§ 3.5 p.m.
§ The Minister of State for Defence Support (Lord Trefgarne)
My Lords, on behalf of my noble friend Lord Young, I beg to move that the House do now resolve itself into Committee upon this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Trefgarne.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Private households and small undertakings]:
§ Lady Saltoun of Abernethy moved Amendment No. 1:
§ Page 1, line 5, leave out subsection (1).511
§ The noble Lady said: I said on Second Reading that I disliked Clause 1 of the Bill and now, in moving this amendment, I shall explain to the Committee in detail why I dislike it. I do not know who has managed to persuade the European Court of Justice that the provisions of the 1975 Act, which Clause 1(1) repeals, were contrary to the EEC equal treatment directive. I have my suspicions, but I do not know. However, I can say that this is a really prime example of what Private Eye calls, "Loony feminist nonsense".
What everyone seems to have forgotten is that Section 2 of the 1975 Act provides that Parts II and III of that Act:
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 nebulous phrase may mean. It sounds like nonsense to me.
§ So we have the exemption for small businesses repealed. That was the exemption which said that an undertaking employing five or less people was exempt from the provisions of the 1975 Act. I might mention here that the 1974 White Paper, Equality for Women, recommended exemption for firms employing less than 10 people. However, when the Bill was drafted that figure was reduced to five, and I wonder why. My guess is that the exemption was so paltry that it would apply to very few firms, so that later it could be argued that it was really so pointless that it might as well be abolished, as this clause seeks to do.
§ However, what is the point of the restriction? It cuts both ways. It means that a man cannot have a small business employing men only, unless the job would involve a female employee in close physical contact with a man or there is not a ladies' loo. However, it also means that a woman cannot run a business employing women only, unless similar conditions apply. So what good is it doing? It is just loony feminist nonsense. It could well deter a woman from starting a small business with a few friends. Let us remember that it is from small acorns that great oak trees grow—the firm of Laura Ashley may be an appropriate example.
I now come to the real horror: the repeal of the exemption for private households. That really is quite appalling. On Second Reading the Secretary of State said:
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".—[Official Report, 27/2/86; col. 1177]
§ I should like to remind your Lordships of the provision of Section 7(2)(a) of the 1975 Act which says that physical strength or stamina is not a reason for discrimination. Let us take the case of the gardener not actually living in the house, not doing a job which involves close physical contact with the householder, but whose duties involve not only light hoeing and raking but also heavy digging, clearing snow, putting down sand and salt in winter, cutting up and carrying firewood and fuel, and sometimes carrying heavy luggage and other heavy items. In those circumstances the householder wishes to employ a man because generally men are better able to do that kind of work without injuring themselves than women. I accept that there are exceptions to every rule, but I ask your 512 Lordships to remember that this employer wants a gardener. Therefore, qualifications for gardening are important.
§ But if he has two applicants, one male and one female, and the female one has slightly better qualifications but a rather delicate physique and he gives the job to the man, he can be taken to court under this clause. Again, if the man has the best qualifications but is a weedy little chap and the woman has slightly less good qualifications but resembles a female Hercules, the man can sue if the job is given to the woman.
§ The same applies to butlers, handymen, estates staff. I suppose that it might be possible at the interview to ask an applicant to perform heavy work, but I do not think it would be satisfactory, and anyway it is a quite ridiculous proposition. I may not want a chef in my kitchen for reasons which I am not prepared to tell the Committee because I do not want a thousand angry letters from chefs, but unless the cook is to live out I cannot refuse to employ a man even if I do not want one.
§ Then, as most of your Lordships who employ household or estate staff know very well, there is the question of personal preference. If you have someone you dislike, or someone who does not fit in with other employees, working in your house or garden, it can be unpleasant or even intolerable. We cannot like people because the law says we must, but this clause will make it impossible legally to find an excuse for not employing someone you dislike, or who you think will not fit in, but who may apparently have better qualifications than someone you like and who will fit in.
§ I now turn to subsection (2), the exemptions. What is the definition of "physical or social contact" which someone might reasonably object to a person of, presumably, the opposite sex having with him, or her, as their employer? Is there one? Who is to decide? How is a court going to decide? What may seem unreasonable to one person may seem perfectly reasonable to another.
§ For instance, I consider that being jammed in a seat in an aircraft between two very fat men whose elbows jab me all through the flight is close physical contact, and most unpleasant too. But "the world's favourite airline" apparently does not, and on my leaving they hope that I have enjoyed my flight. It is a matter of individual personal opinion and not something that, so far as I can see, any court could reasonably decide about.
At the end of all this, it is in my opinion a totally unwarrantable and intolerable interference with the freedom of a Briton to take into his household whom he pleases and to exclude whom he wishes. Although the exigencies of modern life have made some modifications of this famous dictum necessary, over 350 years ago the celebrated lawyer, Sir Edward Coke, who I think was Lord Chief Justice, said in his Institutes:
A man's home is his castle. Et domus sua cuique tutissimum refugium."
And again, on another occasion:
The house of everyone is to him as his castle and fortress".
I do not know our European partners' views of the sanctity of a person's home, but that is ours. It is a freedom we have long cherished and one which we should not surrender tamely without a fight. I ask the Government to go back to the European Court and tell them that this is quite unacceptable to us in this country, and to ask them to think again. I beg to move.
§ 3.15 p.m.
§ Lord Campbell of Alloway
I beg to support this amendment, to which the noble Lady, Lady Saltoun, has spoken with great eloquence. It is to leave out subsection (1) which repeals Section 6(3) of the Act of 1975. This notwithstanding that it is accepted that, in accordance with our treaty obligations as a result of the decision in the Commission and the United Kingdom on 8th November 1983, some new provision instead of Section 6(3) has to be made. This because the provision proposed in Clause 1(2) is not appropriate. It is not requisite, and it is not acceptable.
The repeal of Section 6(3) by Clause 1(1), the subject of this amendment, before some suitable amendment has been drafted, would be premature. The amendment moved by the noble Lady, which I understand to be a probing amendment, strikes at Clause 1(1) as a holding position to inhibit the repeal of Section 6(3) pending further consideration as to how to amend our own law to comply with Council Directive 76/207 as interpreted by the court in some way other than that proposed by Clause 1(2). If Amendment No. 1 induces my noble friend the Minister to take this back for consideration, then as I understand it Amendment No. 4, which stands in the name of the noble Lady, would be premature and is designed only as a longstop.
The objection to Section 6(3) taken by the court—I have the report of the case here, and I have studied it with such care as I can muster—was that it was far too widely drafted. The concept of employment for the purposes of a private household, the court held, was far too general. There was no limitation as to numbers; no guidance as to what "household" was, nor what was private. The court held in context with midwives—and this was a case about midwives, not as a rule part of any well-regulated family household—that by reason only of the generality of Section 6(3) it went far beyond any objective which could lawfully be pursued within the derogation of Article 2(2) of that directive. It is a highly technical, limited judgment. That derogation allowed discrimination when the sex of the worker constituted "the determining factor". This was a consideration fully accepted by the court.
In reaching this conclusion—in context, I stress, with midwives—the court expressly held at paragraphs 13 and 14 of the judgment that certain kinds of employer in private households were perfectly free from any concept of discrimination as between male or female because there must always be respect for private life, which was "the decisive factor".
All that is required if one studies the reasoning of the court is that some new provision should be made to bring our law into line with the directive as interpreted by the court, and to do this in a way which would be intelligible both to us and to the court. One could start, for example, by seeking to define "private household" 514 with some limitation as to numbers, perhaps with reference to employees, whom the noble Lady spoke about, such as gardeners, cooks, butlers, handymen, whether resident or not.
In this context it could be provided in our statute that discrimination would be allowed when it appeared that the sex of the worker constituted the determining factor within the derogation of Article 2(2). This as an adjunct to the respect for private life, the predominant and decisive factor.
Our treaty obligations require no more and no less than that Section 6(3) should be replaced by some such provision. But instead of this approach, instead of following the reasoning of the court, Clause 1(2) introduced two concepts, neither of which was mentioned by the court nor in argument to the court nor in the opinion of the advocate general. The first concept is wholly unrealistic and the second is totally irrelevant. To seek to introduce the standard by which reasonable objection may be taken to a degree of physical or social contact with a person is, as the noble Lady has said with greater eloquence than I could muster, to seek to define the indefinable. To import knowledge of private affairs as constituting a determining factor as regards the choice of sex of an employee in a private household is a concept of irrelevancy which all but belies credence. Amendment No. 2 in the name of my noble friend Lady Platt of Writtle takes this point. The verbiage of the tailpiece in no way mitigates these criticisms.
In conclusion, it is much to be doubted whether Clause 2(2) would prevent further cases in the court in this context. The court might take the view that insufficient attention had been paid to the principles and the reasoning of its judgment. Also, to all practical intents and purposes this collection of words rarely came to this, that they did not meet the objection to generality as applicable to Section 6(3) which was the fundamental basis and the only basis of their decision.
It is common ground between the Government and the court that there should be freedom to choose the sex of employees closely involved in family life. The only question is how this shall be done within the derogation of Article 2(2) of the Directive as interpreted by the court. Perhaps my noble friend the Minister can give consideration to the amendment of Section 6(3) to square with the principles of the reasoning of the court, along the lines implied by the reasoning of the court to reduce its generality to which objection was taken. The hope must be that the Government will introduce a redraft of the whole of Clause 1, on Report perhaps, in which both concepts of the definition in Clause 1(2) as it stands could be omitted, and practical and realistic means of resolution which square with the approach of the court and deal with the problems of generality could be found.
According to the opinion of the advocate general—that is not part of the reasoning of the court, but it is worthy of the Committee's consideration—the problem only arose by reason of an erroneous interpretation of the exception under Article 2(2) of the Directive by Section 6(3) of the Act. Surely it would be possible to meet that requirement in a simple, convenient way which squares with the reasoning of the court.
§ Lord McCarthy
The Committee will know that we like to agree with the Government when we can and we find that we can. At least we find that we cannot agree with the amendment. I should like to ask some questions to clarify the significance of the amendment and how the amendment stands with other parts of the Bill. As I understand it, the amendment wishes to leave out subsection (1), but not to leave out subsection (2). Yet subsection (2) is a way of carrying out some of the things that the Government want to do as a result of subsection (1). It is not clear to me why the amendment did not want to get rid of both subsections (1) and (2). I should like to have that clarified.
Moreover the noble Lady has also put down Amendment No. 4. It is not clear to me whether Amendment No. 4 is being moved now, because Amendment No. 4 has its own peculiarities. It seems to be based upon a quite different set of assumptions. It is based on the assumption that Clause 1 stands because then Amendment No. 4 says that it shall only stand for three years. Whether we are discussing Amendment No. 4 now or whether, as the noble Lord, Lord Campbell of Alloway, says, that will stand in reserve and will be moved subsequently if this amendment falls, I do not know. If this amendment were not to go down what happens to subsection (2) is not clear to me.
In broad terms we support Clause 1 as it stands. The only doubt I have about Clause 1 as it stands is the way in which the Government have sought to deal with the exclusion of private houses. They have not decided to do this simply by applying the Sex Discrimination Bill to private households; they have sought to make some rather tortuous distinctions. Here I agree with the noble Lord, Lord Campbell, when he said that at least one of those distinctions, a knowledge of private affairs, is entirely irrelevant. We have a way of dealing with that because there is an amendment on the Marshalled List to deal with that. The only justification for seeking at this late stage to take this clause out of the Bill altogether, which is really what the amendment seeks to do (I should have thought it would have been better to oppose the Question that the clause stand part of the Bill), is that one does not wish to honour the European decision.
I have listened to the noble Lord, Lord Campbell of Alloway, with care, but I do not regard him as having provided us with a simple alternative. His alternative seemed much more complicated. It seemed much less likely to satisfy the European legislation and more likely to lead us to a situation where a further applicant will make a further case before the European Court and yet again we shall be told that we are in breach of our agreements.
The reason we have amendments of this kind is perhaps because the Government, as they have in previous legislation, have let it be known that they are deeply concerned and should not like to have to honour obligations of this kind. In this respect, we have to take note of remarks made by the Secretary of State on Second Reading when he said that the Government could not say in any way that they welcomed or found acceptable this part of the Bill. He said once again how important it seemed to the Government that they should make special provisions 516 for small firms. We have never been able to follow this argument. We have always taken the view that the exclusion of small firms from the sex discrimination legislation, as the noble Baroness, Lady Seear, said on Second Reading, is largely there because of a case load problem. There is no argument about why small firms should be permitted to discriminate on a sex basis and indeed the Secretary of State at Second Reading said that he did not wish to suggest that the practice of sex discrimination by firms was reasonable whatever their size. No evidence is adduced to suggest that in fact the law can only apply to large firms or that if small firms were asked not to discriminate they would all become bankrupt and disappear from the land. The Government are expressing, through, I believe, amendments put forward in other parts of the Committee and through those who feel like it, their horror of the regulation of small firms, and their horror of regulation of this kind altogether. Nevertheless, because they believe that they must honour their obligations, they are putting forward in this clause of the Bill the very least that they can do and get away with; and we support them in that.
§ 3.30 p.m.
§ Lady Saltoun of Abernethy
Before the noble Lord sits down, possibly it would be of assistance to the Committee if I were to answer the two questions that he asked of me. Amendment No. 4 in the name of the noble Lord, Lord Monson, and myself will not be moved unless the noble Lord, Lord Monson, arrives to move it.
§ Lord Monson
It is not for me to intervene, but I think that there is quite enough to talk about in this amendment as it stands so I think it would be best if we were to leave Amendment No. 4 now and to speak about that in due course.
§ Baroness Seear
I very much support what the noble Lord, Lord McCarthy, has said in relation to small firms. I can see no reason whatsoever why there should be this exemption for small firms. It is totally arbitrary to take the figure of five persons. I repeat what I said at Second Reading that I am pretty certain that that was only introduced into the original Act because of the size of the case load if we were to try to enforce it throughout. I think that in the minds of many at the time the 1975 Act was passed, it was taken for granted that sooner or later that exemption would go. I must say that I find the wording with regard to private households extremely unsatisfactory and I would support the people who ask the Government to look again at this curious subsection (2)(i), the degree of physical or social contact with a person living in the house, etc.
As the noble Lord, Lord Campbell, has said, I should have thought that that was almost unenforceable legally because it is so vague in its definition. If this is to stand as the law it must be clarified so that we have something which we really do comprehend and that can be enforceable.
§ Lord Renton
I, too, desire to support the noble Lady, Lady Saltoun of Abernethy. I wish to ask my noble friend on the Front Bench who will be replying to this debate a specific question which is both relevant to our law and to the position of the European Court; namely, what evidence is there in this country so far that the provision which it is sought to repeal under subsection (1) has caused any problem of discrimination in this country? I think that is the fundamental question which we all have to consider. But, having said that, which to my mind is in relation to our own legislation a paramount point, I should like to support what my noble friend Lord Campbell of Alloway said in a very closely reasoned argument about the exact effect of the decision of the European Court.
He has shown that subsection (1) does not flow from the court's directive except on a very tendentious interpretation of it and that therefore the repeal of subsection (3) of Section 6 of the 1975 Act is not necessitated by it. I would add this in a general way to the argument which my noble friend Lord Campbell of Alloway has put. When it falls upon the United Kingdom Parliament to change its law, as we have undertaken to do on certain occasions in the light of the decisions in the European Court, I suggest that it is not incumbent upon us slavishly to implement those decisions in detail however nonsensical the result may be. Certainly, the result in this case of placing the interpretation which the Government seem to have placed upon the decision of this court is to make a most extraordinary situation. We should try to avoid the law being made into an ass by our own deliberate legislative will. But if we are not careful that is exactly what we do if we allow this subsection to remain in the Bill.
§ Lord Monson
I am happy to support my noble friend Lady Saltoun in her excellent amendment so excellently moved. I wish that I could emulate her command of the Latin tongue. I certainly think that the exemption for small employers ought to be retained not only for the normal libertarian reasons but because I would have thought that one of the prerequisites for the successful functioning of a small firm is that everybody ought to be able to get along well with each other at close quarters; and the smaller the firm, the more that is a consideration.
Like my noble friend I feel that it is the provisions affecting private households that really stick in the gullet—not for any personal reasons, I hasten to say. Subsection (2) is said to be a safeguard for the private employers but people who employ gardeners, for example, do not appear to be exempted from the provisions of this Act by the provisions of subsection (2). The Committee may remember the much publicised case of an elderly lady a year or two ago who asked her gardener, a rather cantankerous man, it sounded, to carry out a certain task, whereupon he replied with a torrent of abuse, obscenity and insults, which was extremely traumatic for somebody of her generation. So she dismissed him and was promptly hauled up before an Industrial Court, with maximum publicity in the tabloids.
The court found against her saying, as I remember, that she ought to have disciplined him first before 518 sacking him. Whether they meant that she should give him six of the best or make him write out 100 times, "I must not use four-letter words", I am not sure, but that is what they said. Obviously, from any normal point of view, that is a preposterous state of affairs. Is it to be wondered that such a lady might prefer in future to employ a gardener of her own sex? But that would not be permitted under the clause as it stands.
What is more, subsection (2) makes no provision in a private household for people who actually prefer to employ someone of the sex other than their own. For example, one can think of a man who is an elderly invalid who can afford a full-time nurse and who might well prefer an attractive female nurse. I know that I would in similar circumstances. But he would not be allowed to do so under the clause as it stands. If a slightly better qualified male nurse presented himself, he would have to be employed or the employer might risk prosecution. There are a number of reasons why a woman might not wish to employ another woman in her private household. Supposing in her sensitive years of puberty a pass had been made at her by one of the women much favoured in terms of grants by Mr. Ken Livingstone's GLC, for example. One can think of all sorts of examples.
Almost the worst thing about the clause as it stands is that it will not help to reduce unemployment. Employers will be reluctant to employ people openly and above board and pay them a salary. They will employ them illicitly, as it were, and pay them cash. This will not show up on the unemployment register. I fully back this amendment. If it is not agreed to by the Committee, then perhaps we may look at Amendment No. 4 which is in my name.
§ Baroness Lockwood
I am rather surprised at some of the arguments which are being deployed in favour of this particular amendment. It is true that Clause 1 really covers two aspects of the Sex Discrimination Bill. The first area is of course small employers, and the second area is private households. Perhaps it is a pity that the two have been put together, because there are different arguments in favour of the two sections.
In relation to the first part, small firms, I agree completely with what my noble friend Lord McCarthy and the noble Baroness, Lady Seear, said about small employers. I believe the clause was originally included because we were moving into new territory and wanted to gain experience on how a Sex Discrimination Act would apply. As we have now had some 10 years' experience of the sensible working of the Act, we can move into the area where employees, whether employed by large or small concerns, could be included. I would say that this is on the basis not only of the ruling of the European Court but also of the monitoring by the Equal Opportunities Commission, which itself recommended to the Secretary of State in 1981 that small companies should now come within the ambit of the Act.
The noble Lord, Lord Renton, asked what evidence there was to bring about this change. Unfortunately there is no recorded evidence because the cases have not been applicable; but if one were to comb through the records of the Equal Opportunities Commission very carefully, there would be quite considerable 519 evidence relating to inquiries and initial complaints that had come forward about the exclusion of small firms in this regard. Therefore I support most strongly the suggestion that small firms should be included within the ambit of the legislation.
The second area is more delicate and relates to private households. I agree with the noble Lord, Lord Campbell of Alloway, that Section 6(3) of the Sex Discrimination Act is very widely drawn and has caused some concern both to the courts and to the Equal Opportunities Commission. Nevertheless, if we take the clause as now drafted, with the amendment that is coming after we have dealt with this particular clause, then I think it would be within the scope of the industrial tribunals to cope very adequately with this clause.
When the Sex Discrimination Act was first introduced there was considerable concern about Section 7, which dealt with exceptions on the grounds of genuine occupational qualifications, and the courts have dealt very adequately with such cases and have interpreted genuine occupational qualifications very sensitively and sensibly. I think they could do so in this respect also. The noble Lord, Lord Monson, in the example he put before us, was really relating to another Act rather than to the Sex Discrimination Act. He was referring, I think, to the Employment Protection Act when he said that the women should have given her cantankerous gardener a warning before dismissing him. That is covered not by the Sex Discrimination Act but by another Act.
Perhaps I may also say to the noble Lady, Lady Saltoun, with regard to her reference to qualifications, that again I think she had an inadequate understanding of the term "qualifications" in this respect, because we are talking about qualifications for the job; and for the job of a gardener they would include all the qualifications necessary for that particular job—not just academic qualifications but whether or not the gardener could push the little garden cart when it was full of soil, and that kind of thing. So it really depends on how we draw the job description. I think it is perhaps a red herring to bring in the whole question of qualifications when we are looking at qualifications for a particular job which might be better done by a man or a women, depending on their individual aptitude and qualifications.
§ 3.45 p.m.
§ Lord Somers
Are we not in very great danger of misinterpreting altogether the word "discrimination"? If we are to have total lack of discrimination, it disregards whether an applicant is male or female. If an employer is told that he may not employ a man or a woman owing to some purely hypothetical situation, surely that in itself is discrimination against that sex, whichever sex it happens to be. Total lack of discrimination is, as I say, a total lack of regard as to the sex of the applicants but is purely a consideration of whether they are suitable for the work they intend to do.
As for the European Court, I do not think the language I would be likely to use about it would be very suitable for your Lordships' Chamber. I can only 520 say that we are surely governing our own country still, and is it not better that we should use our own common sense for that purpose?
§ Lord Trefgarne
I am afraid I have to say at the outset that the effect of these amendments is to under-mine entirely the purpose of Clause 1 and to bring us into head-on conflict with the European Court of Justice. Almost every speaker has expressed fears in relation to Clause 1 and in particular in relation to bringing private households into the ambit of sex discrimination legislation. I am sure that Members of the Committee on all sides concur with the sentiments behind these fears. We all agree that the sanctity of the home and the principle of respect for private life are indeed fundamental in a civilised society. I too regret that the European Commission bothered to take the United Kingdom to court over the small and very reasonable gaps in our equal opportunity legislation, but the European Court of Justice found us to have failed to implement European law.
Clause 1 redresses this failure in respect of small firms and private households. It is a necessary provision if we are not to be in breach of our obligations under the Treaty of Rome, and the United Kingdom Government take these obligations, and indeed law and order in general, very seriously. It is in no one's interests if European Community law is undermined. We certainly expect other European Community countries to abide by the treaty; so there can be no question but that the broad exclusion of small firms and private households from sex discrimination legislation must be removed. But let me reassure the Committee. This change to the private household exclusion is not an attack on the Englishman's castle that some fear. I detect that some of us are more than a little impatient with our European colleagues, but we may be assured that they too recognise the fundamental importance of private life.
Clause 1 is so framed that no one will have to have a man employed in their home working or living alongside them where there might be a reasonable objection to a man in those particular circumstances. The clause will probably mean that in a large household where staff have little or no contact with the family, a woman could no longer be rejected for the post of, say, head gardener simply because of her sex. I do not think anyone could reasonably object to that result. It will not mean that a man will have to be employed as a nanny or an old lady's companion, although it will not prevent him from being so employed if no one objects.
As is well known, the Government have had difficulty in accepting the European view with regard to very small firms, and we are seeking to change the directive to permit an exception from the legislation. We do not intend to flout European law. In 1973, the United Kingdom became part of the European Community and agreed to abide by its decisions. That action was endorsed by a convincing majority of those people in this country who voted in the referendum. Our membership necessarily means swallowing some less palatable decisions while working to ensure that our influence prevents bad and burdensome European law being made in the future. What influence can we 521 hope to have on European Community directives at the formative stage if we are seen not to abide by them afterwards?
I must emphasise that we do not think that small firms should discriminate on grounds of sex. Not only is it unfair; it is uneconomic, depriving those firms of the skills of half the population. But very small firms do not have the administrative and legal resources that a larger firm possesses in order to come to grips with the detailed provisions of the legislation. We intend to help those firms get over that difficulty, in so far as possible, by producing simplified guidance on all employment aspects of the sex discrimination legislation.
May I just touch upon one or two of the points that have been made during the course of our discussion this afternoon? My noble friend Lord Campbell of Alloway asked about a possible definition of a private household by reference to numbers. That is something that the European Court's judgment specifically prevents us from doing. I refer my noble friend to what the court said about small firms. Meeting the court's judgment in the way that my noble friend suggested is the very thing that we have attempted to do, and that is what we believe the clause does.
My noble friend Lord Renton asked whether there was any real evidence of actual problems with this provision. The noble Baroness, Lady Lockwood, referred to that point during her remarks. She, of course, speaks from a position of very considerable experience and authority in these matters. I must agree that, as far as we can tell, there is very little discrimination, in practice, by small firms or in private homes. That is, I suggest, all the more reason not to flout European law, as it does not appear to be likely to cause very much difficulty.
I can end, perhaps, by reassuring the noble Lord, Lord Monson, that if in his declining years he needs the services of a nurse, he will be perfectly at liberty to choose a female one if he thinks fit.
§ Lord McCarthy
Before the noble Lord sits down, may I see whether I have his argument right? Although he wants to apply the Act, he seems to be saying that the problem with applying the Sex Discrimination Act to the employment of fewer than five people is that, on the one hand, it will cause difficulty, but, on the other, it will not. If it be the case that all kinds of administrative resources are required to avoid discrimination—I should have thought that all we wanted was an absence of prejudice—he has an argument. But he cannot at the same time say that in fact there is no prejudice and no difficulty. What is it to be?
§ Lord Trefgarne
As the noble Lord will be aware, ever since we came into office in 1979 we have been seeking to lift the burden of regulation from small businesses. If he will allow me to say so, I think that we can claim a very considerable measure of success in that regard: witness the fact that the small business sector of our economy is flourishing as almost never before. Every additional piece of legislation which applies to those small enterprises—in this case we are referring to very small enterprises indeed—is an added burden of which we should like to relieve them. That is why we were unwilling to impose these constraints 522 upon them when the original legislation was passed. Of course, that was some time ago now.
My view is that it is very regrettable that the European Court should see fit to decide that the exemptions should be lifted. I cannot pretend, as I have said, that there is a great string of cases to which we can point as causing difficulty. I hope that the noble Lord and the noble Baroness who spoke earlier will see fit to withdraw the amendment.
§ Lord Gisborough
Before my noble friend sits down, if this measure becomes an Act will it cease to be legal for a household with perhaps just one or two staff to advertise for a girl or a man to do whatever job it might be? I believe that one can do that at the moment with a small staff. That, presumably, will become illegal?
§ Lord Trefgarne
It depends entirely upon what the person concerned is likely to be doing. If he or she comes within the ambit of the provisions defined in the clause that we are discussing, the sort of advertisement to which my noble friend has referred will continue to be perfectly proper.
§ Lord Monson
Before the noble Lord sits down, will he tell the Committee what will happen if your Lordships' House or, more realistically, another place finally loses patience and refuses to knuckle under to one or more of these European directives, as is bound to happen sooner or later under a Labour Government, if not necessarily under a Conservative one? After all, as I understand it, Governments propose but Parliament disposes. In what practical way could the will of Parliament be overriden in such circumstances?
§ Lord Trefgarne
The noble Lord will recall that when the European Community legislation went through Parliament it was explained that in certain areas the British Parliament was deferring to the procedures of the European Community. This is such a case.
§ Lord Monson
Does the noble Lord mean that this measure will become law automatically even if Parliament refuse to give the Bill a Second or Third Reading?
§ Lord Trefgarne
No, that is not the case. As he noble Lord will be aware, that is not the way that we propose to proceed.
§ Lady Saltoun of Abernethy
Before I say any more, I shall answer the question asked by the noble Lord, Lord McCarthy, on the peculiar drafting of the amendment. The noble Lord, Lord Monson, put down Amendment No. 4, which was a safety-net amendment. Therefore, although I wished to oppose Clause 1, had I done so it would have come after the safety-net amendment. I therefore had to do it in a devious manner.
The noble Baroness, Lady Lockwood, referred to the 1975 Act as a sensible Act. Only at lunchtime today the chairman of a very distinguished organisation said words to the effect that the 1975 Act 523 was almost impossible to understand and a nightmare to implement.
I am not happy with the answer given by the noble Lord, Lord Trefgarne. I am particularly unhappy about it as regards private households, because we have no proper answer to the question of what would constitute reasonable or unreasonable physical contact. However, I shall not press the amendment today. I shall withdraw it and reserve the right to bring it back on Report. I beg leave to withdraw the amendment.
§ Lord Trefgarne
Before the noble Lady withdraws the amendment, may I say that there is no prospect of the Government changing their view on this matter and she may prefer that the Committee should reach a view on it today.
§ Lady Saltoun of Abernethy
Very well. In that case I shall press the amendment, although I told the Government that I would not.
§ 3.59 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 175.524
|DIVISION NO. 1|
|Bauer, L.||Monson, L. [Teller.]|
|Boyd-Carpenter, L.||Mottistone, L.|
|Brooks of Tremorfa, L.||Munster, E.|
|Coleraine, L.||Onslow, E.|
|Cork and Orrery, E.||Porritt, L.|
|Davies of Penrhys, L.||Renton, L.|
|Ellenborough, L.||Rugby, L.|
|Gibson-Watt, L.||Saltoun of Abernethy, Ly. [Teller.]|
|Glanusk, L.||Sandford, L.|
|Hylton-Foster, B.||Sempill, Ly.|
|Kinnaird, L.||Somers, L.|
|Masham of Ilton, B.||Thurlow, L.|
|Maude of Stratford-upon-Avon, L.|
|Airedale, L.||Carnegy of Lour, B.|
|Alexander of Tunis, E.||Cathcart, E.|
|Allen of Abbeydale, L.||Cawley, L.|
|Allerton, L.||Cledwyn of Penrhos, L.|
|Alport, L.||Collison, L.|
|Amherst, E.||Cottesloe, L.|
|Ampthill, L.||Cox, B.|
|Ardwick, L.||David, B.|
|Auckland, L.||Davidson, V.|
|Aylestone, L.||Dé La Warr, E.|
|Beloff, L.||Denham, L.|
|Belstead, L.||Diamond, L.|
|Blease, L.||Donaldson of Kingsbridge, L.|
|Bottomley, L.||Drumalbyn, L.|
|Brabazon of Tara, L.||Dundee, E.|
|Brockway, L.||Eccles, V.|
|Brougham and Vaux, L.||Effingham, E.|
|Bruce of Donington, L.||Elton, L.|
|Caithness, E.||Elwyn-Jones, L.|
|Cameron of Lochbroom, L.||Ennals, L.|
|Campbell of Croy, L.||Ewart-Biggs, B.|
|Caradon, L.||Faithfull, B.|
|Carmichael of Kelvingrove, L.||Falkland, V.|
|Fisher of Rednal, B.||Oram, L.|
|Fortescue, E.||Orkney, E.|
|Gainford, L.||Orr-Ewing, L.|
|Gallacher, L.||Parry, L.|
|Galpern, L.||Pender, L.|
|Gardner of Parkes, B.||Platt of Writtle, B.|
|Gladwyn, L.||Ponsonby of Shulbrede, L.|
|Glenamara, L.||Portland, D.|
|Glenarthur, L.||Prys-Davies, L.|
|Graham of Edmonton, L.||Rathcreedan, L.|
|Gray of Contin, L.||Reigate, L.|
|Grey, E.||Rhodes, L.|
|Gridley, L.||Ritchie of Dundee, L.|
|Grimond, L.||Roberthall, L.|
|Hailsham of Saint Marylebone, L.||Rochdale, V.|
|Harmar-Nicholls, L.||Rochester, L.|
|Hatch of Lusby, L.||Rodney, L.|
|Hayter, L.||Ross of Marnock, L.|
|Henley, L.||Russell of Liverpool, L.|
|Heycock, L.||St. Aldwyn, E.|
|Holderness, L.||Seear, B.|
|Hooper, B.||Sefton of Garston, L.|
|Hooson, L.||Serota, B.|
|Houghton of Sowerby, L.||Shackleton, L.|
|Hunt, L.||Sharples, B.|
|Hunter of Newington, L.||Shepherd, L.|
|Jacques, L.||Silkin of Dulwich, L.|
|Jeger, B.||Simon, V.|
|Jenkins of Putney, L.||Skelmersdale, L.|
|John-Mackie, L.||Stanley of Alderley, L.|
|Kaldor, L.||Stedman, B.|
|Kennet, L.||Stewart of Fulham, L.|
|Kilbracken, L.||Stodart of Leaston, L.|
|Kilmarnock, L.||Stoddart of Swindon, L.|
|Kinloss, Ly.||Strabolgi, L.|
|Kirkhill, L.||Strauss, L.|
|Lane-Fox, B.||Sudeley, L.|
|Lauderdale, E.||Suffield, L.|
|Lawrence, L.||Swansea, L.|
|Leatherland, L.||Swinton, E. [Teller.]|
|Listowel, E.||Taylor of Blackburn, L.|
|Lloyd of Kilgerran, L.||Taylor of Mansfield, L.|
|Lockwood, B.||Teviot, L.|
|Long, V. [Teller.]||Thurso, V.|
|Lovell-Davis, L.||Tordoff, L.|
|Lyell, L.||Trefgarne, L.|
|McCarthy, L.||Trumpington, B.|
|McFadzean, L.||Turner of Camden, B.|
|Mackie of Benshie, L.||Underhill, L.|
|Macleod of Borve, B.||Vaux of Harrowden, L.|
|Malmesbury, E.||Vivian, L.|
|Mancroft, L.||Waldegrave, E.|
|Mar, C.||Wallace of Coslany, L.|
|Marley, L.||Wedderburn of Charlton, L.|
|Merrivale, L.||Wells-Pestell, L.|
|Mersey, V.||Westbury, L.|
|Milverton, L.||Whaddon, L.|
|Mishcon, L.||White, B.|
|Molson, L.||Whitelaw, V.|
|Murton of Lindisfarne, L.||Wigoder, L.|
|Nicol, B.||Williams of Elvel, L.|
|Northfield, L.||Wilson of Langside, L.|
|Nugent of Guildford, L.||Winstanley, L.|
|O'Brien of Lothbury, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.9 p.m.
Baroness Platt of Writtle moved Amendment No. 2:
Page 1, line 18, leave out from ("home") to end of line 1 on page 2.
§ The noble Baroness said: The Equal Opportunities Commission, like the Government, emphasises the importance of reconciling the principle of respect for private life, and the first part of Clause 1 is designed to achieve that end. It has of course always been a 525 fundamental part of the Sex Discrimination Act that the employer should be free to appoint the best person for the job, taking the job as a whole.
I raised this matter on Second Reading when my noble friend the Secretary of State, in answering, referred to it as a curious exemption and defended it by quoting as an example that someone might object to a man doing the laundry. I wonder whether words such as "personal belongings" might be more appropriate in that case. I have looked up the word "affairs" in the Shorter Oxford English Dictionary and there are a number of definitions. Perhaps I may read out the first three:
1. What one has to do, or has to do with; business; more vaguely, a concern. 2. Ordinary pursuits of life; commercial or professional business; public business".
The third definition is:
Used vaguely of any proceeding which it is not desired to be precise about".
§ That is really what is concerning us—its lack of precision which may cause confusion and therefore unnecessary litigation.
§ If it is not possible to be more precise, we feel that it would be better withdrawn. We feel that trustworthiness over private affairs a very important matter in a small household. It is not a matter of sex but of character, and therefore does not need to be part of this Bill. I beg to move.
§ Lord McCarthy
We support this amendment. As I tried to suggest in the discussion on an earlier amendment, we find this part of the Bill rather ambiguous and rather complex. We should have preferred a much more straightforward inclusion within the provisions of the Sex Discrimination Act of private households and undertakings. Nevertheless, the Government have provided a qualified way of doing that, and that is done in the part of the clause which the noble Baroness considers should remain. I find it very difficult, as she does, to see what is the discrimination which needs to be retained and which needs to be practised on the basis of this part of the clause. Thedegree of physical or social contactis left in; I find it difficult to see why one needs to have the subparagraph:the knowledge of such a person's private affairs".What is it that men can know about us that women cannot; what is it that women can find out about our private affairs that men will not? Where is the risk on grounds of sex of knowledge of our private affairs? I should like the Minister to tell me.
§ Lord Monson
It goes without saying that I oppose this amendment on principle. I think it insolent in the extreme for the law to poke its nose into people's private affairs, and therefore anything that strengthens the law in this regard rather than weakens it I oppose automatically.
This seems to be the ideal moment to try to clarify something which the noble Lord, Lord Trefgarne, said on subsection (2) before the Division. This is important, and after we leave Amendment No. 2 we will no longer be able to speak about subsection (2). The noble Lord spoke about the hypothetical case of 526 the elderly man who wishes to employ a pretty female nurse rather than an ugly male one. With due respect, I think he is wrong. As I interpret subsection (2) it allows people to discriminate against those of another sex but it does not allow them to discriminate against their own sex. This is a fault even by the Government's own standards in the drafting of subsection (2).
§ Baroness Lockwood
I should like to support this amendment. As has already been said, it is difficult to know why,knowledge of such a person's private affairs",should in anyway be connected with the sex of a person. After all, the person who often knows most about our private affairs is our solicitor or our accountant. They are not likely to be part of the private household. I suggest that this clause is entirely redundant. Indeed I would go further than that. As the noble Baroness, Lady Platt, has said, it is difficult to define and interpret what is meant by this subsection. It would cause the courts a great deal of difficulty in interpretation. The clause as it stands would be much clearer and much more more helpful both to individuals and to the courts.
§ 4.15 p.m.
§ Lord Trefgarne
I listened very carefully to my noble friend and indeed to everybody else who has spoken. I know that my noble friend supports the principle of the clause, and is anxious, like me, to get it right. We are talking here about a subject of major importance: employment actually within the home. It can therefore affect everyone in this country at some stage in their life. The wording of the clause was chosen to reconcile what the European Court of Justice recognised as two fundamental principles: one, the principle of equality between the sexes; and two, the principle of respect for private life.
The court accepted that there are some circumstances—but not all—where a householder should be free to choose an employee of a particular sex. The Government have attempted in Clause 1 to define the area where discrimination should be permitted. This is by and large the area of jobs which involve working or living in a private home, and which entail physical or social contact with a member of the household so that there could be reasonable objection to a man—or a woman—having the job. Examples of this sort of job are a companion to an elderly person or a children's nanny.
Nobody has objected to the inclusion of "social contact" although one might argue that, if there is no question of physical decency, one sex can make as good a companion as the other. But sensible and reasonable people will accept that a woman may legitimately prefer a female companion, and a man a male companion because they believe they will have more common interests. That is a matter of respecting people's sensibilities, and so is the second part of Clause 1.
This caters for the situation where a householder wishes to employ someone for a job which includes a personal service for a member of the household. To give a practical example—an elderly woman might need someone to do her washing and ironing or make her bed and she may find it distasteful to think of a 527 man doing those things for her; an old-fashioned view perhaps but I imagine a not uncommon one. She might be bedridden, or the job might be done on a day when she was out, so the physical contact between herself and the employee would be nil. The social contact might be minimal—merely admitting the employee to the house—or non-existent. But to suggest that the principle of equality between the sexes demands that she consider employing a man on such intimate work is clearly unacceptable. To do so would be a gross invasion of her privacy and must undermine both her personal dignity and the principle of respect for private life.
The question is: can this provision be abused to defend real discrimination? Can it license an employer, for example, to employ only men on the spurious grounds that women are less discreet and therefore not to be trusted with knowledge of a person's finance or access to private papers? I assure the noble Baroness and every Member of the Committee that this is not the intention or the effect. To suggest that one sex is inherently more trustworthy than the other is obvious prejudice. The clause provides that there must be reasonable objection to a particular sex, and I am convinced that tribunals would not hold it reasonable to object to a man—or, alternatively, a woman—being able to look at a householder's bank statement, for example. The words complained of have been included to cover contact with the household's intimate belongings, and I believe that this is a fundamental aspect of respect for private life. Now that I have explained the very limited effect of the words that it is proposed to delete, I hope that my noble friend will agree that the amendment need not be pressed.
§ Baroness Platt of Writtle
I thank my noble friend Lord Trefgarne for his reply and for the way in which he has expanded upon the explanation that was given on Second Reading. Some of his remarks have given me considerably more faith in the clause. On the other hand, I still think that it would be a good thing if I were to read in Hansard what my noble friend has said and decide later whether or not to bring this matter forward again. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Platt of Writtle moved Amendment No. 3:
Page 2, line 4, at end insert—
("( ) In section 11 of the 1975 Act for the words "a firm consisting of six or more partners" there shall be substituted the words "any firm which is a partnership".").
§ The noble Baroness said: As was said earlier this afternoon, the purpose of the present Bill is to comply in the first instance with the decision of the European Court of Justice of November 1983, when it found our legislation deficient with reference, among other things, to smaller employers. The Bill includes undertakings of five employees or fewer, which deals with small firms, but the directive refers to equal access to jobs at all levels of the occupational hierarchy.
§ In the sort of partnerships we all know about, of a professional type, the partners are the top tier—similar 528 to senior managers in a company. We are anxious that unless the Bill includes partnerships, it may fail to comply with the directive. On Second Reading, my noble friend the Secretary of State promised to reconsider this matter. I hope that, because of his reconsideration, my noble friend Lord Trefgarne will be able to accept my amendment this afternoon, I beg to move.
§ Lord McCarthy
We are prepared to accept this amendment. In fact, we believe that it is a perfectly logical provision to insert into the Bill. We find it difficult to understand why the Government themselves did not put such a clause into the Bill. After all, the Act makes a distinction between employment in establishments and employment in other bodies. It then goes on to provide that the provisions of the Act shall apply in a whole range of other bodies, including trade unions, qualifying bodies, employment agencies, the MSC, the police, and so on—and, of course, partnerships.
In all the instances of all the other bodies—trade unions and so on—no questions of size are involved. The only place where the issue of size can logically arise is in employment establishments and in partnerships. The Sex Discrimination Act was logical, I suppose, in the sense that, having decided to exclude employment establishments of fewer than five persons, it included also partnerships numbering fewer than five persons.
It surely follows that if one decides to take employment establishments of fewer than five persons and put them, as it were, into the Act, then one should also take partnerships and put them into the Act as well. So far as I can, I always try to understand in advance (but I am not very often successful) what kind of arguments the Government might advance for doing anything that they do. The only justification I can think of is that the judgment in the European Court did not deal directly with this issue. It dealt with an employment establishment and not with a partnership.
The answer to that is the answer the Minister made in relation to the previous amendment; that if we sought to take too literal and narrow a view of the consequences of the judgment of the European Court, then subsequent cases would be brought before the court. Who could say—for example, can the Minister say that it is the Government's belief—that if a case was brought in relation to a partnership of fewer than five people then the European Court would give a different decision? I find that inconceivable.
Nor is there any argument—for I have not been able to find one, and I do not believe that one exists—for saying that partnerships are in a special position; that while we can include very small firms, we cannot for some reason include partnerships. Surely partnerships are squared. Their relationships are very similar to the relationships of very small firms of five persons or less. Therefore, if small firms are to be included then partnerships should be included.
§ Lord Monson
I am sorry to have to disagree with the noble Baroness yet again. The two prerequisites for a successful partnership—I imagine, as I have never been a member of the professions—are, first, trust 529 between the partners; secondly, that the partners should hit it off well with one another. The smaller the partnership, the more important becomes the latter factor.
If the amendment became law, I believe that it would be unenforceable in practice. To the limited extent that it was enforceable and was enforced, it would lead to bad blood, and leave a sour taste in the mouth. It would go a long way towards crippling the partnership in question. What is more, I suspect that such a provision is almost superfluous in present-day circumstances. Whatever may have been the case 10, 20 or 30 years ago, competition nowadays within the professions, as much as in business, is so intense that nobody can afford the luxury of discriminating against a well-qualified applicant on trivial grounds. In the highly competitive environment in which we currently live, limited skills are at a premium. In other words, a meritocracy—which I imagine is what the noble Baroness is aiming at—does not have to be legislated for, because it evolves automatically. It is for that reason that I believe the amendment is misconceived.
§ Lord Trefgarne
It is of course the case that the European Court judgment did not specifically address this matter. However, when my noble friend Lady Platt raised it during the course of the Second Reading debate, my noble friend Lord Young indicated a degree of sympathy and said that he would look into the matter. I can confirm that the Government are indeed sympathetic to the principle behind this proposal. If my noble friend will withdraw her amendment, then the Government hope to bring forward a suitable amendment at Report stage.
§ Baroness Platt of Writtle
I am most grateful to my noble friend and beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Lord Monson moved Amendment No. 4:
Page 2, line 4, at end insert—
("( ) At the end of the period of three years beginning with the day on which this section came into force, this section shall expire unless its continuation in force has been approved by resolution of each House of Parliament.")
§ The noble Lord said: I hope that this amendment is not open to the same objections concerning a conflict with EEC law that faced Amendment No. 1. I trust therefore that it will be regarded a good deal more favourably for that reason.
§ Before I continue, and as it seems that there would be no other reasonable point at which this could be done, perhaps I may clear up a genuine misunderstanding on the part of the noble Baroness, Lady Lockwood, when she referred to the case of the lady who dismissed her gardener. I am well aware that the case I cited revolved around the Employment Protection Act and not the Sex Discrimination Act. The point I was trying to make was that after such a traumatic experience, the lady in question might very well prefer to employ only women in future. Under the clause as drafted, she would not be allowed to do so. It is important that that fact should be absorbed by the Committee and be reflected upon before the next stage.530
§ Lord Monson
Not in the slightest. In fact, we heard on Second Reading from a colleague of the noble Baroness, the noble Earl, Lord Atlee, just how far women could go in that direction. However, I believe that, if one is an elderly woman, being sworn at by another woman, is a bit different from being sworn at by a man—or so I would imagine.
The noble Lord, Lord Young of Graffham, made it clear in what he said and implied during the course of our Second Reading debate that he was most unhappy about Clause 1 and hoped to be able before long to persuade the EC to change its views. He said:This ruling was a particularly hard one for us to accept".—[Official Report, 27/2/86; col. 1178.]4.30 p.m.
Later he said: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".He went on to say:In the meantime, however, we are clearly bound to follow the court's judgment".But he said it in such a way as to imply that he was extremely unhappy that this had to be the case. Later on, in winding up, he said:It is essential not to burden them"—by that he meant small businesses—unnecessarily … 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".He concluded by saying:I hope that in due course we can find some way round them"—that is, the restrictions—and persuade our partners so that we can lift the burden".—[col. 1210.]The case against the clause as it stands is so strong that it is reasonable to suppose that this Government, or their successors, will succeed in their efforts to so persuade the EC and will succeed within three years, whereupon Clause 1 will automatically become superfluous. If by some mischance this does not happen, it will be up to both Houses of Parliament to vote to renew the clause if they feel so inclined. That would seem to satisfy all the objections that can reasonably be made. I beg to move.
§ Lord McCarthy
I find it very difficult, despite listening to the noble Lord, Lord Monson, to understand the logic of this amendment. I am not surprised to have learned from the noble Lady, Lady Saltoun of Abernethy, that in fact it was not their first choice. It seems to me that it is just possible to argue, as they did before, "Well, to hell with the Sex Discrimination Act, to hell with the European Court, we are not going to change our present legislation." That is damning but it is logical; but it has been defeated. It is just possible to argue, I suppose—and it seemed to me that a large part of the noble Lord's speech was arguing—to put the whole thing off for three years; rather in the way that the noble Lord, Lord 531 Glenarthur, suggested we should put off certain parts of the Shops Act for three years so that people can prepare for the onslaught.
However, that is not what the noble Lord is saying. He is not saying that we should give small firms three years to get ready to stop discriminating. He is saying that we should tell them they must stop discriminating for three years and after that they can get on with it. It is just possible to argue that they must comply for three or five years, and in that five years we will have a review to see whether discrimination has been eliminated from this area; so that there is an argument, as it were, at that point for taking it away.
But that is not what is being argued. What is being argued is that we should operate the Sex Discrimination Act in these areas for three years and at the end of three years, without any review, the clause shall expire; unless, of course, by that time both Houses of Parliament have decided to continue with it. I find it impossible to follow the logic of this amendment.
§ Lord Trefgarne
I find myself broadly in agreement with the noble Lord, Lord McCarthy. The essence of my objection to this amendment remains as it was for the first amendment that we considered a few moments ago—that it runs wholly counter to the judgment which the European Court of Justice handed down on this matter.
The right way to redress this problem is to persuade the Council of Ministers to issue a new directive or to amend an earlier directive. That is the course we prefer to follow and is the course we are actively pursuing at least as far as the provision for small companies is concerned. I hope the noble Lord will not ask me to rehearse all the arguments which I recited a few moments ago, and that he will be content to withdraw his amendment.
§ Lady Saltoun of Abernethy
May I ask the noble Lord, Lord Trefgarne, one question concerning the negotiations with the Council of Ministers? Are they, or will they be, carried on at ministerial level? If not, at what level will they be carried on?
§ Lord Trefgarne
What happens is that the matter is generally brought before the Council of Ministers by the European Commission and Ministers then consider the matter and reach a conclusion on it. It is, I know, open to a particular member state to persuade the European Commission to bring a matter before a particular council. There are a number of councils, as the noble Lady will be aware, and that is the course we prefer to follow.
§ Lord Monson
The noble Lord, Lord McCarthy, said I was proposing to put off the clause for three years. That is rather curious. It is the opposite of what my amendment proposes; that it shall pass into law for three years, and when the Council of Ministers has been persuaded to change its mind, as one hopes, the clause will then lapse.
The noble Lord said that it was impossible to follow my logic. I have to say, with all due respect, that I find it impossible to follow his. The Minister hopes to persuade the Council of Ministers to change its 532 attitude. Certainly his right honourable friend does so and has made that clear. If Her Majesty's Government are successful then my amendment will pave the way perfectly for them because there will be no need for fresh legislation. Clause 1 would simply automatically lapse. There might have to be a few tidying up amendments in the schedules—I do not know about that—but Clause 1 would lapse and there would be no need for further legislation.
If Her Majesty's Government are successful in persuading the Commission to change its point of view so that it agrees that Clause 1 is superfluous, then in the absence of your Lordships or another place agreeing to this amendment or one like it, the Government will have to introduce fresh legislation to repeal Clause 1. Meanwhile, it will remain on the statute book and people will be harassed unnecessarily. Before I decide what to do with the amendment, perhaps the noble Lord will reply to what I have said.
§ Lord Trefgarne
I do not think I have much more to say to the noble Lord. We are doing our best, particularly in the area of the provisions for small firms, to get the directive changed, but it is not possible for us to do that unilaterally. Therefore, I cannot give the noble Lord any indication of how long it is likely to take.
The fact is that the European Court of Justice has found that our present legislative provisions will not do. Therefore, we have to correct the position, and that is why these provisions are now before your Lordships.
§ Lord McCarthy
May I explain my argument to the noble Lord, Lord Monson, as I think he may have misunderstood me? I was trying to say that it would be logical but not lawful to postpone matters for three years—if that was what he wants; but I know that it is not—because at least one might argue that people who are affected would have to get ready for what is coming. But if you allow it to happen for three years and then stop it happening, that is both illogical and unlawful.
§ Lord Monson
Not really. If you are made to pass a law which you greatly dislike and which runs counter to the philosophy of your party—on previous occasions the Conservative Party has made it clear that it dislikes social engineering legislation of this nature when it interferes with the private lives of people—the normal and logical thing to do is to try to pave the way for repeal as soon as this is legally possible.
In the absence of such an amendment being inserted in the Bill it will take much longer. If and when Her Majesty's Government succeed in persuading the European Commission of the rightness of their case, which I am sure they will be able to do, it will mean that a Bill will have to be introduced into Parliament and go through all its stages in both Houses. Meanwhile, a bad clause will remain on the statute book and will have to be enforced whether or not Her Majesty's Government wish it to be enforced.
However, I think it would be better for all to reflect on what has been said, and perhaps we can postpone a decision on this matter until the next stage of the Bill; 533 but I reserve the right to bring this matter forward again. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Amendments of Section 77 of 1975 Act]:
Lord Wedderburn of Charlton moved Amendment No. 5:
Page 2, line 13, at end insert ("whether under a contract of service or apprenticeship or a contract personally to execute any work or labour").
The noble Lord said: I hope that the unusual thread of agreement between these Benches and the noble Lord the Minister may continue through this characteristically helpful amendment from us. It concerns the ambit of the new provision in Clause 2. Briefly, it may be said to relate to this. The Sex Discrimination Act 1975 covers employment in a wide sense:
under a contract of service or of apprenticeship or a contract personally to execute any work or labour".
§ In Clause 2 we find words such as "employed" but without that clear definition.
§ I am sure that there will be no disagreement between us on this. It is perhaps of importance that many women work under part-time, and more particularly casual and temporary, arrangements which do not always bring them clearly within the status of the ordinary employee. It is desirable that the provision in the Bill should cover the same ambit as that of the Act.
§ It may be said that it is covered anyway without our amendment, but we cannot fully accept that. Clause 2 refers to Section 77 of the 1975 Act. But elsewhere in the Bill (for example, in Clause 3) one finds reference to "employment of women" which does not cover exactly the same ambit as the provision in Section 82 of the Act. It therefore seemed to us important and useful to have a specific definition in the Bill. For that reason, I beg to move.
§ Lord Trefgarne
I believe that the amendment is superfluous. If the noble Lord will refer to Clause 2(7) he will see that it states that any expression used in the clause which is also used in the Sex Discrimination Act 1975 shall have the same meaning as in that Act. I now refer him to the definition of "employment" in Section 82 of the 1975 Act which reads:'employment' means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly".I believe that that covers the anxiety to which the noble Lord referred, and I hope he will feel able to withdraw his amendment.
§ Lord Wedderburn of Charlton
That is the answer that I expected. I think that there are arguments for putting the phrase in in full, but, in view of the noble Lord's reply, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
Lord Wedderburn of Charlton moved Amendment No. 6:
Page 2, line 13, at end insert ("or to all or any persons to whom such employment may be offered or who apply for such employment.").
The noble Lord said: This relates to a similar point which may not be answered so easily, at any rate in the same way. The 1975 Act deals with not only the rights of employees but also, to quote Section 6, arrangements made:
for the purpose of determining who should be offered … employment",
and the terms on which the employer offers the employment. The Bill covers rules that are applicable to persons employed (and now the noble Lord confirms his understanding that it means employed in the wide sense). But, as we understand it, it does not deal with the applicant.
§ There is a further dimension to the argument, so it is not merely a matter of bringing the clause clearly within the same ambit as the 1975 Act. First, subsection (7) cannot be so clearly relied upon even as an argument for that. The second reason is this. Because of the link between Clause 2 of the Bill and Section 77 of the Act there is a procedure by which some people can go to the county court in respect of a contract which is unlawful; and the term "contract which is unlawful" is now to include the various items in Clause 2(1), such as collective agreements, rules made by the employer and the other rules which are there specified. If the rule made by an employer is open to the procedure under the county court provision in so far as it sets up something in the nature of a contract that is discriminatory against another party, and if there is the possibility that there is a county court jurisdiction, that is cause for concern about the clause. We shall no doubt hear something about the way that it works in the debate on whether the clause shall stand part of the Bill.
§ If that is so, the position of an applicant for a job is even more important. If these are rules that applicants must follow when applying for a job, and if they are in any way indirectly discriminatory (it is unlikely that they will be directly discriminatory), they will be arrangements which are made for the purpose of determining who should be offered the employment, and therefore they would be unlawful under Section 6. But under the clause they will not be immediately void under Section 77 of the Act.
§ It seems that there is a disparity. The application of the clause as it stands to rules made for employees who fall within the unlawfulness of the 1975 Act generally might allow for an action at a tribunal. It also would be void ipso facto and arguably might allow for a county court action. But the position of the applicant in regard to any rules made for applicants would not be anything like as strong. It certainly would not accord with the principle which, although it is not spelt out, is surely also inherent in the Luxembourg court judgment, of which we have heard so much this afternoon. In relation to applications for jobs it surely cannot be in accordance with the spirit of the directive that any discriminatory provision in rules concerning applicants for jobs should not themselves also be rendered ipso facto void.
§ On the position of the applicant who is introduced here via the amendment, I ask two things. First, should not applicants' rules be put on a par with employees' rules, where both are put forward by the employer? Secondly, should not applicants' remedies be parallel 535 with those of employees in the two different types of rules? I beg to move.
§ Lord Trefgarne
I have to agree that there is a certain logic in the noble Lord's proposal, but I am afraid that I have to say that the Government have not had a full opportunity to consider what he has in mind. If he will be good enough to withdraw his amendment, we can agree to return to the matter at Report stage.
§ Lord Wedderburn of Charlton
I was confident that the air of agreement would not be broken so quickly, and on that basis, without giving guarantees about future offers, I am happy to thank the noble Lord for what he said and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Turner of Camden moved Amendment No. 7:
§ Page 2, line 42, at end insert—
§ ("(3A) Where any term of a collective agreement is void or unenforceable by reason of this section the agreement may be referred by any party to it or by the Secretary of State to the Central Arbitration Committee constituted under Section 10 of the Employment Protection Act 1975, to declare what amendments need to be made in the agreement so as to remove discrimination on grounds of sex.
§ (3B) Where on a reference under subsection (3A) above, the Central Arbitration Committee have declared the amendments to be made, then insofar as the terms and conditions of a person's employment are dependent on that agreement, whether by reason of a contract or otherwise, they shall be ascertained by reference to the agreement as so amended.
§ (3C) The Central Arbitration Committee on a reference under this section may specify different dates for different amendments which it declares under subsection (3A) above, but no such date shall be earlier than the date on which a reference is made to it.")
§ The noble Baroness said: As we know, the Government have introduced the Bill in order to comply with a decision of the European Court. However, all that Clause 2 does is to declare that discriminatory terms in collective agreements are unenforceable and void in law. There is no separate mechanism whereby a term of an agreement can be challenged. There is no mechanism whereby a discriminatory provision can be amended. The main effect of Clause 2, if left unamended, is to say that unenforceable terms of collective agreements are unenforceable if they are sexually discriminatory. I wonder whether that is really complying with the European Court judgment. I say that because I want to be helpful.
§ Our record so far on European law on sex discrimination has not been particularly good. We have been forced before now to comply with European Community law in sex discrimination. We had to do so in the matter of equal pay for work of equal value. We have been forced to do so here on collective agreements; and, of course, there is the recent decision in the case of Miss Marshall who won her plea on compulsory retirement age, again in the European Court.
§ It would be a great pity if we should fail again in this regard because we had not given proper attention to the mechanism for complying with the requirement on collective agreements. Instead of proposing to refer collective agreements to the mechanism that already 536 exists under Section 3 of the Equal Pay Act, the Bill proposes to repeal Section 3 altogether—in other words, to remove the Central Arbitration Committee from the scene altogether where collective agreements on sex discrimination are concerned. It seems to me that this is entirely mistaken. Section 3 of the Equal Pay Act was introduced because of widespread discrimination in collective agreements, most of which at the time specified separate men's rates and women's rates. It was decided then to give the Central Arbitration Committee power to intervene in collective agreements due to the fact that there was on both sides of industry—unions and employers—a degree of acceptance of discrimination because it had been traditional and conventional.
§ Section 3 is, however, confined to explicit discrimination. Apparently this has been brought to an end in most cases. However, sometimes the equalisation that took place following the passage of the Act was more apparent than real. Previous differentials in rates that had been described unlawfully as men's rates and women's rates were simply redescribed as rates for different grades. Thus, new grades were invented that perpetrated the explicit discrimination in a hidden and indirect form by the simple device of making no reference to either men or women.
§ The equal pay directive of 1975 of the European Commission requires that collective agreements which are discriminatory whether in an open or hidden form are to be rendered null and void. In discharging its duties under Section 3, the Central Arbitration Committee—I happen to be a member myself—frequently looked beneath the apparently neutral grades and compared them with previous discriminatory grades. When it found that the so-called discriminatory grades were in fact the previous men's rates and women's rates under a different name, it required the employer to rectify and to equalise the collective agreement.
However, in 1979 a judgment in a case known as the Hymac case stated that the CAC had exceeded its powers in going behind agreements in that way and that it could only deal with agreements that were directly and explicitly discriminatory. The EOC in its report on the Hymac case in 1980 expressed concern that the powers of the CAC had been so restricted. In fact, it said:
The effect of this decision ensures that only certain direct forms of discrimination in relation to pay are capable of elimination under the Equal Pay Act".
As we have seen, the Secretary of State in the Second Reading debate two weeks ago confirmed that the Bill before the House does in fact deal with indirect discrimination. Unfortunately, as I said earlier, it leaves it there. How does it get enforced? The Central Arbitration Committee is a highly respected body. It is tripartite. It has representatives, usually very senior, from both sides of industry, and an independent chairman. Its decisions have been very helpful to industrial relations.
§ Collective agreements are a sensitive area. The CAC experience in dealing with them would be invaluable. Its proceedings are relatively informal. Its members strive to produce an answer that will assist both parties to reach a satisfactory accommodation. It is for this reason that the Trades Union Congress has urged upon 537 the Government that the CAC be given a role in sex discrimination cases particularly when it comes to collective agreements. Before the Hymac judgment, to which I have referred, restricted its scope of activity, the CAC performed a valuable role in so far as indirect discrimination in collective agreements is concerned. There is now an opportunity to do so in relation to both indirect and direct discrimination. Without some such mechanism we are unlikely to be found fully complying with the European Court judgment. We may find ourselves once again being forced to amend legislation that is already sufficiently complex. Can we not try to get it right from the beginning? I beg to move.
§ Lord Trefgarne
I have listened to the noble Baroness with great care but, I must say, also with a certain dismay. She has drawn a picture of a world where, 10 years after the Sex Discrimination and Equal Pay Acts came into force, trade unions and employers are knowingly parties to discriminatory collective agreements and are not prepared or are not able to do anything about it until an outside body, the CAC, tells them what to do. I hope that this is not the case. The noble Baroness knows a good deal more about trade unions than I do. Perhaps she will be able to tell me why trade unions are signing up collective agreements that provide for unlawful discrimination against their members, or, if the agreements are old ones left over from before 1975, why they have not been changed during the last 10 years.
Maybe the noble Baroness will tell me that trade unions are trying their hardest to get discrimination eliminated from collective agreements and that employers are intransigent and insist on the agreements being maintained. If that is the case, trade unions have a good way of putting pressure on employers. They can support an individual employee affected by the offending agreement in a complaint to an industrial tribunal. If that individual wins the case and the employer still insists on maintaining the agreement, they can back another case, and another and another. If the agreement really is providing for unlawful discrimination, those employees will all win their cases and the employer may be faced with a heavy bill for compensation or back pay. It is very much in his interests in that case to renegotiate the agreement.
Clause 2 is said to be ineffective. We are asked how it is to be enforced. There is no specific enforcement mechanism provided because none is necessary. From the time that the legislation comes into force, terms in collective agreements and the rules of employers, employers' associations, trade unions and professional bodies will simply be void in so far as they lead to discrimination that is unlawful under the Sex Discrimination Act or the Equal Pay Act. This will give the trade union that has been endeavouring in vain to get a discriminatory agreement amended an important lever. If that union is confident that the agreement is resulting in unlawful acts, either because it is manifestly discriminatory or because one of the employees affected has won an individual case, the union will be able to inform the employer that a term of the agreement is now void and that he had better sit round a table and negotiate a new non-discriminatory 538 term. If the employer is intransigent, the union still has at its disposal, as it has had all along, the weapon of backing a whole string of tribunal cases.
I should add that the clause is modelled closely on Section 77 of the Sex Discrimination Act 1975 which, so far as I know, no noble Lord has had occasion to criticise. The original Section 77 makes void provisions in contracts which provide for unlawful discrimination against a third party but leaves it to the signatories to the contract to substitute a new non-discriminatory provision to fill the gap. Let me make it clear that individuals who suffer unlawful discrimination in employment whether or not as a result of collective agreement already have the right to complain to an industrial tribunal and obtain redress. This clause was never intended either by the Government or by the European Court of Justice to set up an elaborate system of enforcement to work in tandem or indeed in competition with the effective means of redress that has been available since 1975 to victims of discrimination at work.
The European Community equal treatment directive requires that,any provisions contrary to the principle of equal treatment which are included in collective agreements shall be, or may be, declared null and void or may be amended".The European Court of Justice accepted that Section 77 implemented the directive in relation to legally-binding collective agreements but held that non-binding collective agreements have important consequences for employment relationships and that the lack of corresponding provision in such agreements meant that the directive was not fully implemented.
In our view, the court saw a formal voiding provision as an important presentational measure that would set the tone for collective agreements and filter through to practical results on the ground. The European Council of Ministers Legal Services Department shares this interpretation. Explaining a parallel requirement in the draft occupational social security directive currently under discussion, it said:the provision in question could act as a warning or have a dissuasive effect on the parties when setting up [new] schemes".5 p.m.
It was the noble Lord, Lord Wedderburn, who suggested at Second Reading that the Sex Discrimination Bill is part of a concerted attack by the Government on the CAC. I can assure him that that is not the case at all. Then he talked about the Wages Bill removing the CAC's jurisdiction in relation to Wages Council orders. The reason for that is simple and logical. There will be no scope for different pay rates for men and women in the new simplified wages orders which we shall have as a result of the Wages Bill, so there will be nothing for the CAC to look at.
It is true that the Bill before us abolishes the CAC's jurisdiction under the Equal Pay Act, but that jurisdiction has not been used in the past three years and has only been used three times during the past six years. The Government are not sweeping away an active and vibrant procedure and thus denying employees a right which they have been enjoying. Rather, they have decided that it is not necessary to revive a procedure which has fallen into disuse.
539 My noble friend Lady Platt urged my noble friend the Secretary of State at Second Reading to encourage parties to collective agreements to undertake a systematic review of them, to identify and eliminate directly or indirectly discriminatory provisions. The Government certainly hope that negotiators will act on void agreements in the light of this Bill and will remove barriers to equality between men and women at work. The revision of discriminatory collective agreements is surely best left to the experts; that is, to the parties who originally negotiated them and who have practical day-to-day knowledge of the industry to which they relate. In the light of these considerations I hope that this amendment will not be pressed.
§ Baroness Seear
I had never previously thought that the Minister could be naive, but I find it astonishing—and it is easier perhaps for me to say this than it is for the Labour Front Bench to say it—that he should have such touching faith in the attitude of trade unions toward sex discrimination and the belief that one can leave it safely to trade unions and employers in negotiating collective agreements to make sure that no discriminatory elements occur, particularly if indirect discrimination is taken into account.
The noble Lord the Minister is perhaps not as aware as people who have been concerned with these matters—why should he be?—how easy it is for indirect discrimination to creep in without anyone intending it. Indirect discrimination is not, as is often thought, a particularly devious kind of discrimination which is worked into agreements in order to trap the unwary. It is discrimination which occurs because the action which is being taken reflects traditional practice, and it has never occurred either to employers or to trade union representatives—most of whom, with certain notable exceptions, are in fact men—to imagine that there is indirect discrimination in the agreements which they are negotiating. So it is quite unreasonable, not to say naive, to assume that it can be left entirely to the negotiators to see that this matter is properly handled.
In any case, even if in the vast majority of cases no discrimination could creep into a collective agreement, in many instances the law exists not on the assumption that the vast number of people will want to break it but because there are a small number who will try to evade good practice. That is the basis of all law. We pass laws knowing perfectly well that in nine out of ten cases, perhaps more, people will not break the law or commit the act against which the law is directed even if there were no law there; but the law is passed because there is a minority of people who will try, and that applies very emphatically in this case. There remains a minority among both trade unions and employers who would be only too happy by collusion—let me put it bluntly—to continue discriminatory practices which have served them very well in the past. If the noble Lord the Minister thinks that it is a thing of the past, I fear he had better think again.
The noble Lord the Minister goes on to say that if perchance some discrimination creeps into a collective agreement, then the women can take the case to an industrial tribunal. Individual women, whether or not they are backed by their trade union, who bring a case 540 against the employer find that it is a very difficult and invidious thing to do, especially in present-day circumstances. If a woman makes herself unpopular by taking her employer to a tribunal, whether she wins or loses she feels, not infrequently with justice, that her future in that organisation is not very bright, and with unemployment as it is very few women are prepared to go along that track.
For the Minister to say that if they lose a first case they can take another and another and another (which is what he said) seems to me to parody what is likely to happen. Can he seriously imagine a whole series of women—the first having lost her case, another will come along and lose and another will come along and lose? That is not how life is. Therefore it is highly desirable that there should be some general procedure, such as was built into the Equal Pay Act and the CAC.
Prior to the case which was mentioned by the noble Baroness, Lady Turner, the CAC did an extremely good job in dealing with these cases. Why can the Minister not accept the amendment put forward by the noble Lord, Lord Wedderburn, which reinstates the CAC? I can confirm that the CAC is greatly respected in very wide circles as an appropriate medium for dealing with these matters. If the noble Lord were to accept this amendment it would make it far easier to achieve genuine non-discrimination in all collective agreements, which is what I believe he wishes to do.
§ Baroness Lockwood
I must express my disappointment at the Minister's response to this amendment. I share with the noble Baroness, Lady Seear, concern about indirect discrimination not being easily detected by either side of industry. I also share with her some concern about the collusion which occurs from time to time. One of the weaknesses of the Sex Discrimination Act, as was shown by the Equal Opportunities Commission, has been the inability to have collective agreements referred to the CAC on a wide enough basis.
The Minister suggests that the remedy is to take one case after another. Let me remind him that in the early days of the Sex Discrimination Act—I think it was in 1976—we had something like 180 cases brought to tribunals by individual women and the area chairman of the tribunal asked the Equal Opportunities Commission to intervene. He said that it was not the role of tribunals to deal with cases like that. As a result, the Equal Opportunities Commission conducted one of its first formal investigations, into Electrolux.
That is not the only incident that has occurred where it seemed to the commission absolutely imperative that we should have some organisation which could look objectively at collective agreements. Under certain limited conditions, until the Hymac case, the CAC did this. It was not always a case of the CAC saying, "What you are implying is absolutely right—for example, that these women should have equal pay with those men" On occasion, the CAC said that the whole of the pay scale was discriminatory, and changed some of the people on the scale to different levels. I am sure that that type of action would not have been taken had it been left to the trade unions alone to take the matter up with the employers. When trade unions and employers meet there is always a 541 question of give and take—"We'll take this if you'll give that". We are concerned here with discrimination, and when discrimination occurs there is no question of give and take. If the noble Lord were to look at the recommendations for amendments put forward by the Equal Opportunities Commission in 1981, he will realise that that was one of the central amendments that was being put forward.
My only concern about this particular amendment—and I know that it is my own fault for not taking the matter further—is that even this amendment leaves it to the partners to an agreement, the two sides of industry and the Minister, to refer a case. Perhaps it would have been better if we had either included an industrial tribunal following a successful case or given the Equal Opportunities Commission itself the opportunity to refer such a case to a tribunal. If the Minister were prepared to reconsider the matter I would ask him to take that point into consideration. However, if he is not prepared to reconsider the matter I hope that the Committee will support the amendment.
§ Lord Wedderburn of Charlton
As the Minister has referred to me, I think it is necessary to stress—and I agree with the noble Baroness, Lady Seear, on the Liberal Benches—how extraordinary was the answer that he gave to the amendment. If the Government want to be clearly quit of any suggestion that they are somehow prejudiced or look unkindly upon the Central Arbitration Committee, they must make a case, first, for abolishing the jurisdiction which it has, and, secondly, for not extending that jurisdiction in the obviously sensible way, not necessarily from any party point of view but from the point of view of industrial relations.
As has been said, the CAC did a marvellous job until the High Court held it up in a silly judgment about three years ago. There should have been legislation to bring back the jurisdiction of the CAC, but that was not done. Moreover, not only can the CAC's jurisdiction be brought back, but it can be extended and made useful in the following way. Let us suppose that there is an agreement—or I would have said "employer's rules", but being very moderate we have not included the employer's rules in this amendment, at any rate not at this stage—which is indirectly discriminatory. Such agreements exist, and since our society is discriminatory in its bones such agreements are likely to occur from time to time despite all the efforts, however good or bad. If that happens, then one sensible way of dealing with it is to take it to a body which can make a determination as to its legal status, but which can also make not exactly a judgment in the old sense but a judgment which is infused with industrial sense from the persons who sit upon it and from the way in which it conducts its relationship with the parties, which the Central Arbitration Committee has done so many times. In other words, by that procedure one can perhaps over a short period of time bring about equality in an area of industry. That is one picture.
The picture which the Government present us with is finding such an agreement and then having 100, 300, 500 or 1,000 industrial tribunal cases, all of them brought by employees who, as the noble Baroness said, 542 will be much at risk in their own personal positions, and at the end of it, what?—no doubt some more cases and some negotiation if the employer is obdurate, which will then give rise to even more. That is not a sensible way in which to conduct affairs. The sensible way in which to conduct affairs is of course to allow those individual rights, but to provide also an avenue through which the parties or the Secretary of State—and I take the point made by the noble Baroness about the deficiency of the amendment in this respect; indeed, why not have the Equal Opportunities Commission?; but it is not in our text—can go to a body and say, "We think this breaks the law. We think that it is indirectly discriminatory", because that is what it will be about, and "In looking at it will you give us a declaration and will you also" (as it should have jurisdiction to do) "give us a set of pay structures that will bring about equality in a sensible industrial manner?"
What is wrong with that? The Minister says that there are not any such cases, or at least he hopes that there are not. We all hope that there are not. However, let us suppose that there is one that involves 50,000 workers. Why not have that jurisdiction? What is wrong with it? Unless the Government can answer that point, people will suspect that the Government do not like the CAC.
§ Lord Trefgarne
We have nothing against the CAC, but I believe that we are at risk of over-egging the pudding in this particular matter. As is common ground between us, the industrial tribunals already have a role to play here and, as the noble Baroness, Lady Lockwood, reminded us, so does the Equal Opportunities Commission. So what we are discussing is whether there should be a third channel for these problems.
If nobody realises that the agreement is unlawfully discriminatory, there is not much use in having the CAC procedures which are proposed because, of course, the matter would never get to them anyway. If the unlawful discrimination is purely accidental and is discovered, then, of course, the negotiators will change it at the earliest opportunity. However, if that fails, then there is the avenue to which I have referred; namely, the industrial tribunal procedure. If that fails, and if the persons concerned do not like the prospect of going on more than one occasion to the industrial tribunal, then the Equal Opportunities Commission can be seized of the matter.
§ Baroness Lockwood
Will the Minister give way? I am sorry I did not fully elaborate on the case. Even after the commission had conducted its investigation, the case still had to go through the industrial tribunal.
§ Lord Trefgarne
I hear what the noble Baroness says and I know that she has great experience in these matters. The industrial tribunal will take very seriously the observations which the Equal Opportunities Commission makes to them, as, indeed, will all responsible employers and all responsible trade unions.
I must say that I am persuaded that the arrangements proposed without the benefit of the CAC in this instance are the best ones, and I hope that the amendment will not be pressed.
§ Baroness Turner of Camden
I am very disappointed with the Minister's response. I had expected that there would be a different reception to an amendment which, as I said originally, was intended to be helpful, because we are seeking to provide a mechanism for enforcing what we believe the European Court is telling us we should do. I agreed absolutely with the noble Baroness Lady Seear when she said that prejudice is traditional and conventional, and I made that point when I first moved my amendment. It is because that is very deeply engrained that we need some mechanism for dealing with it.
When the Equal Pay Act 1975 was first introduced, the CAC was given a quite specific role in regard to collective agreements. As a member of the CAC I believe that we did a very good job until we had the Hymac judgment. The Hymac judgment prevented us from dealing with other than absolute explicit and direct discrimination. As a result there have been very few cases since then.
We now have an opportunity to allow the CAC to do the job which I believe it was intended to do in the first place, and to look at agreements from the point of view of whether they are indirectly or directly discriminatory. I believe that that is the appropriate mechanism for doing so.
I was amazed to hear the Minister say that he does not want an elaborate system of enforcement, that he believes that the CAC would be an elaborate system of enforcement, and then go on to suggest that we should take hundreds of cases through the ITs. As a trade union official who has taken a number of cases to ITs, I would much sooner go once before the CAC on a collective agreement than before ITs for hundreds of people. I do not follow the logic of the Minister's argument.
I very much regret that, as he does not propose, as far as I can see, to accept what we have been saying on this side of the Committee about enforcement and the CAC, I must press my amendment. I strongly believe that unless we have some mechanism of enforcement we shall not be complying fully with the European Court judgment and we shall not be doing justice to many people who otherwise will suffer under continuously discriminatory agreements.
§ 5.20 p.m.
§ On Question, Whether the said amendment (No. 7) shall be agreed to?
§ Their Lordships divided: Contents, 105; Not-Contents, 111.545
|DIVISION NO. 2|
|Airedale, L.||Caradon, L.|
|Amherst, E,||Carmichael of Kelvingrove, L.|
|Ardwick, L.||Cledwyn of Penrhos, L.|
|Aylestone, L.||Collison, L.|
|Banks, L.||Crawshaw of Aintree, L.|
|Barnett, L.||David, B.|
|Blease, L.||Davies of Penrhys, L.|
|Boston of Faversham, L.||Dean of Beswick, L.|
|Bottomley, L.||Denington, B.|
|Brockway, L.||Diamond, L.|
|Brooks of Tremorfa, L.||Donaldson of Kingsbridge, L.|
|Bruce of Donington, L.||Elwyn-Jones, L.|
|Ennals, L.||Molloy, L.|
|Ewart-Biggs, B.||Mulley, L.|
|Fisher of Rednal, B.||Nicol, B.|
|Gallacher, L.||Northfield, L.|
|Galpern, L.||Oram, L.|
|Gladwyn, L.||Parry, L.|
|Graham of Edmonton, L.||Pitt of Hampstead, L.|
|Grey, E.||Platt of Writtle, B.|
|Grimond, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Hatch of Lusby, L.||Prys-Davies, L.|
|Hayter, L.||Ritchie of Dundee, L.|
|Heycock, L.||Rochester, L.|
|Houghton of Sowerby, L.||Ross of Marnock, L.|
|Hunt, L.||Russell of Liverpool, L.|
|Hutchinson of Lullington, L.||Seear, B. [Teller.]|
|Irving of Dartford, L.||Sefton of Garston, L.|
|Jacques, L.||Serota, B.|
|Jeger, B.||Shackleton, L.|
|Jenkins of Putney, L.||Shepherd, L.|
|John-Mackie, L.||Silkin of Dulwich, L.|
|Kagan, L.||Stallard, L.|
|Kaldor, L.||Stedman, B.|
|Kennet, L.||Stewart of Fulham, L.|
|Kilbracken, L.||Stoddart of Swindon, L.|
|Kilmarnock, L.||Strabolgi, L.|
|Kinloss, Ly.||Taylor of Blackburn, L.|
|Kirkhill, L.||Taylor of Gryfe, L.|
|Leatherland, L.||Taylor of Mansfield, L.|
|Listowel, E.||Tordoff, L.|
|Lockwood, B.||Turner of Camden, B.|
|Longford, E.||Underhill, L.|
|Lovell-Davis, L.||Wallace of Coslany, L.|
|McCarthy, L.||Wedderburn of Charlton, L.|
|Mackie of Benshie, L.||Wells-Pestell, L.|
|McNair, L.||Whaddon, L.|
|Mais, L.||White, B.|
|Mar, C.||Wigoder, L.|
|Mayhew, L.||Williams of Elvel, L.|
|Melchett, L.||Wilson of Langside, L.|
|Mishcon, L.||Winstanley, L.|
|Airey of Abingdon, B.||Fortescue, E.|
|Alexander of Tunis, E.||Fraser of Kilmorack, L.|
|Allenby of Megiddo, V.||Gardner of Parkes, B.|
|Allerton, L.||Gibson-Watt, L.|
|Alport, L.||Gisborough, L.|
|Ampthill, L.||Glanusk, L.|
|Auckland, L.||Glenarthur, L.|
|Bauer, L.||Gray of Contin, L.|
|Beaverbrook, L.||Greenway, L.|
|Belhaven and Stenton, L.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Harmar-Nicholls, L.|
|Boyd-Carpenter, L.||Henley, L.|
|Brabazon of Tara, L.||Holderness, L.|
|Brougham and Vaux, L.||Hooper, B.|
|Broxbourne, L.||Hunter of Newington, L.|
|Caccia, L.||Hylton-Foster, B.|
|Caithness, E.||Ingrow, L.|
|Cameron of Lochbroom, L.||Kinnaird, L.|
|Campbell of Alloway, L.||Lane-Fox, B.|
|Campbell of Cray, L.||Lauderdale, E.|
|Carnegy of Lour, B.||Long, V.|
|Cathcart, E.||Lyell, L.|
|Chelwood, L.||McFadzean, L.|
|Coleraine, L.||Macleod of Borve, B.|
|Colville of Culross, V.||Malmesbury, E.|
|Cork and Orrery, E.||Mancroft, L.|
|Cox, B.||Marley, L.|
|Craigavon, V.||Marshall of Leeds, L.|
|Dacre of Glanton, L.||Maude of Stratford-upon-Avon, L.|
|De La Warr, E.||Merrivale, L.|
|Denham, L. [Teller.]||Mersey, V.|
|Drumalbyn, L.||Milverton, L.|
|Eccles, V.||Molson, L.|
|Elton, L.||Monson, L.|
|Faithfull, B.||Mottistone, L.|
|Fanshawe of Richmond, L.||Munster, E.|
|Murton of Lindisfarne, L.||Soames, L.|
|Nugent of Guildford, L.||Somers, L.|
|Onslow, E.||Stanley of Alderley, L.|
|Orkney, E.||Stodart of Leaston, L.|
|Orr-Ewing, L.||Sudeley, L.|
|Pender, L.||Suffield, L.|
|Porritt, L.||Swinfen, L.|
|Portland, D.||Swinton, E. [Tewller.]|
|Reay, L.||Terrington, L.|
|Reigate, L.||Trefgarne, L.|
|Renwick, L.||Trumpington, B.|
|Rodney, L.||Tryon, L.|
|Rugby, L.||Vaux of Harrowden, L.|
|St. Aldwyn, E.||Vinson, L.|
|St. Davids, V.||Vivian, L.|
|Sandford, L.||Whitelaw, V.|
|Selkirk, E.||Wise, L.|
|Sharples, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 8 not moved.]
§ Clause 2 agreed to.
§ 5.28 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 9:
§ After Clause 2, insert the following new clause:
§ ("Removal of restrictions and equal protection for workers.
§ .—(1) In this section the relevant enactments are the provisions of the Hours of Employment (Conventions) Act 1936, the Mines and Quarries Act 1954, the Baking Industry (Hours of Work) Act 1954 and the Factories Act 1961, which are mentioned in sections 3 and 4 below and in Part II of the Schedule to this Act, and any subordinate legislation made under or by reference to those provisions.
§ (2) Subject to the conditions in subsection (3) below, the Secretary of State may by order made by statutory instrument amend any provision in the relevant enactments, or any part thereof, so as to guarantee equal conditions to men and women with such consequential or transitional amendments as seem to him appropriate (in this section called an "equal protection order").
§ (3) The conditions are—
- (a) the Secretary of State shall have published a final report in accordance with this section containing such recommendations as he thinks appropriate; and
- (b) not less than one year shall have passed since the day on which this Act was passed.
§ (4) No final report shall be published unless
- (a) the Secretary of State has—
- (i) consulted such employers, trade unions and other persons as seem to him appropriate;
- (ii) sought the views of the Equal Opportunities Commission and the Health and Safety Commission, and
- (iii) published a draft report setting out his interim proposals; and
- (b) six months have passed since the publication of a draft report by the Secretary of State.
§ (5) Where either the Equal Opportunities Commission or the Health and Safety Commission at any time proposes to the Secretary of State that a provision in a relevant enactment is, or may be, an appropriate subject for an equal protection order and no order has been made under section 6(3) below in respect of that provision, the Secretary of State shall not make an order under section 6(3) below in respect of that provision unless the conditions of subsection (3) are satisfied.
§ (6) Section 77 of the 1975 Act shall not apply to a term in a collective agreement or rule to which section 2 of this Act applies by reason only that it contains or applies the terms of an equal protection order.").
The noble Lord said: I move Amendment No. 9 in the names of myself and my noble friends. In our view this is an important amendment which takes the noble Minister at his word; that is to say, the Secretary of
State said at Second Reading on 27th February, at col. 1209 of Hansard:
It is important to remove restrictions on night work and on night work for women, but we should remove any restriction with care".
§ When I read that I thought that it was at any rate within distance of the sentiment expressed by the noble Baroness, Lady Lockwood. In describing so fully for noble Lords the 1979 Equal Opportunities Commission Report she stressed that the commission proposed that the provisions in the legislation concerned which deal with women's hours, conditions and so on, should be repealed, but that there was a serious qualification in that minimum standards of welfare should be specified, and the like; and that we should do it with care.
§ The noble Baroness, Lady Seear, concluded her second reading speech by proposing what I thought was a most interesting proposal, to which I suspect we may well come back: that we should look at it carefully by a committee of the House or, as she put it more generally, that we should get down to looking at what we require in this whole field in the year 1986. That meant, as I understood it, looking in a more pragmatic way than is suggested in this Bill.
§ We were pleased to see the general character of the code of practice suggested by the noble Baroness, Lady Platt, which in a sense I would hope could be found within the ambit of the thinking in this clause. May I explain in four short points what the clause aims to do, and does subject to any drafting defects which it may well have? It says, first, that the Government should look at the circumstances of the relevant industries case by case. Secondly, it speaks of positively encouraging the Government to repeal discriminatory provisions in our law—that is, as was established at Second Reading, a common aim—and doing so by positive measures where they are appropriate in part or parts of the legislation with qualifications, amendments and transitional arrangements as appropriate in what we have dubbed, for want of a better name, an equal treatment order by subordinate legislation applying to men and women alike, whether it be on night work in bakeries or in types of factories or types of shift work as is found appropriate. In the amendment we do not pretend to know the answer. We say that, on the evidence produced so far, nobody knows the answer, or how far an equal protection order could be made; but we are sure there are such cases, and I shall come on to that in a moment.
§ Thirdly, we say that before doing that and before executing the order to repeal any of the provisions of the relevant legislation, the new clause would require the Minister to consult the obvious parties, including employers, unions and others in the industry, and specifically, the Equal Opportunities Commission and the Health and Safety Commission.
§ Fourthly, the consultation should give, and the clause would give, the Equal Opportunities Commission and the Health and Safety Commission an independent role in asking the Minister to conduct a proper inquiry into the circumstances of an industry and into a particular type of practice if they thought that there was ground for an equal treatment order, and that would mean before the repeal. For example, some of the sections that will be repealed concern Sunday work. There has been so much debate in this 547 Chamber about Sunday work that it is extraordinary to find in a Bill subsequent to that debate that the Government have put in a couple of places where protective legislation on Sunday work for women can be repealed without considering the possibility that perhaps in some cases that might be open to extension to men as well, at least in part.
§ In other words, our aim in the amendment is to attempt a pragmatic approach towards equality and to say that equality does not come about only by levelling down the legislation to zero. There are cases where the legislation can be levelled up. Those cases should be considered and where good cases are to be found that order should be made. That is a much more flexible approach. We know that there are such cases. The baking industry was much discussed on Second Reading. On reading that debate it is impossible to find as a conclusion that there is no problem with night work. There is a problem with night work for both men and women workers and the Bakers, Food and Allied Workers' Union has made this clear a number of times to the Government and has proposed a number of times that the legislation be made equally applicable.
§ The Secretary of State, the noble Lord, Lord Young, used the same theme throughout his speech. He said once that all this legislation was outmoded; once that it was outdated; once that it was burdensome; once that it was out of place; twice that it stopped sensible arrangements and five times that it was unnecessary. Yet in no way did he tell us why or whether it was always unnecessary and whether some things should be done before final repeal, even about transport arrangements for night workers, welfare facilities for night workers or shift workers or about the real conditions of people in factories. He did not tell us whether it was not the case that a woman in respect of whom this protective legislation was taken away might be exploited in a way that everybody ought to condemn and that perhaps some thought should be given to that, and perhaps also to the men alongside her. If this legislation is taken away from some industrial structures one breaks up patterns of bargaining which have nothing to do with discrimination against men, women or young persons. The repeal of some of these provisions may rub off on the working conditions of young workers too, albeit that the Government are not changing them in a formal sense.
§ However, it is not just the baking industry. We have had inquiries and commissions before every important piece of legislation in this field. We have had it since 1844. The Government like talking about the ancient nature of the legislation; but it is not just 19th century legislation that was preceded by committees and commissions. Throughout the whole period of a century and a half all types of administration have had inquiries before they have made major change. That was true in 1847: it was true in 1860: it was true in 1867: it was true in 1874: it was true in 1878: it was true in 1891: it was true in 1901: it was true in 1920: it was true in 1936: in 1937 and in 1960 and also in 1974. This is the first time that a major change will be instigated without a major inquiry into the condition of the industries.548
Compared with what is being done now the procedures of Stanley Baldwin's Government in 1935 were the peak of enlightenment. When in 1935 the Bill was introduced on employment and women and young persons' hours to make provisions for what is now Section 97 of the Factories Act (which is being lightly repealed for women in the schedule to the Bill) the Under-Secretary of State for the Home Department, Mr. Lloyd, was able to talk about the committee of inquiry. Just so that the Minister will know, this occurred on 17th December, 1935 at col. 1693 of Hansard. Mr. Lloyd talked about the committee's conclusions on health of the workers. He talked about the problem of continuity of education in terms of those who work this type of shift work. He talked about the other conditions and he even said:
One of the first things I did when I realised that I had to introduce this Bill was to visit some of the works concerned and talk to some of the workers".—[Official Report, Commons, 17/12/35; Col. 1604.]
When did the noble Lord the Minister or any of his colleagues last do that? No, my Lords, this is a piece of legislation born of principle. I do not say dogma, although I could do so. I do not say ideology although I should. I say principle; a principle which is out of contact with the real world because it does not come into contact with the conditions of the workers concerned. We are constantly told that this is a burden on business and without it there will be more jobs. No one in Britain today could fail to listen to that argument with respect. One cannot have three or four million people increasingly without work and not pay that argument respect. But we cannot pay much respect when there is little to link the beginning and the end of the sentence.
§ Where is the link in the increase of jobs? I have talked to people about these provisions and their repeal. I have heard as many arguments for jobs falling as I have for any extra job. I have heard as many arguments that workers will be pushed into conditions where at the moment they and their union have some argument against and that that may give rise to fewer posts in that particular shop. I do not know that that is very many, but I certainly have not heard any argument whatever that links the specific step that the Government are taking on repealing this legislation for these workers to the conclusion that there are jobs.
§ If the Minister thinks that there is anything in the survey in Burdens on Business, then he and I perhaps could go through it at some quiet moment. I am confident that he will find and I will find nothing whatever in that survey that in any way suggests—except for a mild comment in the conclusions written by the Government and, I suspect, by the co-ordinating Minister, the right honourable gentleman Mr. Norman Tebbit—that the removal of this legislation perhaps would be something which might be thought about.
§ My noble friends and I wish to make absolutely clear that in so far as the reasons for this legislation that have come through to us historically are discrimination between men and women, then, of course, it must go. What we are saying in these amendments concerns the manner of its going. We are saying: do not the Government (because they are the only body that can intervene since they are in charge of the 549 repeal) owe a responsibility at least to consider and inform themselves with the Equal Opportunities Commission, with the employers and the unions and with the Health and Safety Commission, and to be given the power—and we hope they will want it—to make an equal protection order, to the extent and with modifications, that any part of this legislation seems to be appropriate.
This, it seems to us, is a better reaction. We still hope that the Government will consider it favourably, because if they do not their only stance will be the same stance as that of John Bright when he faced Lord Shaftesbury's factory reforms. He said that this was a campaign of mock humanity, that it was an interference with the freedom of industry—freedom of industry, Burdens on Business, I do not think he quite got up to that phrase—and that workers, and I quote him:
should work because in the sweat of thy face shalt thou eat bread".
That is one attitude which one has found in Britain many many times. If that is the Government's attitude, let them say so. We still hope that it is not. We hope they will take the powers indicated by this amendment and be fair to the workers who are involved in this matter, so that inquiry can take place and so that equal protection can be given at a higher level where it is appropriate than mere repeal of all these legislative provisions. I beg to move.
§ Baroness Seear
I sincerely hope that the Government will take heed of this amendment. If they cannot accept it, will they at least say that they will take it away and look at it, The Minister is something of a polymath, which we know, in that he appears here talking about defence one day, foreign affairs the next and industrial relations and discrimination the next. This is asking a bit much of anybody, as I would be the first to agree. But there is a breath-taking simplicity about the Government's attitude to this whole question. I agree absolutely with what the noble Lord, Lord Wedderburn, said about the protective legislation. In my view, it is high time that it was revised, and revised in a non-discriminatory way. Does the Minister really understand that there are 150 years of experience behind this; that there is a great volume of scientific work behind it? Has he consulted with the occupational medicine people? Has he consulted with the industrial nurses? Has he read the reports of the factory inspectorate? There is a long history of working at what is appropriate protection for people at work.
This attitude that you can sweep it all away, just like that, is almost unbelievable in the light of what the noble Lord, Lord Wedderburn, has said of the apparent total absence of any kind of inquiry which has gone on before this had been decided. We have the opportunity now to make what seems to me a real step forward; to decide—and there is no need, as I see it, to have this clause in this legislation immediately—to have some kind of inquiry as to what, in the light of the circumstances of today, is necessary and appropriate protection for both men and women in work.
This can be divided into a number of different categories because the protection that is needed is not the same in all areas. But simply to take the line that you ignore all the work that has been done in the past, 550 that you ignore all the experience of people who have worked in this field and, in the light of the wisdom of this Government, on a basis of common sense, the light of Nature—which burns pretty dim in some people—that you can afford just to disregard all that has gone on in the past seems quite extraordinary. I beg the Government to say that they will look at this whole question again.
§ 5.45 p.m.
§ Lord Trefgarne
The noble Baroness, Lady Seear, began by saying that I was something of a polymath. If she will forgive me for saying so, so is she. She, too, appears on many topics—greatly, I was going to say, to the benefit of your Lordships.
§ Baroness Seear
In a previous discussion, I said that the noble Lord was being somewhat naive. I was making something of an amende honorable in that case.
§ Lord Trefgarne
I stand corrected. The noble Lord, Lord Wedderburn, recited a great number of legislative provisions that have applied to this matter down the ages and explained, I think, that there was a major inquiry or an inquiry of some sort, at least, ahead of almost every one of the measures to which he referred. He referred, too, in very complimentary tones to my late right honourable friend Mr. Baldwin—or did he become my late noble friend? The fact of the matter is that we have not plucked this provision out of the air, just like that. We are following the recommendations of the Equal Opportunities Commission in their 1979 report called Health and Safety Legislation: Should we distinguish between men and women? Of course, we are not in the business of sweeping away every protection in this area. Employers have a duty to both men and women under their general duties, for example under the Health and Safety etc. Act. Any unsafe practice is one that comes within the ambit of that legislation.
This amendment seeks to provide an alternative basis to the order-making power proposed under Clause 6(3) of this Bill. The Secretary of State may still reveal the relevant enactments under Clause 6(3) except where either the Equal Opportunities Commission or the Health and Safety Commission has proposed that provision is or may be an appropriate subject for an equal protection order. If so, an alternative procedure must be followed. In practice this amendment seeks to impose further delays before the discriminatory restrictions on hours of work can be removed. If the HSC or the EOC were so minded, they could prevent the Secretary of State exercising his powers under Clause 6(3) and force him to follow the procedure set out in the new clause.
May I look at the details of this alternative procedure? It involves a time lapse of at least a year during which a lot must happen. The Secretary of State must conduct extensive consultations with employers and trade unions and must seek the views of the Health and Safety Commission and the Equal Opportunities Commission. He must also publish a draft report of interim proposals. Then, nothing can happen until a final report is published setting out the proposals for amendments. After all this, the Secretary of State may finally make the so-called equal 551 protection order amending any of the relevant enactments. This amendment seems to be based upon the hypothesis that delay is always a good thing, that action by its very nature is always over-hasty. But I do not think that such a hypothesis bears examination. Further delay and consultation are unlikely to achieve anything.
Let me explain why. The issue has been discussed for six years, ever since the Equal Opportunities Commission recommended repeal of these restrictions in 1979. Before that, the commission had consulted widely and given the whole matter careful consideration. In 1979, the Health and Safety Commission were asked to consider the Equal Opportunities Commission's proposals on women's hours but were unable to reach a consensus view on how this discriminatory legislation could be reformed. However, the HSC made no recommendation that health and safety considerations argued the need for different statutory conditions and hours for women as against men.
Despite this lapse of more than six years, total agreement on the way forward has not been reached. That is why the Government have decided to act now. Experience suggests that further consultation would not achieve anything. With the benefit of this hindsight, are we really to believe that suddenly, in a year or whatever, consensus would finally be achieved, that all the arguments would be resolved and that all sides would give the green light to the proposals? I think that is wishful thinking. At the end of the further consultation period the Secretary of State would be no further on than now. He would still have to take a decision, weighing in the balance the same arguments as the Government have taken account of already. Delay would achieve nothing except relegating women to suffer continued discrimination and continued frustration of their employment opportunities, and employers would be left to labour under a continued bureaucratic burden.
No reasonable person can possibly accuse the Government of being over-hasty and precipitate in this matter. Due consideration has been given; the time is now ripe for action, and I ask your Lordships to reject this amendment.
§ Baroness Lockwood
I have some difficulty with the amendment from my noble friend on this matter, and I also have some difficulty with the Minister's response. I understand the views of my noble friend in moving the amendment, and I must say I share his concern about the growing level of insecurity for employees—a level which has grown since 1979 when the Equal Opportunities Commission presented its report.
Nevertheless the process he is suggesting is somewhat similar to that which the Equal Opportunities Commission itself undertook in reviewing this legislation. Not only did we take evidence from a wide number of organisations, as I said at Second Reading, but we also met representatives from employers' organisations and unions in the baking, chemical, clothing and footwear, engineering, mining, textile, pottery, iron, steel and glass industries, 552 because those are the industries most concerned with this particular legislation.
In the light of the evidence and the discussions with these organisations, the commission came to its conclusions. Those, as has been said, were not unanimous. There was dissent within the commission and then there was dissent within the Health and Safety Commission when they looked at our report. But it is not true for the Minister to say that he is following the advice of the Equal Opportunities Commission, because the Bill we have before us contains only half the recommendations of the Equal Opportunities Commission. That commission's report—I have it here, but I doubt whether the Minister himself has had the opportunity to look at the many clauses it contains: much wider, incidentally, than the Bill that we are considering today—did ask that simultaneously we should introduce measures to protect existing women employees who took on that employment on the basis that they would not be expected to undertake night work. We asked that there should be protection for parents with children so that they would not be required to undertake night work, and we also asked that there should be welfare provisions included in a code of practice.
The Minister, in supporting the Bill we have before us, made no reference to those very serious qualifications that the commission had and I think it is a great pity that, having waited six years before having an amending Bill, the amending Bill should be selective in the recommendations it chose to implement from the commission. Nevertheless I see the only way forward as being the repealing of these particular measures. We did not have agreement in the EOC and we did not have agreement in the Health and Safety Commission because there was a difference of view between the two sides of industry. I very much fear that even if the amendment which my noble friend has moved were to be implemented we should have the same delay in implementing the provisions.
I should like two possible courses of action to be followed. I should like the Minister to say, "No, I can't accept this amendment but I will come back with other amendments which will contain the other recommendations from the Equal Opportunities Commission". Failing his saying that, I hope we would support some of the further amendments which are on the Marshalled List this evening.
§ Lord Wedderburn of Charlton
There has been an interesting debate on our amendment. I would say to my noble friend that I follow her nearly all the way. On one point perhaps I should say that this amendment is not meant to deal with precisely the rights of existing employees. It may be that some of those rights have fallen into the gap between this and other amendments; but it was not the function of this amendment and the new clause to deal with them entirely—although of course they may, by a side wind, be provided for.
I accept there may well be disagreement in some of the industries my noble friend named although in the area of automatic glassworks and so on the Government are not repealing the provisions. It is very interesting that they have kept some of the provisions in glass, lead and so on. They are much more selective 553 than the noble Lord the Minister suggested. But these are the broad areas of women's hours regulations and of conditions regulations in factories. We are also dealing with mines and quarries and especially, as so many other speakers have said, with night work.
If the noble Lord the Minister says that our hypo-thesis is wrong because action is always over-hasty, he is absolutely right and that is not our hypothesis. If he says that six years ago examination was made but total agreement was not reached by the examining bodies, then he is absolutely right. But now for the Government to simply come along and by a clean sweep deal with all these provisions is surely absolutely wrong. It cannot be right, as has been said already, that all these provisions are being dealt with merely because they have existed for 150 years; there is something ironic in my defending provisions because they have been there for 150 years and the noble Lord the Minister attacking them for that same reason. That surely cannot be the nature of our debate. The fact that they have existed for 150 years, as the noble Baroness, Lady Seear, said, is because they have been subjected time and again over many, many years, not just to inquiry—that is not the point—but to intelligent, rational investigation, with evidence to see who is and who is not going to suffer if this or that change is made.
I would appeal to my noble friend by saying that if no such amendments as these are passed on this matter and also on unfair dismissal, then maybe a victory will be scored for equality in theory (and maybe more than in theory) in many areas, but there will be those who suffer, and they will be mainly women, although not entirely so.
Therefore the debate leads me to say this to the Government concerning accepting this offer. What is it, after all? It is an offer of power to investigate, and yet it is thrown back in our faces as though we were some bolshevik horde suggesting some dreadful deed for the Secretary of State, who has waited six years to act. It is an offer of a power to investigate and to make an order in the terms of equality. If the Minister will accept the amendment without the delay of one year, we can do the deal across the Table now. Is that what he objects to? We have put a year in the amendment, but that is negotiable. If we are to help people, we do not stand on time. No, the Government will not have the amendment whether it contains a year or a minute. That is why we shall press the amendment.
§ 6 p.m.
§ On Question, Whether the said amendment (No. 9) shall be agreed to?
§ Their Lordships divided: Contents, 99; Not-Contents, 95.555
|DIVISION NO. 3|
|Airedale, L.||Brooks of Tremorfa, L.|
|Alport, L.||Bruce of Donington, L.|
|Amherst, E.||Caradon, L.|
|Attlee, E.||Carmichael of Kelvingrove, L.|
|Aylestone, L.||Cledwyn of Penrhos, L.|
|Barnett, L.||Collison, L.|
|Blease, L.||Crawshaw of Aintree, L.|
|Boston of Faversham, L.||David, B.|
|Bottomley, L.||Davies of Penrhys, L.|
|Dean of Beswick, L.||McNair, L.|
|Denington, B.||Mais, L.|
|Diamond, L.||Mar, C.|
|Elwyn-Jones, L.||Melchett, L.|
|Ennals, L.||Meston, L.|
|Ewart-Biggs, B.||Milner of Leeds, L.|
|Fisher of Rednal, B.||Mishcon, L.|
|Gallacher, L.||Molloy, L.|
|Galpern, L.||Mulley, L.|
|Graham of Edmonton, L. [Teller.]||Nicol, B.|
|Grey, E.||Parry, L.|
|Hampton, L.||Pitt of Hampstead, L.|
|Hanworth, V.||Ponsonby of Shulbrede, L. [Teller.]|
|Hatch of Lusby, L.|
|Hayter, L.||Prys-Davies, L.|
|Heycock, L.||Ritchie of Dundee, L.|
|Hooson, L.||Rochester, L.|
|Houghton of Sowerby, L.||Ross of Marnock, L.|
|Howie of Troon, L.||Seear, B.|
|Hutchinson of Lullington, L.||Serota, B.|
|Irving of Dartford, L.||Shepherd, L.|
|Jacques, L.||Silkin of Dulwich, L.|
|Jeger, B.||Stallard, L.|
|Jenkins of Putney, L.||Stedman, B.|
|John-Mackie, L.||Stewart of Fulham, L.|
|Kagan, L.||Stoddart of Swindon, L.|
|Kaldor, L.||Strabolgi, L.|
|Kennet, L.||Taylor of Blackburn, L.|
|Kilbracken, L.||Taylor of Gryfe, L.|
|Kilmarnock, L.||Taylor of Mansfield, L.|
|Kinloss, Ly.||Tordoff, L.|
|Kirkhill, L.||Turner of Camden, B.|
|Kissin, L.||Underhill, L.|
|Lawrence, L.||Wallace of Coslany, L.|
|Leatherland, L.||Wedderburn of Charlton, L.|
|Listowel, E.||Wells-Pestell, L.|
|Longford, E.||White, B.|
|Lovell-Davis, L.||Williams of Elvel, L.|
|McCarthy, L.||Wilson of Langside, L.|
|McGregor of Durris, L.||Winstanley, L.|
|McIntosh of Haringey, L.|
|Airey of Abingdon, B.||Hailsham of Saint Marylebone, L.|
|Alexander of Tunis, E.|
|Allenby of Megiddo, V.||Henley, L.|
|Allerton, L.||Holderness, L.|
|Auckland, L.||Home of the Hirsel, L.|
|Bauer, L.||Hooper, B.|
|Belstead, L.||Hunter of Newington, L.|
|Boyd-Carpenter, L.||Hylton-Foster, B.|
|Brabazon of Tara, L.||Ingrow, L.|
|Broadbridge, L.||Kinnaird, L.|
|Brougham and Vaux, L.||Lauderdale, E.|
|Broxbourne, L.||Long, V.|
|Bruce-Gardyne, L.||Lyell, L.|
|Caithness, E.||McFadzean, L.|
|Cameron of Lochbroom, L.||MacLehose of Beoch, L.|
|Campbell of Alloway, L.||Mancroft, L.|
|Campbell of Croy, L.||Marley, L.|
|Carnegy of Lour, B.||Marshall of Leeds, L.|
|Cathcart, E.||Maude of Stratford-upon-Avon, L.|
|Colville of Culross, V.||Merrivale, L.|
|Cork and Orrery, E.||Mersey, V.|
|Craigavon, V.||Milverton, L.|
|Dacre of Glanton, L.||Monson, L.|
|Davidson, V.||Mottistone, L.|
|De La Warr, E.||Moyne, L.|
|Denham, L. [Teller.]||Munster, E.|
|Drumalbyn, L.||Murton of Lindisfarne, L.|
|Elton, L.||Nugent of Guildford, L.|
|Faithfull, B.||Onslow, E.|
|Fortescue, E.||Orkney, E.|
|Fraser of Kilmorack, L.||Orr-Ewing, L.|
|Gardner of Parkes, B.||Pender, L.|
|Gisborough, L.||Portland, D.|
|Glanusk, L.||Reay, L.|
|Glenarthur, L.||Reigate, L.|
|Gray of Contin, L.||Renwick, L.|
|Greenway, L.||Rochdale, V.|
|Rodney, L.||Suffield, L.|
|St. Aldwyn, E.||Swinton, E. [Teller.]|
|St. Davids, V.||Trefgarne, L.|
|Saltoun of Abernethy, Ly.||Trumpington, B.|
|Sandford, L.||Tryon, L.|
|Sharples, B.||Vaux of Harrowden, L.|
|Skelmersdale, L.||Vivian, L.|
|Somers, L.||Whitelaw, V.|
|Stanley of Alderley, L.||Wise, L.|
|Stodart of Leaston, L.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ Clause 3 [Removal of restrictions on working hours and conditions of women]:
§ 6.8 p.m.
Lord McCarthy moved amendment No. 10:
Page 3, line 32, at beginning insert ("Subject to section (Protection of existing conditions) below").
§ The noble Lord said: I have to say to the Committee, as I am sure will be well in the minds of everyone here, anyway, that this is just an introductory amendment because I go on and am concerned with a whole series of amendments which we have put down—in particular, Amendments Nos. 12, 15, 21, 24, 28 and 31. With the permission of the Committee, I should like to speak to those amendments as I go along.
§ The object of the exercise here is to create a situation in which employees affected by this Bill at the date of its commencement as an Act will be protected by what is, in effect, a new right of unfair dismissal. What we are trying to do—and the Committee will be very much aware of the fact that we have in mind the Shops Bill which has gone through this House and is now in the other place—is to create a set of rights in respect of workers covered by this Bill which is analogous to the set of rights which the Government themselves proposed should be created in respect of workers affected by the passage of the Shops Bill.
§ If people who are employed at the date of the commencement of the Act find themselves dismissed because they refuse to work in circumstances in which they were not compelled to work before the Bill became an Act—for example, if they were compelled to work nights, were compelled to work in violation of the rules on shift work and of legislation on women's work, were compelled to work beyond the limits of the standard week, or Sundays or in periods protected by annual holidays; or, in respect of bakery workers, were compelled to work and were dismissed because they refused to work beyond the limits of the present night work rules, and so on—then they get a right of unfair dismissal which, we say, is precisely analagous to the situation as the Government themselves created it, quite rightly and quite fairly, and with our support, in respect of shopworkers covered by the Shops Bill.
§ We want to do this not just for workers who themselves specifically refuse to work, but also if there is reason to believe that the employer is dismissing them because he believes that they will not work nights or because, if they are dismissed, the employer will be able to engage a new worker who will not be covered by our amendment, and therefore the employer will be 556 free to employ them in ways outside the protections which this legislation is intended to get rid of.
§ The arguments that we advance in favour of this amendment are the ones that were advanced by the Minister who was piloting the Shops Bill through this House just a short while ago. The noble Lord, Lord Glenarthur, who was piloting the Shops Bill, justified the right of unfair dismissal for established workers who were dismissed because they refused to work on Sundays, and he did so on a whole series of grounds. I shall do no more than beg in aid the arguments that he used. Indeed, he deployed those arguments no fewer than four times during the passage of the Shops Bill through this House.
§ 6.15 p.m.
The first time that he deployed the arguments was at col. 223 of the Official Report of 21st January, when he was replying to an amendment by the noble Lord, Lord Renton, who, the Committee will remember, was not content with establishing a right of unfair dismissal so far as concerned existing workers—I do not think there was any debate or controversy in the Chamber about establishing a right of unfair dismissal so far as existing workers were concerned—but wanted to extend it to future shopworkers. The noble Lord, Lord Glenarthur, said:
The reason why the Bill distinguishes between existing and future shopworkers is clear and straightforward. It will radically alter the position of existing shopworkers, many of whom may have been attracted to shopwork in the first instance because they would not have to work on a Sunday. I can well understand the concern of existing shopworkers, and our proposals recognise their special position. But I do not believe that similar consideration applies to new recruits.".
He went on:
The Bill offers protection to those shopworkers in employment on the day before commencement but not to those joining the industry after that date"—
which is what we are suggesting. He continued:
With respect, I suggest to my noble friend Lord Renton that that is entirely logical. It is important to provide protection as soon as possible once the Bill has become law and Sunday trading is legalised; but I feel that it would be wrong to make the protection retrospective.".
We are not suggesting retrospection and we are not suggesting that it should be done on the basis that the noble Lord, Lord Renton, wanted it done for shopworkers. We are suggesting a precise analogy with the position of shopworkers for women workers working nights and to bakery workers who are outside the protection of the Baking Industry (Hours of work) Act.
Then, again, on Report the noble Lord, Lord Glenarthur, said at col. 153 of the Official Report of 11th February:
My Lords, the reason for offering safeguards to existing employees, as we propose, is clear, and furthermore it is straightforward. The Bill will radically alter the position of existing shopworkers, many of whom may have been attracted to shop work in the first instance because they would not have to work on a Sunday. I understand the concern of existing shopworkers, and I believe that our proposals recognise their special position".
§ I suggest to the Government that many women may have been attracted to work because they would not have to work at nights. I also suggest that many baking workers may have been attracted into that work because they would not have to work unless they gave 557 their permission via the various exemption procedures. I suggest therefore that there is an absolute parallel with the speech made by the noble Lord on 11th February last.
Yet again in the debate on 11th February the Government themselves proposed in respect of the Shops Bill a widening of the rights, which we are not ourselves suggesting in our amendment, because we are very modest in what we are asking. They suggested widening the rights to allow a worker to move to a new employer; and the noble Lord, Lord Glenarthur, said, in defence of this accommodation by the Government, at col. 164 of the Official Report of 11th February:
My Lords, as I proposed we would during the Committee stage, we have carefully considered all the arguments put forward by your Lordships during that stage that the two new rights should be extended to employees entering the industry after the commencement date".
And, again, he said:
After a very careful consideration however of the arguments, we have decided that it would not be appropriate to give new entrants these rights. We have, however, been able to make a small concession to extend these rights to existing employees who subsequently change employers"—
and he once again gave the reasons. He said:
There are strong grounds for giving statutory protection to existing shopworkers"—
and I am sorry that the noble Lord, Lord Boyd-Carpenter, is not in his place because the Minister went on to mention him and said:
As was pointed out most forcefully by my noble friend Lord Boyd-Carpenter during the Committee stage, this Bill will alter the expectation of existing shopworkers as to the possibility of Sunday working. This would be unfair to existing shopworkers. The Government recognise the need to safeguard the existing position of established shop workers and to grant them special protection. It is possible … that some of them may have been attracted into retailing in the first instance because, by and large, they would not have been expected to work on a Sunday".
§ We are arguing that there is a precise parallel here between workers covered by this Bill, who would not normally be expected to work nights and who might be dismissed, or could be dismissed, because they refused to work nights, and the workers covered by the Government's own proposals in the Shops Bill. We do not see how the Government—perhaps they forgot to put it in the Bill—can justify proposing one set of provisions for shop-workers, but not being prepared to accept our amendment this evening.
Finally, at Third Reading—the noble Lord, Lord Glenarthur could not get off this question; he felt very strongly about it—he said at col. 964 of the Official Report of 25th February:
The Government recognise that the repeal of the restrictions on Sunday trading will alter the position of existing shopworkers"—
and, once again, he said:
Many of these may have joined the industry in the first place just because they would not have to work on a Sunday. For these reasons we have introduced protection for existing workers.
§ We are arguing that to all intents and purposes the position is identical and that all the arguments which the Government themselves put into the mouth of the Minister and embodied in the Shops Bill apply, reinforce and support the amendment. I beg to move.
§ Lord Trefgarne
I think I am right in saying that at the outset of his remarks the noble Lord, Lord McCarthy, referred to a number of other amendments 558 to which he was speaking at the same time. I think he said—and perhaps he will correct me if I am wrong—that, in addition to Amendment No. 10, he was speaking also to Amendments Nos. 12, 15, 21, 24, 28 and 31. In any event that is my understanding of the grouping which we are now addressing.
These amendments seek to give two new rights to those employees who, at the date of the commencement of the Bill, are subject to the restrictions on working hours and other working conditions which are removed by the Bill. First, the new rights would mean that those restrictions would continue to be conditions of employment unless they had agreed otherwise in writing; secondly, those employees would be able to claim unfair dismissal if dismissed because they refused to agree a variation in such conditions or because the employer wished to engage another employee on terms and conditions which did not include the restrictions.
Such an amendment would load the dice unfairly against employers. In the first place, the Government believe that this sort of protection is unnecessary. We believe that the repeal of these outdated and outmoded restrictions will not lead to wholesale or dramatic changes in working hours. A manufacturer will alter hours only if he has the orders to justify it or particular circumstances demand it. He is not likely without good reason to incur the additional costs that longer or unsocial hours usually involve.
But the amendment in itself makes for difficulties and uncertainties for an employer confronted by it. What does he have to do if this amendment is enacted? If he lets things ride, presumably his employees continue to have their conditions dictated by the restrictions and he must continue to shoulder the bureaucratic burden involved in record keeping, posting notices and so on. On the other hand, if he attempts to rid himself of this burden, he must secure the agreement of each of his workers; but they are unlikely to give this until they know precisely what they are letting themselves in for. They will rightly not be interested in hypothetical situations that may arise in the future.
So either way, the employer is stuck with the burden. But as his workforce turns over, new employees will be taken on who presumably accept employment on the terms he offers, whatever they may be. Thus he ends up with a two-tier workforce; some restricted, others not. Can you imagine the administrative costs that this will create; the inflexibility and the sheer complication of such a system? And in turn, of course, there is the negative effect of all of this on job creation.
Furthermore, it is not clear how the rights given by this amendment would sit with the current system of exemptions that employers have. Will employees, who are now working at times that would be prohibited were it not for a special exemption order, have these rights? If so, what possible justification can there be for that?
The noble Lord, Lord McCarthy, drew some parallels with the Shops Bill which your Lordships have been considering recently, but whereas shops may well open on Sundays, we do not expect sudden 559 changes in factory hours. Existing workers, of course, already have protection against unfair dismissal.
This amendment is unworkable for the reasons I have mentioned, and I hope that the noble Lord will see the error of his ways.
§ Lord McCarthy
I am genuinely astonished at the Minister's reply. I would argue that virtually everything he said could have been said about the Government's own amendment in the case of the Shops Bill. I do not see how the Government can put forward a totally separate set of arguments in these circumstances. Of course it could be argued that this amendment loads the dice against employers, as the Minister said. Of course it could be argued that this amendment is unnecessary. Of course it could be argued that the provisions of the Acts which the Bill proposes to abolish are themselves outmoded. But all these are arguments which could have been brought against what the Government proposed in the Shops Bill.
Of course it could be argued as the Minister argued, that manufacturing industry will not move directly and immediately to night work. They will not do it unnecessarily; they will not do it in fact unless they can make a profit out of it. Of course they will not. But that could be said about the Shops Bill. Employers in shops will not move to Sunday work unless they can make a profit out of it. The principles are precisely the same.
The Government once again make assertions. They make assertions without evidence. Indeed, they make assertions where the evidence is entirely against them. The Minister says not only that employers will not do it precipitately but he thinks that when they examine it they will not do it at any great rate. The fact is—we shall be arguing this subsequently on other amendments—that some employers are waiting for the abolition of the restrictions upon bakery hours and upon the hours of women workers in order to introduce a considerable increase in night work. The fact is that there has been a considerable increase in night work in the past few years. The fact is that there have been several occasions when the legislation—and only the existence of the legislation—has prevented further additions of night work in ways which we believe are unsocial and bad for the health of the workers concerned. There is every bit as much of an indication—it may not be as evident—that this Bill will have consequences as far reaching in respect of night work for women and in respect of night work for men in the bakery industry as there are in the case of the Shops Bill.
It could be said with the Shops Bill that if the Government accepted what we are saying they would be stuck with the burden of a two-tier labour force. This is precisely the argument that we made without avail to the Government when we supported the amendment to the Shops Bill in the name of the noble Lord, Lord Renton. We said, "You have come to this House and you have said to us that you agreed that there ought to be an unfair dismissal right. We accept that. All power to your elbow; you have introduced this right for workers in the Shops Bill. But you cannot have a two-tier labour force, surely. It is an anomaly. It would be administratively difficult to carry out and 560 the workers will feel it is unjust". The Government said to us, "Nonsense. It is quite separate. It is quite different. It is not anomalous. We are trying to look after expectations and acquired rights. We don't have to do it for all workers who come into the industry over the foreseeable future; we merely have to give it to those whose expectations have been changed as a result of our legislation". The Government said that to us. Now, because we take them at their word, because we bring them an amendment which accepts their general approach and accepts their philosophy, they have the nerve to say to us, "You are sticking us with a double burden".
The Minister says to me: "How will we fit in the exemption orders?" This really is the butt-end of an argument. You will not have to fit in the exemption orders. If you have passed this Bill as you brought it into the House with only our amendment in it, there would not be any exemption orders because you would have got rid of the Baking Industry (Hours of Work) Act and you would have got rid of all the restrictions on women's work, and therefore there would not be any exemption orders and there would not be anything to fit in. Therefore, there is no reason and there is no difference. If there is, then the Minister has not suggested it. Certainly there is no reason why we should not press this matter to a Division.
§ 6.30 p.m.
§ Lord Trefgarne
Before the noble Lord does so, if that is what he decides to do, I suggest to him that he is not comparing like with like. Everybody understands that in the case of a shop—and the noble Lord has relied almost exclusively upon this argument—if it is decided to open it on a Sunday, then open on a Sunday it will and the staff will be there to serve if required.
In the case of a factory—and it is factories and the like that we are considering in this legislation—the position is entirely different. What we anticipate and what is likely to happen, as the noble Lord knows better than I do, is that a modest upturn in activity will occur that will call for, say, one or two additional shifts a week, which might have to be done at night. That is a difference in kind, I suggest, from the difficulties to which the noble Lord has referred with regard to shops.
That is why we thought it necessary to provide the special provisions to which my noble friend Lord Glenarthur referred during the passage of the Shops Bill through your Lordships' House. This is a very different proposition that is before your Lordships. The noble Lord, Lord McCarthy, is not entitled to draw the parallels that he has drawn.
§ Lord McCarthy
The noble Lord questions whether I can see the difference. I cannot see the difference. This is the argument that the noble Baroness, Lady Seear, is very fond of calling "It's only a small baby argument". If anybody is smothered, it will only be a small baby, or it will not be more than a few babies; and surely we are not bothered about just a few babies? Of course, if it were a large number of babies and they were smothered in a very nasty way, then we would be in the situation of the Shops Bill.
561 The Government are telling us that the only difference is the rate at which wrongs are done. We are saying it would be wrong on the same argument that the Government have used; that it would be wrong to deny the expectations of workers who are not shopworkers in this area, who took jobs in the expectation that they would not have to work nights. That is the logic of the argument—that if they worked nights, it would be entirely voluntary.
The Minister says that, without any evidence, he believes employers will extend night work only gradually. I say to him that what evidence I have is against him. Anyway, I do not care if only a few employers are concerned. If there are only a few, there will not be many cases to go to the tribunal. I dare say that if the Minister thought it would be a large number, then he would argue that we could not have this amendment because too many cases would go to the tribunal. The fact is that whether the cases are few or many in number, the argument for protection on the ground of worsted expectations is exactly the same.
§ Lord Mottistone
Before the noble Lord sits down, I may say that he really is over-exaggerating his case. He puts this argument together with the example of Sunday working and the distributive trades, which are quite different from manufacturing. In effect, he is seeking to place a restriction on people adopting new practices in order to keep up with new methods of manufacturing. This matter does not relate specifically to night working. The noble Lord's Amendment No. 31, which I take to be the key amendment, is generalising very much from the particular. I would have thought that it represents an old-fashioned, walking back into earlier centuries; a sort of Luddite approach is governing the thinking behind this amendment. It is purely hampering for British industry, which must become more effective.
The key to our success in the world depends on being able to make things more economically and more capably than our rivals in the rest of the world. Any legislation of this nature is another method of hampering that process. It is totally unnecessary. The more that my noble friends on the Front Bench can do to free matters so that we can compete better in the world, the better.
I would have thought that the noble Lord has hanged on quite enough about the Shops Bill, which is quite irrelevant in this argument. It deals with something that is internal to this country—the distributive trades—which has nothing to do with manufacturing and competition in the world at large. One must get one's priorities and everything else right. I trust that the noble Lord will not pursue this amendment any further.
§ Lord McCarthy
The noble Lord knows that he very rarely convinces me, and he has not convinced me today. I want to press this amendment to a Division.
§ 6.35 p.m.
§ On Question, Whether the said amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 95; Not-Contents, 92.563
|DIVISION NO. 4|
|Airedale, L.||Kinloss, Ly.|
|Amherst, E.||Kirkhill, L.|
|Ardwick, L.||Lawrence, L.|
|Attlee, E.||Leatherland, L.|
|Aylestone, L.||Listowel, E.|
|Barnett, L.||Lockwood, B.|
|Blease, L.||Longford, E.|
|Boston of Faversham, L.||Lovell-Davis, L.|
|Bottomley, L.||McCarthy, L.|
|Brooks of Tremorfa, L.||McIntosh of Haringey, L.|
|Bruce of Donington, L.||McNair, L.|
|Carmichael of Kelvingrove, L.||Mar, C.|
|Cledwyn of Penrhos, L.||Melchett, L.|
|Collison, L.||Meston, L.|
|Crawshaw of Aintree, L.||Milner of Leeds, L.|
|David, B.||Mishcon, L.|
|Davies of Penrhys, L.||Molloy, L.|
|Dean of Beswick, L. [Teller.]||Mully, L.|
|Denington, B.||Nicol, B.|
|Diamond, L.||Northfield, L.|
|Elwyn-Jones, L.||Parry, L.|
|Ennals, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.||Prys-Davies, L.|
|Gallacher, L.||Rea, L.|
|Galpern, L.||Rochester, L.|
|Glenamara, L.||Ross of Marnock, L.|
|Graham of Edmonton, L.||Russel of Liverpool, L.|
|Gregson, L.||Seear, B.|
|Grey, E.||Serota, B.|
|Hampton, L.||Shepherd, L.|
|Hanworth, V.||Silkin of Dulwich, L.|
|Harris of Greenwich, L.||Stedman, B.|
|Hatch of Lusby, L.||Stewart of Fulham, L.|
|Hayter, L.||Stoddart of Swindon, L.|
|Heycock, L.||Strabolgi, L.|
|Hooson, L.||Taylor of Blackburn, L.|
|Houghton of Sowerby, L.||Taylor of Mansfield, L.|
|Howie of Troon, L.||Turner of Camden, B.|
|Hutchinson of Lullington, L.||Underhill, L.|
|Irving of Dartford, L.||Wallace of Coslany, L.|
|Jeger, B.||Wedderburn of Charlton, L.|
|Jenkins of Putney, L.||Wells-Pestell, L.|
|John-Mackie, L.||Whaddon, L.|
|Kagan, L.||White, B.|
|Kaldor, L.||Williams of Elvel, L.|
|Kilbracken, L.||Wilson of Rievaulx, L.|
|Kilmarnock, L.||Winstanley, L.|
|Alexander of Tunis, E.||Elton, L.|
|Allenby of Megiddo, V.||Faithfull, B.|
|Allerton, L.||Ferrier, L.|
|Ashbourne, L.||Fortescue, E.|
|Bauer, L.||Fraser of Kilmorack, L.|
|Beaverbrook, L.||Gardner of Parkes, B.|
|Belstead, L.||Gisborough, L.|
|Birdwood, L.||Glanusk, L.|
|Boyd-Carpenter, L.||Glenarthur, L.|
|Brabazon of Tara, L.||Gray of Contin, L.|
|Bridgeman, V.||Hailsham of Saint Marylebone, L.|
|Brougham and Vaux, L.|
|Broxbourne, L.||Halsbury, E.|
|Caithness, E.||Harmar-Nicholls, L.|
|Cameron of Lochbroom, L.||Henley, L.|
|Campbell of Alloway, L.||Holderness, L.|
|Campbell of Croy, L.||Home of the Hirsel, L.|
|Carnegy of Lour, B.||Hooper, B.|
|Cathcart, E.||Hylton-Foster, B.|
|Coleraine, L.||Inglewood, L.|
|Colville of Culross, V.||Ingrow, L.|
|Craigavon, V.||Kinnaird, L.|
|Cullen of Ashbourne, L.||Lane-Fox, B.|
|Dacre of Glanton, L.||Lauderdale, E.|
|Davidson, V.||Lindsey and Abingdon, E.|
|De La Warr, E.||Long, V.|
|Denham, L. [Teller.]||Lyell, L.|
|Drumalbyn, L.||McFadzean, L.|
|Marley, L.||St. Aldwyn, E.|
|Marshall of Leeds, L.||St. Davids, V.|
|Merrivale, L.||Saltoun of Abernethy, Ly.|
|Mersey, V.||Sharples, B.|
|Milverton, L.||Skelmersdale, L.|
|Mottistone, L.||Somers, L.|
|Munster, E.||Stodart of Leaston, L.|
|Murton of Lindisfarne, L.||Sudeley, L.|
|Napier and Ettrick, L.||Suffield, L.|
|Nugent of Guildford, L.||Swinfen, L.|
|Onslow, E.||Swinton, E. [Teller.]|
|Orr-Ewing, L.||Trefgarne, L.|
|Pender, L.||Trumpington, B.|
|Portland, D.||Tryon, L.|
|Reay, L.||Vaux of Harrowden, L.|
|Reigate, L.||Whitelaw, V.|
|Renwick, L.||Wise, L.|
|Rochdale, V.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.43 p.m.
Lord Wedderburn of Charlton moved Amendment No. 11:
Page 3, line 35, leave out ("cease") and insert ("continue").
§ The noble Lord said: I move this amendment in the names of myself and my noble friends. With such consultation as I have been able to have with them in a somewhat new situation, it seems to us that we should attempt to adapt the moving of our amendments in a manner which is useful to our discussions. Having in mind Amendment No. 9, which has now been made part of the Bill, and that our discussion must, at any rate tonight, embark on its way on that basis, it seemed to us that some of these amendments could profitably be moved very shortly and briefly, for these reasons.
§ First, we now need even more than ever the information about the Government's view on the specifics on the different parts of Clause 3. I leave aside Clause 4 until we come to it. That is to say, we need the reason for the Government's belief that they should repeal immediately particular provisions on particular topics.
§ Secondly, we need information in a more general way and it is appropriate therefore that I should here say something which would arise under another heading. However, under this general heading it becomes, in the light of the new clause of the Bill, very important that everyone should have the most detailed information possible about the situation under these legislative provisions and, in particular, the Factories Act and the exemption orders in relation to night work, double-day shifts, other types of shift work, and so on.
§ I say that for a particular reason that relates to the noble Lord, Lord Young, the Secretary of State. At Second Reading the noble Lord, Lord Young, challenged me when I suggested that the figures were no longer published relating to those particular types of exemption order. We agreed that the totals were still being published and he said that in the November and February Employment Gazette we would find the figures. That was a misunderstanding and the noble Lord, Lord Young, was kind enough to write to me on 5th March—I wish to place on record my gratitude to the noble Lord—to say that having re-read our 564 speeches he now saw that I was referring to the detailed analyses of the orders; that is, the specific number of exemption orders that relate to the different types of night work, shift work, and so on. He said that the Government had ceased to publish those because, as his Written Answer to me in October 1985 said and on which I had relied, this was a detailed analysis no longer readily available because the production of such information would involve a disproportionate cost.
§ Our misunderstanding is at an end but the information is still not forthcoming. This information was published for many decades until two or three years ago when the Government stopped publishing it. I place on record now the fact that since this Committee has said that examples must be looked at case by case in relation to this legislation, we need that information. We must have that information. The public are entitled to it, and the idea that the cost is disproportionate is a misjudgment which the Government must immediately remedy.
§ In regard to this particular amendment, to which those remarks are generally relevant, I would say merely this. Had we not convinced the Government by weight of numbers of the more desirable new clause we would have challenged the repeal of this particular provision—the repeal of the Hours of Employment (Conventions) Act 1936—which, broadly speaking, deals with night shift work by women in industrial establishments. Indeed, industrial establishments are rather wider than the provisions on factories.
What the Government could help us with is what they see as the major advantage apart from the generality of principle; that is, agreeing that sex discrimination must eventually go, and resting on our new clause that there are now many ways to make it go, it would nevertheless be helpful to have on record the Government's specific points in relation to the repeal of night work limitations on women workers. On Second Reading the Secretary of State said, in relation to this matter, that this repeal would see us,
reap the benefits by way of generation of jobs."—[Official Report, 27/2/86; col. 1180.]
We do not suggest that this is a point for any more generalities. If the Government are willing, no doubt they will now discuss, in the light of the new clause, questions relating to welfare, transportation, family disruption and perhaps parental leave. We hope that the Government will think again about those matters and about the general issue. If they will not, let us have on record what their case would have been on specific parts of the benefit that would accrue from repeal of the night work limitations.
§ We approach our amendments briefly in that way. If the Government can tell us by way of headings where their case lies on the specifics of the matter, that will be helpful when we come to look, as we no doubt shall, at the way forward from today's debate. I beg to move.
§ Lord Trefgarne
As has been said before, our purpose in Clause 3 of this Bill has been to remove outdated restrictions on the hours of work of women employed on manual work in factories and industrial undertakings. What this amendment proposes is that we should continue with some of these restrictions but that the employment of women at night should be 565 prohibited unless the employer applies to the Health and Safety Executive for a special exemption order. In the following amendments noble Lords seem willing to accept the need for some of the restrictions to be removed. But if we continue with this blanket prohibition on night working which prevents women from being employed between the hours of 10 p.m. and 5 a.m. and for a period of 11 consecutive hours, then women will continue to be very limited as to the hours they can work.
The legislation that we propose to repeal is archaic and inappropriate in today's circumstances. It covers only those women working in industry and none of the considerably larger numbers in service industries such as nurses, policewomen, women in catering in the entertainment industries and in office occupations such as computing. What possible justification can there be for continuing to treat women in manufacturing industry differently? The Government believe that there is no reason why they should not be given the same opportunities as their male colleagues to work at night.
That is the essence of the objection that I have to the amendment now before us. But in the light of recent events, let me add a comment about what I understand are TUC fears that if more women work at night they will run an increased risk of physical attack on the journey to or from their job. That is a matter very much in our minds just now, following some terrible recent happenings. The Government understand the natural anxiety felt about that, but it must be kept in perspective.
Some 200,000 women already work at normally prohibited times in factories where special exemption orders are in force. Almost 80,000 of them are working at some time during the night; that is, between the hours of 10 p.m. and 5 a.m. Then there are women working in jobs where there is no legislative restriction, and I referred to those just now; for example, hospitals, the police force, hotels, catering and the entertainment industry. In all those cases women are already making their own transport arrangements or they come to some arrangement with their employer. There is no reason to think that that would change in the proposed repeals.
I would also ask your Lordships to consider whether the way to protect women from such risks is to limit their freedom by imposing curfews. Your Lordships will, I am sure, accept that there are better ways of providing for the safety of women in public places. That is the essence of the difficulty that I have with the noble Lord's amendment. I hope that he will not press it.
§ Baroness Seear
I hope that the noble Lord understands that the noble Lord, Lord Wedderburn, I believe, and certainly we on these Benches do not wish to retain indefinitely that protection of women. We have been against the continued discrimination in favour of women, which in fact is a handicap. The noble Lord, Lord Wedderburn, the noble Baroness, Lady Lockwood, and I have said so. We are not asking to go on as we have before. What we ask, and what the success that we have had with the amendments surely underlines, is that we look at what new protection should be given on particular points such as those 566 raised by the noble Baroness and, as I think the Minister should admit, raised in the report of the Equal Opportunities Commission, on which he has relied considerably in order to defend his point of view while ignoring certain other points of great importance in the report.
There is also the other very important point that we want to look at what protection is appropriate for both sexes. We do not accept, certainly not without further examination, that the complete abolition of all protection for everybody is an appropriate answer to the problems that we face on both sides. On neither of the Opposition Benches do we want a continuation of the status quo. We consider that it is discriminatory and outdated. The alternative, however, is not total abolition but that there should be incorporated in legislation modified protection; protection, where appropriate, extended to both sexes, so that the discriminatory element is removed; and appropriate protection, suitable to the latter part of the 20th century.
Is the noble Lord prepared to have a discussion? Is he prepared to accept the fact that the two amendments being passed is a strong expression of opinion in your Lordships' Committee and that it requires before the next stage of the Bill consideration of the matter, perhaps jointly?
§ Lord Mottistone
It seems to me that this amendment and many of the others which relate to Clause 3 and which are all on the same lines might not be thought necessary, if I interpret what the noble Baroness, Lady Seear, says correctly, provided there is protection in a broader sense which is not industrially harmful. Though noble Lords laughed when I spoke last, I am sure that everybody will agree that the industrial success of this country must underline everything to do with industrial work. We must not forget that at any stage.
If the noble Baroness, Lady Seear, is saying that the Opposition do not want special distinctions for women, such as those that are being swept away in Clause 3, I should have thought that most of the amendments to the clause, if not all of them, do not stand up very well. Noble Lords opposite might feel that at any rate they have covered one of the matters that they wish to cover in winning Amendment No. 31 by remote control through Amendment No. 10.
Rather than spending a lot of time talking about this, I believe that the proper procedure now would be for the remaining amendments to the clause to be withdrawn or not moved, and perhaps there will be an opening for noble Lords opposite to think of another way to bring forward a more general amendment which I hope will be defeated if nobody else likes it. As matters stand, I think that we are wasting the time of the Committee if we continue to argue about the remaining amendments to Clause 3, including this one.
§ Lord Wedderburn of Charlton
I am sorry that the noble Lord, Lord Mottistone, feels that. I hope that we can prove him wrong. Although the Minister's earlier remarks were disappointing, I found (and I suspect from what she said that the noble Baroness, Lady Seear, did so, too) that in the second part there was a 567 better response to the amendments. He began to discuss different industries and he began to give us a bit of information that we do not have. The figure of 80,000 night-shift workers covered by exemption orders is later than anything published in the Employment Gazette or elsewhere. It would be good to have a few more figures. He said that he understood the TUC's position about problems with transport. We are glad to hear that.
I shall not press the amendment. However, a few of these amendments should be moved. I take the point of the noble Baroness, which we all want to consider seriously. The two amendments that have been passed are important additions to the Bill and even to its character, and so there ought to be discussions on the proper way ahead. It would be silly to think that we should merely operate in the usual, slightly strange way and not apply our minds intelligently to discuss the way ahead in the light of those amendments.
It would be helpful, since we have the Committee here to discuss these matters, to hear the Government's view on particular points. I take the point made by the noble Lord, Lord Mottistone, who believes that the succcess of British industry stands upon doing what the Bill wanted to do in its original form. We do not take that view. We want to see an end to sex discrimination—I insist again upon that—in a way that does not lead to some workers being exploited and their conditions down graded, which may happen under some employers—employers much less responsible than the noble Lord—if some steps are not taken.
We also take the point that there are some areas of industry and industrial conditions in which legislation has a role to play. Who is the dogmatist now? In industrial relations, everything has a role to play. Legislation has always had a role to play in our voluntary and collective bargaining system. It has provided a floor for the weaker workers. In the area of night shift working, it has provided an important floor for some weaker workers, most of them women but not all, as the baking industry shows.
I welcome the Minister's remarks. I hope that he will have more for us on subsequent amendments as we come to them. We shall try to be specific about the points in the amendments. Of course, we put them down against the expectation—no, perhaps not the expectation but at any rate the possibility—that we would lose our earlier amendments. Now that they are passed there is, however, still a point in moving some of them. I thank the Minister at any rate for the second part of his remarks. I believe that when we examine them in Hansard we shall find them very helpful indeed. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 12:
Page 3, line 326, at beginning insert ("Subject to section (Protection of existing conditions) below").
§ The noble Lord said: I spoke to this amendment in moving Amendment No. 10 as part of a package, and the Committee will remember that Amendment 568 No. 10 was passed. I therefore move formally Amendment No. 12.
§ On Question, amendment agreed to.
Lord Wedderburn of Charlton moved Amendment No. 13:
Page 3, line 41, after ("(a)") insert ("paragraph (a) of subsection (1) of").
§ The noble Lord said: This amendment relates to mines and quarries. With the leave of the Committee, I shall also refer to the content of Amendment No. 14, but I shall not move it as a separate amendment. This is a very short point. It would have given the Government, as an amendment to the original Bill, most of what they wanted in regard to deregulation in terms of work by women at mines and quarries. That is, of course, work above ground.
§ The Government have not put forward an amendment, to the annoyance, I suspect, of some women's groups, allowing women to work below ground. I express no view upon that. But this amendment would have given the Government much of what they wanted in regard to Section 125 of the Mines and Quarries Act 1954 dealing with total hours worked—not exceeding nine in any day, 48 in each week and so on. It would, however, have kept the spell provisions. This has not, I hasten to add for the benefit of those members of the Committee who are not familiar with this section, anything to do with magic or witchcraft. It is the provision whereby a limit is put upon work by women workers at mines and quarries of four and a half hours at a spell, or five hours if there is a 10-minute interval allowed within it.
§ I want here to probe the Government's view and to ask what is wrong with some kind of legislation in relation to spells of work. If we were successful in having this amendment approved in relation to women workers, might we not also consider other workers? Of course, young workers are covered by this section. Nevertheless, I can perhaps ask the Government whether, if the spell provision, as well as the total number of hours limitation, were suddenly removed en bloc, would there not exist a disadvantageous position for the young worker?
§ With two workers side by side, one a woman adult and the other a young worker, would not a large number of restrictions be removed from the employing body whereby the young worker would become—I am thinking here in straight economic terms, as we are told that we must—an uneconomic proposition compared to the woman worker, perhaps the part-time woman worker, or two part-time women workers? Will that not have a deleterious effect on employment conditions and perhaps on the employment of the young worker concerned? That is perhaps more than a theoretical proposition. I probe the Government's knowledge and views on that type of situation.
§ Lord Trefgarne
The Mines and Quarries Act 1954 contains a number of provisions which place restrictions on the hours and times that women may work above ground. Women are not of course permitted to be employed below ground. Section 125 of the Act restricts the hours that may be worked to 569 nine in any day and 48 in any week. It also limits periods of continuous employment to no more than four and a half hours without an interval of at least 30 minutes for a meal or a rest. The Government propose in this Bill to remove these restrictions, and I am pleased to see from the amendment that the noble Lord has accepted that it is no longer necessary to retain by statute the restrictions on the hours that women may work in any day or in any week. This will enable women to participte in overtime working and perhaps a more flexible pattern of working if that is what they and their employer choose.
Why, then, does the noble Lord consider that an Act of Parliament is required to regulate meal-break intervals for women employed above ground in a mine or quarry? Employers in other sectors of the economy seem quite capable of making such arrangements without this kind of statutory intervention. Surely provisions as to intervals for meal-breaks and rest are a matter to be arranged by negotiation either individually or collectively. I do not believe, therefore, that this type of restriction is appropriate and I believe that it should be repealed. It follows from this that I cannot agree to the amendment that the noble Lord proposes.
The noble Lord made some remarks about the relationship of these measures to the employment of young people. I should say, of course, that these provisions have no direct relationship to them. Perhaps, however, I can study what the noble Lord said in that context and write to him if there is anything that I should add.
§ Lord Wedderburn of Charlton
I thank the Minister for his reply. It began, again, rather disappointingly but pepped up a little as it went along. I am particularly grateful for his statement that he will look at the arguments or at any rate the problem of young people. I must repeat that I was not dealing with the question of repealing provisions about young people. I was asking about the relationship of the conditions of young workers and women workers and, indeed, men workers, if particular provisions of the legislation are repealed. I am glad that we have got the Minister on to that ground. We look forward to his consideration of the matter following this discussion.
Of course it will not do (will it?) to say that this is not needed in most other types of employment, or that the conditions of employment are to be agreed by collective- bargaining. I welcome that proposition generally, but it is not enough. There are other areas of employment, as we see from this very Bill, where spell hours limitation is present. I refer to some of the factories provisions. Secondly, the mere fact that it does not exist elsewhere does not mean that it may not be appropriate to a mine or quarry. I was disturbed that the Minister seemed to have nothing in his statement that related to conditions at mines and quarries. These are matters that we shall wish to take up with him. Nevertheless, we are grateful for his statement. The amendments are fulfilling a most important function in this respect, as the record will show. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14 not moved.]570
Lord Wedderburn of Charlton moved Amendment No. 15:
Page 4, line 1, at beginning insert ("Subject to section (Protection of existing conditions) below").
§ The noble Lord said: In moving Amendment No. 10 my noble friend Lord McCarthy spoke to this amendment as part of the proposal, and Amendment No. 10 was passed by the Committee. I beg to move this amendment formally.
§ On Question, amendment agreed to.
Lord Wedderburn of Charlton moved Amendment No. 16:
Page 4, line 5, after (" (a)") insert ("paragraphs (a) and (b) of").
§ The noble Lord said: Amendment No. 16 relates to the proposal in the Bill to repeal what is perhaps the most important section of all in the Factories Act 1961 in regard to limitations upon the conditions of work for women and young persons in factories. Of course, as many Members of the Committee will be aware, when we say "factory" we are dealing with the very extended meaning of the word within the Act and dealing with a very large number of different industries.
§ This amendment will do something rather similar to Amendment No. 13, to which I spoke earlier; that is to say, it will give the Government, or would have given the Government, repeal of the first part of paragraphs (a) and (b) of Section 86. Section 86 is a strange section because it does not have subsections but only paragraphs, which is an old tradition that has now largely been given up. Paragraphs (a) and (b) would give the Government repeal of the limitation on the total number of hours worked by women in factories, which is normally limited to nine in any day, and 48 in a week, with the period of employment not to exceed 11 hours in any day, having starting and finishing times which are normally 7 o'clock in the morning and 8 o'clock in the evening under this particular section.
§ I say immediately that this section is one of the oldest central sections in the legislation. It is the section which has its origin in the 10-hour legislation which was evaded by employers through the relay system about which I am sure the noble Lord, Lord Mottistone, will know as a modern employer and which was so graphically described in the factory inspectors' reports and in Karl Marx's Das Kapital. That system of a limit has been fought, as the noble Lord and I both know, by many employers and there are many employers even today who are very antagonistic to it.
§ This amendment would give the Government repeal of the section and give some women who want to work such hours—and indeed there are some; perhaps many in certain areas—the opportunity to do so. It would also give to some employers an opportunity to push women who did not wish to extend their hours of employment into long spells of hours of work. With great respect to them, I sometimes think that the Government's statements do not take into account the fact that we have a labour market where any woman working in a factory can easily be made to feel that her job is unsafe if she opposes what the management want to do, unless she is lucky enough to have a strong 571 trade union position behind her. A legal limitation can sometimes be helpful in negotiations, and it will also deter many decent employers, who are the vast majority, from transgressing it.
§ If we take away the limits on hours of work in the week and in the day and take away starting and finishing times, what is left in the section which would be retained by this mendment? It would be retained in an interim way of course because one knows that the ultimate objective is to deal a death blow to all discriminatory provisions. But this was part of our alternative, gradual, Fabian approach, to say (and I do not have Amendment No. 9 in mind here), "You can have half of your repeal, but what about the rest? Do you really want it straight away?"
§ Paragraph (c) says that after a spell of four and a half hours there must be an interval for a rest or a meal. The short periods of the rest and meal provisions have been rather important. It has also been important, as provided by paragraph (e), that no woman or young person shall be employed during any such interval allowed for meals or rest.
§ There is a lot more to be said about the matter of long spells of work and the right to have reasonable times of work with meal or rest intervals. The latest figures which I have are for 1982 and they show that some 7,800 out of 180,000 women workers were covered by exemption orders dealing with longer spells than are permitted by such provisions. That is not very many. That encouraged me to think that the Government might not necessarily want to abolish immediately the provisions relating to spells of work and meals and the prohibition upon mealtime employment.
§ The mealtime employment point is a matter for which many trade unions and workers have had to fight for many decades. Now it is taken for granted, just as it is taken for granted in the Committee that when we go in to dinner we do not have to work—though it is difficult to believe when you hear some of the conversations over dinner. Nevertheless, it is not natural for the worker to believe that he will be allowed to have a meal rest in some places even today without having to do some work. Generally, in Britain we regard that as natural.
§ This legislation is part of the tradition which we have built up and for which we have had to fight, and the Government must have some views on meal periods, rest periods and spells of work apart from the actual hours of work. Do they really need to repeal that in order to generate new jobs? If so, why? Why is that such a burden? Is it not something that everyone takes for granted? If the Government say that there is not much point in the legislation as it is taken so much for granted, then we should extend it to men and women. We have got an amendment through on that now, so we can easily extend it to men and women. Perhaps that is what we had better do. Perhaps the Minister would like to consider that point either when he replies, or later. I beg to move.
§ 7.15 p.m.
§ Lord Trefgarne
Once again I am pleased to see that the noble Lord has come part of the way with us and 572 accepts that the removal of some of the restrictions on the hours that women may work in factories is justified. I think he agrees that it is no longer necessary to place restrictions on the maximum number of hours that women may work or to stipulate their earliest starting and finishing times. I therefore fail to see why he considers that the law should intervene in the other aspects of work covered by Section 86 of the Factories Act 1961.
What is the principle at stake here? Why should it be unacceptable to remove the other restrictions dealing with rest breaks and yet leave women and their employers free to negotiate working hours, including the times for starting and finishing work? Why cannot women be left to sort out meal and rest breaks for themselves in the same way? Moreover, why should the law continue to require that all women should take their breaks at one and the same time? Surely employers and employees should be granted flexibility in this matter.
This amendment leaves in place restrictions which are not only discriminatory but also entirely unnecessary nowadays, and I hope that the noble Lord will not press it. Before I sit down, perhaps I may ask why it is that the noble Lord, Lord Wedderburn, thinks that women need protection on meal breaks which somehow men have managed without for a very long time.
§ Baroness Seear
When the Minister says that everything can be left to negotiation, I hope that he will take on board that, though a great many matters can be left to negotiation, this is only an appropriate way of dealing with a situation when it is negotiation between equally weighted parties. The whole crux of the doctrine of collective bargaining in this country is that it has to be between equally weighted parties, between a strong trade union and an employer—indeed sometimes the scales are weighted in favour of the trade union, and then one does not necessarily achieve very good agreements either. But if it is between a very weak and a very strong party, negotiations are a farce.
When the noble Lord talks about the individual woman negotiating with an employer, it is not a negotiation between equally weighted parties, which is the whole tradition on which voluntary collective bargaining in this country has been built up. The noble Lord does not seem to understand that he is undermining the situation—or else he does not realise what collective bargaining is all about and what it depends on—when he says that the woman can bargain with the employer. She is in no position so to do.
I am not clear in my own mind—and I doubt whether the noble Lord, Lord Wedderburn, is at this stage—precisely what type of protection is required. As I said to the noble Lord a few moments ago, surely we are moving into a position in which we want to have discussions about what should be retained, what should be provided for both men and women, what in some cases should be added and what can be abandoned. What we are objecting to is the wholesale abandonment of what we have had in the past, with no discussions about the way in which it can be equalised between men and women and the very simple-minded 573 reliance on collective bargaining in a situation in which many people are at a great disadvantage when it comes to bargaining in times of unemployment such as we have today.
§ Lord Mottistone
I still do not quite understand what the noble Baroness is trying to say. She is saying that women and men should be more equal and that we should get rid of things which make them different. She also says that my noble friend is sweeping away wholesale sections of the Factories Act. It seems to me that there has been a very modest encroachment of what is in the Factories Act in certain selected areas and it is not a wholesale sweeping away. Indeed, a great deal of thought has obviously gone into deciding just exactly what is reasonable to repeal and what is not reasonable to repeal in order to bring a greater equality between men and women, and in order to allow women, if they wish, to do the type of work which men have been doing, where that is reasonable.
Obviously, to have women going down the mines would be most unwise, and nobody is suggesting it. However, it seems to me reasonable that they should have the same opportunities as men, both to work when men do and to earn as much money as men do. I do not see why the noble Baroness in particular is quarrelling with what is in the Bill at the moment, and I do not see why the Bill should not remain more or less as it stands. No doubt there is a great deal more that could go into the Bill which would make it even more equal for women. However, my noble friends have thought it out very carefully and have put in what is reasonable at this stage of the game.
§ Baroness Seear
I am sorry that the noble Lord does not understand. Perhaps he was not present when I explained the matter in rather more detail, or, if he was here, perhaps I did not make myself clear to him. However, if he reads Hansard he will see my arguments.
§ Lord Wedderburn of Charlton
In a sense the noble Lord, Lord Mottistone, is discussing our amendments without the context of the new clauses which are now in the Bill. We are entitled to discuss them tonight at any rate against the background of those new clauses. I tried to explain that I was going to move the amendments against that background for the specific purpose of seeing where the Government stood on particular matters. Therefore, in answer to the noble Lord, Lord Mottistone, I shall not engage in argument about whether or not this would have been a modest repeal or an immodest repeal of the Factories Act provisions. Nor, indeed, do I intend to meet his argument that everyone should be allowed to work in exactly whatever conditions they like without any further conditions, which was the kind of argument which justified the use of chimney-sweep boys. Historically, there has been a good reason for protecting women workers in certain areas.
We now face in a modern society the perfectly sensible proposition that we hope and want the future to contain equality between the sexes. We have to examine other limitations upon industrial conditions. It does not follow from that, as the noble Baroness, Lady Seear, has made clear more than once, that we merely sweep away the provisions of protective 574 legislation without further ado. The Committee has decided that that is so. The Committee has said to the Government tonight, "You are wrong; you must consider the matter by inquiring deeply into each case to see whether in each case there are provisions that should protect both men and women, and then you must decide just when and how you repeal". Perhaps "how" and "when" are the two most important points.
I noted that the noble Baroness, Lady Seear, said that she hoped that we were moving towards discussions to sort all this out. The Bill is now a new Bill and I hope that the noble Lord the Minister will unhappily, in the light of this amendment, have a working meal during the short break to see whether some message can reach us about if not the Government's specific intentions, at any rate their general view on the way we might go forward. What the noble Baroness, Lady Seear, said, seemed to us on these Benches to make a great deal of sense. The Bill has now so radically changed that some discussion should take place of a rather unusual kind about the way in which we can approach a sensible legislative conclusion, which is not beyond the bounds of possibility bearing in mind the different views which have been discussed.
As to the specific points which the Minister made, in my view they were disappointing. As the noble Baroness, Lady Seear, said, the idea that women can be left to sort out their rest breaks, meal and working times is quite theoretical. We need to know the Government's opinion about such matters in real industrial conditions—industry by industry, place by place. That is what the Government must do. I shall look at Hansard and try to change my view, but I suspect that when I read it I shall find the Minister's response so far to this amendment on that count not very helpful. However, I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
I have the feeling that your Lordships may like some refreshment. Therefore, I beg to move that the House do now resume.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.