonishing that a Conservative Government would adhere to the Treaty of Rome, which is what is directly behind the clause. That is why we wish to persuade the Commission and our European partners to think again about many of the conditions. I suspect that the court would come down on the side of the rights of the individual on many of the conditions which at the moment apply to small firms.
I have a slight difficulty with the desire of the noble Baroness, Lady Turner, to equalise retiring ages and pensions. I hope that she will not go so far as to expect equal life expectancy for men and women. There are differences, and it would be rather drastic to aim for parity. I say that partly in jest, but partly also to bring home the difficulties when we have funded provisions which concern the expectation of life. Complete parity in that regard would be extremely difficult. Again, I am happy to confirm to her that indirect discrimination is covered.
Although it may be the desire of many people, it is difficult in this world to have things both ways. It is difficult to look ahead to the removal of all discrimination in the employment of women and at the same time argue against the removal of restrictions on the employment of women at night. It is important to say, so far as this is possible, that we live in an equal world, that we treat people equally and that we give equal opportunities of employment. It is not really so much a matter of whether union annual conferences pass resolutions. What matters is not the resolution but that the actions and the resolutions of the unions truly represent the wish of the workers. The wish of those women who have a job and those who wish to have a job is the important matter.
The noble Baroness talked about it simply being a question of having more workers available for work for profit. My Lords, that is what this whole economy is about—more workers available for work, in work, and enjoying work from which they themselves, and also the community, derive profit. It is not a matter of imposing more and more restrictions and ending up with fewer and fewer people working. What is important is that we have proper protection and that we give opportunity, and equal opportunity, to the highest possible number of members of society working. I repeat a statistic that I used earlier in your Lordships' House this afternoon. As a society, we have 65 per cent. of all adults of employable age in employment. That is a figure greater than that in any large country in Europe and substantially larger than that of our competitors.
All noble Lords will, I think, agree that equal opportunity has always been a controversial subject. The law has sometimes followed social attitudes and sometimes led. I recognise that this move requires an adjustment in traditional attitudes that may sometimes prove difficult. Not so many decades ago it was unthinkable that a woman should have the vote. Yet today we have a woman Prime Minister. Until 1970, it was thought acceptable for a woman to be paid less than a man standing next to her for doing 1212 exactly the same job. I have no doubt that society will soon come to regard as normal the consequences of the comprehensive provisions for equal treatment set out in our legislation, including the idea of a woman working as a chauffeur and as a gardener and also the idea of women working shifts. In ten years' time, the younger generation may well ask why it took until 1986 to ensure this degree of equality. I beg to move that the Bill be read a second time.
§ On Question, Bill read a second time, and committed to a Committee of the whole House.