Lords Sitting of 3 November 1986

Preamble
The House met at half-past two of the clock: The LORD CHANCELLER on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.
The Earl of Dunmore—Sat first in Parliament after the death of his brother.

Child Abuse: Government Action
Baroness Faithfull: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what reforms are planned to help children who are victims of cruelty and abuse.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, the Government are very concerned about children who are victims of cruelty and abuse and we are engaged in a substantial programme of reform. We are preparing proposals for a major re-casting of child care law which will be published in the White Paper which was announced by my right honourable friend the Secretary of State for Social Services on 1st May. Simultaneously, we are continuing our programme to help professionals to raise their standards in child care by encouraging training and issuing guidance on inter-agency working in child abuse cases, on placing a child in care at home and on reviews of children in care, my right honourable friend the Home Secretary has announced he will introduce in the Criminal Justice Bill a provision to permit child victims of sexual or physical assault to give evidence by live video link.
Baroness Faithfull: My Lords, I thank my noble friend for that positive reply which everyone in this country will be glad to hear. Does she agree that, although in law social services departments are responsible for cases, they and they alone cannot carry the full responsibility and must be supported and worked with by education departments, the police, health departments and voluntary organisations? Does my noble friend further agree that the general public both wish and need to help? Would she think it wise for meetings to be held throughout the country, and perhaps in every county, where the general public can be informed of the problem, and can be told where to refer cases and how to help neighbours in trouble and in need?
Baroness Trumpington: My Lords, with regard to the latter part of my noble friend's supplementary question, I entirely agree with her that neighbours and friends can be of great help. We believe that more can be done through both local and national courses and through conferences which are multidisciplinary. My right honourable friend the Secretary of State for Social Services announced on 30th October the setting up of two multidisciplinary (social worker, health
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visitor, doctor and police) training projects, one at the Department of Psychological Medicine at the Hospital for Sick Children at Great Ormond Street and the other at the National Children's Bureau under the aegis of TAGOSAC, costing £300,000 over the next three years. We believe that this will make a valuable contribution to and will promote multidisciplinary training.
Lord Mellish: My Lords, the noble Baroness will be aware that the vast majority of social welfare workers who are involved with cases of child abuse do a magnificent job and tribute must be paid to them. However, like all organisations and bodies there is the odd one out who does it very badly or not at all and who gets all the publicity. Perhaps the noble Baroness can tell me what action the Government intend to take in certain cases where councils—I shall not name them because they are well-known through press headlines—do not appear to take much action to see that such incidents do riot happen again? Where do the Government stand in this—or do they stand completely aloof?
Baroness Trumpington: My Lords, I cannot possibly comment on particular cases but I am satisfied that, either by the application of child care legislation or with the assistance of police, social workers are able to gain access to any child if necessary. I should like to join with the noble Lord in paying tribute to social workers, who I believe have a raw deal often and who do a magnificent job.
Baroness Elliot of Harwood: My Lords, may I ask the noble Baroness whether much research has been done by the Department of Health and Social Security in monitoring the cases before the courts over the last five years? Is the number increasing and what is the lesson to be learnt from these cases?
Baroness Trumpington: My Lords, with regard to my noble friend's question on monitoring and research, my department published in 1982 Child Abuse, a study of inquiry reports which drew lessons for multidisciplinary policy and practice from 18 major reports. Recent inquiry reports have shown that these lessons are still valid and therefore a further study is not planned. As part of their management responsibilities, local authorities should monitor the implementation of lessons learnt from individual cases. With regard to the number of cases of child abuse, there are no national statistics. We know that more cases, particularly of child sexual abuse, are coming to light because of an increasing awareness of the problem and alertness of professional staff.
Lord Dean of Beswick: My Lords, the Minister must be aware of a report published last week in the city of Leeds indicating that in the first nine months of this year 500 children suffered sexual abuse within the family and that it is believed that such incidents in the city of Leeds average 600 a year? Is she also aware that the officer in charge of the investigation said that Leeds is only mirroring what is happening in every city? If that is correct, is it not appalling that children suffer sexual abuse within the family on such a scale? If there are no provisions in the announcement that the

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Minister has made today to deal with this situation, may I ask her whether the Government will look into this facet as a matter of urgency?
Baroness Trumpington: My Lords, what the noble Lord's question boils down to is: what more can be done to prevent child abuse? I agree that more can be done. Much is being done. Unfortunately, in the imperfect world in which we live we cannot eliminate child abuse. We must encourage and help parents to care properly for their children and seek help when they need it. More specifically we are encouraging those in contact with children and families, such as neighbours, to be more aware and look for the signs of abuse. But the organisation exists to ensure that help and protection are provided.
The Lord Bishop of Ely: My Lords, is the Minister able to tell us of any help being given by government to family centres and neighbourhood groups which offer informal support to families?
Baroness Trumpington: My Lords, this support is greatly welcomed, and my honourable friend the Under-Secretary of State for Health said when she launched the self-help family centres on 27th October:
"Self help is an important means of preventing children coming into care and of supporting families under stress. This initiative of 10 development officer posts spread geographically around England will explore a variety of ways of stimulating and supporting self-help in areas of need. A total of £1 million will be spent over three years on self-help family centres".
Lord Ennals: My Lords, having been in another place a member of the Social Services Committee which produced the recommendations to the Government, may I assure the noble Baroness that we shall be looking forward anxiously to the proposals that will be made for changes in legislation? Also will she accept that, as other Members of your Lordships' House have said, it is a matter of great urgency to get the matter right? Does she recognise that I agree with her that it may well be that, although we are now facing a crisis in terms of numbers and horrors of sexual abuse in many areas, things that have been going on unknown for many years are now becoming known?
Baroness Trumpington: My Lords, with regard to the legislative aspect of the noble Lord's question, legislation will be introduced as soon as time can be found in the parliamentary timetable. He will be aware that my right honourable friend the Secretary of State for Social Services announced on 13th October grants totalling £400,000 to help combat child sexual abuse, the money to be spent on setting up training projects for professional staff and telephone counselling services, one of which is the Childline programme which has recently been launched.

Hospital Waiting Lists: Statistics
2.46 p.m.
Lord Ennals: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
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The Question was as follows:
To ask Her Majesty's Government what was the average number of patients on the hospital waiting list in England and Wales during the period of the Labour Government from 1974 to 1979, and what are the corresponding figures for the Conservative Government from 1979 to 1986, expressed on an annual basis.
Baroness Trumpington: My Lords, the estimated average size of the in-patient waiting list in England and Wales for May 1974 to May 1979 was 624,000. Over the period the actual number waiting on the list rose to 792,000 at 31st March 1979. The estimated average for the period May 1979 to September 1985 was 702,000. The actual number waiting on the list on 30th September 1985 fell from 792,000 to 702,000.
Lord Ennals: My Lords, I am most grateful to the noble Baroness for the figures that she has given. Does she recognise that it is an extremely disturbing fact that on average, there have been roughly 80,000 more people on waiting lists during the period of this Government than there were during the period of the previous Government? Does she also recognise that the figure of 624,000 that she gave took into consideration a sharp rise during the period of industrial disputes? Does she recall that the figure that she gave me from May 1974 to May 1979 was 558,000 under a Labour Government and that from May 1979 to September 1984 the figure was 676,000, which is a rise of 118,000? As the Government have been in office so long, is it not time that they brought down the figures to below the average or at least to the average during the whole period of the Labour Government?
Baroness Trumpington: My Lords, the noble Lord may like to know that I have here a list dating from 1949 until 1985. It shows that under every Labour Government the waiting list rose, while under every Conservative Government it fell. Would the noble Lord like a copy of the list? I should be delighted to put it in the Library.
Lord Mayhew: Nevertheless, my Lords, does the noble Baroness agree that the huge figures which she quoted in her original Answer showed that neither Conservative nor Labour Governments have had the slightest success in handling this problem?
Baroness Trumpington: My Lords, let it not be forgotten that some 50 per cent. of all admissions to hospital are immediate and many of those on the waiting list already have a planned date of admission. To some extent waiting lists represent the problems of success. The wider range of treatments available, greater life expectancy and the increasing proportion of old people have all added to people's expectations and thus their demands on the National Health Service. But of course we want shorter waiting lists. That is why this Government have concentrated the attention of health authorities upon the need to make the best possible use of resources. This is one of the major tasks facing management.
Lord Nugent of Guildford: My Lords, is my noble friend aware that from 1978 to 1984 the number of hospital in-patients went up from 5.3 million to 6.1 million, an increase of 15 per cent? How is it then that the number on waiting lists has not come down even more than is shown in the figures she mentioned?
Baroness Trumpington: My Lords, on 30th September 1985—and I am doing a comparison with 1979—there were 702,461 people on the in-patient waiting list for all specialties.. some 80,500 fewer than in March 1979; 12,000 fewer than in March 1985; and 19.000 fewer than in September 1984. During the period of industrial action between March and December 1982 the total increased by more than 130,000. Furthermore, the number of people who have been treated has gone up very much indeed.
Lord Ennals: My Lords, may I go back to the figures that were given to me by the noble Baroness? Surely it is much more reasonable to compare a whole period of a government. Under the Labour Government there were 624,000 on in-patient waiting lists: there are now 702,000 under a Conservative Government. Can the noble Baroness say that that is improving the position? Is not the position very much worse than during the period of the Labour Government?
Baroness Trumpington: No, my Lords. The noble Lord asked me for the average figures. The average has very little meaning. It is the trend that matters. The crucial point is that in the period of the Labour Government there was a rising trend; waiting lists rose by a quarter of a million. Under this Government there has been a falling trend; waiting lists have fallen by 90,000 since March 1979.
Lord Boyd-Carpenter: My Lords, will my noble friend recommend to the noble Lord, Lord Ennals, that if he desires to score points by statistical juggling he would do better to hand the task to his noble friend Lord Bruce of Donington?
Lord Underhill: My Lords, I do not seek to bring this issue down to a matter of party politics, but is the noble Baroness aware that many of us have had first-hand accounts of hospital wards being completely closed at weekends? Does she deny that that is the case? When such reports are received at the department, what action is taken?
Baroness Trumpington: My Lords, as I said on 10th June last year, the fact that the National Health Service has been able to treat more patients in 1985—almost 1 million more than in 1978, in fewer beds—is a sign of its greater efficiency. The number of patients treated is what really matters and not the amount of furniture.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that I am quite unable to accept the accolade bestowed upon me by the noble Lord, Lord Boyd-Carpenter, which should be awarded in all conscience to that arch manipulator of figures, the noble Lord, Lord Young of Graffham?
The Countess of Mar: My Lords, is the noble Baroness aware that, despite the figures she has given, there has been a sharp deterioration in the numbers on waiting lists in the past 18 months? Her figures are not up to date. Has she read the article on page 1038 of the British Medical Journal on 18th October, which suggests that the DHSS waiting list is a poor indicator of patients awaiting admission to hospital, and that the true number, if day cases and planned admission cases were accounted for in the figures, would be nearly 80 per cent. higher? Does she agree that the figures would he more meaningful if those cases were included and if the expected duration of a stay in hospital was assessed?
Baroness Trumpington: My Lords, in-patient waiting lists do not include people waiting for day care, and never have. It is nonsense to suggest, as some have, that the steps the department took in 1979 to make this absolutely clear to health authorities were in any sense a fiddle, which I think is what the noble Countess was getting at. If that had been the case, there would have been a once and for all drop; in fact, there was a continuing reduction until the industrial action in 1982.
Lord Somers: My Lords, why must we have this playing about with figures just for party political advantage? Party politics mean very little to those who are waiting to get into hospital. Is it not a duty of any government, of whatever party or political colour, to see to it that the figures come down as rapidly as possible?
Baroness Trumpington: My Lords, it is the view of the Government that all cases are urgent and important to the individual patient. irrespective of whether the condition is life threatening. I certainly do not wish to play party politics on this matter. My right honourable friend's initiative is aimed at all cases to try to get rid of the waiting lists as much as possible.

Hospital Waiting Lists: Proposed Plans
2.56 p.m.
Lord Ennals: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are taking to reduce hospital waiting lists for general surgery, orthopaedics, ear, nose and throat, eye surgery and gynaecology.
Baroness Trumpington: My Lords, my right honourable friend recently announced a drive to reduce the time people have to wait for diagnosis and treatment. Regions were asked to prepare plans for action and to report back by the end of October. We are now studying those plans. We are determined that the initiative about which I have just been talking will make a major impact on waiting times and waiting lists.
Lord Ennals: My Lords, I thank the noble Baroness for her reply; but what I should really like to know is what action is being taken? Does she accept that two operating theatres at St. Thomas's Hospital are closed indefinitely because there are no trained staff to assist in operations; that St. Mary's Hospital in Paddington may have to cut its kidney transplant programme because it cannot get nurses for its renal unit; and that St. Stephens Hospital in Fulham is reducing its intensive care capacity by almost half for similar reasons? Is it a shortage of nurses or a shortage of resources that is bringing about the current very high figures which cause the Secretary of State to say that this is the most important problem he has to tackle?
Baroness Trumpington: My Lords, perhaps I may first deal with the renal failure question. The number of patients being treated for kidney failure has been increasing steadily. The national target of 40 new patients per million which was set for 1987 was achieved in 1985.
Let me deal also with other specialties. The number of kidney transplants carried out in the United Kingdom in the 12 months to 30th September 1986 was 1,502, a most encouraging figure. But many more are needed and could be carried out if more kidneys were donated. This increase could be achieved if more members of the public carried donor cards and made their wishes known to their relatives and if all doctors involved with suitable cases were willing to encourage donation—although I have to say that I should be rather sorry for anybody who got my poor old kidneys!
Lord Molloy: My Lords, would it be possible for the noble Baroness to request that her department examines the ever-increasing time that one has to wait for any form of heart surgery? Surgeons, doctors and all medical staff concerned with heart surgery and heart complaints are of the opinion that this is now an extremely serious problem. Can these matters be looked into?
Baroness Trumpington: My Lords, the one specialty which is not included in the Question asked by the noble Lord, Lord Ennals, is cardiac surgery. It refers to general surgery, orthopaedics, ear nose and throat, ophthalmology and gynaecology. I am afraid that I do not have details on cardiac surgery, and the noble Lord must put down a Question if he wants the answer.
Lord Mellish: My Lords, the noble Baroness will understand that there can be no dispute, and certainly no party political point is being made, about the fact that there is a large shortage of skilled technicians to do the job of work. For example, there are not enough nurses. Some of the operating theatres have had to close not because of party politics or a shortage of funds but because there are just not enough nurses. What is being done about that, and in particular about trying to get more technical people involved, so that some of these cases can be dealt with?
Baroness Trumpington: My Lords, as the noble Lord will know, we have set targets for further improvements in the availability of life-enhancing treatment. By 1990 there will be 17,000 coronary by-
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pass operations a year, compared with 3,200 in 1978; almost 50,000 lung operations; 70,000 cataract operations and 550 bone marrow transplants. It is up to the regions to make their own arrangements for staffs and to deploy them in the way they are most needed. They should deal with staff and other matters from the ample resources which are available to them.
The Countess of Mar: My Lords, can the noble Baroness explain why, despite the admonitions of the Minister in another place, consultants at Worcester and in the West Midlands Regional Health Authority have been told not to work so hard because the authority cannot afford to pay them?
Baroness Trumpington: My Lords, I am afraid I am unable to answer questions relating to particular geographical areas, but I shall gladly write to the noble Baroness.
Lord Wallace of Coslany: My Lords, is the noble Baroness aware that it is a pity she cannot answer for various areas? I say that for the simple reason that in my district at Queen Mary's Hospital, Sidcup, the consultants at their own expense have paid for a full page advertisement in the local paper warning local people that they cannot cope with the work in front of them due to lack of funds and lack of facilities. They are doing their best under difficult circumstances and they cannot guarantee more. Is the noble Baroness further aware—
A noble Lord: Order! One question at a time, my Lords.
Lord Wallace of Coslany: Yes, my Lords, I am in order.
Noble Lords: Go on!
Lord Wallace of Coslany: May I, my Lords? Thank you very much. It is a short question. Only this morning I received from Saga, which looks after old people. a form asking me whether I should like to join its scheme for the help and care of old people, arising simply because of mounting waiting lists at hospitals. Is the noble Baroness aware that unfortunately I am far too old to join even that scheme?
Baroness Trumpington: My Lords, I have already said in answer to the noble Baroness that I cannot answer in specific cases.
The Countess of Mar: My Lords, I am sorry to intervene but may I remind the noble Baroness that I am not a Baroness?
The Lord President of the Council (Viscount Whitelaw): My Lords, may I point out that these Questions, immensely important as they are, have now taken some 26 minutes. I feel that your Lordships may wish to pass on to the next Question.
Lord Ennals: May I put a final question, my Lords, having tabled the original one?
Noble Lords: Order!
Lord Ennals: My Lords, I ask the House to permit me to do so.
Noble Lords: Order! No!

Bus Services: Passenger Information
3.5 p.m.
Lord Tordoff: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they consider that the Transport Act 1985 will ensure that passengers can obtain proper information, including comprehensive timetables.
Viscount Davidson: My Lords, it is in the operators' commercial interest, especially now that we have a more competitive environment, to ensure that passengers know when and where their services run. The Transport Act also gives local authorities and passenger transport executives the power to provide information on bus services. I understand that most local authorities are doing this.
Lord Tordoff: My Lords, I am grateful to the noble Viscount for that reply. But is he aware that there is a patchwork of timetabling appearing across the country? For example, Devon, Cornwall and Suffolk, which have previously provided comprehensive timetables, now are unable to do so. In Northampton they have had three sets of timetables this year. In Lancaster the drivers walked out because the timetables cut half-an-hour off a two-and-a-half hour journey. In Farnham they had to revise the timetables because a schedule was laid out which did not allow time to pick up passengers. Would the noble Viscount agree that that does not amount to adequate information for passengers?
Viscount Davidson: My Lords, we accept that there may be some teething troubles and that some timetables may not have been ready in time. That would go for any new venture of this magnitude. However it is clearly in the operators' commercial interests to keep passengers informed of timetables and any changes to them. Local authorities have been given power to publicise both subsidised and commercial networks. Most local authorities have publicised the subsidised network, and many have publicised all the services running in their area.
Lord Underhill: My Lords, the noble Viscount referred to the Transport Act 1985. Is he aware that since passing that legislation Parliament has passed the Local Government Act 1986? Section 3 of that Act prevents local authorities from publishing any material other than that relating to its own activities or the activities of other local authorities or other public bodies. Therefore, that 1986 Act supersedes the Transport Act 1985. If my facts are correct, what do the Government propose to do in order to enable local authorities to carry out the work the Government believe they should he doing?
Viscount Davidson: My Lords, I mentioned the Transport Act 1985 because that is what the Question is about and I answered to the best of my ability. If there is anything in the 1986 Act which means that local authorities are not allowed to publish such material, which I very much doubt, I shall certainly write to the noble Lord.
Viscount Massereene and Ferrard: My Lords, is my noble friend aware that there are many stations in England which are understaffed, apart from a signalman, so that one cannot buy a ticket? If one wishes to change to a faster train one cannot find the guard and cannot get a ticket in that way, either. Is my noble friend aware that what happens is that you must purchase a ticket, voluntarily, as you leave the station and are delayed for a considerable time until the ticket collector writes out a ticket?
Viscount Davidson: My Lords, I am afraid my noble friend is on the wrong rails! This Question is about buses.
Lord Teviot: My Lords, is my noble friend aware that I am delighted he is answering this Question? I cannot speak for county councils but for passenger transport executives, and while I did not agree 100 per cent. with the 1985 Act I am absolutely satisfied that they have spent a great deal of time and money in going from house to house delivering timetables through the doors. Credit should be given to them for that.
Viscount Davidson: I am grateful to my noble friend for confirming what I already thought.
Lord Tordoff: My Lords, finally, is it not the case that if confusion persists—and it is likely to get worse in January when existing services can be withdrawn and new services introduced, given six weeks' notice—people will be discouraged from using buses and will revert to other forms of transport?
Viscount Davidson: My Lords, I do not like to forecast, but I do not agree with the noble Lord that the situation will persist. I believe that the position will improve.

British Railways (No. 2) Bill
3.7 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper. In doing so I shall speak, if I may, to the other three. These are further Motions to enable Private Bills to be carried over from this Session to the next.
The first Motion relates to a Commons Bill now in this House. The second Motion refers to Lords Bills now in the House of Commons. The third relates to Commons Bills still in that House, and the fourth Motion to a Lords Bill still in this House.
Moved. That the Promoters of the Bill have leave to suspend any further proceedings thereon, in order to proceed with it if they shall think fit, in the next

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Session of Parliament, provided that notice of their intention to do so be lodged in the Office of the Clerk of the Parliaments not later than three o'clock on the day before the close of the present Session, and that all fees due thereon up to that period shall have been paid;
That, if the Bill is brought from the Commons in the next Session, the Agent for the Bill shall deposit in the Private Bill Office a declaration, signed by him, stating that the Bill is the same, in every respect, as the Bill which was brought from the Commons in the present Session;
That the proceedings on such Bill shall, in the next Session of Parliament be pro forma only in regard to every stage through which the same shall have passed in the present Session and that no new fees be charged in regard to such stages;
That the Standing Orders by which the proceedings on Bills are regulated shall not apply, in the next Session of Parliament, to such Bill in regard to any of the stages through which the same shall have passed during the present Session.—(The Chairman of Committees.)
On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith and to desire their agreement.

York City Council Bill [H.L.]
  Plymouth City Council Bill [H.L.]
    Mid Glamorgan County Council Bill [H.L.]

      Essex Bill [H.L.]
      The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
      Moved, That the Commons messages of Wednesday last be now considered; and that the Promoters of the Bills have leave to suspend any further proceedings thereon in this Session in order to proceed with the Bills in the next Session of Parliament, notice of their intention to do so having been deposited in the Office of the Clerk of the Parliaments;
      That such Bills shall be deposited in the Office of the Clerk of the Parliaments not later than three o'clock on or before the third day on which the House shall sit after the commencement of the next Session of Parliament, with a declaration annexed thereto, signed by the Agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
      That the proceedings on such Bills shall, in the next Session of Parliament, be pro forma only in regard to every stage through which the same shall have passed in the present Session, and that no new fees be charged in regard to such stages;
      That the Standing Orders by which the proceedings on Bills are regulated shall not apply, in the next Session of Parliament, to such Bills in regard to any of
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      the stages through which the same shall have passed during the present Session.—(The Chairman of Committees.)
      On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith.

County of South Glamorgan (Taff Crossing) Bill
  Felixstowe Dock and Railway Bill

    British Railways (Stansted) Bill
    The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
    Moved, That this House do concur with the orders made by the Commons set out in their messages of Wednesday last.—(The Chairman of Committees.)
    On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith.

County of Cleveland Bill [H.L.]
The Chairman of Committees: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
Moved, That the Promoters of the Bill have leave to suspend any further proceedings thereon, in order to proceed with the Bill, if they shall think fit, in the next Session of Parliament, provided that notice of their intention to do so be lodged in the Office of the Clerk of the Parliaments not later than three o'clock on the day before the close of the present Session and that all fees due thereon up to that period shall have been paid;
That the Bill shall be deposited in the Office of the Clerk of the Parliaments not later than three o'clock on the third day on which the House shall sit after the commencement of the next Session of Parliament, with a declaration annexed thereto, signed by the Agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
That the proceedings of the Bill shall in the next Session of Parliament be pro forma only in regard to every stage through which the same shall have passed in the present Session, and that no new fees be charged to such stages;
That the Standing Orders by which the proceedings on Bills are regulated shall not apply in the next Session of Parliament to the Bill in regard to any of the stages through which the same shall have passed during the present Session.—(The Chairman of Committees.)
On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith and to desire their agreement.

European Communities (Amendment) Bill
3.9 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, I beg to move that this Bill he now react a third time. We had, on Second Reading and in Committee, informed debates. I believe that fears that the issues raised by the Single European Act would not be fully debated have been proved groundless. Here and in another place we have had a total of over 50 hours of debate. There has been support from all sides of your Lordships' House for the Bill that is before your Lordships. I am particularly grateful to those noble Lords who have helped to clarify aspects of the Single European Act and their relationship with existing Community law as it applies in this country. I should like in particular to mention the noble Earl, Lord Bessborough, the noble Lord, Lord Beloff, my noble friend Lord Campbell of Alloway, the noble Lord, Lord Nugent, and the noble Baroness, Lady Elles.
I am also most grateful to all the noble Lords who have taken such a close interest in the discussion on this Bill—in particular I refer to the noble Lord, Lord Gladwyn, and others on the Alliance Benches—and, if I may say so, for the support of the noble Lord, Lord Houghton of Sowerby, and all those who have given their support, regardless of the hours and days involved.
The Single European Act is a practical response to the needs of the European Community in the 1980s. It does not extend Community law into areas untouched by the terms of our original accession. It does not detract from the powers of this Parliament. It does not create new powers for the Commission. I am glad to be able to reassure the noble and learned Lord, Lord Denning, on this point. I read carefully his article in today's Times. I welcome his conclusion that we should now,
"give the Single European Act our wholehearted support".
There are good reasons for doing so. What the Single European Act does is to put our stamp on the original Treaty of Rome. It cannot be bad for Britain, whose companies are major participants in Community research and development programmes, to have specific provision for that co-operation introduced into the treaty, clearly expressed in terms of the interests of industry and the market place. It cannot be anything but good for Britain to have more majority voting in order to create the single large market for our goods and services for which our industry has been pressing.
As noble Lords will know, we are working to an agreed action programme of decisions on the internal market. Agreement remains thwarted on some of those decisions because of the reserves of one or other member state. These are decisions which range from the testing of pharmaceuticals to providing more flexible and cheaper air services or to the freedom to sell financial services. In no area does any member state have a vital reason for blocking decisions. But so long as unanimity remains the rule, the temptation will be there for one member state to insist that, for example, its own control layout for fork lift trucks must remain when safety dictates a different common
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standard, or for another to insist on 50/50 capacity sharing on civil air routes when the common interest demands a new approach. That is why we need more majority voting in the limited areas to which it will be extended by the Single European Act.
I hope that I was able to dispose at Second Reading and in Committee stage of earlier fears that opening up the internal market would lay open our markets to unequal competition. I see no room for pessimism when what we are doing is requiring other member states to remove the barriers which stand in the way of our trade. There is nothing to stop a British company from buying insurance on the German market. There is nothing to stop a French freighter carrying coals from Shoreham to Newcastle. But, thanks to German law, a German broker cannot buy insurance on our market. A British freighter cannot ply its trade between Nice and Marseille. By the Single European Act we shall redress that balance. We shall create the opportunity to compete on equal terms. It is up to us to make the most of that opportunity. But we cannot fail to be better off than we are now.
In foreign policy, the British voice is not muted but amplified, when we speak not just for ourselves but for the Twelve. There has been criticism of the response of our partners over Syrian-sponsored terrorism. The point is not that the twelve member states always come immediately to the right decisions. No group of twelve member states can fail to have differences. My point is that the Community gives us a framework in which we can seek common solutions—essential solutions—to problems which none of us can tackle alone. The Single European Act reinforces that impetus to co-operation. It does not oblige any one of us to do something against our will—or prevent us from taking action alone when we need to. It does, however, make it more difficult to go it alone, where going alone means failing to face up to a common challenge. The Single European Act will bind us all to ensure that the combined influence of the member states is exercised,
"as effectively as possible through co-ordination, the convergence of their positions and the implementation of joint action".
That is why the Foreign Ministers of the Twelve will be meeting in London next week to agree what our joint response to Syrian-sponsored terrorism should be.
I have described what I believe to be the two major practical advantages of the Single European Act, and I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Baroness Young.)
3.15 p.m.
Lord Bruce of Donington: My Lords, the House is grateful for the brief introduction of the noble Baroness to the Third Reading of this Bill. Of course, we understand that she may be responding at rather greater length as soon as the debate has come to a conclusion on the Floor of the Chamber.
This Bill came to your Lordships' House as an extension of the existing treaty provisions. It added certain provisions to the Act of 1972 and itself involved the amending of the Treaty of Rome. Although by convention the noble Lord, Lord Stoddart, and myself were omitted from the

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"mention" awards of the noble Baroness, I think it will be agreed that we devoted most of our time to interpreting the Bill in conjunction with the Single European Act and with the treaty, and we trusted that most of the Members of your Lordships' House would come to a decision on the matter in the light of rather fuller information than was available in the Explanatory Memorandum and indeed from most of the speeches that emanated from the Government.
Of course, the time for that is past. We had a very interesting debate in Committee and we are now invited to give a Third Reading to this Bill, which in all practical terms means an intensification and speeding up of the provisions of the Treaty of Rome, combined with an addition in respect of foreign policy coordination, to which I shall refer later.
I think one thing appears without any doubt, and I am very glad to find my opinion reinforced by an article by the noble and learned Lord, Lord Denning, which appeared today in The Times. I hasten to say that, while I accept his legal conclusions, I do not necessarily agree with the political decisions that he considers ought to flow from them. However, there is no doubt in his mind nor in the minds of the two Select Committees, one of which was constituted in this House and the other in another place, that in fact there has been a diminution of the sovereignty of the United Kingdom Parliament. There is complete agreement on that point.
Some noble Lords—and I shall perhaps make passing reference to them later—may have come to the conclusion that national sovereignty is not a vital matter for citizens of the United Kingdom nor for Members of this House or the other place. That seems a little odd in view of the fact that in 1982 we fought a minor war for the preservation of British sovereignty in a far-off corner of the earth. I feel that at some time or other we shall be confronted with problems of sovereignty relating to Gibraltar. Questions of sovereignty arose in regard to Hong Kong, but the position there is that there is an expiring lease, and the Government have done their best to ensure the preservation of the existing order after the lease has reverted to the People's Republic of China.
Sovereignty is or is not important. I trust I am speaking from a non-party standpoint and with the sympathy of most of your Lordships, but to me it is a matter of great importance. It is for that reason, although I did not embark upon it during Second Reading or in Committee, that we should take account of the economic position in which we now find ourselves before willingly parting with a substantial proportion of British sovereignty. As we are discussing the European Economic Community, I shall feel constrained to endeavour to place before your Lordships the economic and financial position of the United Kingdom vis-à-vis the EC.
At this stage, if there are any noble Lords who feel that because I am likely to give some unpleasant facts, or facts which do not accord with their myths, they are inclined to take no further interest in the proceedings, I shall not feel the slightest bit offended because I understand their sensibilities on a matter of this kind. There was evidence in Committee of sedentary
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interruptions bordering in some cases almost upon mild apoplexy. I wish to avoid anything of that kind during what I hope will be a serious debate.
We are not—I repeat, not—dealing with the matters of 1972 or 1975. We are now dealing with where we find ourselves 14 years after 1972 or 11 years after 1975. Those are matters which I venture to think are worthy, regardless of party, of your Lordships' attention before we proceed with the Third Reading of this Bill.
We are on common ground. I have heard many times in your Lordships' House that the main, positive advantage of our joining the EC originally was the benefit that would undoubtedly flow from a market of some 320 million people. At the time, I am bound to say, it appeared self-evident that there would be some advantage from that. On the negative side, there has always been the stick and carrot. We were informed that we had to go in because if we did not, large scale unemployment would follow.
I wish to run quickly through the facts which are non-controversial in themselves, because they are facts. They are certainly not a juggling with the figures, as the noble Lord, Lord Boyd-Carpenter, hinted, perhaps prophetically, that I might attempt this afternoon. On the contrary, 11 years after 1975 there are 12 million people out of work in Europe of whom nearly 3.5 million, or more than 25 per cent., are in the United Kingdom. If one adds in Spain and Portugal, because the 12 million relates only to the previous membership, there are now 14 million people unemployed in Europe as a whole. I recite the facts without emotion and without need for emphasis, but I trust that the figures are noted.
What has happened to our trade with the EC? In a somewhat defensive mood I fancy, reference is often made to the fact that we have to be in the Community because 44 per cent. of our exports go to the EC. Speaking as an accountant, such people remind me of what we in the accountancy profession call "gross men", that is to say, people who seek to promote their businesses and who are optimistic about their future on the basis of what their future sales are predicted to be. Unhappily, in some cases they forget their expenses and purchases. That point must be corrected a little by saying, of course, that 55 per cent. of our imports currently come from the EC. There is the badness. More important than all that is the fact that in manufacturing industry there is a gross imbalance. In 1977, for example, our negative balance of trade in manufactures with the EC was £488 million; in 1985, it was £8,678 million. In the current year, I regret to inform the House, it is now running at a much higher figure; it is running at nearly £9,000 million. All that has been concealed, as your Lordships probably know, by the increase in oil exports to Europe.
I do not want to cast any doubts upon the salesmanship of the oil personnel of this country, but one does not need to be a genius to sell oil to Europe, which has no supplies of its own. Some 30 per cent. of our exports are comprised of oil. The £8,000 million or £9,000 million deficit in manufactures has been compensated for by £11,000 million of oil per annum. That was the figure for 1985, but I regret to inform your Lordships that the position is now very much worse because of course the oil exports for 1986,

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instead of being about £11,000 million, are more likely to be about £6,000 million. We shall be £5,000 million short in our oil exports to the EC in 1986. Even on the assumption of a mild increase in oil prices on the dollar spot market at Rotterdam and elsewhere, we shall be in grievous peril in six months' time and our balance of payments position vis-it-vis the EC will be serious. In fact, from that standpoint the position is menacing. Within six months the country will be in serious trade and financial peril.
I do not seek to blame that upon the EC. I do not seek to blame it upon anybody. This is not that kind of party occasion, but it is a fact of which everyone should be aware. Moreover, in the past 11 years, because the intervention policy of the common agricultural policy and its price fixing has entered the United Kingdom economic structure, the average British family of four is now paying between £2.80 and £5 a week extra in food bills, according to circumstances, because the prices set by the CAP are very much higher than world prices.
On the financial side—we are dealing here with cost benefits—membership of the EC has cost the Exchequer and therefore the British taxpayer, who includes not only the payer of income tax but also the payer of VAT and of excise duty—£6 billion so far. That is a net figure following receipt of all benefits including, incidentally, the £2,700 million referred to by the noble Baroness the other day as receipts from the regional fund. All that the receipts from the regional fund represent, in the words of the right honourable lady the Prime Minister, are our own money back in a bag tied up with an EC label. We have already paid for them.
It would he wrong were I to omit to inform your Lordships that there are some future bills to pay. The grossly inflated stocks of cereals, milk and other produce in the Community, some of which is rapidly deteriorating, will involve an extra £5,000 million in the European budget by way of write-off. This will have to he paid for not only by the other countries in the Community but by ourselves as well. There are further net contributions to be made. Barely is the ink dry on that final expression of budgetary discipline—the VAT rate of 1.4 per cent.—than we find that we are to press up to the 1.6 per cent. mark, despite assurances of no supplementary budgets and strict financial discipline. It has already been revealed—I can give the noble Baroness chapter and verse—that the 1987 budget will most certainly be exceeded, probably by some £2,000 million. And we are still paying our share of stock—in many cases of substandard deteriorating material—amounting to some £2.3 billion a year by way of storage. These are matters that we should bear in mind. They represent the current state of affairs with which someone has to deal irrespective of whether this Bill is passed or not, although I have no doubt that it will be passed.
There have, of course, been advantages. One willingly concedes that the fortunes of large companies in Europe have benefited considerably. Of the 500 most prosperous companies in Europe, no fewer than 200 belong to the United Kingdom. Moreover, we can say that there has been far greater mobility covering the top five to 10 per cent. of our population in terms of professional men, architects, and the rest. There
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have also been environmental advantages. It has been advantageous to be able to gain agreement with other member states on environmental matters of common interest. There have been advantages by Virtue of representation jointly at GATT. As to whether these advantages outweigh the grave situation to which I have referred is another matter altogether.
I am well aware that I shall be told that all this is old hat, that we have heard it all before and that this is the current campaign against membership of the EC. I noted, at one stage in our proceedings, that some noble Lords seemed to think it was quite improper to discuss the EC in critical terms. In their words, a decision had already been made; it was therefore entirely wrong to participate in any debate that cast doubt upon a decision that had been made. I am bound to say that I find this attitude somewhat remarkable. The whole business of democracy is surely that, from time to time, decisions made in the past can be critically reviewed in the light of events and, if necessary, new policies can be followed. This is the whole essence, surely, of democracy. It is, incidentally, one of the disadvantages of the European Community that regulations, once passed, can only be varied by accumulating either a qualified majority for change or, in many cases, a unanimous verdict for change. I have been particularly surprised to observe this new doctrine—that once the British Parliament has reached a decision, it is a decision that cannot thereafter be questioned.
I do not wish to apply the position too particularly to the Liberal Party, with whom I remain on the most friendly and amiable terms. However, if that doctrine was to apply, the Liberal Party, ever since 1935, would not have been contesting elections at all. The verdict of the people went against it. What right has the Liberal Party or anyone else to try to vary the electorate's decision? That is, of course, a complete nonsense. It is right that members of the Liberal Party—yes, even members of the Alliance—should seek to persuade the British people to change their minds. That is an inherent right of democracy. I do not say that I would agree with the Liberal Party, but it should most certainly have the right to try to change my view.
Lord Ezra: My Lords—
Lord Bruce of Donington: My Lords, I am sorry but I cannot give way; otherwise I shall stray over my allotted time. The noble Lord may care to deal with the matter when he speaks.
We are entitled to review the situation when, from time to time, democracies make errors, minor or major. It always lies within the British Parliament and within our sovereignty over our own affairs to make the necessary alterations.
I have dealt so far with matters affecting the EC. I pass now to another pail of the Single European Act. I was curious to note that the noble Baroness ventured to inform the House, at col. 1077, on 17th October, that Title III dealing with political co-operation
"is not within the scope of the Bill because it does not and will not form part of Community law".
I am afraid that I must join issue with the noble Baroness on that point. If she looks at Title I of the

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Single European Act, which is brought into British law under Clause I of the Bill at lines 15 and 16, it says, "Title I (common provisions)", and one finds under Title I, paragraph 3 of Article 1,
"Political Co-operation shall be governed by Title III".
Title III is therefore brought directly into the scope of the Bill.
Moreover, the noble Baroness will also recall, even though the document was not disclosed, that on the signing of the Single European Act on 9th September a decision was made, in which Her Majesty's Government participated, which brought in the whole framework of European political co-operation—a decision, by the way, that was not communicated to the public, was not at the time put in the Library of either House and, like the Stuttgart declaration on 19th June 1983, was not publicised. Thus political co-operation has in fact been brought into the Bill.
What has happened? The noble Baroness referred to Syria. Another place and here both thoroughly supported the Foreign Secretary in the very forthright stand that he took in relation to our representation in Syria because of the appalling case that had been heard at the Old Bailey. The Foreign Secretary went to the EC with it and—there is no need to put a gloss on it—in fact came away virtually empty handed, so much so, indeed, that he was moved to say on 28th October that he vetoed the EC's £100 million for Syria. This was presumably a show of parliamentary virility. Unhappily, however, according to The Times of 30th October, the Brussels authorities made it quite clear that no special subsidy for Syria ever existed, so he is vetoing something for which the Commission had no funds.
On the other hand, the Prime Minister, speaking in another place admitted that she had no power to stop sales of grain to Syria at subsidised prices. She said that she could not do anything about that. Why? Because, of course, it was bound within the provisions of the infamous common agricultural policy that cannot be varied without the full consent of those concerned, so much so that The Economist—which is very proEuropean—was moved to say in its issue of 1st November, that
"The dithering over Syria should be the death-knell of the idea that the EEC can have a voice in the world".
It continued:
"Europe has fallen into a trap. Consensus on foreign policy is becoming an end in itself, and a self-defeating one at that. The search for a common policy too easily becomes an excuse for inaction. This week seven EEC governments were prepared to withdraw their ambassadors from Syria, but did nothing because some of their partners would not withdraw them too".
It concluded:
"Go-it-alone is better than consensus-at-all-costs".
That is the burden of my argument to your Lordships this afternoon, that it is better in some circumstances to be on your own.
Now we are nevertheless faced with the position in which the Single European Act will pass. There are certain steps to be taken, and I offer some constructive suggestions to the Government as to how we may tackle the existing position without going into a lot of argument as to who is responsible for it. That can wait until later, on a more partisan occasion.
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One thing is abundantly clear to everybody in this country, or to almost everybody, that the common agricultural policy has got to be reformed. People have been saying this for the last 11 years—there is nothing new about it. What can be done? The first thing that we can do as a country, as the United Kingdom—a force still to be reckoned with in Europe and in the world—is to insist that the common agricultural policy be put on a cash basis, on a basis of cash limits being rigidly applied. We are evidently courageous enough to impose cash limits on the National Health Service when people's lives and people's health are involved. We impose cash limits on our education system in which the future investment of our people is concerned. Do we not have the guts to insist on cash limits being imposed on expenditure on the common agricultural policy, even to the point of saying: if nothing is done about this, then we ourselves will repeal the European Accession Act of 1972? Believe me, with the mass market in manufacured goods which this country has provided for many countries there, the continent of Europe is far more nervous of our leaving the Community than we should be. In other words, we should be tough and prepared to follow it up, because everybody knows that one cannot have budgetary discipline unless one has cash limits. This open-ended expenditure has got to stop. Even though what I have said today will certainly not find favour and is unlikely to feature in any of the press who regard EC matters as rather boring anyway and are, generally speaking, in favour of the EC, in six months' time your Lordships may recall what I have said.
There are other questions. We have structural changes to consider in the way in which we conduct our affairs with the EC. The other governments of Europe have their Civil Service and their servants abroad in the Community, in the Commission, in the European Parliament, on the management committees, the advisory committees and the regulatory committees, all carefully co-ordinated by those governments. The position of the German Government, the French Government, within the Commission, with all these other bodies, is quite clearly defined, and they operate under a different system. The French in particular have a chef de cabinet. Instead of Ministers having to go into all the detail, they have members from their own parties forming their own chef de cabinet, forming their own cabinet, which is then capable of supervising the vast array of matters that come before them. In this country, it is impossible for individual Ministers, with the responsibilities of their own office, to be aware of what is happening in Europe and what the Civil Service is doing in their names in Europe. They do not have the time. They should, therefore, reform the system.
Moreover, this Government or any future Government, if they are going to function properly within the EC, and particularly with the new function of political co-operation, must have in each department of state either an Under-Secretary or a Minister of State dealing specifically with the EC matters affecting that department. Otherwise the political leadership of this country will not be capable of dealing with the highly sophisticated instrument

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which the other governments have formed in close liaison with the EC. These are suggestions.
With regard to the budgetary commitments and the taming of the CAP, provided that the leader of my party consented, I am not entirely inexperienced in budgetary matters in the EC and I should be happy to assist the Government in framing such proposals as may rid them of this continued bleeding by the unregulated expenditure of money from the CAP.
The final difficulty is psychological. This is the most difficult problem to face. We have become so debilitated in the United Kingdom that we no longer regard ourselves as capable of surviving on our own, of exerting our own free and independent will in the world. I do not mean alone, because all sovereign states conclude treaties. We have an understanding with the United States and have treaties with a number of other countries. I do not mean self-sufficient, but independent. The trouble is that we have tended to regard ourselves as an appendage of Europe. It is a refuge to which we have had to go and which we are afraid to leave.
I detect exactly the same attitude towards the European monetary system. It has not been put forward as a carefully argued policy—and I have read most of the articles upon it—but as somewhere where, because we are weak and feeble, we have to go. I believe that that is nonsense. It may be that despair and a sense of inevitability—to put it in the words of the noble and learned Lord, Lord Denning—may secure our acquiescence, however reluctant it may be. Acquiescence and inevitability or despair are not postures which historically the United Kingdom has been accustomed to adopt, nor should it ever do so.
In not resisting the Third Reading of the Bill, I ask Her Majesty's Government to think very hard about the independent role of the United Kingdom in the world, its potential strengths, its past history which sustains it and the many friends in the world that aid it. It is their job as Members of the Government not to sustain and give their fealty to an international organisation, but to fight for the best interests of Britain, albeit in collaboration with others. As long as they do that, we wish them well.
The Earl of Perth: My Lords, before the noble Lord sits down perhaps I may ask him a question. Another noble Lord attempted to intervene during his speech and he said that if he allowed him to speak he would exceed his allotted time. I do not know of a practice of the House which gives anybody an allotted time to speak, and nor do I know how long the noble Lord was given to speak this time. I wonder whether he can help me?
Lord Bruce of Donington: My Lords, I gave myself a provisional allotted time that I fear was much less than the time I took. But I apprehended in view of the likely course of the proceedings that as long as I presented hour Lordships' House with what I trust was a reasonably argued case your Lordships would bear with me. If I have offended in that way, I humbly apologise to the House.
The Earl of Perth: My Lords, I thank the noble Lord. I was anxious to ensure that there was not some
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arrangement which gave any noble Lord an allotted time. I am glad that he has cleared that up, because in my opinion it is certainly not the practice of this House.
Lord Banks: My Lords, I should like briefly to support the Third Reading of the Bill this afternoon. I made clear on Second Reading the attachment which we on these Benches have to the concept of European union and our support for the Single European Act as a modest step towards that goal.
The European Economic Community can be described as an experiment in the pooling of some of our national sovereignty with that of our Community partners and our joint exercise with them of that pooled sovereignty. In so far as the Single European Act makes the exercise of that pooled sovereignty more efficient and speedy, and in so far as it states more clearly some of the aims of the Community. it is to be welcomed.
During the Committee stage the amendments moved by the noble Lord, Lord Bruce of Donington, and others gave us the opportunity to discuss the contents of the Single European Act and the opportunity for a clear explanation of the nature and significance of those contents by the noble Baroness, Lady Young. That was all to the good. But what was disappointing during the Committee stage, and I think again today, was the apparent hostility to the Community and certainly to the concept of European union.
That hostility has seemed so often to animate those who moved and supported amendments. Time and again we seemed to be arguing once more the issues which we thought were settled in the last decade. For example, much exception was taken to the phrase "European union". It was presented as a dangerous new departure. Much sinister implication was read info it. Yet the preamble to the Treaty of Rome described the contracting parties as:
"determined to establish the foundations of an ever closer union among the European peoples".
If that is not a reference to European union, I do not know what is.
If the attitude of the noble Lord, Lord Bruce of Donington, was predictable, I was surprised to receive a letter from the London Swinton Circle urging the rejection of the Bill by your Lordships' House this afternoon. I was surprised, because the headed paper states that the president of this organisation is the right honourable John Biffen, MP. I wonder what he thinks of the missive sent out by the organisation that he heads. I know that he occupies a semi-detached position, but even so I am confident that the noble Baroness will be able to assure the House that he is fully in support of the Bill. The vice-presidents of the London Swinton Circle are stated to be Sir Paul Dean, MP, and Mr. Harvey Proctor, MP. That only emphasises the fact that noble Lords on the Labour Benches who oppose the Bill—not all do—are not without allies on the right of the Conservative Party.
The noble Lord, Lord Bruce of Donington, says that he has a perfect democratic right, and even a duty, to raise the question of whether it is to our advantage to be in the Community and whether we should remain

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within it. I do not deny that he has that democratic right and that there may be occasions when such a fundamental issue has to be raised and discussed. But if we are to have a perpetual and continual debate on this issue so that it is never allowed to rest, I am convinced that we shall not make the best of the enterprise on which we are engaged. I hope that critics of the Community—and all of us criticise certain aspects from time to time—will argue about the aspects which they do not like and about the policies pursued by the Community with which they disagree without appearing to question its whole enterprise and basis.
Throughout my adult life there has never been a government in power in peace-time, in the United Kingdom, of which I was a supporter. I have always been opposed to some of the policies of the government of the day and even to some aspects of the constitution. However, I have not attacked the concept of the United Kingdom for that reason.
We on these Benches hope that the modest advances in the Single European Act will be translated into practice with success, and that they will pave the way for further advance before long.
4 p.m.
Lord Denning: My Lords, I hope that the discussions on this Bill will have shown the people of England and this House what important issues are involved. My noble friend Lord Gladwyn said during the discussions that I was living in the past, in the far past of Lord Palmerston. I acknowledge the impeachment. He was a Victorian; I was born in 1899. Equally, I am proud of our country and what we have done in the past to save our country from the domination outside. I belong of that far generation of English folk. We fought the Spaniards in the Armada; we fought the French at Waterloo and at Trafalgar. We fought the Germans in the last two world wars, and many of my generation fought and died in those wars to save our country from domination in Europe.
I, having come from the long far past, hope your Lordships will feel as I felt when I read this Single European Act, and as John of Gaunt did, that;
"This dear, dear land is now leas'd out
Like to a tenement or pelting farm.
Is now bound in with shame
With inky blots and rotten parchment bonds.
This England, that was wont to conquer others,
Hath made a shameful conquest of itself."
Those are the views of a former age which I have expressed, and put forward also in an article in The Times newspaper.
Perhaps I may turn to the modern stage. I hope that I can think in modern times, instead of going back to the far past. In modern times, we in this House have the most valuable reports of our Select Committee of the House, which is far better than any other committee that I know of in Europe. The Select Committee takes much time and labour in preparing the most valuable reports for the information of this House. As a result of those studies I am going to shed away the lawyer's wig and gown and adopt the politician's role. We are faced with the political will of this country as we go into Europe, as we shall do.
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I should like to start, by mentioning Lord Cockfield, our Commissioner in Brussels who has done a first rate job preparing the White Paper, The Commission for Europe for completing the Internal Market. It is a most valuable document. When studied, it will I hope convince people, as it convinced me, how important is the step we are now taking. This is the heading of his Conclusion, which shows the importance of this Bill:
"Europe stands at the cross-roads. We either go ahead—with resolution and determination—or we drop back into mediocrity. We can now either resolve to complete the integration of the economies of Europe; or, through a lack of political will to face the immense problems involved, we can simply allow Europe to develop into no more than a free trade area".
That is Lord Cockfield's assesment of the position. If we are going into Europe, as we should do and will be now, we need high political will in order to see our proper place within it.
That being the problem, I should like to go on to assess what should be done, not only by us alone, but by all the member states. Each member state needs high political will, not to stand isolated, but to work with everybody for a common cause. It cannot be done unless all the member states go into it with vigour and enthusiasm. I should like to read what Lord Seebohm said, when he was chairman of one of our Select Committees:
"The committee consider therefore that member states acting through the Council will require the highest political resolution and skill, if national interest and administrative convenience are to be overcome and a complete internal market is ever to be achieved".
It is not only up to us, but it is up to all the other member states to diminish their own national sovereignty and interest in co-ordination with the whole.
That is what I deal with next. We must send the very best of our people to Europe. Let me tell you at once that we have sent our very best people to the European Court of Justice. I should like to pay tribute to Lord Mackenzie Stuart, who is now President, and Sir Gordon Slynn, who is an Advocate-General and becoming very senior. They are the very best judges and people that we could have sent, and we have sent them. They have contributed remarkably to the very liberal attitude and progress of the European Court of Justice.
We should give every inducement and encouragement to our best people to go there. I would suggest that, instead of their being puisne judges, they should at once have their value recognised, as is the case when a Lord Justice is made a Privy Counsellor, or when a Lord of Appeal is made a Member of your Lordships' House. The great value of their work should be recognised by those in authority, because they are also treated with greater respect when they go to the European Court of Justice. It is not only in the European Court of Justice that we need our best people, but it is very important to have them in the other institutions.
I refer to the European Select Committee reports, and I should like to tell you what they say about the Council as it now operates, or may operate. Paragraph 75 states:
"So far as meetings of the Council itself are concerned, the Select Committee accept the description given by one of their number—'Too many people are met in a huge disorderly gathering: most people come with prepared speeches and do not even listen to

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what their colleagues say. They make no pretence; they do not even have their headphones on'".
I am told that that very important Commission, which exercises so much authority and power, is often inclined to be regarded as a backwater; people do not want to go there lest they lose their chance of promotion here. That must be altered. We must remember that there are 10,000 civil servants there.
At paragraph 55 the Select Committee's report states:
"The Select Committee believe that the debate on European Union has concentrated too much on the enlargement of the legislative powers of the European Parliament as a way of solving"—
My Lords, I apologise; I am reading the wrong paragraph. Paragraph 66 reads:
"If the Commission is seen and treated as a mere bureaucracy, subservient to, and under the detailed control of the Member States, the whole scheme of the Treaties becomes distorted. It is essential, if the Community system is to work well, that the Commission should be in a position to carry out properly the duties imposed on it by the Treaties and thereby to command respect".
In practical terms that means that it must be adequately staffed and adequately funded, and that the career structure for its officials should be such as to attract people of the highest quality. There is serious concern that these requirements are not being met.
Therefore, I urge us to go into Europe with enthusiasm and vigour. Let us send our best people there to represent us on the Commission, the Council and the Parliament. Then, with a good voice, we shall be able to carry and urge England forward. The purple patches in an article in The Times today were cut out; I had a purple patch with which I was going to conclude. In 1974, sitting as Master of the Rolls, I drew this picture:
"The Treaty is like an incoming tide. It flows into the estuaries and tip the rivers. It cannot be held hack."
I continue with this imagery:
"Look, there is a ship coming in with the tide. She is called 'European Union'. But she is in difficulty. She is overloaded. Her gear and tackle are all adrift. She is in danger of stranding. Send out a good boat to help her. Here is one. It is called 'United Kingdom'. Put good men aboard the 'European Union'. Make good the rigging. Heave on the ropes. All together now. Get her clear. See that she can ride out any storm. She must be made equal to any ship that sails the oceans of the world".
I have said all that—and everyone should believe this—so as to encourage us not to be isolationist any more. We must recognise the importance of what we can contribute to European union. Let us help all we can to achieve that.
4.15 p.m.
Lord Reay: My Lords, some of us believe that two full days in Committee discussing amendments, none of which could be accepted or passed without wrecking this Bill, was a very considerable waste of the time of this House, an abuse of the habit of indulgence of this House, if not of its procedures, and something which we would hope not to see again in a long time.
The noble Lord, Lord Bruce of Donington, claimed to have discovered a new doctrine which he said had been embraced by his opponents—
Lord Stoddart of Swindon: My Lords, will the noble Lord give way? Can the noble Lord explain why any government should put forward a Bill to be discussed
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in another place arid in this House, and then that Members of this House should be criticised for discussing and trying to amend that Bill? Is that not what we are here to do?
Lord Reay: My Lords, I shall pass on to what the effect of an amendment would be. The fact is that an amendment to this Bill would have amounted to the wrecking of the Bill, because an amendment would have been exactly the equivalent of a refusal by Parliament to ratify the Bill. I agree with the noble Lord, Lord Bruce, that Parliament had to have a discussion on the Bill, and indeed, it had a discussion on the question of ratification. The question about which Members of this House had to make up their minds was whether it was worth refusing to ratify the Bill, which would have been the consequence of accepting any one of the noble Lord's amendments, and what would be the consequences of such a refusal.
I suggest that those consequences would have been deplorable politically. For us in this country to have failed to ratify—and no other country has given any signs of failing to ratify this Bill—would at once have cast us back into the role of the Community's reluctant and unreliable member, and there would then be no question of us receiving any support for policies over Syria or any other matter about which we may wish to go to the Community and ask for its support.
The achievement of this Bill seems to have been the introduction of a new period of stability. It seems to have brought about a healing of long-standing, very festering divisions between us and our partners. Against all the odds, a broad measure of agreement seems to have been reached with regard to the rate and direction of Europe's economic and political progress.
As the noble and learned Lord, Lord Denning, has just reminded us, the purpose of this Bill is to improve the decision-making procedures of the Community, above all for the purpose of completing the internal market. For years this has been regarded by many people, including ourselves, as a desirable goal, and indeed even urgent. We have long deplored the existing situation. We have repeatedly brought before the Community our different proposals as to how these procedures could be improved and the internal market completed. I suggest that it would be quite incomprehensible if we were to turn back now.
Lord Tranmire: My Lords, in view of what my noble friend Lord Reay has just said, I wonder whether, when my noble friend the Minister winds up, she could give us a picture of what progress the other contracting parties have made towards ratification. There were four contracting parties which made declarations saying that they could not accept certain of the articles. In fact, in their declarations, they were introducing the very amendments to the Bill which my noble friend said were impossible. I think that we should have that information before we pass this Bill, because we have been pressed both here and in another place to deal with the Bill very quickly. Fortunately, we do not have a guillotine in this House, but in my time in the other place I have found no parallel of a constitutional Bill being guillotined, except when we passed the European Communities Bill in 1972. I shall leave that matter because I do not want to be contentious today.

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My main concern is the damage that will be done by this Bill to the sovereignty of Parliament. Therefore, I was interested when my noble friend said that the Single European Act does not detract from the powers of Parliament. That of course is in conflict both with the able 12th Report from our European Economic Committee, which said that the position of Parliament will be weakened, and even more so with the 3rd Report of the Foreign Affairs Committee of the House of Commons. This says:
"We agree with the House of Lords' Committee that the powers of the United Kingdom Parliament will be weakened by the Single European Act".
They have used "powers" instead of "position", but they are both in conflict with what my noble friend said in her opening speech.
Going back to 16th February 1972, I remember that I then said in my speech in the House (at col. 472 of Hansard):
"I have not been sent here by my constituents to gamble away parliamentary sovereignty".
I no longer have representative responsibility, but I have been a Member of this Parliament for over 57 years and my anxieties with this new Bill have been intensified.
The inspiration for this Bill was stimulated by the report of the Dooge Committee. What they recommended we find in paragraph 49 of the 14th Report of our Select Committee. They stated:
"National authorities have, through their experts, gained too much ground over the last 10 years".
I know nothing at all about how the parliaments of other countries have behaved, but I know our own Ministers, our own councils, our own Parliament, and especially our own Select Committee, have behaved in a co-operative way with the Commission and the European Assembly, now the European Parliament. A great deal of that is due to the two chairmen of our Select Committee, the late Lady Tweedsmuir, who was indefatigable in this connection, and the noble Baroness who sits opposite, Lady Llewelyn-Davies of Hastoe. Both have been untiring and successful in dealing with the proposals that have been put before their committee.
Perhaps I may now turn to the difficulty that we face. With the Single European Act the task that Parliament faces is going to be far greater than we envisaged in 1972 to 1974. At that time in the House of Commons the Government appointed a Select Committee under the chairmanship of Sir John Foster—who was a keen advocate of accession to the Treaty of Rome—to examine and to report on how to deal with secondary legislation. In paragraph 36 of their report they said:
"It remains central to the United Kingdom concept and structure of parliamentary democracy that control of the law-making processes lies with Parliament and ultimately with the elected members of it. It follows therefore that new and special procedures are necessary to make good so far as may be done the inroads made into that concept and structure by these methods of making law."
That report was debated in the lower House on 24th January 1974. The Government spokesman was James Prior. He made no suggestion for any new procedures that had been recommended by the Foster Committee, but stated that six additional
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parliamentary days would be offered for the discussion of Community legislation.
At that time I had been chairman of the Select Committee on Procedure for a number of years. In that debate on the report I said (at col. 1943 of Hansard):
"we should take a close look at [the committee's] recommendations to see how they can be fitted into our procedures without doing too much damage to the traditions of the House".
I then proceeded to recommend a much more radical reform of the procedures of the House.
At that time the evidence to the Foster Committee was that the House would probably have to examine between 300 and 400 proposals a year from the European Community. I hope that my noble friend will be able to help us when she winds up the debate by giving us her estimate of how many proposals will require parliamentary scrutiny as a result of both the expansion of the Community and the Single European Act. We have to face that fact if we are to do our job properly under this Act. I do not believe that it will be merely 300 or 400. I think we will be dealing in thousands. This means completely new procedures in Parliament for tackling this job.
Therefore, I suggest that both Houses should have a radical reform of their procedures so that they can take on this extra work. Clearly, as recent exchanges have shown, we are over-burdened in this House with work. It is hard to fit in all the debates; and the House of Commons must be in a worse state because, as I said before, they had to guillotine a constitutional Bill, which would have been against all the laws of procedure in the early days of my time in Parliament.
I noticed in the Second Reading debate that my noble friend Lord Bethell suggested that there should be a committee formed of Members of the two Houses of the British Parliament aided by British Members of the European Parliament to carry out the onerous responsibilities of scrutiny. I see some technical objections to that, and also perhaps practical objection. It would be difficult to get your members of the European Parliament here to take part in a committee. But I completely agree with my noble friend Lord Bethel] that this is one of the matters that ought to be examined by any inquiry for any reform of our procedures to be effective.
If we do not get the radical reform of our procedures so that we can cope with this mass of secondary legislation that is going to come, particularly after the new powers being given to the Commission, then I fear that the whole system of parliamentary democracy in this country will in time disintegrate.
Sometimes in my moments of gloom I recall the boast of Sir Geoffrey Rippon when he moved the introduction of the Second Reading of the European Communities Bill on 13th February 1972. He said:
"The House as a whole may therefore be reassured that there is no question of this Bill making a thousand years of British law subservient to the Code Napoleon."—[Official Report, Commons, 15/2/1972; col 270.]
Who will dare to say that today?
4.30 p.m.
Viscount Massereene and Ferrard: My Lords, I heartily agree with my noble friend who has just sat

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down. When I spoke on Second Reading I was hoping to take part at Committee stage, but unfortunately owing to unforeseen circumstances and illness I was unable to do so. I am pleased to take part in the Third Reading debate, and I shall be very short.
One thing that has worried me about the whole procedure here is what I would call the secrecy by which this Bill has been put before Parliament. We had Second Reading on the day when the House rose. We then had a reasonable Committee stage. But Report stage was on a Monday, when there was a very thin House, with hardly anybody here, and it went on the nod. Today is another Monday, but I am glad to observe that quite a number of peers are present. What is perfectly obvious is that we know that this is a very important constitutional Bill, but from the point of view of public understanding, it has not been given the attention that it ought to have been given. I have asked many intelligent and experienced people about this Bill. Hardly any of them know anything about it. I have even asked the chairmen of Conservative constituencies and they know nothing about it. There seems to have been a veil of secrecy over the whole procedure.
My noble friend the Minister told us what a wonderful thing this Bill will be for Britain; that there will be no danger to our sovereignty and so on. But if that is so, why was there not more publicity? The title of the Bill itself is deceptive. When I first saw the Bill I thought it was of little importance and when I read it the Bill meant little to me. Instead of being called the European Communities (Amendment) Bill, it ought to have been called the "European Political Union Bill". Then the public would probably have taken notice. Even the press appear to know nothing about it. I cannot understand this. I feel that there have been some faceless individuals—who they are, I do not know—of great power who have been able to manipulate the Government into keeping this Bill out of the limelight, which I think is a pity. I am not in any way blaming my noble friend on the Front Bench. She would not dream of doing such things.
I understood my noble friend Lady Young to say that the Bill would not affect our sovereignty at all and that it would mean a great advance in the welfare of this country. But this Bill debases the sovereignty of the Queen in Parliament: there is no doubt about it. If we debase the sovereignty of the Queen in Parliament we debase our law. It is as plain as daylight that British law, our common law, our legislative system, will eventually be under the Supreme Court of the EC. That cannot be avoided. I may even live to see the day when foreign judges sit in our courts to judge United Kingdom citizens. That will take some time no doubt, but I find the idea extremely unattractive.
Various other things will happen. Frontiers are to be abolished. There will be no frontiers. How many members of the EC are there now? I think there are 12 and, if frontiers are to be abolished, what about crime and drugs? Good heavens, think of the poor police! We here will be flooded with foreigners from the whole of Europe, apart from the one or two other countries who are not in the EC. Has anybody thought of that?
I am afraid that I cannot support this Bill, though I cannot do anything about it. I am always being told
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that today is the age of the common man and that therefore anything one says is irrelevant. I am quite prepared to accept that, but not when it comes to the debasing of the sovereignty of. the Queen. My family for centuries in direct line has served every monarch, and we even brought one back.
Lord Boyd-Carpenter: And a jolly good one too, my Lords!
Viscount Massereene and Ferrard: Yes, my Lords, he was; he had a great sense of humour. I have been speaking for six minutes and that is nearly enough.
But something rather worries and surprises me about the Opposition. I agreed with some of the things the noble Lord, Lord Bruce of Donington, said. I did not agree with everything; he cannot be as lucky as that! What worries me is that the majority of the members of the EC have Socialist governments. I think they do, but the noble Lord shakes his head. They certainly have Labour Governments. What is the difference? Surely there is none.
There is a danger. When I was speaking on Second Reading I read a quotation from the political director of the Communist Party in this country, saying that his party must support the EC. He knew when these Bills were introduced, and all the titles of the Bills. He said that we must support by every means in our power the entry of Britain into the EC and support the other Bill that we are now discussing. How he knew when that was to be, or what it was to be called, I have no idea. It was said that it would be a good cover for a Marxist state.
I first came to Parliament 30 years ago. This year we have had many times the number of Bills that we had in this House when I first came here; we had then only about a tenth of the Bills that we have now. In an omnipotent state one will always find that, through bureaucracy, it starts with more and more Bills, as we have had this year. I can only say, in the interests of the common man, that I hope that if we do get an omnipotent state it will not be as ruthless as a Marxist state. Anyway, it will be called something else, because very few politicians today call a spade a spade. One day—though I shall not see it, for I shall be dead—the effect of this Bill, when it is enacted, and of the main Act which it amends, will be that Europe to all intents and purposes will become a totalitarian state. I must apologise to my noble friend on the Front Bench. I am not attacking her; that is the last thing that I would do. I am attacking this Bill. But I can do nothing about it, so I will shut up.
Lord Ezra: My Lords, I had not intended to intervene in this debate as I had not taken part in earlier stages. I tried to intervene during the speech of the noble Lord, Lord Bruce of Donington, but he did not allow me to say the few words that I wanted to say then, so I should like to say them now. It seemed to me that in his vigorous, as always, intervention he was not so much addressing himself to the Bill before us as to our membership of the EC. In my opinion, that had been settled by the referendum which was held during a previous Labour Government and our role now within the European Community is to play the best part we can.

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Having heard what some noble Lords opposite have had to say about this Bill, I feel that from this side of the House I should like to come to the support of the Government and to say that I fully support what they intend to do. I was very impressed by the contribution of the noble and learned Lord, Lord Denning, who said that our best participation in the Community could now be by making people available to play a real role in it. I must say that to a large degree we have done that. The noble Lord, Lord Cockfield, is trying to create a real internal market and I am sure that the whole House supports him in that endeavour. The noble Baroness, Lady Elles, makes a very strong contribution to the affairs of the European Parliament and am sure that we support her and her colleagues in that endeavour. So I very much hope that we shall use this Bill as a stepping stone to playing a more vigorous part in the creation of a European Community in which Britain can play a leading role.
4.45 p.m.
Lord Harmar-Nicholls: My Lords, the opening sentence of the speech of the noble Lord, Lord Ezra, caused me some disquiet. I had not intended to intervene, although I have a point that I want to put to your Lordships. His opening sentence was, in effect, that we have had our referendum, it was decided, and that is that as though that was the end of the matter and we automatically go forward with everything that now flows from Brussels and Strasbourg just because in the referendum at the time we had a majority. I hope that that will not be the approach of this Government or any other government when they are dealing with these matters. That was far from being "that", and many things have happened since the referendum.
I confess at once that perhaps I approach this with some slight prejudice. I thought the whole idea was premature and I did not think that it would work. Alongside the noble Lord, Lord Tranmire, I was one of the 38 who voted against joining from the Conservative Benches when the idea was being pushed that we ought to enter. But after that I felt that the only way that we could continue, once we had accepted membership and had signed the Treaty of Rome, was to make it our duty to do all we could to make it work. That is the only way that you can run civilised parliamentary government, as we have set it up.
One thing I learnt in the five years that I sat in the European Parliament—and I pass this on for what it is worth to my noble friend and to the Government—was not to take anything blindly just because we had had a referendum at the beginning of all this. I assure my noble friend that if in the long term the Community is to work, one final ingredient is necessary and up to now that ingredient is not there. There is not in the European Community, certainly not in the European Parliament and I doubt whether there is in the Commission, the affinity necessary for it really to work. The members are very much separate entities; they look upon the Community as something where self-interest has to be taken into account. I do not grumble at that because I feel exactly that way about the United Kingdom's membership. But the affinity is not there. If we go on easily accepting every
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step along the road—such steps as those represented by this Bill—without questioning them, we shall not be doing a service either to Europe or to ourselves.
I hope that my noble friend and her colleagues in government will pay real heed to the sort of contribution that we have had from my noble friend Lord Tranmire. We should listen to the criticisms and not take it for granted that, because we are a member and want to make the Community work if we can, and because we have had the referendum, that is that. We may well reach a point where we ought perhaps to retreat to some extent. That may well be so in matters of law. One listens with care and concern to the noble and learned Lord, Lord Denning, who from the first gave warnings to the nation as to what could flow from signing the Treaty of Rome.
The Treaty of Rome was far from a perfect document. It was far from being something which could remain unaltered forever, although some may have thought that things were always going to remain as they were. Today, the Government must get their Bill. There can be no question of doing anything other than giving it a Third Reading today. But I hope that some of the points of real relevance that have been made from all sides will be taken into account. I hope that this Government and any future government will be on the alert and will not feel, because we had a referendum and eventually signed the original Treaty of Rome, that if the need shows itself we cannot deviate from some of the suggestions that have come from other quarters.
I hope there will be no need for deviation, but the affinity, the real understanding, the feeling that the members want to be one community is not there. I did not find that feeling, much as many members desire it. If we keep that in mind and use whatever powers we have in reserve to look after our interests in the interests of Europe, I do not think that we can go far wrong. One cannot lie back and say that that referendum decision settled the matter forever. It certainly did not do so in my view.
Lord Ezra: My Lords, before the noble Lord sits down, let me say that it was not my intention to say that the referendum settled anything forever. What I intended to say was that it was the view of the British people that we should continue in membership of the Community and try to make it work.
Lord Wilberforce: My Lords, I trust that the noble Baroness will indulge me for just a few minutes. I know that she wants to reply and I know that the House wants to hear her. I want to say just a few words for two reasons. One is that because of the unsocial hours at which the early stages of the Bill came on I was not able to participate. The other is that I should not like noble Lords to think that the only legal doctrine about this Bill or about the European Communities is that which is so eloquently and movingly given us by my noble and learned friend Lord Denning and still less that given us by the noble Viscount who spoke a few moments ago.
When we were thinking of entering the Community in 1972, a number of eminent lawyers in this country—British lawyers—were consulted informally and formally on whether entry would pose a threat to

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our law, our common law, our institutions, our courts, the position of the Queen and so on. All those questions were most carefully considered and advised upon. The decision which was taken by Her Majesty's Government to enter the Community was taken in view of advice that no such threat to our essential institutions existed. That was the time we decided to enter into the Community.
This Bill does nothing beyond that. It adds nothing more in principle. I know that the noble and learned Lord shakes his head and presents this as a terrible, irrevocable new step that is going to sign away a lot more liberties. The noble Baroness has explained both in her Second Reading speech and on other occasions that that is not so. This is simply a Bill designed to improve the procedure by which the Community is going to work. I take up the welcome words of the noble and learned Lord:
"Let us go into Europe with enthusiasm and vigour".
Those were happy words, except for the phrase "go into Europe". We have been there for 14 years. Let us have enthusiasm and vigour certainly, and I am glad that he has lent the weight of his authority to that proposition.
I was astonished to hear an argument from the noble Lord. Lord Bruce of Donington, who, after complaining that we were in deficit on manufactures by £9 billion in the course of this year—although I believe he said £9 million—
Lord Bruce of Donington: My Lords, £9 billion.
Lord Wilberforce:—then seemed to object to the Bill, which was designed to counteract that by enabling us to get access to the insurance market, to get access to the professional market, to increase our invisibles and to get more research and technology done. It seems to me a strange argument. However, one has heard many strange arguments.
Perhaps I may say a word about sovereignty, although I am sure noble Lords do not want a discourse on that very elusive subject. It has struck me that discussions in this House and also in another place have proceeded as if we are the only party in the transaction and the only body concerned. There are 11 other countries concerned, many of them extremely nationalistic, many of them very chauvinistic and with very strong ideas about the position of their national parliaments, their heads of state and so on. One need only think back to General de Gaulle to realise that. The whole essence of this transaction is that every one of those 12 countries is prepared (assuming that they come into this Act, and the noble Baroness will tell us what the process is) to consent to a certain diminution of their absolute sovereignty in the general interest.
The question one ought to ask in this context is whether the diminution of our own sovereignty is advantageous to us, having regard to the diminution of the sovereignty of others which they accept by entering into this Act as well. Sovereignty is not in this context what is called a zero sum. One does not like giving up one's sovereignty to increase someone else's sovereignty. That is why the argument concerning the Falklands and Gibraltar is a false one. When one deals with territorial sovereignty, one is concerned with a zero sum.
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If one give up territory, somebody else gains it. If we give up Gibraltar, Spains gains it. If we give up the Falkland Islands, Argentina gains the Islas Malvinas. That is indeed a case where one man's loss is another's gain. However, that is not the case with multilateral international treaties. One enters into obligations in the hope of gaining benefits from the obligations of others. That is the question we ought to be considering.
The noble Baroness has put over to us extremely well that it is in our interests at this stage in Community development to have the obligation of the other states to improve the decision-making process and to give us access to economic areas from which we have hitherto been excluded. It may be true that Parliament's sovereignty and liberty of action are for the time being diminished. However, they are not taken away. Parliament is free to decide at any time to take us out of the Community. It can take us out tomorrow if it is willing to face the consequences.
The consequences of entering into a treaty are that while you are in the treaty you are bound by international obligations, There is nothing new about that; it has been the lam, for generations that international obligations take precedence over domestic obligations. Everyone has always accepted that. One can free oneself from international obligations, but while one retains them one's freedom of action is limited to that extent.
I wish to make one other point which was touched upon by the noble Viscount who spoke a few moments ago. I, and I expect many other noble Lords in this House, have received a large correspondence on this Bill. There have been many letters and they are not the usual letters from professional protesters, cranks or eccentrics. For the most part they are from caring, thoughtful and educated people who are troubled by the impression they have that we are being taken against our will into some new situation where our essential liberties will be taken away. I think that the noble Viscount was perfectly right in saying that that misapprehension is sometimes found even in this Chamber and in other parts of the House where discussions take place. It is certainly found in educated circles and is reflected in these rather moving letters.
I respectfully suggest that the Government have a duty to try to put across more directly and more fully than has been done up to now what is the real object of this Bill. It is essential for our economic interests and in order to redress this adverse balance that we have on manufactures and so on that the decision-making process be improved. We are not making any fundamental attack on our liberties. To the extent that the Commission can decide more rapidly, Parliament may be able to decide rather less, but that is the extent of the limitation on parliamentary sovereignty.
If the noble Baroness could persuade our colleagues in the European Parliament and those in the House and elsewhere to spread the gospel, perhaps embark upon speeches around the country or encourage well-informed articles to explain the real position, I feel that much good would be done and much misapprehension would be dispelled. Having said that, I join entirely with those supporting the Bill. It is an essential Bill if the Community is to be workable and

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I hope that the Government will succeed in getting accession from the other members of the Community to it.
Lord Moran: My Lords, I shall be brief because I had my say on this Bill on Second Reading. I have been to some extent in a dilemma on the Bill because I am very strongly in favour of the completion of the internal market. The more I study it, the more important it seems to me to be for British interests. At the moment it is to some extent a one-sided market, in that our own market is freely open to manufactures of all sorts from Europe, whereas in those fields where we have particular skills, such as banking and insurance and financial services, we encounter difficulty.
To the extent that we can make this market wholly complete, I think it is very important and that we should do everything possible to attain it. However, I am not convinced that the mechanism of extending majority decisions which is brought in by the Single European Act will, in fact, be effective in removing obstacles to the completion of this internal market. I hope that I am wrong, but I must confess to having some doubts.
I have mentioned at previous stages of this Bill my doubts about the reality of achieving, over a relatively short time scale, a common European foreign policy. The Single European Act institutionalises the political co-operation that has existed for some years past and I think that a common European foreign policy is a splendid aspiration. What I doubt is whether it will be a reality in the immediate future or beyond. I think the Luxembourg meeting on 27th October brought that home to all of us, when we saw our Foreign Secretary, with an overwhelming case against Syria and with evidence carefully sifted and gone into by a court of law with enormous thoroughness in this country, being unable to persuade his colleagues to take common action. We saw one country—Greece—taking a wholly incomprehensible line. I was not surprised that some members of the Government party in another place who were keen Europeans were going so far as to talk about "our so-called partners" after that meeting.
However, my fear in this Bill has all along been that the Single European Act is a step down the slope towards a United States of Europe. It is a further shift of power and influence from this place to Brussels and I am not at all convinced that this is something that the British public wants.
I am very glad that the noble and learned Lord, Lord Wilberforce, mentioned the letters which many of us have had. I have had some of these and I am sure that many of your Lordships have. They express real anxieties and I think that those anxieties are very widely spread among thoughtful people in this country. That is something of which the Government and all of us ought to take very careful account. This Bill has been going through Parliament with the great mass of the country totally unaware of what is going on. But the thoughtful people who have been following it are concerned about it and that is something that the Government should ponder.
5 p.m.
Baroness Young: My Lords, with the leave of the House I should like to start my remarks as I began when moving the Third Reading of this Bill, by thanking those, such as my noble friend Lord Reay and the noble Lord, Lord Ezra, who have supported the Bill in this discussion this afternoon. Also, I think that the whole House was very grateful to the noble and learned Lord, Lord Wilberforce, for his most telling and important intervention. I should also like to thank the noble Lord, Lord Banks, but to draw his attention to the fact that my right honourable friend the Lord Privy Seal voted for this Bill at Second Reading in another place; and of course, as he will know from the constitution, it would be a collective Cabinet decision.
May I say to the noble Lord, Lord Bruce of Donington, and the noble Lord, Lord Stoddart, that if I did not refer to them at the beginning it was because I knew that the noble Lord, Lord Bruce, was to speak later and, though I do not really agree with anything that he said in his speech, I accept the sincerity with which he made his remarks. I am glad to confirm to him that we have kept to the parliamentary timetable that was agreed, and I was grateful for his agreement.
That brings me to a general point that was raised by my noble friend Lord Massereene and Ferrard and the noble Lord, Lord Moran, who has just spoken. to the effect that the Bill has in some way been rushed. I said that we have had over 50 hours of debate, but so far as your Lordships' House is concerned there has been nothing unusual in the steps by which this Bill has proceeded. I gave an undertaking at the beginning of the Committee stage that we would have plenty of time for discussion. We had two full days in Committee, and there has been an opportunity for extensive discussion again at Third Reading.
Of course, we all take the point of the noble and learned Lord, Lord Wilberforce, that perhaps we ought somehow to make the details of the Bill better known. Some of us have tried very hard to that effect and we must continue to do so. It is not always as easy as perhaps it sounds to get these things across, but I can assure your Lordships that there has been no want of trying nor has there not been the wish to get the detail of the Bill better known outside.
I have been asked a number of quite specific questions to which I should like to turn. My noble friend Lord Tranmire raised two particular points. The first one—and it is a point raised by others—is: what is the situation now on the ratification timetable? Two member states, Denmark and Belgium, have both ratified. All other member states have committed themselves to taking steps which will enable them to ratify by the end of the year. My information is that all member states are on schedule, with the possible exception of the Federal Republic of Germany who have to consult the constituent states of the federation.
My noble friend also asked about the likely increase in decisions as a result of enlargement and the Single European Act. As I am sure my noble friend will appreciate, I cannot make a precise prediction. I do not envisage a significant increase in proposals and therefore a substantial requirement for additional debates. The rate of decision-taking should improve.

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The new co-operation procedure with the European Parliament will involve an extra burden of scrutiny and I made clear at Second Reading that the Government would he ready to adopt procedures to help meet the requirements which the Select Committee of your Lordships' House has already identified.
The noble Lord, Lord Bruce, made a number of statements about the Bill and criticisms of statements that have been made by those who were in favour of Britain's entry into the Community and of the Bill before the House. He drew attention to the United Kingdom's deficit in trade in manufactures with the rest of the Community. But, as he admitted, we must not forget our substantial surplus on oil—£11·2 billion last year. He went on to say that it was not difficult to sell oil to countries that do not produce it themselves, but he failed to draw an important conclusion. We do well on oil exports to the Community because we are selling our partners something that they want on terms which are highly competitive.
The Germans do well selling their manufactures in Europe and elsewhere for exactly the same reason. Their positive balance of trade with us reflects both this and the fact that their own market is less open than ours. The solution to this is not to put up our barriers to trade. That would simply make our own market less efficient and our firms less internationally competitive, as well as imposing higher prices on consumers. What we need to do is to make our products more competitive in terms of price, quality, meeting the demands of our potential customers and, most important of all, we need to break down the barriers to trade which other member states have created. That is what the Single European Act is intended to do.
The noble Lord, Lord Bruce, also raised the point about Syria and our veto over the European Community's funds. The noble Lord, Lord Moran, also asked about that in relation to political cooperation. As regards the point made by the noble Lord, Lord Bruce, if I may say so, I think he has confused two issues, one on special restitutions in respect of agricultural exports to Syria, which have taken place but will do so no longer, and Community aid to Syria.
The financial protocols of all the Community's agreements with countries of the Mediterranean are due for renewal. We have said that there can be no question of the United Kingdom agreeing to such financial assistance to Syria in the present circumstances and, since the money cannot be paid without our agreement, our decision will be effective. Aid to Syria, which would be worth £100 million over five years, will therefore be denied.
The third point that I should like to clear up concerns Title III not being within the scope of the Bill. I believe that I explained this fully at Committee stage, but in case there should be any misunderstanding of the point I will go over it again. Clause 1 of the Bill makes clear that the Preamble and Titles I and IV of the Single European Act are within the scope of the Bill only in so far as
"they relate to any of the Communities or any Community institution."
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In so far as these parts of the Single European Act relate to Title III arid thus to European political cooperation, they do not relate to the Community and are outside the scope of the Bill.
The noble and learned Lord, Lord Denning, whose support I am so pleased we have, referred to the legacy of our history and to the tragic loss of life in two world wars that he had seen. But how much more tragic it would he if we had learned nothing from these sacrifices. We have, in fact, learned something. We have learned the necessity of linking ourselves to the democratic countries of Europe. The Preamble to the Treaty of Rome concludes:
"Resolve by thus pooling their resources to preserve and strengthen peace and liberty and calling upon the other peoples of Europe who share their ideal to join in their efforts".
The Community has helped to make war unthinkable between the member states. That is no sacrifice of British interests; it is what most of us have striven all our public lives to achieve.
We are a European power. The European Community is the principal voice, economic and political, of European nations. It is inconceivable that we should not play a leading part in shaping the policies of the Community. In doing so we do not have to abandon old alliances for the sake of new ones, as some feared in the 1950s. Our relationship with the United States is as central to our political and defence interests as ever, and the friendship between us is as close as ever. But when it comes to holding our own in trade there is no special relationship. The Americans say that there is no such thing as a good loser—just a loser. To sell our steel in the United States we need the bargaining strength of the Community. To compete with the United States or Japan in the new technologies, we need the economies of scale which only a single large market can bring. It is unthinkable that our voice should not be heard as part of the Community in the negotiations affecting our vital economic and political interests, a point made by the noble Lord, Lord Bruce of Donington.
I do not underestimate the arguments about sovereignty that have been made in our debates. But sovereignty is about power, and above all the power to act in the interests of this country. The logical conclusion of the argument that absolute sovereignty must he retained in the British Parliament is that we would be members of neither NATO nor the Community—the two alliances on which our security and prosperity most depend. The arguments raised by the noble Lord, Lord Bruce, and by my noble friend Lord Tranmire, are not about the Single European Act. They are arguments for turning the clock back, not to before December 1985 but to before 1972. I do not believe their view is shared by the majority of people in this country.
A European Community without Britain would be poorer politically and economically. But it would be a powerful force none the less. It would increasingly speak with one voice in foreign policy. We could tag along or dissent. If we did the latter, how clearly would we be heard? A Community without Britain would negotiate trade agreements with Japan and the United States. We could not afford to be excluded; but we would have no right to be included.

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A Community without Britain would set its own standards in every field from car safety and pollution to animal and plant health. Our motto is export or die. Half our exports now go to the Community. Our motto would have to become "Comply if you want to export". We would have to meet European standards. But we would not have been at the table where the key decisions were taken.
The Select Committee on the European Communities of your Lordships' House—and perhaps I may say again how pleased we are that the noble Baroness, Lady Llewelyn-Davies of Hastoe, has been in her place throughout the debate—was right to pose the question whether loss of sovereignty was outweighed by the greater ability to see our interests effectively pursued. I believe that in these debates your Lordships have already given your answer to that question.
Your Lordships' House has always led the way in wanting to make a success of our membership of the Community. The reports of the Select Committee on the European Communities have shown that it is possible to participate fully and positively while safeguarding our essential interests. Of course we can be timid. But to what end? The real world would not stop because we had got off. On the contrary we should be affected by events and decisions over which we had no influence. We made that mistake in the 1950s. We should not repeat it now.
The Single European Act creates the potential for more decisive Community action in areas where we want to see progress made. Community and national interests are at one in this. I have no hesitation in saying to your Lordships that this Bill is in the national interests. I commend it to your Lordships' House.
On Question, Bill read a third time and passed.

National Health Service (Amendment) Bill
5.15 p.m.
Read a third time.
Clause 3 [Pharmaceutical services]:
Lord Harris of High Cross Lord Harris of High Cross moved the amendment:
Page 7, line 20, at end, insert—
(" ( ) Without prejudice to the provisions of section 42 of the 1977 Act and subsection (2) of section 27 of the 1978 Act, the Secretary of State may make financial and other arrangements and regulations applicable to such arrangements for the provision of pharmaceutical services, drugs, medicines or appliances pursuant to prescriptions issued by medical or dental practitioners by registered pharmacists, whether or not such pharmacists carry on business pursuant to any entry on a list under those two sections")
The noble Lord said: My Lords, it may be remembered that at the Report stage I told the noble Baroness on the matter about which we were arguing that I should pursue her. I said then "privately and persistently". I have to apologise to your Lordships that persistence has won over privacy, because I wish to move an amendment that offers a considerable advance on the amendment that I put forward at Report stage.
I withdrew that amendment and said that I hoped that its appeal was sufficient to fructify in the mind of the noble Baroness as time went by. I offered the amendment as an olive branch and the noble Baroness said that she thought it might conceal the apple of temptation. I thought a lot about that. Accordingly, I return to the issue and I am openly proffering her a positive fruit basket which leaves her and her colleagues with wide choice for future nourishment but without any suggestion of forced feeding. In other words, this is an enabling change and not a mandatory one.
All the amendments to Clause 3, moved from various parts of the House at earlier stages, have been directed at the central objection that Clause 3 as it stands conflicts headlong not merely with the Government's commitment but with a widely shared commitment towards encouraging competition, new enterprise and efficiency throughout our economy. This clause conflicts with that objective even to the extent of drawing a strong rebuke from the Office of Fair Trading. At its simplest, Clause 3 entrenches a presumption against a new pharmacist entering the market unless he can prove that it is "necessary or desirable".
My earlier amendment would have permitted any qualified pharmacist to set up shop and to dispense NHS prescriptions without commanding a professional fee under the full contract. In place of the present cost-plus system, a newcomer would simply have been reimbursed the cost of making up the prescription. That was rejected. The amendment that I now move is an open-ended and permissive change. It would simply give the Secretary of State the power to introduce at any time alternative arrangements for allowing qualified pharmacists to dispense prescriptions in the absence of the present full cost-plus contract, which is all that Clause 3 now allows. Thus it leaves open the door for the Government to adjust the financial incentives and disincentives in future without going through the trauma of new primary legislation and yet another National Health Service (Amendment) Bill in a year or two's time.
It is perfectly plain from our debates that the present Clause 3 would not have been necessary if the prevailing set of incentives had brought about the desired location of pharmacies. That is why the Government are now abolishing the basic practice allowance; that is why they are now offering compensation to smaller pharmacies that surrender their contracts; and that is why they are reducing the minimum number of prescriptions for eligibility for the essential small pharmacy bonus. But the DHSS cannot possibly know in advance whether these stricter provisions will lead to too few or, as I think more likely, too many closures. Likewise, the Department of Health and Social Security cannot know what pattern of community service would be favoured by the public in the years ahead.
In their briefing note on the new contract, the DHSS experts say that the undoubted merits of competition are not relevant in this case because,
"the nature of the produce is invariable".
In my view, that is another example of expert nonsense. The traditional chemist shops are already

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giving way to a wide variety of competing retail outlets. There is the phenomenon of drug stores that do not handle prescriptions—at least, do not yet handle prescriptions. There is an increasing number of chains, old and new, that derive no more than perhaps 5 per cent. or 15 per cent. of turnover from dispensing; and there is the preponderance of independents that look to the National Health Service for more than 70 per cent. of their business.
Even such neat categories do not exhaust the extending range of differing services and product mixes which are still at an early stage of competitive evolution. For example, Safeway already has 26 pharmacies in its 127 supermarkets, providing what the company calls "a caring service in immaculate surroundings". Safeway would like still more pharmacies with their caring service. Both the Nuffield Report and the consultative document on Primary Health Care envisage the possibility of far-reaching changes, not least in developing the pharmacists' role with advice and even treatment for some ailments. In this week's Pharmaceutical Journal there is a most impressive story of a Midlands based pharmacy company—Lloyd's chemists—which celebrated the opening of its one hundredth pharmacy. This one hundredth pharmacy is the first in the group to include a "pharmacy advice room". The company's policy, it says, it to include such a feature in future new premises wherever possible. It goes on to tell of the remarkable enterprise. of Mr. Lloyd, who in the space of 13 short years has built up a new business.
At Report stage the noble Baroness teased me for promoting what she thought were the vested interests of the large multiples against the small pharmacists, of which she and others see themselves as the champions. The point I wish to emphasise with all possible urgency is that the scope for future creative enterprise is certainly not confined to the large chains, which incidentally all developed from small beginnings, even as did the Co-op. What would become of a young enterprising pharmacist today—a budding Jesse Boot—who invents a better way of serving the needs or changing preferences of potential customers? If he finds suitable premises he can move in and apply under Clause 3 for a contract. According to the regulations he may wait for up to two months to be turned down by the new local sub-committees. He may then appeal and hope to receive a reply in the space of a further three months. Therefore, he would have his premises for five months without knowing whether he was a pharmacist or merely a soap salesman.
As an alternative he may be faced with buying up an existing chemist and paying perhaps £10,000 to £50,000 extra as a premium for an NHS contract, but in a location which he would not choose for his new enterprise. The insistent question is why an enterprising pharmacist should not be allowed the opportunity of selecting premises for his new style of business and then dispensing NHS prescriptions on a strict cost reimbursement basis, without the professional fee or profit element which at the moment averages over 60 pence per item prescribed? If that option is denied to him the most enterprising pharmacist may be prevented from putting his ideas to the test. But for every new entrant of this kind who
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accepts these terms the NHS stands to save up to £22,000 a year on the average of 35,000 prescriptions.
In my final appeal to the noble Baroness I will try flattery—it has sometimes been known to work. I would say perfectly earnestly that since 1979 one of this Government's greatest merits has been that they have accepted change and have taken a longer view than most of their predecessors in designing their policies. I approve of that. However, I fear that in this Bill, in Clause 3, the Government are in danger of letting themselves down. It is true that the developments already in train will not be completely frozen by this new paraphernalia of restriction, but they will be delayed and distorted and that may cost the DHSS dear. If some new variant of drug stores were to take more of the traditional chemist's trade from existing pharmacies, the latter would become more and more dependent on NHS dispensing and, through the PSNC, would demand higher fees to offset a declining turnover.
This amendment would enable the DHSS to protect itself from that possibilityof escalating costs. If it were applied to take the plus out of cost-plus for new pharmacists, it could eventually save tens of millions of pounds a year. I strongly commend the amendment to the noble Baroness as giving her the best of both worlds. It would commit the Government to nothing, yet would leave open the door to adjusting the financial incentives and disincentives precisely as the PSNC set out to do at the beginning of this long and so far unhappy story. I beg to move.
Lord Ennals: My Lords, I have to say that I have never known the noble Baroness give in to flattery. I have never tried it, of course, but I have heard others try it. I hope that the flattery that has come from the noble Lord will not convince her to do anything unwise. I doubt whether it will.
I have just three rapid points to make against the amendment. The noble Lord is a very good advocate of competition, and I can understand his point. However, I believe that the competition of giving this opportunity to Safeway, Tesco and all sorts of other large chains would largely be at the expense of the existing and often small high street pharmacist. Throughout the debates we have had on this Bill my concern has mainly been to preserve the interests of the high street pharmacists, largely because I believe they provide the best service for the community and for the individuals who need their help. It is an enormous advantage to have a small pharmacist who knows you, your needs and your normal prescriptions and is ready to give advice.
My fear, therefore, is that if the amendment were to be carried we should be faced with a number of closures that would not be in the public interest. Small pharmacists would be pushed out of business, and that is a trend in all sorts of other types of trade all over the country. I do not look upon prescriptions as being trade. It is a service, and while I have expressed doubts about the methods of granting licences, I believe it to be a service that is linked with and is part of, the National Health Service. It is not a field in which commercial competition should play an unrestricted role.

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Finally, the noble Lord referred to the Nuffield Report. There is nothing in the Nuffield Report which could be said to recommend the proposals contained in the amendment. I hope that the House will reject it.
5.30 p.m.
Baroness Trumpington: My Lords, as he said, the noble Lord, Lord Harris of High Cross, moved a similar amendment at Report stage. However, nothing that the noble Lord has said this afternoon has changed my mind. The practical effects of this amendment would be exactly the same. Pharmacies that could afford to operate on a cost-reimbursement only basis would be exempt from the "necessary or desirable" test. The amendment of the noble Lord, Lord Harris of High Cross, is totally contrary to the Government's policy of support to small businesses.
As I explained to your Lordships at Report stage, only the large stores with multiple outlets, where pharmacy is a small proportion of a bigger enterprise, would be able to take advantage of this proposal. The noble Lord, Lord Ennals, has just said exactly the same thing. and I find this new spirit of togetherness between us utterly charming. Only the multiples, with their marketing strength, economies of scale, and ability to command discounts not available to the small pharmacist, would benefit.
Because only a fixed level of NHS dispensing is available, the mutliples would take NHS business away from other smaller NHS pharmacies. As a result the small businessman would suffer. Indeed the small businesses would be driven from the high streets.
Once the cost-reimbursement only pharmacists had cornered the market they could then apply to the local family practitioner committee for a contract under the "necessary" or "desirable" criteria. Having driven out the small pharmacist, they would have a very good chance of success and would obtain not only the cost-part of the contract but also the plus-part. The illusion of savings for the taxpayer and better services for patients created by the noble Lord, Lord Harris of High Cross, would have disappeared for good.
The noble Lord, Lord Harris, said that this amendment would allow financial incentives to be introduced. The Government already have the powers in current primary legislation to change the remuneration structure and to change financial incentives for pharmacies. Therefore, we do not need this amendment. The noble Lord, Lord Harris, also said that the new arrangements will stop new contracts in new shopping centres. The new arrangements for allocating new national health pharmacy contracts will not stop new contracts being allocated in new shopping centres and other places where patients need them. Neither will they hinder development of the pharmacist's role. On the contrary, they will provide a firm foundation for such development.
I do not wish to deprecate the valuable contribution of companies like Underwoods and Safeways. Quite rightly, they are seeking to improve their share of dispensing trade, and it is likely that the right to dispense NHS prescriptions will help the non-pharmacy parts of their businesses as well. But it is the duty of Government to provide a fair balance of
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advantage between all those involved in dispensing, from the small businessman to the large company. All should have an equal chance.
This proposal would give an unfair advantage to the multiples. It sits very uneasily with the proposed new arrangements for allocating NHS contracts. As I explained at Committee stage, the option of financial incentives as a means of achieving a better distribution of NHS pharmacies has been considered carefully and rejected. It would mean many small pharmacies going to the wall. This proposal is merely a variation on that theme.
I should also point out that different patients require different types of service. A trip to the local supermarket to change a prescription is not everybody's cup of tea. The elderly and the disabled, in particular, would in all probability have difficulty finding their way around and would prefer a different environment. That is not to say that the service would be better or worse; but we have to consider very carefully the needs of all patients.
The underlying point is that we have to maintain a fair balance when setting arrangements for NHS pharmacy contracts. The new contract for community pharmacists aims to create a fair and reasonable balance at the same time as achieving a better distribution of services. To do so requires more than the "necessary or desirable" test. The new contract proposes more cost-effective mechanisms for influencing NHS pharmacy distribution through a new remuneration structure which gives incentives to efficient pharmacy provision; and a financially enhanced essential small pharmacies scheme. There will also be special arrangements to allow those contractors dispensing less than 16,000 prescriptions a year to relinquish their contracts on advantageous terms, or to relocate their businesses where they could better serve the needs of patients.
Therefore, this is an integrated package of measures which provides a fair balance of advantage to all involved. This proposal would drive a coach and horses through the new contract. It would load the system firmly in favour of the multiples. That is simply not acceptable.
Lord Harris of High Cross: My Lords, I am naturally disappointed by the noble Baroness's reply on this matter. I remain totally unpersuaded that the Government have got right this time, any more than it did before, what the Nuffield Committee I think called "the set of incentives"—the structure of incentives. We have seen a reduction in the number of pharmacies from 15,000 down at one time to as low as 10,600 in 1980, and we have seen over the last year an increasing number of new pharmacies coming in, encouraged—as I still believe—by the anxiety to beat the gun and obtain a contract with the NHS before this Bill comes into effect.
It has to be said that it is tally unpersuasive to defend this clause as it stands on the basis of encouraging small businesses. That is simply party-political rhetoric. The whole point about encouraging small businesses is to remove obstacles to entry and to encourage people with new ideas to put them to the test by going to the market place, offering something

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different and better and testing whether it will work. The idea of encouraging small businesses is not to create a favoured species—in this case of chemists' shops, where you say that you are defending existing chemists' shops against the threat of the large multiples. The whole basis of improvement comes from the threat and challenge of competition to stir and stimulate improvement by the incumbents.
To the extent that this contract protects the incumbents against the inroads of competition it will perhaps prolong their existence in a tolerable and moderate way of business without giving the stimulus that is necessary to follow the example that I quoted from Lloyd's with their new chemists. The noble Lord, Lord Ennals, said that it had nothing to do with the Nuffield Report. The point I was making was that there was a new entrant—Lloyd's in the Midlands, which I do not know if the noble Lord, Lord Ennals, knew about from the Pharmaceutical Journal issued this week—who has made an effort to set up a consulting room in pleasant surroundings in order to go further than just taking the prescription and telling the patient to come back in half an hour, whether or not it is raining outside. It seems to me that such improvements will increasingly come and will not be confined to the large chains.
Finally, my observation was that despite the efforts to maintain a quiet life with the PSNC, in the end you will not defeat competition or block the ceaseless enterprise of people with vision and an idea that works better than the present system. To say that only the chains will benefit is absurd. If the chains wish to monopolise the market they can go out and from their great capital resources buy up existing chemists. By buying up existing chemists they will have bought a contract. There is no proposal here to withdraw the contract, if these dreadful chains move in and acquire the local chemist's shop. The big chains will have things their way in the sense that to the extent that a new man setting up with meagre resources, who has a new idea but who cannot afford the new premium to get in round the back of the local sub-committees—I call them hanging committees—that are meant to keep them out, will find it more difficult. I am glad to reflect that small men have overcome these problems in the past. No doubt they will do so in the future. I shall withdraw this amendment before any more is said.
Amendment, by leave, withdrawn.
5.40 p.m.
Baroness Trumpington: My Lords, I beg to move, That the Bill do now pass.
This small Bill has grown like Topsy during is passage through this House. Provisions have been added following constructive and cogent debate on a number of important health service issues. The strongly held convictions of your Lordships have always been expressed with the utmost courtesy and kindness, for which I am most grateful. I should like to thank noble Lords from the Opposition Benches, Cross-Benches and indeed my own side of the House for their contributions. We have not always agreed with them, but I suggest tentatively that the Government have responded flexibly and responsibly.
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On the lifting of Crown immunity from health authorities in respect of health and safety legislation, we have recognised the concerns of all sides of the House, accepted the provision in Clause 2 and moved amendments to ensure that that clause has the desired effect. On the new arrangements for allocating NHS pharmacy contracts, we gave careful thought to the views expressed by noble Lords on all sides in Committee. Subsequently, we introduced changes to meet those views, but which leave the long-term objectives of the proposed new arrangements firmly intact.
On the remuneration of the family practitioner services contractor professions, we have demonstrated our firm commitment to act fairly and reasonably when considering their remuneration. We have given clear assurances to allay the concerns of opticians over the outstanding sight test fee overpayments.
We have approached all those issues in a spirit of conciliation rather than confrontation. We have taken a positive rather than a negative approach. Our aim has been to meet the concerns of noble Lords: and, at the same time, the position of those who will be affected by the Bill have been firmly at the forefront of the Government's deliberations—the NHS patients, the professions and others who provide those services, and the taxpayers who pay for them. May I express my deepest gratitude to noble Lords for doing likewise. It would be wrong if I did not conclude by thanking my doughty and trusty Whip, my noble friend Lord Hesketh, for his efforts on my behalf. I beg to move.
5.45 p.m.
Lord Ennals: My Lords, this is a Bill which gives one both pleasure and a little disappointment. I must be careful not to sound as if I am using flattery because flattery normally is designed to produce favours to come, and I am not expecting any.
I want to thank the noble Baroness and the Government for accepting the pressures which came from so many sources, especially after she argued exactly the opposite on Second Reading. Greater wisdom or more votes—I am not certain which it was—finally convinced the Government that following the tragedy of 39 salmonella deaths at Stanley Royd—there was a good deal of pressure from both sides of the House—they had to bring forward an amendment. They realised that that should be done to cover the whole sphere of work in the NHS.
Following a major defeat in this House the Government decided to accept, and indeed to improve on, an amendment that I tabled to include other areas of hospital work, under the heading-of the safe disposal of clinical waste. It would have been easy to send the proposal to the other place and, with their majority overwhelmingly to have defeated it. If they had, we should have been scowling at each other instead of smiling. The areas that are covered come from the Health and Safety Commission:
"The waste arising from medical, nursing, dental, veterinary, pharmaceutical or similar practice, investigation, treatment, care, teaching or research which by nature of its toxic, infectious or dangerous content may prove a hazard or give offence unless previously rendered safe and inoffensive. Such wastes include human or animal tissue or excretions, drugs and medicinal products, swabs and dressings, instruments or similar substances and materials".

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That is what we managed to add to Clause 1.
We won one battle and lost another on pharmicists. The House has greatly improved the system of granting NHS licences for new pharmacists, without damaging the principle of protecting the National Health Service and the pharmacists from the dangers of leapfrogging and from the consequences which I feared would have followed had we accepted a previous amendment.
We did not succeed in giving financial protection to small high street chemists, many of whom will suffer a significant fall in income. I am sure that some will be forced out of business. The Government know that they will and have produced an estimate of how many people they think will be forced out of business as a result of their decisions. Others will struggle on, but they will do so with difficulty. I fear that the removal of compensation for those dealing with fewer than 16,000 prescriptions a year is unfortunate and is a short-sighted measure introduced by the Government, and I deeply regret it.
The noble Baroness achieved a significant improvement for the professions, including opticians, by limiting the period of back-dated profits which can be clawed back by the DHSS.
I want to express my thanks to all who have taken part in the debate. I wish to express my thanks, in particular, to the noble Baroness for taking so seriously the concerns which were expressed in this House. I have been in the other House as well as in this House, and I believe that the handling of this Bill was a good example of the way in which your Lordships' House can effectively fill its role as a revising Chamber and hand into law a Bill that is better than the one we had received.
Lord Winstanley: My Lords, the noble Baroness will recall that on Second Reading noble Lords on these Benches gave the Bill a cautious welcome. We send the Bill on its further journey with goodwill, but that is tinged with some caution. I shall say briefly why in a moment.
I echo what the noble Lord, Lord Ennals, said about the fact that your Lordships' House has undoubtedly improved the Bill. That was done wisely by extending all the provisions of the Health and Safety at Work Act to hospitals and not merely to kitchens. The noble Baroness, when pondering over our wisdom in doing that, may like to note figures which have recently been published which show that the incidence of postoperative infection in our hospitals has increased by 19 per cent. during the Government's lifetime. I do not for a moment blame the Govrnment for that.
Post-operative infection does not flow from hospital kitchens, which were formerly to be dealt with; it flows much more from the matters to which your Lordships have now extended this part of the Bill. That response is wise.
In that connection may I ask the noble Baroness one question at this last stage of the Bill? She will recollect that she inserted an amendment which was responsible for what now is Clause 2(4) which states:
"This section shall have no effect in relation to anything done or omitted before its commencement."
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At the time I did not ask what that meant. I made my own assumption, and I should like to tell the noble Baroness what I think it means. I think that it means that if somebody did something wrong a long time ago they cannot be prosecuted for it under the Bill. However, the Health and Safety Executive, when investigating an outbreak of legionnaires' disease or whatever may find that the design of the water cooling system was faulty. That provision does not in any way relieve the hospital of the requirement to put it right under the Health and Safety at Work Act. I hope that the noble Baroness will confirm that my interpretation of the new words is correct.
I express regret in respect of one part of the Bill. This explains my remark that I still have some caution. The noble Baroness, who has been immensely helpful during the progress of the Bill, might have been more helpful towards her own cause had she accepted the amendment that would have reversed the presumption in the Bill that applications to provide pharmaceutical services will be refused unless the applicants can somehow demonstrate that they must be allowed. We would have liked to reverse that situation so that the presumption was that an application by a properly qualified and experienced pharmacist to set up a National Health Service practice would be accepted unless the sub-committee of the family practitioner committee could show a good reason for refusal.
I accept, as the noble Baroness has said, that, at the end of the day, it makes no real difference. But it does make a difference to the way that this Bill may be looked at by pharmacists and by young pharmacists. I fear that they may have the suspicion that the Bill is intended to be exclusive rather than to be helpful. Had the noble Baroness been able to accept a change in the wording, she might find that some of the troubles that I fear may arise at a later stage will not occur.
I shall say no more, save to echo what has already been said, namely, that all on these Benches and indeed, I believe, on the Government Benches are deeply grateful to the noble Baroness for her courtesy and consideration and for the manner in which she has listened to arguments during consideration of the Bill. I would go further. I would like to thank her for the fact that when we have been told that Ministers will write to us, they have always written rapidly and clearly in respect of points that we wished to have explained. For that, we are most grateful. I say no more, but look forward to an answer at some time to the question that I raised.
5.53 p.m.
Lord Boyd-Carpenter: My Lords, it would be churlish on the part of one who, both before and after the introduction of the Bill, argued against the continued application of Crown privilege to the health service not at this stage of the Bill to express appreciation and gratitude to my noble friend and to the Government for the amendments now set out in Clauses 1 and 2. The Government are entitled to full credit in respect of kitchens under Clause 1. They responded to a view expressed from both sides of the House before the Bill was introduced. It was thought strongly by many noble Lords, as by many people outside, that various outbreaks of illness arising from

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bad conditions in hospital kitchens made it not only indefensible in principle but nonsense in practice to treat hospital kitchens as pail of the activities of the Crown.
On the broader application of the removal of Crown privilege—an amendment supported by noble Lords on both sides—I express my great appreciation to the Government for having accepted the decision of the House and for having now got the Bill into a sensible form providing for the removal of what was an anomaly and an anachronism. Now that the National Health Service and its vastly important equipment is not treated as protected by Crown immunity, we have taken a real step forward.
I am happy to have the opportunity to agree for once with the noble Lord, Lord Ennals, when he commented a moment ago upon how the whole process of the Bill and its progress are a good example of the working of this House. I agree that this House working together, with Members from all quarters concentrating on making the Bill better, has improved the measure considerably. I do not know of course whether the noble Lord's party still has the abolition of this House as part of its programme or policy. No doubt the noble Lord will make his own view—it is very obvious—known in the relevant quarters. If he requires any assistance in so doing from this side of the House, I for one am wholly at his disposal.
Finally, I should like to thank my noble friend Lady Trumpington. She has a most characteristic—if you like, idiosyncratic—method of handling legislation that is quite extraordinarily effective. She seems to get it through with the minimum of ill will and with the minimum of waste of time. I am not really clear how she does it. I would have gone further in this respect but for the warning a few moments ago given by the noble Lord, Lord Harris of High Cross, about the dangers of flattery. I shall therefore wrap it up a little by recalling the incident of the young man, who taking a girl home one evening from a party, suggested that she called at his flat to inspect his stamp collection. The reply was. "Young man, philately will get you nowhere."
Lord Cullen of Ashbourne: My Lords, I should like to thank the Government for the way that they responded to arguments on Clause 4 put forward by my noble friend Lord Mottistone and myself, and supported by the noble Lord, Lord Ennals. The compromise that was reached is, I know, considered fair by many opticians to whom I have spoken. I should like particularly to thank my noble friend Lady Trumpington for the part—I suspect, the large part—that she played in achieving the compromise.
Lord Carmichael of Kelvingrove: My Lords, I hope that I shall not raise an unpleasant note when everyone is so happy that the intentions of the Bill are, by and large, good. I wish to make some comments which I hope will take only a couple of minutes. I apologise to the House and to the noble Baroness for the fact that I was not able to participate in last week's debates. I was indisposed and had to go home early. I hope that I have now more or less recovered.
I wish to deal with the amendment that the noble Baroness proposed to Clause 5. I received strong
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representatons from a number of bodies in Scotland—the clause really applies only to Scotland—that I feel that I must raise with the noble Baroness. Clause 5, 13A., deals with voluntary organisations that provide services to those mentioned at the beginning of the clause. But no definition is given of the type of voluntary organisation involved. This seems to be lacking. If there is to be joint planning alongside statutory bodies, some indication should surely be given of which voluntary organisations are included.
The same clause should contain, I believe, in subsection (1)(c), an obligation to publish reports. Instead, there is a rather loose direction For the publication of joint plans
"at such times and in such manner as the bodies who have made joint plans … consider appropriate".
These important bodies should surely be required to produce, in some schematic way, reports so that the public will be able to understand whether or not progress is being made.
Clause 5 13B states that the Secretary of State may. after consultation, with health hoards set up joint liaison committees. There is no compulsion. But there is great necessity to bring about co-ordination in respect of services for, consultation with, and representation of the disabled in the community. I believe therefore that there should be something mandatory. I hope that the Minister will think seriously about issuing a code of practice on the progress on the setting up of these bodies so that the disabled, the elderly and others, can be reassured, or otherwise.
I hope that I am not going outside the custom of the House in asking questions at this late stage. But the amendment was put down very late. Owing to the circumstances that I have explained, this is the only opportunity that I have had to raise these points. I hope that the Minister will take the opportunity either to reply to some of those points now or that she will write to me later.
6 p.m.
Lord Kilmarnock: My Lords, I think we are all agreed that the Bill leaves this House distinctly improved. The noble Baroness's claim to have behaved in a flexible and responsible manner is, I think, largely justified. We have also had the notable example of a new axis formed between the noble Lord, Lord Boyd-Carpenter, and the noble Lord, Lord Ennals.
As my noble friend Lord Winstanley said, we are delighted that the Government have broadly accepted the new clause on health and safety at work, although he expressed a reservation to which it will be interesting to hear the noble Baroness reply.
The Government also took account of the disquiet expressed on both sides of the House on the composition of the proposed sub-committee of the family practitioner committee. I, with the noble Lords, Lord Ennals and Lord Prys-Davies, proposed a slightly different balance with seven voting members, three of whom were to be non-contracting pharmacists. This is rather different from the government proposal to have only five voting

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members, with two non-voting contracting pharmacists. As my noble friend Lord Winstanley said on Report, a vote may be a rarity and we must simply see how the Government's proposed structure works.
On those grounds, I think that the House can congratulate itself on having performed its revising function commendably. However, there is one other matter on which I must touch before the Bill leaves us. It is the question of the essential small pharmacies in Scotland, to which I referred in Committee and on Report and which was addressed by the noble Baroness's noble friend Lord Glenarthur on Report. Despite the noble Lord's reply on that occasion, I still find it hard to see why Scottish essential small pharmacies are being treated so ungenerously. I have received quite a lot of correspondence on this topic, as, I believe, has my noble friend Lord Taylor of Gryfe. A letter from a Scottish chemist today accepts that only one pharmacy in Scotland will be £11,000 a year worse off than its English equivalent, but complains that the average Scottish ESP could still be £7,000 worse off than its equivalent south of the border.
The noble Lord, Lord Glenarthur in this speech on 28th October, said (at col. 698):
"The Government are contributing the same proportional amount of support to the schemes on both sides of the Border".
However, that takes no account of the point I made, which was that the proportionality was not fair because of the difference in the percentage of ESPs between Scotland and England and Wales. South of the Border only some 2 per cent. of all pharmacies are ESPs, while in Scotland this rises to 4.4 per cent. for obvious geographical reasons. There is thus a much larger professional pool to fund essential small pharmacies south of the Border than north of it. That is why the Scots need proportionally more help to fund their scheme, particularly if it is to expand. I think that the noble Lord, Lord Glenarthur, did not take that argument into account in reply to me on Report. I hope that it will be taken into account on this occasion.
One of the main attractions of the Bill to my colleagues and myself, and perhaps one of our main reasons for deciding to support it, was our hope that it would lead to more essential small pharmacies in areas of multiple deprivation such as outlying city housing estates. If the Scots do not get a bit more in the kitty for essential small pharmacies, they have no means and no hope whatever of achieving any expansion of pharmacies in such areas.
We are not talking about a very large sum. My suggestion on Report was that in Scotland the Government should match the £120,000 that the profession is offering to the scheme by an equivalent amount, which means raising their current offer by £60,000. This would allow slightly fairer treatment to Scottish pharmacies and permit a modest expansion of ESPs. The noble Lord, Lord Glenarthur, replied that that would totally upset the arrangement for on-costs and other details which are different in Scotland and which Scottish chemists want to keep, but I cannot for the life of me see why a very small additional subsidy for Scottish essential small pharmacies should drive a
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coach and horses through these other arrangements unless the Government decide that it should. I can see no rhyme or reason for such a decision if the Government genuinely want to secure an improvement of pharmacy services in deprived areas, which I understood was one of the main motivations behind the Bill.
We can do nothing about this by way of amendment because none of this is in the Bill and negotiations are still taking place. However, I have no doubt that my colleagues north of the Border will continue to make a fuss about this, and rightly so, if negotiations do not at least produce an acceptable compromise. We all know what happens when the Scots make a fuss. It is usually a very considerable fuss, as it was over rateable values. The Government would be well advised to set aside the very small annual sum that I suggest to encourage a small expansion of pharmaceutical services in deprived areas.
I hope that the noble Baroness will convey this modest proposal to her colleagues at the Scottish Office for further consideration. As I said, there is nothing that we can do in the Bill, but the matter will not go away. I hope that in everyone's interest, including their own, the Government will give it further thought.
With that reservation, we on these Benches wish the Bill a fair wind when its provisions are translated into action. We shall of course want to keep a close eye on its operation.
Lord Taylor of Gryfe: My Lords, I apologise for delaying the House on this matter, but I was not present when your Lordships discussed it previously, although I raised the question of anomalies in the compensation for essential Scottish pharmacies in Committee.
As the noble Lord, Lord Kilmarnock, has stated, the Scottish ESPs will be £7,000 worse off than those south of the Border; £16,000 compared to £23,000. In order to correct that glaring anomaly, the figures are as follows. To bring them into line requires a payment of £270,000, minus the amount that the contractors have agreed to pay the other chemists of £120,000, minus the amount that the Government have offered to provide so far, £55,000; and so to correct this glaring anomaly would cost the Government £95,000.
I do not wish to open up the debate at all, but I should very much welcome it if at this late stage the noble Baroness could make some hopeful noises in that regard, keeping in mind that whatever is said will be subject to negotiation, although the negotiations have been going on since August. If she will respond to the plea made by the noble Lord, Lord Kilmarnock, it would help me, because last night I received late representations from my local pharmacist raising this matter very seriously. I hope that I may be given some assurance.
Baroness Trumpington: My Lords, I should like, if I may, to reply first to the noble Lord, Lord Winstanley. His interpretation of the clause is perfectly correct. The noble Lord, Lord Carmichael, I hope will forgive me if I do not reply to such a detailed matter at this late stage of the proceedings. I trust that he will be content with a letter from me.

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With regard to the noble Lords, Lord Kilmarnock and Lord Taylor of Gryfe, my noble friend Lord Glenarthur said on Report that an assurance had been given that no essential small pharmacy in Scotland would be worse off under the new scheme which is still being negotiated. I note the noble Lords' words and I will make sure that they are passed to the right quarter.
Finally, I thank noble Lords for their kind welcome to the Bill and their sweet words about me. I thought that my noble friend Lord Boyd-Carpenter was going to tell the story of the Scotsman who was walking his girl home and asked her to marry him. She accepted with alacrity. They walked on in a deathly silence, and the girl asked, "Why are you so silent, Jock?", to which Jock replied, "I'm thinking I've said too much already".
On Question, Bill passed, and returned to the Commons with amendments.

Sex Discrimination Bill [H.L.]
6.10 p.m.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Young of Graffham.)
On Question, Motion agreed to.
The Deputy Speaker (Lord Nugent of Guildford): My Lords, before calling Amendment No. 1, I should point out to the House that a new page has been substituted for page 3 of the Marshalled List because three of the amendments on that page have been altered.

COMMONS AMENDMENTS
[References are to [Bill 151] as first printed for the Commons.]
1 After Clause 1, insert the following new clause:
"Discrimination as to retirement etc.

.—(1) In subsection (4) of section 6 of the 1975 Act (exclusion of provisions discriminating against employees etc. in relation to death or retirement), at the end there shall be inserted the words "except in so far as, in their application to provision in relation to retirement, they render it unlawful for a person to discriminate against a woman—

(a) in such of the terms on which he offers her employment as make provision in relation to the way in which he will afford her access to opportunities for promotion, transfer or training or as provide for her dismissal or demotion; or

(b) in the way he affords her access to opportunities for promotion, transfer or training or by refusing or delibertely omitting to afford her access to any such opportunities; or

(c) by dismissing her or subjecting her to any detriment which results in her dismissal or consists in or involves her demotion.

(2) In subsection (4) of section 11 of the 1975 Act (exclusion of provisions discriminating against partners etc. in relation to death or retirement), at the end there shall be inserted the words "except in so far as, in their application to provision made in relation to retirement, they render it unlawful for a firm to discriminate against a woman—

(a) in such of the terms on which they offer her a position as partner as provide for her expulsion from that position; or

(b) by expelling her from a position as partner or subjecting her to any detriment which results in her explusion from such a position."

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(3) In section 82 of the 1975 Act (interpretation), after subsection (1) there shall be inserted the following subsection—

"(1A) References in this Act to the dismissal of a person from employment or to the explusion of a person from a position as partner include references—

(a) to the termination of that person's employment or partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment or partnership is renewed on the same terms; and

(b) to the termination of that person's employment or partnership by any act or his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer or, as the case may be, the conduct of the other partners."

(4) In section 6 of the Equal Pay Act 1970 (exclusions of sections 1 to 5)—

(a) in subsection (1A)(b) (terms related to, or provision in connection with, death or retirement), at the end there shall be inserted the words "other than a term or provision which, in relation to retirement, affords access to opportunities for promotion, transfer or training or provides for a woman's dismissal or demotion"; and

(b) in subsection (2) (meaning of retirement), at the end there shall be inserted the words "and the reference in subsection (1A) above to a woman's dismissal shall be construed in accordance with section 82(1A) of the Sex Discrimination Act 1975 as a reference to her dismissal from employment."."

Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 1 This is the first of four new clauses introduced in the other place. I am sure all these clauses will be supported by this House, but the two clauses set out in Amendments Nos. 1 and 2 are a particularly welcome extension of equality for women in employment. These are the clauses which deal with the implications of the Marshall judgment of the European Court concerning retirement ages for men and women, which I undertook to bring forward and assured your Lordships there would be opportunity to consider, when the Bill was last in this Chamber.
Let me briefly recount the history of these clauses. The European Court of Justice ruled on 26th February 1986 that dismissal of a woman solely because she has reached state pensionable age which is different for men and women constitutes sex discrimination contrary to Article 5(1) of the European Community Equal Treatment Directive, and that the Article may be relied upon as against a state authority acting in its capacity as employer in order to avoid the application of any national provision which does not conform to it. The judgment meant that women employees of a state authority could rely directly on Community law to protect themselves from compulsory retirement at a different age from male colleagues; but the position of private sector employees was unclear. The Government were concerned to clarify matters and remove any anomalies between public and private sector workers as quickly as possible, and on 1st April we issued a consultative document proposing changes to bring our legislation into line with the judgment. The results, incorporating a number of improvements following our consultation, are before us now. The clause before us now will give women the right to work to the same age as their male colleagues. The second clause, which we shall be discussing shortly, will

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protect them from unfair dismissal up to the same age. No longer will employers be able to assume that women's working lives finish earlier than men's.
However, before I examine in detail what Amendment No. 1 will do, perhaps I should briefly mention what the amendments will not do. This Bill does not touch the position of either state or occupational pensions. Of course these are of major importance in the question of retirement, and discrimination in retirement cannot finally be eliminated while different pension ages exist. However, As noble Lords will appreciate this is a complex area with wide ranging implications. European Law is progressing towards greater equality in pensions, with the welcome adoption this summer of the Directive on Equal Treatment in Occupational Social Security. It has long been this Government's policy to move towards greater flexibility and equality in state pension ages—to move for example towards a decade of retirement as suggested in the Green Paper on the Reform of Social Security published in June last year, within which both men and women could choose at what age to retire. But the costs are exorbitant—over £3,000 million to reduce men's state pension age to 60, and still unacceptably high to introduce a retirement decade. The Marshall judgment does not touch upon pensions and we would not wish to hold up the substantial step forward we are making on retirement age because of difficulties over the question of pensions.
Let me now turn to the details of the provisions of Amendment No. 1, which amends the Sex Discrimination Act. Subsection (1) amends Section 6 of the Sex Discrimination Act 1975. This is the section which makes it generally unlawful to discriminate on grounds of sex in the selection and treatment of employees, including dismissal of employees. Section 6(4) excludes from the general requirement not to discriminate provision in relation to retirement, and the new clause narrows that exclusion. It does not remove the exclusion entirely and does not alter the exclusion for provision in relation to death.
Paragraphs (a)(h) and (c) of the new Section 6(4) as amended by this clause broadly reflect the categories of discrimination set out in Section 6 of the 1975 Act. Paragraph (a) deals with the offer of a job, paragraph (b) with the period of employment, and paragraph (c) with termination of employment. I think it is easier if I deal with these in reverse order.
Paragraph (c) removes the retirement exclusion from dismissal and detriments resulting in dismissal or demotion. This means that it will be unlawful to dismiss or demote a woman for reasons connected with retirement when a comparable male employee would not have been so treated. It therefore implements the basic requirements of the Marshall judgment, and goes beyond this by including demotion, so that an employer will not be able to remove major responsibilities from women, or otherwise reduce their status, if he would not do this for a man of the same age. The phrase "subjecting her to any detriment" ensures that the new provisions relate not only to express dismissal, but also to constructive dismissal, where the employee is forced to
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resign because of the employer's conduct. It also ensures that indirect discrimination is covered, to that, for example, an employer could not require part-timers to retire earlier than full-timers if this would be indirectly discriminatory against women.
Paragraph (b) removes the retirement exclusion from promotion, transfer and training, and thus makes it unlawful, for example, to provide that training will not be given to women over 60 but may be given to men up to the age of 65. Again, this goes beyond the strict requirements of the Marshall judgment but is clearly a welcome extension in keeping with its spirit. Paragraph (c) makes it unlawful to offer employment on terms which are discrimatory in the ways just described, in relation to dismissal, promotion, training and so on.
Subsection (2) deals with partners in a firm, as opposed to employees. It narrows the retirement exclusion in section 11(4) of the 1975 Act in a way broadly equivalent to the way subsection (1) deals with employees. Its simpler form reflects the simpler provisions of Section 11.
Subsection (3) defines dismissal from, employment and expulsion from a partnership to ensure that constructive dismissal or expulsion—in other words forced resignation—are covered and to cover any cases where a contract of employment was automatically terminated at a given age or after a certain period.
Subsection (4) narrows the retirement exclusion in Section 6 of the Equal Pay Act in a way broadly parallel to the narrowing of the Sex Discrimination Act by subsection (1). The Equal Pay Act covers working conditions laid down by the contract of employment, and subsection (4) gives employees whose contracts contain terms which are discriminatory in the ways I have already described a remedy under the Equal Pay Act before they are actually retired. Those then are the main effects of Amendment No. 1.
Employers, as a result, will have to change their retirement policies if at present their female employees are compelled to retire at an earlier age than comparable male workers. I would add that although I consider it would be unreasonable to require that all such retirement policies be equalised in less than 12 months, I very much hope that employers and unions who can make the necessary changes sooner will do so. I know that some have already been able to do so.
I hope noble Lords and Baronesses opposite will join with my noble friends in welcoming this clause as an important extension of rights for women. I beg to move.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)

AMENDMENT TO COMMONS AMENDMENT NO. 1
1A In subsection (1)(a) after ("training") insert ("or to any other relevant benefits, facilities or services to which sub-section (2) applies").
Lord Wedderburn of Charlton: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 1, as amended by Amendment Nos. 1 A to 1E. We thank the Secretary of State for taking us through Amendment No. 1 from another

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place. As this is the first time that your Lordships have seen these new clauses, it would be right to subject them to scrutiny. We give them a muted welcome. Welcome, because it is right that we come into line with the judgment of the European Court of Justice as we must. However, we have problems with the new Clauses 1 and 2, both as regards their general policy and substance which my noble friend will speak to later, and also in respect of the result of the Government's own logic, or the narrow objection which these amendments make.
In moving Amendment No. 1A, I understand it would be right if I spoke to Amendments Nos. 1 B, 1C and 1D. In our contention, reflected in these amendments the new clauses may well not satisfy the standards of the Community directive and the Marshall judgment of the court which interprets it. As the Secretary of State has said this is the directive which requires equal treatment in working conditions for men and women, including dismissal. It is true that the directive appears to exclude social security matters which are dealt with by a different directive.
As we understood the Government's position as it was put in another place and is reflected in the speech of the Secretary of State, the Government take the view that social security matters including occupational pension schemes, and redundancy payments cannot he dealt with and need not be dealt with under this judgment. We take issue with both those points, but not now. These amendments accept those two points, whether they are right or wrong, and accept them on the Government's own statement. Categorisation of redundancy payments as social security matters, which we understand to be the Government's position, seems to us to be highly odd, both in history and in logic, but we shall come to that later.
Accepting both of those points, we then face the statement that the new clause (which will be the amended subsection (4) of Section (6) of the 1975 Act) is to match up to the standards of the Marshall judgment, apart from occupational pension schemes and redundancy payments, under statutory schemes.
If one looks at the 1975 Act one finds that Section 6(2), except so far as it is limited by other subsections—including subsections (6) and (7), which are not here relevant—tells the employer not only that he must not discriminate directly or indirectly in offering employment which has already been laid down, but that he must not do so:
"in the way in which he will afford … access to opportunities for promotion, transfer or training or to any other … benefits, facilities or services",
or by refusing or deliberately omitting to afford her access to them. It is with those words in paragraph (a) of subsection (2) that these amendments are concerned.
The amendments do not reflect that formula quite apart from the issue of occupational pension schemes and redundancy payments which we put aside by our Amendment No. 1D as, for the moment, common ground. The new clause and the new subsection (4) would prevent discrimination in relation to retirement. It is concerned with offers of employment, dismissal, detriment involving demotion and
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promotion, transfer or training. That is to say, it would not include any phrase relating to benefits, facilities or services. The effect of our amendments would he to introduce the words "benefits, facilities or services" over the same range as subsection (2), apart from occupational pension schemes and redundancy payments matters.
The only two objections advanced by the Government, (so fat as we can see) to the words "benefits, facilities and services" are that they would cover occupations pension schemes and redundancy payments. Those two matters we have put aside and we say to the Government: surely these words should then be inserted? If they are not inserted, the result would be, and I hope I do not misrepresent the words of the Secretary of State, however, when I see Hansard I will see if I have done so—I believe in his introductory speech the Secretary of State said that these would broadly reflect discrimination in Section (6) of the 1975 Act. However, "broadly" is not enough.
In another place, the Government appear to have accepted that the omission of the words "other benefits, facilities and services" quite apart from the points on occupational pensions and redundancy would allow for lawful discrimination in relation to retirement so far as concerns detriments and lack of benefit of retraction of benefit.
Perhaps I may quote the Parliamentary Under-Secretary, which is all that we have so far. At col. 199 of the Official Report of Standing Committee A. he said:
"The denial of a benefit that was a key part of the employment contract would be a detriment entitling an employee to claim that she had been constructively dismissed".
I pause there. Of course that may be so. However, anyone who has ever looked at the case law on constructive dismissal should not rely only on that. The Parliamentary Under-Secretary continued:
"Therefore unlawfully discriminated against, under subsection 1(c) of the new clause. It is unlikely that any employer would, for example, allow both sexes to work until 65, but remove from women at 60 some minor facility such as the use of the canteen, or discount purchase arrangements. We do not expect employers to be petty in that way and to deny such benefits, but if it happens in practice we shall look at the provision again".
That is not good enough. That is a brief for counsel in the European Court of Justice at Luxembourg if an employer does anything of that sort. It may be petty, but it does not meet equal treatment and it will not he unlawful under the Act.
Similarly, there are many types of situation where an employer might well make an adjustment in respect of women in his workforce who used to retire at 60. Perhaps, somewhat to his annoyance, expecting to be relieved of burdens of business, he now finds he cannot insist that such women should be retired at 60. It may be that without intending to discriminate he or his managers make an adjustment, for example, in the hours of work. That might not be easy for women of 60 and over in his workforce to bear, compared with the men. There are many such situations which might arise. They may be petty, but they would be indirect discrimination, or they could be. They would not necessarily be prohibited by the new measure unless it contains some words of the kind that we submit in our amendments.

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It is no affront to another place, nor indeed to the Government to say that this is a difficult matter. In saying that, perhaps I may apologise for the inconvenience that we have caused to your Lordships and to others, by the late revision of our own amendments at a late stage. It is not an easy matter. However, we very much hope that the Secretary of State would feel able to accept these amendments as we see no other way in which this could be put right. We understand the points on occupational pension schemes and redundancy payments. We will come to that later. However, accepting those, we still say that if the only objections to parallel words with subsection (2) in the new subsection (4) are occupational pension schemes and redundancy payments—and we have provided for that in our Amendment 1D—why not then deal with discrimination in a precisely parallel way so that there is no risk of someone taking up that kind of case and yet again our finding that the United Kingdom is subjected to a judgment against it, on sex discrimination in the Luxembourg Court. I am sure the Government wishes, as we do, to ensure that that cannot happen. It is not enough to say that it might not happen even though a petty discrimination would still be lawful. I very much hope that the Government will look upon this with favour. There are adequate procedures between here and another place for the matter to be dealt with speedily. It is a small matter and I hope it will be accepted.
Moved, that this House do agree with the Commons in Amendment No. 1, as amended by Amendment No. 1A.—(Lord Wedderburn Charlton).
6.30 p.m.
Baroness Platt of Writtle: My Lords, the Commission welcomes the Government's prompt reponse to the European Court decision in Marshall v. Southampton and South West Hampshire Area Health Authority and the removal of sex discrimination based on retirement age as regards access for opportunities for promotion, transfer or training and in relation to dismissal or demotion.
This proposal goes wider than the strict terms of that decision, which dealt only with dismissal. It is a recognition by the Government of the broad scope of the EC Equal Treatment Directive. It is also a recognition that existing legislation is in breach of the Equal Treatment Directive as regards both private and public employers, notwithstanding that only employees in the public sector can rely directly on the provisions of the Equal Treatment Directive.
The Commission remains very concerned at the failure to tackle the anomalies and differences in treatment between men and women which result from the unequal state pension age. For example, a woman between the ages of 60 and 64 will have the option of deferring retirement beyond the state pension age. She will no longer be required to pay the national insurance contributions, and her eventual state pension and entitlement will be enhanced for each year of employment over the age of 60.
In contrast, a man will gain no such option. At col. 192 of the Official Report in another place it was accepted by the then Parliamentary Under-Secretary
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of State for Employment, Mr. Ian Lang, during the Committee stage of the Bill that:
"we all agree that discrimination in retirement will not be eliminated until there are equal state pension ages for men and women".
The Commission will continue to press strongly for the equalisation of the state pension ages for men and women. Until that is done there will be continual anomalies that discriminate against one or the other sex.
Naturally, sufficient warning needs to be given of such a fundamental change to all those concerned—employers, employees and particularly pension funds. We make a strong representation to the Government to give serious consideration to this matter so that an announcement can be made of their firm intention to equalise the pension ages between men and women on a specific date in the future. Then all could work together to prepare for the achievement of that very desirable goal for both men and women.
In our view, a defect of these clauses is the omission from paragraphs (a) to (c) of Clause 2(1) of words which appear in the comparable paragraphs of Section 6(1) and (2) of the Sex Discrimination Act 1975 dealing with access to benefits, facilities and services and subjecting a person to any other detriment. The Government seem to intend that sex discrimination shall be unlawful to the extent that these issues are related to death or retirement, in order that occupational pensions shall be excluded. We believe that this objective could be achieved by a direct reference to pensions.
The present provision could introduce uncertainty in the law which might lead to further litigation, and the Commission would therefore be supportive of these present amendments, Nos. 1 A to 1D, and hope that the Government will either accept them or incorporate their sentiments in the Bill.
Lord Monson: My Lords, I have a question for the noble Lord the Minister which I am afraid does not relate to Opposition Amendment No. 1A but to the original amendment, Amendment No. 1, as it came from the House of Commons; and it relates to the speech which we have just heard. I ask the question now because it seems that there will be no other opportunity to do so. Can the noble Lord confirm, as I have heard suggested, that one of the consequences of Amendment No. 1 is that a woman who stays on at work until the age of 65 will draw a higher state retirement pension than will a man who retires at precisely the same age? If that is so, it seems to be blatant discrimination against men, particularly as a woman's life expectancy at the age of 65 is approximately 7½ years greater than that of a man of the same age.
Lord Jacques: My Lords, I should like to raise two questions. Today it is common practice for employers to have service contracts with their employees providing that, in the case of men, the normal retirement age will be 65 and, in the case of women, 60. This Bill gives such employers one year in which to put their house in order. There is therefore an interim period. However, some of these employers are already defendants at industrial tribunals. They have been

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taken to the tribunal by a female employee who says that she cannot be compulsorily retired at the age of 60, and so they are already before the tribunal.
My two questions relate entirely to this interim period of 12 months. The first is whether in this interim period the European Court's judgment overrides British legislation as regards the private sector. Secondly, what protection is given to responsible employers seeking to observe British law but who are faced with legal action arguing that it has been superseded by the European Court's judgment? I would emphasise again that the questions relate only to the interim period.
Lord Diamond: My Lords, we on these Benches have no questions to ask. I rise merely to say very shortly that, having heard all the arguments and having read what preceded this, we are in full support of what has been put forward by the Labour Front Bench.
Lord Young of Graffham: My Lords, in introducing Amendment No. 1 I emphasised to your Lordships my welcome for the new provisions on retirement as a further important step towards equality in employment. I appreciate that the noble Lords who have supported these amendments are simply seeking to ensure that in relation to retirement, all differences in treatment of men and women should be unlawful except those connected with occupational pensions. This may seem a laudable aim, and the noble Lords, Lords Wedderburn and McCarthy, may say they think me inconsistent if I oppose it, but I am afraid that I must do so.
I do so on two grounds. First, although noble Lords opposite have in Amendment No. 1D sought to introduce an exclusion for occupational pension schemes and redundancy payments, I have to tell them that this current amendment does not exclude matters relating to the state pension. As I have already said, this Bill cannot affect either state or occupational pension schemes.
Secondly, I do not think that the amendment is necessary. Denial of a benefit which was a key part of the employment contract would be a detriment entitling an employee to claim she had been constructively dismissed and therefore unlawfully discriminated against in accordance with subsection 1(c) of this clause. On the other hand, if an employer were so petty as to arrange for men and women to gain or to lose minor benefits at different ages, this would not be lawful unless it were held to be "provision in relation to retirement". It is, for instance, unlikely that an industrial tribunal would regard it a "provision in relation to retirement" to deny one sex, say, use of the company canteen between the ages of 60 and 65. It is surely very unlikely that any employer would allow both sexes to work to 65, but to deny women at 60 some minor facility, such as use of canteen or discount purchase arrangements. If they did so and in the possibly unlikely event that women could not obtain redress through an industrial tribunal, we would certainly want to look at this again.
To sum up, the new clause in Amendment No. 1 will prevent most discrimination in relation to retirement; and the Bill prevents discrimination in
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benefits, facilities and services, except in relation to retirement. In view of this and the "knock-on" effect of the amendment on state pensions, I ask the noble Lords to withdraw this amendment. If not, I must ask your Lordships to reject it.
Perhaps I may deal with the particular question which was put to me by the noble Lord, Lord Monson. A woman will have a higher pension if she has paid contributions in her own right throughout her working life. Because of family responsibilities and career breaks, in practice this happens very rarely.
Lord Wedderburn of Charlton: My Lords, in regard to Amendments Nos. 1A, 1B, 1C, and 1D, to which the House is now directing its attention, I have to say to the noble Lord the Secretary of State that at the core of his argument, which he has just addressed in reply, is that element which is the tomb of all legislation in all courts—namely, that that which is not covered is unlikely. Anyone who looks at a set of law reports for a minute will know that the most unlikely things are the things that are litigated upon. The canteen example was not my example, it was the example of the noble Lord's colleagues in another place. The Government's own Ministers advanced this example of their own good will to the Opposition to let them see what would happen, and they said, "Yes, this would happen. It would not be covered by the Bill". The Secretary of State agrees with that, and says that it is unlikely.
That is a brief for a case to the United Kindom. Why do the United Kingdom Government constantly legislate in order to invite lawyers to earn fees before the court in Luxembourg? My brethren in practice will be happy indeed, but this will be a big case. There will be a lot of people who litigate it. I cannot understand why the Government do not accept this.
There were two other arguments. One was that if we had our wording it would include the differential in the state pension. It might do so, but it would hardly then be a discrimination by the employer. Maybe the Secretary of State was looking ahead to the day he privatises pensions completely and then the employer would discriminate, but the payment of a state pension at 60 and 65 is not a discrimination by the employer and I submit would not fall within the terms of our amendments.
The third point was that if the withdrawal of benefit related to a key part of the employment relationship then that would be within the clause either as a demotion or a dismissal. I accept that. I accepted in moving that if it were a constructive dismissal it would be caught, but what I advance is the argument that not every withdrawal of a benefit is at a key part, is a demotion—and I shall come to that in a minute—or is a constructive dismissal, and I do not see how anyone could contravert that.
This Bill will allow benefits to be withdrawn, perhaps by the employer with the best motives, because we all know that indirect discrimination is part of our society and occurs naturally. We are a sexist society, we hope gradually becoming less so. But it is quite possible that managerial arrangements dealing with a workforce where they have become used to women retiring at 60, will include adjustments where the women are discriminated against indirectly.

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The Secretary of State's answer does not go to that point. We are put in a difficult position because the reply really does not give any answer to the point. What is our responsibility? Is it not to test the opinion of the House to try to prevent unnecessary litigation? Is that not our responsibility? I have tried to hear the advice of my noble friends in the last few minutes, and I take it to be very stern. I feel that we shall have to do that.
6.42 p.m.
On Question, Whether the said amendment (No. 1A), as an amendment to Commons Amendment No. 1, shall be agreed to:
Their Lordships divided: Contents, 53; Not-Contents, 76.

DIVISION NO. 1

CONTENTS

Ardwick, L.

Lockwood, B.

Attlee, E.

McCarthy, L.

Blyton, L.

McGregor of Durris, L.

Brockway, L.

Mclntosh of Haringey, L.

Brooks of Tremorfa, L.

Mar, C.

Bruce of Donington, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Mountevans, L.

David, B.

Northfield, L.

Davies of Penrhys, L.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Diamond, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ennals, L.

Rhodes, L.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Stedman, B.

Grantchester, L.

Stewart of Fulham, L.

Grey, E.

Stoddart of Swindon, L. [Teller.

Hampton, L.

Hanworth, V.

Strabolgi. L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Jacques, L.

Taylor of Mansfield, L.

Jeger, B.

Underhill, L.

John-Mackie, L.

Wedderburn of Charlton, L.

Kilmarnock, L.

Wells-Pestell, L.

Kinloss, Ly.

White, B.

Kirkhill, L.

Winstanley, L.

Lawrence, L.

Ypres, E.

Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS

Ailesbury, M.

Gray of Contin, L.

Ampthill, L.

Gridley, L.

Beaverbrook, L.

Hailsham of Saint

Belhaven and Stenton, L.

Marylebone, L.

Belstead, L.

Harmar-Nicholls, L.

Blyth, L.

Harris of High Cross, L.

Boyd-Carpenter, L.

Hesketh, L.

Brabazon of Tara, L.

Hives, L.

Butterworth, L.

Home of the Hirsel, L.

Caithness, E.

Hooper, B.

Cameron of Lochbroom, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Lane-Fox, B.

Carnegy of Lour, B.

Lauderdale, E.

Coleraine, L.

Layton, L.

Constantine of Stanmore, L.

Lindsey and Abingdon, E.

Craigavon, V.

Long, V.

Davidson, V. [Teller.]

Lucas of Chilworth, L.

Denham, L. [Teller.]

Malmesbury, E.

Elles, B.

Mancroft, L.

Fortescue, E.

Massereene and Ferrard, V.

Fraser of Kilmorack, L.

Maude of Stratford-upon-

Geddes, L.

Avon, L.

Glanusk, L.

Merrivale, L.

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Mersey, V.

Russell of Liverpool, L.

Montgomery of Alamein, V.

Sandford, L.

Munster, E.

Selkirk, E.

Murton of Lindisfarne, L.

Shannon, E.

Napier and Ettrick, L.

Sharpies, B.

Nugent of Guildford, L.

Skelmersdale, L.

Onslow, E.

Stanley of Alderley, L.

Orr-Ewing, L.

Strathclyde, L.

Pender, L.

Tranmire, L.

Peyton of Yeovil, L.

Trefgarne, L.

Portland, D.

Trumpington, B.

Rankeillour, L.

Vaux of Harrowden, L.

Reay, L.

Vivian, L.

Reigate, L.

Ward of Witley, V.

Renton, L.

Whitelaw, V.

Renwick, L.

Young of Graffham, L.

Resolved in the negative, and amendment to the amendment disagreed to accordingly.
6.50 p.m.
On Question, Whether this House do agree with the Commons in their Amendment No. 1?
Lord Jacques: My Lords, may I have an answer to the questions I have put?
Lord McCarthy: My Lords, I am now moving to a general debate on Amendment No. 1. This is the point where we want to widen the argument, as the noble Lord, Lord Wedderburn, said. We gave a muted welcome to the general purposes of these amendments because they bring into effect—I am being told something else. I move that we do not move Amendments Nos. 1B to 1 E. We wish now to raise two general points. They concern the consequences of the Marshall case and whether or not the Government have fully taken into account, as we see it, all those consequences.
I am glad that the Secretary of State says that he is in favour of and welcomes the Marshall decision itself. The Parliamentary Secretary in another place said of Miss Marshall, at col. 192 on 1st July:
"I pay tribute to her. Her name will join the long list of those who have blazed a trail on behalf of women's rights, even though she herself may not derive direct benefit from the changes that we are now making".
If the Government pay tribute to her, and if she has blazed a trail, the only wonder one has is as to why the Government had to fight her all the way to the court and whether they are taking fully into account all the principles inherent in the judgment.
We have two grounds for concern today. The first ground—it was covered in the debate in another place, but we were not satisfied—is what the Government intend to do about4he related area of discrimination of statutory retirement pensions and voluntary pension schemes. The Government say, if I understand their position, that they will leave that for the time when they need to implement the decision of the Council of Ministers, the directive on occupational social security schemes, which was adopted on 5th July last, and that this will not be required for another three years, by which time very likely they will not be in office and will not have to consider it anyway. Our position is that we do not think this will quite do.
We understand why they say this. We understand the arguments, but we feel that even if they were right in the sense that it could not be done in this Bill, they

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might indicate to us how they see the implications of the Marshalll case in this area. They might tell us, if they were to remain in office, what they intend to do when it is necessary to bring into effect the European directive. They might say something about what they regard as the cost of implementing the consequences of the directive in that area.
As I understand it, the Government say that the main reason why they cannot go on to produce equality in respect of retirement pensions is cost. In another place the Government have said that the immediate cost of reducing the pension age to the starting point for men of 60 will be about £3 billion. We doubt whether that is a real estimation of the cost. Is it not the case that this assumes that most men will retire at 60 and that most women will not want to stay at work after 60? We feel that this view, which is the basis on which the Government presumably produce the estimate of £3 billion, could exaggerate the direct exchequer cost. Surely there are many workers, women workers in particular, for whom these are the high income years. Given a statutory right to retire they might not retire, especially since the pension is higher when eventually they do retire. If this is the case, surely the cost of £3 billion would be substantially reduced.
But even if it were not, and even if the cost were considerable, have the Government given sufficient consideration to the possible benefits from the point of view of the level of unemployment—a matter which we know is always close to the heart of the Secretary of State; to the effect on the level of unemployment if there were a significant reduction in the age of retirement in this country? After all, following legislation introduced by the previous Government, the Government operate, and in some ways have extended, a job release scheme which provides subsidies for early retirement, the objective of which is to reduce the level of unemployment. Surely there is a case for trying to encourage still more early retirement by lowering the male retirement age as soon as possible, so long as something is done to make the retirement benefits reasonably attractive to those who do retire.
We should like to know what the Government feel they need to do and want to do about these aspects of what we consider follow from the consequences of the Marshall case, even if we accept their point that it cannot be done in this Bill tonight. We are not satisfied with the arguments given on this point in another place.
So I come to our final area of concern, which deals with redundancy payments. The fact is that although now, as a result of the Bill, men and women must retire at the same age within a particular firm, men qualify for redundancy payments until they are 65, but women's right to redundancy payments ends at 60. As we understand the Government, they defend this; or rather let me be fair to them. they defend it until they can bring the statutory retirement age into equality.
Indeed the Parliamentary Secretary in another place, when dealing with this aspect of the problem in answer to questions posed by the Opposition, said at col. 199 on 1st July that he would expect to see considerable grievances if he did anything else:
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"If employees are … made redundant between the ages of 60 and 65, a woman can claim her old-age pension, and a man his redundancy payment. … A woman made redundant at 61 can immediately claim state pension, which is higher than unemployment benefit if it is based on her own contributions, and is irrespective of savings".
He went on to conclude:
"The man would surely feel aggrieved if she received a redundancy payment in addition". [Official Report, Commons, Standing Committee A, 1/7/86: cc. 192 & 199.]
This is advanced, as I understand it, in all seriousness by the Government as the sole reason for not changing, or not proposing to change until three or four years' time, the present considerations which apply to redundancy payments. If that is what the Secretary of State wishes to tell us tonight, then we have four things to say: first, we do not think that one can compare a one-off redundancy payment, which is based on length of service and the level of pay (which was originally introduced to promote mobility) with either a state pension based on the needs of a permanently retired person or with an unemployment benefit based on an assumed temporary absence from the labour market. We consider that this was intended and designed originally for a quite different purpose. We consider that the justification for redundancy pay is either that the individual has some job right invested in a job which has been disrupted or that he or she has lost a job and in the circumstances of the present labour market is unlikley to get another job, at least immediately and therefore there should be some compensation based upon length of service and level of pay, and that this happens to both men and women. In the Parliamentary Secretary's example it happens to both men and women and there is no evidence as far as we can see that men, as against women, would complain if the justice of this case was met. Secondly, we would say that, given levels of pay for women, redundancy pay in most cases for them would be significantly below that of men anyway.
Thirdly, we say that, given the ending of redundancy rebate—and that is a point of some substance because the Government have done this—so that redundancy pay falls upon the individual employer, the absence of a need to pay redundancy pay to women on the same terms as men is an incentive to employers to select women for redundancy. I know that the Secretary of State will say, because it is a perfectly reasonable reply, that it may be that if someone could prove this before an industrial tribunal it might be unfair dismissal. Then again, it might riot be unfair dismissal.
That is because it might be said that the statutes, the Government and no less a person that the Secretary of State consider this a perfectly just way of carrying on. We say that, given the end of redundancy rebates and the fact that redundancy pay now falls upon the employer, we have here an incentive to employers to select women for redundancy because they will not have to pay the rebates.
Finally, we say that the Government should beware because the Equal Opportunities Commission in its evidence to the Government gave as its conclusion that one cannot separate out the effects of redundancy and the unequal conditions of redundancy pay from what is being done in the area of unfair dismissal. In the next amendment which the Secretary of State will move, he will extend protection for unfair dismissal as

967
a result of the Marshall case. One of the reasons why people can be dismissed unfairly is that they are wrongly selected for redundancy. We say that this means that there is very considerable support for the EOC's argument that the question of redundancy cannot be separated from the other issues involved in the Marshall case.
As the EOC pointed out, the court decision was said to cover working conditions. That is what the court said. As the EOC pointed out, the Government accept that they must include a right not to be unfairly dismissed as a consequence of the Marshall case. If one puts these facts together, we believe that there is a very real possibility that once again—and this is another example to add to the example given by my noble friend—the Government may find themselves back at the European Court having not fully carried out the consequences of the equal treatment directive. For all those reasons, we believe that Government should go further than they go, if not in this Bill then in some other Bill; and we ask the Secretary of State to say so.
7 p.m.
Baroness Lockwood: My Lords, I should like to support the noble Baroness, Lady Platt, in her request to the Government that they should make a clear statement about their intention to legislate to remove the inequality in retirement ages between men and women. I should like also to support my noble friend on the Front Bench in asking the Government to state their wider strategy in relation to the Marshall case. I want to do so for all the reasons that have so far been stated both by the noble Baroness and by my noble friends on this side of the House.
A number of anomalies have been mentioned already. The noble Lord, Lord Monson, asked the Secretary of State what would be the position of women who worked until 65 and then drew a retirement pension afterwards. Would they receive the additional supplement that women of that age normally receive, this meaning that they would have a higher pension than men? The Secretary of State said, in effect, that this is true but that it rarely happens because the majority of women do not earn the entitlement to a full pension. That may be so; but some of us have worked for the whole of our working lives and therefore we should be in an advantageous position as compared with men.
My noble friend Lord McCarthy referred to another anomaly which arises for women who are over the age of retirement. I have a third question to put to the noble Lord, a question which relates to women who are in an occupational pension scheme and whose position will be unaffected by this amendment. Although they would be protected from dismissal, demotion and other detriments, their pension entitlement would not be protected in the same way as men's pension entitlements are protected. For example, in many pension schemes a woman is not able to earn additional increments over the age of 60. We are told that when the European directive on equality in occupational pensions comes along that anomaly might be covered and it might be remedied.
968
But how long will it be before such a remedy is effective and what happens in the meantime? There could be cases going through to the European Court on that point, too.
The other anomaly to which I wish to refer comes under Amendment No. 2 to which the Secretary of State referred in his opening remarks. That is protection against redundancy on the basis of the age of retirement. The question of working conditions has already been referred to by my noble friend, but I remind the Secretary of State that some few years ago the Equal Opportunities Commission carried out a formal investigation into the redundancy payments of British Steel. It looked at the implications of the unequal retirement age for redundancy payments not for men and women aged between 60 and 65 but from about the age of 40 onwards. There were discriminatory implications in the whole of their working conditions because of this anomaly in the retirement ages of men and women.
It seems that there is a hornets' nest here and that the Government need to tackle the problem firmly. Even though at this late stage we know that no change to that effect can be made in this Bill, I plead with the Secretary of State as have others, for the Government to make clear their intention and to set up a firm timetable.
Lord Young of Graffham: My Lords, perhaps I should start by dealing with the matter raised by the noble Lord, Lords Jacques, about the position of private employers before the proposed amendment to Section 6(4) of the Sex Discrimination Act. It is clear that employees working for a state authority can now rely directly upon Community law, although the meaning of "state authority" is not clear. Other employees cannot rely on the directive in this way and their position under domestic legislation is uncertain. Section 6(4) of the Sex Discrimination Act excludes provision in relation to death or retirement from Section 6(1)(b) and 6(2), which make unlawful discrimination in the terms on which employment is offered, while affording access to opportunities for promotion. transfer, training or any other benefits, facilities or services or in dismissal or subjecting the employee to any other detriment.
The Court of Appeal in the case of Roberts v. The Cleveland Area Health ,4uthority held that compulsory retirement was within Section 6(4) and said it was not unlawful to retire a woman at an earlier age than a man. The present position is therefore that domestic law does not comply with the European directive and private sector employees must wait until our legislation is amended. Even this, however, is not certain, as the case of an employee in the private sector, Mrs. Dukes v. Reliance Systems Limited is to be decided by the Court of Appeal at some future date. It is possible that some indication of the position of employees in non-state authorities will emerge when the Marshall case is heard. The proposed Amendment No. I would mean that neither private employers nor state authorities could discriminate in dismissal.
In dealing with the various matters raised by the noble Lord, Lord McCarthy, let me give him an assurance that we shall be in office in three years' time. Unfortunately, I cannot follow through with a further

969
assurance and tell him today what we shall do then. The Marshall case has enormous implications and running throughout this matter is the great need that we should act in a change of such a nature with all due consideration for costs.
This is primarily a matter for my right honourable friend the Secretary of State for Social Services and I can say that the Government are committed in principle to achieving equal treatment in pension age between women and men. The only problem is how to achieve that. Many men wish to retire at age 60. The cost of reducing men's pension ages from 65 to 60 would be exorbitant. It would be over £3,000 million. Although others may wish to contest that figure, that is our best estimate.
Equally, many men wish to continue working past 60 and, as the Marshall case shows, some women wish to continue working past age 60 also. However, since a pension age of 60 for women has been in force within the United Kingdom since 1940 a high proportion of women and their families have geared their financial planning and expectations towards retirement and pension at that age and might be quite unhappy to see it increased.
In order to resolve these difficulties, the Government set out in the Green paper on reform of social security in June of last year the suggestion of a flexible decade of retirement. Consultations produced no suggestions for how the costs of this poposal, which are still very substantial, could be met. I can assure noble Lords that we are still considering possible ways of developing this idea in an affordable form.
Lord Stoddart of Swindon: My Lords, the noble Lord said that the cost of equalising the retirement age (which I take it would be at 60) would be exorbitant and he mentioned a figure of £3,000 million which seems a very high figure. Perhaps he would look at this, because while I was in the other place I was given an answer to a question which I asked on this subject which told me then—I believe in 1982—that the net cost, after taking into account people who are unemployed and so on, would be £250 million for each year 1that the retirement age for men was reduced. I make that figure to be £1,250 million, which is quite different from the £3,000 million which the noble Lord mentioned. I do not expect him to answer that at this moment. But can he take on board and perhaps investigate, write to me and put the reply in the Library?
Lord Young of Graffham: My Lords, I am grateful to the noble Lord for his intervention. I shall look at the figures. It is a matter outside my immediate responsibility but I shall look at it. I hope that I may be in a position to write to him or request my right honourable friend to do so. Let me say in passing that this is a matter which should not be taken lightly. I speak from memory but I believe that at the moment there is one retired person for every 2.3 working people in the United Kingdom and that in the first decade of the next century the figure will he one retired person to every 1.8 working people. We must be careful when we see other economies in the world, such as the United States of America, where the tendency is towards late retirement as people wish to
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work later and contribute more to the economy. I think that to go down the path of actively encouraging earlier retirement for all imposes a financial burden on the community which we should all consider.
It is for this reason among many others, that the Government are determined to look at all the consequences of this matter and see all the implications of it. It will set a pattern not only for ourselves (since by that time I hope to be well and truly covered by this matter) but also for those who will follow after us. Many points have been raised on this subject, but I fear I can add little to what has been said. That is as far as I can take the matter.
[Amendments Nos. 1B to lE not moved.]
On Question, Commons Amendment No. 1 agreed to.
7.15 p.m.

COMMONS AMENDMENT
After Clause 1, insert the following new clause:
"Age of retirement etc.: unfair dismissal
(1) For paragraph (b) of subsection (1) of section 64 of the Employment Protection (Consolidation) Act 1978 (upper age limit for unfair dismissal cases) there shall be substituted the following paragraph—
"(b) attained the following age on or before the effective date of termination, that is to say—

(i) if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age; and

(ii) in any other case, the age of sixty-five."

(2) In subsection (6) of section 73 of the said Act of 1978 (definitions for the purpose of the provision for reducing a basic award for unfair dismissal), for the words from "the specified anniversay" to "her birth" there shall be substituted the words " "the specified anniversary" in relation to an employee means the sixty-fourth anniversay of the day of his birth".
(3) Subsection (2) above shall not affect any award for the unfair dismissal of an employee in relation to whom the effective date of termination (within the meaning of Part V of the said Act of 1978) was before the coming into force of that subsection."
Lord Young of Gralffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 2, and with the leave of the House I shall also speak to the technical amendment to the Long Title, Amendment No. 21. Amendment No. 2 provides the second new clause which was introduced in another place to amend our legislation in the light of the Marshall judgment. The clause before us now amends the unfair dismissal provisions of the Employment Protection (Consolidation) Act 1978 so that a woman will be protected against unfair dismissal up to the same age as her male colleagues.
Section 64(1)(b) of the 1978 Act provides that employees cannot complain of unfair dismissal to an industrial tribunal if they have reached their normal retiring age or, in the absence of a normal retiring age, if they have reached age 65 if a man or 60 if a woman. Despite the amendments contained in Amendment No. 1, without change to these provisions of the 1978 Act, a woman could cease at an earlier age than a man to have a remedy against unfair dismissal. Subsection (1) of this clause therefore amends the 1978 Act so that

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where there is no normal retirement age for the position, which is the same for both sexes, the right to claim unfair dismissal will extend to 65 for women as well as men.
Subsection (2) of Amendment No. 2 deals with the tapering of basic awards by industrial tribunals after a finding of unfair dismissal. At present, Section 73(1)(b) of the 1978 Act provides for these awards to be reduced by tapering after a man's 64th birthday or a woman's 59th birthday. Subsection (2) amends this so that tapering will begin at age 64 for both men and women.
Amendment No. 21 is a technical amendment to the Long Title, necessary if the new clauses in Amendments Nos. 1 and 2 are to be included in the Bill. I am sure that both sides of your Lordships' House will welcome this clause as a necessary companion to Amendment No. 1. I beg to move.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham)
Lord McCarthy: My Lords, we welcome this amendment because, as the Secretary of State says, it is required to carry into effect the Marshall judgment. The only point I want to make is to emphasise once again the link with the redundancy payments position and the redundancy payments criteria. I think I am right in saying that the Secretary of State did not answer, at least at any length, the many points that were made in the previous debate about the link between redundancy payments and what the Government now propose to do about the Marshall judgment. That comes clearly into sharp focus as a result of Amendment No. 2.
Let me give a concrete example in a little more detail than I gave earlier. Let us suppose that an employer selects a redundant man in order to avoid redundancy payments. Let us also suppose that the general practice in his place of work is that people should he dismissed on grounds of redundancy on the basis of first in, last out. Let us then suppose that in order to avoid paying substantial redundancy, or any at all, some short-term employee is dismissed. I would argue—and I think that the Secretary of State will accept—that that would be thought by any industrial tribunal to be unfair selection, and therefore unfair dismissal, with grounds for compensation.
Now let us suppose that the Bill becomes an Act and an employer selects a 61 year-old woman also to avoid redundancy payments, and, as as I said earlier, given abolition of the rebate there is an additional incentive to do so. My question to the Secretary of State is whether this is unfair selection. If it is a man, it is unfair selection. It it is a woman, is it unfair selection?
The Secretary of State may say that only a tribunal could decide this matter, but surely now, if an employer were to go before an industrial tribunal in a circumstance of this kind, he could pray in aid this Bill. He could pray in aid the Secretary of State's refusal to deal with the redundancy payments point. Yet surely what is fair for a man in these circumstances should be fair for a woman, and if a woman were to
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take a case of this kind to the European Court we can have very little doubt what it would say.
Therefore there must be a connection between the Marshall judgment and what is being proposed to deal with redundancy, and the Equal Opportunities Commission must be right in its recent publication when it stated:
"The Government regards the provision of redundancy payments as a matter falling under the EEC Social Security Directive and not under the Equal Treatment Directive. But the Commission doubts whether this is a proper interpretation of the position under the European Community law and notes that the European Court of Justice has recently reiterated the fundamental importance of the principle of equality of treatment between men and women, and that the Court has given strict interpretation to the clauses in the Equal Treatment Directive which derogate from that principle; in particular Article 1(2) which purports to remove the issues of social security from that Directive".
In other words, the European Court says that you cannot remove issues of this kind by saying that they are issues of social security and, in all logic and in all sense, you cannot. Therefore I ask the Secretary of State what he proposes to do.
Lord Young of Graffham: My Lords, the noble Lord, Lord McCarthy, has suggested—if not on this amendment, a few minutes ago—that women should, like men, be entitled to statutory redundancy payments up to the age of 65 instead of losing their entitlement at 60. I readily agree that it is anomalous for redundancy payments to cease to be available to men and women at different ages. But state retirement pensions start at different ages and, because of the enormous cost of reducing the retirement pension age for men—whether we agree that it is £3,000 million or £1,250 million if the age is reduced to 60—I fear that this must continue.
For the present the cut-off ages for redundancy payments are linked to state retirement pension ages, as of course are many occupational pension schemes. I am sure it was because of their acceptance of the undesirability of breaking this occupational state pension link that noble Lords originally introduced Amendment No. 1D. I think it would be equally undesirable to disturb the link between redundancy payments and state retirement pensions.
It would also be unfair if a woman were allowed to receive redundancy payments up to the same age as a man. This would mean that a woman of 61, who unfortunately was made redundant, would be able to claim a redundancy payment and immediately receive her state pension. She would also not have to pay prescription charges if sick; she could in some parts of the country qualify for cheaper travel and other benefits offered to pensioners and even, if I may go so far, get reduced price hairdressing.
A man of 61 also made redundant would receive redundancy payment and unemployment benefit for one year and for one year only. After this time, he would have to rely on means-tested supplementary benefits, and indeed before he could obtain supplementary help he might first have to reduce his life savings and thus face old age with fewer resources than his female counterpart. I am sure that this would be seen to be unfair by the majority of people in this country. No one can dispute that in the past women have suffered from being required to retire at an earlier

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age than men. We must prevent this in the future and we are doing so in this Bill. Equally, we must not simply transfer discrimination from women to men,
On Question, Motion agreed to.

COMMONS AMENDMENT
After Clause 1, insert the following new clause:
"Discrimination in relation to training.

.—(1) Section 47 of the 1975 Act (discrimination in relation to training by a training body) shall be amended as follows.

(2) In subsections (1) and (3)—

(a) for the words "a training body" there shall be substituted the words "any person"; and

(b) for the words "it appears to the training body" there shall be substituted the words "it reasonably appears to that person".

(3) In subsection (2)—

(a) for the words "it appears to a training body" there shall be substituted the words "it reasonably appears to any person"; and

(b) for the words "the training body" there shall be substituted the words "that person".

(4) For subsection (4) (definition of, and power to designate, training body) there shall be substituted the following subsection—

"(4) The preceding provisions of this section shall not apply in relation to any discrimination which is rendered unlawful by section 6."."
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 3. I should like also to speak to Amendment No. 20 which is consequential. I am sure both sides of the House will be glad to welcome this clause, which was introduced by the Government in another place. It has the admirable aim of cutting down bureaucracy and paperwork and making it easier for organisations to run special vocational training courses in order to break down traditional barriers which divide work into "men's" and "women's" jobs.
The Sex Discrimination Act's basic principle is that there should be no discrimination on grounds of a person' sex. However, it has to be recognised that there are circumstances where the members of one sex, usually women, have suffered particularly because of discrimination in the past and which merit special treatment, or positive action, to help overcome barriers to equality. Section 47 therefore enables positive action in the form of discriminatory vocational training for women only (or for men only) to help them enter particular work in which they are under-represented or to re-enter the labour market after bringing up their families. Only the Manpower Services Commission, industrial training boards and other training bodies which are specially designated by or on behalf of the Secretary of State can take advantage of this section as it now stands. Applications for designation have been increasing rapidly over the last three years, so that now over 170 bodies have been designated. A wide variety of training is covered, including engineering, construction, management and enterprise, and much of it qualifies for financial assistance from the European Social Fund. There is no doubt that this training plays a valuable part in encouraging women to undertake work usually considered to be men's preserve.
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The aim of this clause is to do away with the need for the designation process and to enable a wider range of people to run such courses, while maintaining the other requirements of the section which ensure that this departure from the principle of nondiscrimination is not abused. The designation process has caused extra paperwork for training bodies and for my department, and has not brought to light evidence of abuse. I see no need for its retention. Training will still have to comply with the strict requirements of Section 47, and this will be enforced, like other forms of discrimination, through the established processes for individual complaint.
The clause also enables "any person" to offer training under Section 47, instead of only "training bodies". This previous restriction caused problems for organisations whose main function was not training; local authorities have been a prime example of this. There now seems no need to restrict training in this way, provided employers do not use the provisions in order to discriminate in recruitment of employees. Subsection (4) makes clear that Section 47 does not enable employers to discriminate in offering employment at the end of a training course or in order to train, although they will, of course, still be able to offer discriminatory training to existing employees under the terms of Section 48 of the Act. I ask for your Lordships' support of the clause.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
7.30 p.m.
Lord McCarthy: My Lords, I have little to say on this amendment. It is yet another example of deregulation. The Secretary of State is quite right; it was generally welcomed in another place as a way of encouraging still more single sex vocational courses for women. It was said in another place that there are no single sex vocational courses for men, and that is an indication that things are moving in the right direction. Quite clearly there are a number of jobs and areas with professional qualifications and craft skills where we all want to encourage the provision of more training for women; and if that is to be done by single sex vocational courses, that is the way it should be done. I merely want to make one or two points and see whether the Secretary of State can reassure me on any of them.
It has never been explained to us how the operation of the designated procedure restricted the growth of courses. It may have lead to many more pieces of paper; it may have lead to one or two more civil servants; but it does not seem to me that there is evidence that it restricted the growth of courses. If it did not restrict the growth of courses, will the removal of the designated procedure in itself lead to a growth of necessary courses? I wonder whether there is evidence that the designation procedure restricted growth.
Secondly, and more importantly, we are not told—at least we were not told in another place, and, with respect, we have not been told so far in this House—how the individual complaints system will work. The Minister in charge of the Bill in another place said that there will be an individual complaint

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procedure, which means that any individual who considers that he (since there are no single sex courses for men) has been excluded from a course which is a single sex course can complain because the provisions of Section 47 of the Sex Discrimination Act have not been abided by.
That sounds all right as it is but when I look at the provisions of Section 47 it comes to my mind that it is extraordinarily difficult for any male who thought that the criteria of Section 47 had not been observed to make an informed judgment on this. For example, one of the criteria to ensure that one should be given a designated authority for doing this is that nobody of a given sex is doing that work. Another criteria is that, even if nobody of a given sex is doing that work, comparatively few people of that sex are doing that work; or if not comparatively few people of that sex in the country as a whole, in the area where the course is being put on comparatively few people of that sex are doing that work.
Another of the criteria to be looked at is whether the training should be confined to those with domestic or family responsibilities. The fact is that those criteria in the Sex Discrimination Act were intended to be operated centrally. They were intended to be operated in effect by the department, which was the only body that could say in any informed sense how many people of a given sex were doing the work, whether comparatively few were doing the work, and so on. I do not see how there is to be any enforcement procedure. I cannot imagine how the individual complaint will work or what information the complainant will be able to gather which will show that the individual who is running the course is breaking the provisions of Section 47. I look forward to the answers of the Secretary of State.
Lord Young of Graffham: My Lords, anxious as I am to promote the work of my department and the number of civil servants to whom we give gainful employment, I fear that I must take slight issue with the noble Lord, Lord McCarthy. We have had no evidence so far that the requirement of coming centrally has held back or hindered the growth of these training courses. As I said in my opening remarks, the number has grown very rapidly in the past three years to 170 bodies. We have done extremely well—far better than any other nation—in looking for European Social Fund assistance, for example, for women's training. We even have a course now coming before us which is confined to training for men only. It is growing well. Therefore it is important to let the numbers multiply. I am very glad to welcome the change so that "any person" can offer training instead of only training bodies. That will open up training to local authorities and other interested parties; those whose primary function is not training.
I should like to deal with the main question put to me by the noble Lord, Lord McCarthy. Any individual who thinks that he or she has beeen discriminated against in the employment field by any sort of training body—even by the Manpower Services Commission or by a body designated by Section 14 of the Sex Discrimination Act— can complain to an industrial tribunal. Complaints about other kinds of bodies
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would be heard by a county court. The most important matter is that we should allow the volume of training to multiply. This clause will reduce an unnecessary impediment and I hope that your Lordships will agree with me.
Baroness Platt of Writtle: My Lords, the commission welcomes this clause, which will widen considerably the opportunities for both educational institutions and others to make special provision for the minority sex where there have been few or none involved in a particular occupation over the past 12 months. Over the past few years, as my noble friend said, the Government have actively encouraged institutions seeking designation so that the number now designated has more than trebled over the past three years. Nevertheless the procedure is cumbersome and time consuming for both the institution and the Government.
If this relaxation of the regulations, which also provides for the widening of its scope to include other bodies, results in more provision to encourage women into non-traditional fields of work such as engineering or the new technologies, that would be to their advantage and to that of the nation in doubling the pool of people who can achieve skills that are already scarce. That must help their own prosperity and that of the nation. I welcome the clause.
On Question, Motion agreed to.

COMMONS AMENDMENT
4 After Clause 1, insert the following new clause:—
"Discrimination required by public entertainment licences.
—(1) Nothing in—

(a) any licence granted (whether before or after the coming into force of this section) under Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982 or Schedule 12 to the London Government Act 1963 (public entertainment licences); or

(b) any regulations made for the purpose of prescribing the terms, conditions or restrictions on or subject to which any such licence is deemed to be granted.

shall have effect at any time after the coming into force of this section, so as to require any person to do any act which, apart from section 51 of the 1975 Act (acts done under statutory authority), is rendered unlawful by Part II of the 1975 Act (discrimination in relation to employment) or by so much of Part IV of the 1975 Act as relates to acts rendered unlawful by the said Part II.
(2) In this section "act" has the same meaning as in the 1975 Act.".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 4. Once again, with the leave of the House, I shall also speak to the technical amendment, Amendment No. 22, which amends the Long Title.
I think I should say at the outset that this clause in Amendment No. 4 is mainly the responsibility of my Home Office colleagues. It has, however, an employment connection and in this respect I am pleased to present it to your Lordships. The clause is a further small—indeed, I fear quite small—step towards equality for women in the workforce but it closes a loophole in our sex discrimination legislation.
The clause provides that if a public entertainments licence, or regulation under which such a licence is granted, requires discrimination which would be

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unlawful under the employment provisions of the Sex Discrimination Act, then that requirement is invalid. I am sure that the danger of local authorities using their licensing powers in a sex discriminatory way is theoretical rather than real. Nevertheless, the European Commission brought this possibility to our notice and we are acting to remove it. Amendment No. 22 is consequential on Amendment No. 4 and amends the Long Title to include the new clause within its scope. I beg to move.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
5 Clause 3, leave out Clause 3.
5A Lord Wedderbum of Charlton rose to move, That this House do disagree with the Commons in their Amendment 5.
The noble Lord said: My Lords, I beg to move my Motion numbered 5A on the Marshalled List; or perhaps I may put it more conversationally: we want to keep Clause 3 of the Bill as it left this House.
What was the purpose of our Clause 3, which this House added to the Bill over the Government's protestations which we hoped they would keep but which they did not in terms of the arguments they put to another place? It arose from the insistence that the Government must take their powers to repeal all the major legislative protections which limit women's hours and conditions in factories and in mines; including, of course, the limitations on night work as well as the limitations from legislation of 1954 on men's working hours in bakeries. Indeed, one cannot read the debates here and in another place without noting the urgency with which the Government advanced their demands.
To put the core of our argument on this matter, it is that the urgency which the Government have put forward at every stage is something which we now find—and I shall explain this later—cannot be met. The arguments which were made in another place to knock out our Clause 3 now seem to be misconceived and, therefore, there is very good ground whereby not only should this House do its duty in that respect, but also the other place might want to look at the matter again in the light of the facts that have emerged.
The legislation in the Mines and Quarries Act 1954, the Factories Act 1961 and the Baking Industry (Hours of Work) Act 1954 would be repealed by way of order under the provisions of the Bill as it left this House, with Clause 4 for the women's hours and conditions and Clause 5 for the men's hours in bakeries. On Second Reading in this House the Secretary of State insisted that this legislation was all outmoded. I quote the Secretary of State from Hansard for 27th February (cols. 1179 to 1182) but, if he will allow me, I shall not quote all his words. His arguments rested on the fact that these legislative provisions were outmoded. We are left, he said, with legislation on hours of work for women aimed at dealing with last century's problems.
Secondly, the Secretary of State argued that enterprise should be allowed to grow and could not grow well with limitations and restrictions of this kind.
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Finally, he argued that exemption orders could always be sought by employers, although he did not always point out, as we tried to do, that these were often a negotiated exemption with trade unions. But exemption orders could be obtained and, indeed, were obtained. Of the 1.5 million women in industry some 80,000, for example, work under exemption orders in regard to the night work provisions—a total of some 200,000 workers under such exemption orders.
What we said in reply to that. in Clause 3, was effectively that the Secretary of State needed another power. Your Lordships inserted a clause to allow the Secretary of State to make equal protection orders. The virtues of the equal protection orders would be, first, that they would take away the discriminatory element in the area of the factory or other industrial employment that they covered and, secondly, that they could be adapted to modern conditions and would allow for the repeal of parts of the legislation which undoubtedly may be rather old-fashioned.
It was, in fact, astonishing to us that the Government insisted that what they had to do was repeal all this legislation and nothing more. As the noble Baroness, Lady Seear, said on llth March in this House (reported at col. 549 of Hansard), this was throwing away 150 years of experience and a volume of scientific work. Revision case by case was our argument. We must get rid of it as soon as possible, was the Government's reply. I should say that the Government quoted the Equal Opportunities Commission in their defence, especially the report of 1979 in which the Equal Opportunities Commission asked: should we distinguish between men and women? Indeed, in another place on 22nd May (reported in col. 572 of Commons Hansard) the Paymaster General went so far as to claim that in response to that question—should we distinguish between men and women?—the Equal Opportunities Commission answered the question with, as he put it, a resounding "No".
It cannot be said too often that that is not the case. As the Equal Opportunities Commission said in its briefing of October 1986, although it supported the removal of such legislation where it applied only to men or to women, nevertheless:
"in conjunction with such removal the Commission recommended that minimum standards of welfare should be specified and that provision be made to ensure legal protection for those who might otherwise have their hours of work altered significantly and be unable to stay in employment."
The briefing goes on to support the code of practice which was also put into the Bill and removed in another place. The briefing continues:
"The Commission has accordingly welcomed the Government's intention to repeal the existing provisions but pressed for amendments dealing with other considerations emphasised by its report. It supported the provisions for protection of existing conditions and change of hours of work added to the original Bill in the House of Lords and regrets their rejection during the Committee stage."
Why. then, did the Government take such a firm attitude? The answer is clear in the debates—and one must give the Government credit for not changing the words between here and another place—from the way in which they put their case. The Government constantly argued urgency. The Secretary of State argued urgency. Mr. Lang, the Parliamentary Under-

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Secretary, on 17th June (reported in cols. 70 and 84 of Commons Hansard), was shocked at the idea of Clause 3 because it would delay the implementation of repeal by one year, and that was no good. On 22nd May (at col. 576) the Paymaster-General spoke about delaying a desirable reform and also about the delay of a year being intolerable.
If I may say so with respect to the other place, the noble Lord, Lord Trefgarne, put it best when summing up the Government's attitude. Having said, too, that delay was intolerable and that Clause 3 should not be inserted, he ended by speaking about the way in which it would promote delay and said that the time is now ripe for action. That was the Government's position throughout—from early February when the Bill was published right the way through to 22nd October.
On 22nd October a very strange event occurred. On the morning of that day a document was seen at a meeting of those who came, it so happened, from the Trades Union Congress to be advised and to consult with the Government. They found that it was said that the provisions in regard to night work would not be implemented by order until early 1988. That afternoon the Paymaster-General, in response to a question from my honourable friend in another place, said that this was so. I quote from col. 1246 of Commons Hansard for 22nd October. He said that,
"our intention is to introduce the various repeals as soon as possible following Royal Assent, subject to the position under the European social charter. There will be some delays because, as usual, we are mindful of our legal obligations. Under article 8(4)(a) of the European social charter, the United Kingdom has undertaken to regulate the position of women on night work in industrial employment. But it is open to the United Kingdom to denounce Article 8(4)(a), the next date for denunciation being February 1988, with notice by 26 August 1987."
He went on to say that until such time as denunciation could take effect the Government intended to keep in being and effect the Hours of Employment (Conventions) Act 1936—not, it seemed, the other provisions dealing with women's night work, only the 1936 Act. He continued:
"We intend to withdraw from that part of the European social charter for the same reasons that we intend to carry the Bill and to repeal these two pieces of legislation."
But there was no more debate on our Clause 3. That had gone by that time. So the position is that our Clause 3 would have allowed for the maintenance by a protection order of the protection of men and women equally in regard to conditions of work and especially, of course, in regard to night work where, if I may put it very broadly, in night work men are covered in bakeries by the 1954 Act and women are covered in bakeries which are factories by the 1961 Act.
It was well known and obvious—and as I understand it the Equal Opportunities Commission supported that view—that it was an area where an equal upgrading of conditions for men and women was a sensible, modern, efficient, socially just and indeed a good thing to do from the point of view of industrial relations. It would have had the abiding merit that it would have allowed the Secretary of State to iron out discriminatory features in the protective legislation while not contravening our international obligations under the European Social Charter.
If it should be put to me that I did not advance Clause 3 on the basis of the European Social Charter, I shall reply that that is true, not only because Clause 3 had enough merits by itself but also because I did not put the argument. The Government have argued for nine months that it is urgent to repeal these provisions but now they find that they cannot do so for two years. No doubt the real reason is because they had forgotten to denounce in 1985 that which it could have brought into account in 1986—that is the reality of the matter. Surely in that situation the Government ought to pay serious attention to these two arguments. I put it that way at this stage, though there is more to say later on this matter because the European Social Charter is extremely important and is very clear. However, since the Government agree that they are bound in regard to nightwork, I leave it at that and merely flag the point that later we shall also have to look at the fact that the Government and United Kingdom are bound to prohibit the employment of women workers in underground mining and, as appropriate, all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature. That is to be found in Article 8(4)(b) of the charter.
But at this point, dealing only with nightwork and noting that we shall have to look very carefully at the question of all the legislation that the Government want to repeal, I put the case in a broad way—which indeed would avoid any further investigation of the problems because the Government have powers to deal with all the problems. If this House introduced Clause 3 without knowing of the obligations under the social charter—because that is the reality of the matter—and if, on the one hand, the Government's argument was that they did not want Clause 3 because they wanted immediate repeal far within the period of two years which they now must keep for some at least of this legislation, and on the other hand another place conducted all its debates against manifest incitement by the Government to throw out Clause 3 because of its defects in terms of holding up the repeal of this legislation within a year—and that is plainly what is being said—which they now find that they cannot do, at any rate in part, then surely there is a case for saying that Clause 3 can come back into the Bill because it cannot possibly do any harm. Indeed, there are arguments to which we shall come later—I am trying to divide the arguments between the two different amendments—which may well suggest that if the Government retain Clause 3 in the Bill with the ability to make equal protection orders, they can make interim arrangements before the denunciation takes effect, which will be very sensible and avoid any further argument about breach of international obligations. How far must we go to ask the Government to get it broadly right at any rate and to care? They say they care. The Paymaster-General said, "We care about our international obligations". I accept what he said, but anyone who looks at the evidence will have to look at it hard before doing so.
So I say to the Government that if their opposition to Clause 3 was based on the argument of urgency and repeal within the year, but that over a large area of concern it cannot now repeal within the year—and they have said so—then that opposition to Clause 3 falls, and I ask, "Please can we have Clause 3 back?"

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Equally important, are the Government not under an obligation to send it to another place in the light of the facts which only became available on October 22nd this year? I beg to move that this House do disagree with the Commons in their Amendment 5.
Moved, that this House do disagree with the Commons in the said amendment.—(Lord Wedderburn of Charlton.)
Lord Young of Graffham: My Lords, I ask this House to agree with the Commons in their Amendment No. 5. Clause 3 was removed during consideration of the Bill at Committee stage in another place but none of the arguments made in favour of it convinced them that it would achieve anything positive at all. No doubt it will be helpful to your Lordships if I explain in some detail why this decision was reached.
Opinion in another place could not agree with the proponents of the clause that any advantage would accrue from introducing such a complex, unwieldy and time-consuming consultation procedure. Clearly, those who argue in favour of the clause base their case on the presumption that the Bill's proposals for straightforward repeal are the result of superficial consideration of scant evidence. Although accepting that something must be done about discrimination, it is argued that because the legislation has existed for so many years it somehow warrants further investigation than it has already been given.
However, it is not the case that insufficient consideration has been given to the issue. By any standards they have been discussed and considered exhaustively. They have been discussed since the publication of the report of the Equal Opportunities Commission in 1979 and yet agreement on the way forward has not been reached. After such a time lapse—some six years—there are simply no justifiable grounds for believing that a further period of consultation would result in a consensus view. In fact, as the report of the Equal Opportunities Commission notes, the debate on discriminatory provisons started long before that in the 1960s. Indeed, during the debate on this Clause in Committee in your Lordships' House on llth March (Official Report, 11/3/86; col. 552) the noble Baroness, Lady Lockwood, who had practical experience of a similar process to that suggested by this clause, expressed her doubts about the benefit of further consultations. A major new inquiry, as some have suggested, is unnecessary and can only go over the same old ground.
Even if further consultations were undertaken, the Secretary of State would still have to reach a decision taking into account the same arguments that have already been weighed up. During the many hours of discussion on this subject in both Houses no new reasons either for keeping this legislation or delaying its repeal have been put forward which had not already been considered before the decision to repeal was taken.
Statutory intervention in this area is unnecessary. The minority of working women whom these restrictions affect are quite capable of deciding what is best for themselves. This discriminatory legislation may prevent them working hours which are better suited to their circumstances and which may hinder
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their job opportunities and ultimately their earnings potential. Another argument put forward in support of this clause has been that it would allow the restrictions on hours to be extended to all employees, but there has been no outcry for the restrictions on hours to be extended to those men who are actually working alongside women in factories. To the contrary, many women positively seek the freedom to work the same hours as their male colleagues. In any event, to impose restrictions on all employees would undoubtedly increase the bureaucratic burden on employers. Some system of exemption from the restrictions would be essential. Instead of being encouraged to expand their concerns and thereby create more jobs, employers would be involved in a tangle of red tape in applying for exemptions merely to keep things ticking over at their current level. Imposing such restrictions on all employers would impose an enormous burden of inflexibility not only on employers but on employees and enterprise would ultimately be stifled.
The proponents of Clause 3 have warned that repeal of restrictions will lead to employees, mainly women, suffering longer hours, but there is no evidence at all to suggest that this will happen. Indeed, the 1985 New Earnings Survey indicates that women in full-time manual jobs in manufacturing are already working hours that are well within the maxima set by the legislation—average total hours are 40 per week. These repeals are unlikely to result in any radical change or deteriorating conditions. Factories operate to maximum capacity when they are producing goods which they are able to sell. Of course, some production processes require round-the-clock manning, but employers will not operate differently just to employ women for longer and unsocial hours. Neither is there any reason why the hours of bakery workers should increase just because the 1954 Act is repealed.
It is time for us to remove these discriminatory restrictions on women's hours and give them freedom and flexibility to choose individually what they wish to do. The 1·5 million women in manufacturing have exactly the same right as the millions of women in other sectors and men employed across the economy to decide, either through individual or collective bargaining with their employer, the hours of work best suited to their circumstances.
We are convinced that statutory intervention in these matters is unnecessary. It is high time that these women shed the somewhat second-class status implied by the restrictions. They do not need the law to determine when and for how long they will work, because they can decide that for themselves. I urge the House to agree to the Commons Amendment No. 5 providing for the removal of Clause 3.
8 p.m.
Lord Wedderburn of Charlton: My Lords, the Secretary of State has, with respect, again made his speech against Clause 3. Your Lordships rejected that the last time it was before the House. There does not seem to be any better reason for your Lordships to accept the Secretary of State's reasoning now. Indeed, with the greatest respect to the Secretary of State—I appreciate that he is in difficulties on this matter—I found it somewhat extraordinary that he said nothing to the House or more widely to the public and perhaps

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employers, who thought that this matter was all going to be repealed within a year of this Act receiving Royal Assent, that the House had conducted its deliberations upon a misconception which the Government have done nothing to cure and which the Secretary of State now does not mention.
Lord Young of Graffham: My Lords, if the noble Lord will allow me, that was revealed by Mr. Lang in Standing Committee A in another place. He disclosed the difficulties which we would have.
Lord Wedderburn of Charlton: My Lords, if the Standing Committee A proceedings include a reference to the European social charter, I shall be delighted to defer to the Secretary of State. I found it in the slightly later proceedings of 22nd October. That does not alter the fact that this House knew nothing about the matter.
I also believe it to be the case—the Secretary of State will no doubt correct me if I am wrong—that Clause 3 was taken out without reference to the social charter matter. If that is so, Clause 3 has proceeded through both Houses upon a misconception. It is surely right that it should be reconsidered. The Secretary of State will say that it is being reconsidered by your Lordships today. That is true. I urge your Lordships to take the decision that you took last time. I do that for two reasons. I shall repeat them, but I shall not try to repeat my answer to the Secretary of State in terms of the legislation.
The legislation stands. We all know that some women are not in a position to choose their own hours of work. We all know that there are some women who will be more exploited, even if we hope that there are many who will not, when this legislation is repealed. Anyone who thinks that that is not so should go and see.
This Motion is for your Lordships to approve for two reasons. The arguments for it are as good as they were when they achieved a majority. They are supplemented by the fact that, in so far as the Government rely upon the need for urgent repeal as an answer which they used then, and which the Secretary of State has used again today, the case for a clause which gives a power to the Secretary of State to make equal protection orders immediately, during the period of a year or indeed now for two years, is as strong, and must be slightly stronger than it was. That is the first reason.
The second reason is that the matter has been debated elsewhere. We sent it to another place without a crucial, central argument about Her Majesty's Government's international obligations. We did not raise that matter and so we are not attacking the Government on it. We can all make mistakes, even big ones. However, it is a serious matter to do so. It is an even more serious matter if another place debated the Government's arguments on urgency without full knowledge. I think that the Secretary of State will accept that full knowledge of the repercussions of this matter was hardly in anyone's mind until very late on in the proceedings. The need to hold up the repeal for two years, of even the parts which the Government accept—we shall argue later that that is not fully
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correct—is a new feature which surely another place should have the right to reconsider, merely on the Government's obligations to enable Parliament to be fully informed when it discusses the matter.
If the Secretary of State says, "That is not our responsibility. We mentioned it. It was mentioned in Standing Committee."—I am sorry that I said that it was 22nd October as that is obviously wrong, because the Standing Committee was at the end of June and July—"All right, it is not our duty to tell Parliament all the things about our international obligations for six months"; so be it, if that is the attitude that the Government want to take.
One would have thought that the Government would want to go further. It is an astonishing stand for the Government to take in regard to international obligations. Reconsideration would not take very long. I believe that to be a second reason for the House to re-adopt the clause, even on that provisional basis.
There are two different arguments. The first goes to substance and the second, in a sense, goes to procedure. We think that this is an important matter, and subject to the Secretary of State being able to give any other kind of assurance—I appreciate that the procedural possibilities are somewhat limited—we should have seriously to consider pressing the matter again.
8.7 p.m.
On Question, That this House do disagree with the Commons in their Amendment No. 5A.
Their Lordships divided: Contents, 30; Not-Contents, 56.

DIVISION NO.2

CONTENTS

Airedale, L.

Lockwood, B.

Attlee, E.

McCarthy, L.

Brooks of Tremorfa, L.

McNair, L.

Carmichael of Kelvingrove, L.

Northfield, L.

David, B. [Teller.]

Pitt of Hampstead, L.

Davies, L.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Diamond, L.

Prys-Davies, L.

Ennals, L.

Ross of Marnock, L.

Gallacher, L.

Strabolgi, L.

Grey, E.

Underhill, L.

Hampton, L.

Wedderburn of Charlton, L.

Harris of Greenwich, L.

White, B.

Houghton of Sowerby, L.

Winstanley, L.

Jeger, B.

Ypres, E.

Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS

Ampthill, L.

Craigmyle, L.

Auckland, L.

Davidson, V. [Teller.]

Beaverbrook, L.

Denham, L. [Teller.]

Belstead, L.

Eccles, V.

Boardman, L.

Elles, B.

Brabazon of Tara, L.

Elliot of Harwood, B.

Bridgeman, V.

Fortescue, E.

Brougham and Vaux, L.

Grantchester, L.

Butterworth, L.

Gray, L.

Caithness, E.

Gray of Contin, L.

Cameron of Lochbroom, L.

Greenway, L.

Carnegy of Lour, B.

Hailsham of Saint

Coleraine, L.

Marylebone, L.

Colwyn, L.

Hesketh, L.

985

Hives, L.

Montgomery of Alamein, V.

Home of the Hirsel, L.

Mountevans, L.

Hooper, B.

Newall, L.

Hylton-Foster, B.

St. John of Bletso, L.

Inglewood, L.

Sandford, L.

Kinloss, Ly.

Selkirk, E.

Lane-Fox, B.

Sharpies, B.

Layton, L.

Skelmersdale, L.

Lindsey and Abingdon, E.

Stanley of Alderley, L.

Long, V.

Trefgarne, L.

Lucas of Chilworth, L.

Trumpington, B.

Maude of Stratford-upon-

Vaux of Harrowden, L.

Avon, L.

Whitelaw, V.

Mersey, V.

Young, B.

Monson, L.

Young of Graffham, L.

Resolved in the negative, and Amendment No. 5A to Amendment No. 5 disagreed to accordingly.

COMMONS AMENDMENT
5 Clause 3, leave out Clause 3.
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 5.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
6 Clause 4, page 4, line 35, leave out "Subject to section 7 below,".
7 Page 4, line 39, leave out "Subject to section 7 below,".
8 Page 5, line 5, leave out "Subject to section 7 below,".
9 Page 5, line 22, leave out "Subject to section 7 below,".
10 Clause 5, page 5, line 37, leave out "Subject to section 7 below,".
11 Clause 6, page 6, line 5, leave out "Subject to section 7 below,".

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENTS
11A Lord McCarthy rose to move, That this House do disagree with the Commons in their Amendments Nos. 6 to 11.
8.15 p.m.
The noble Lord said: My Lords, I beg to move that this House do disagree with the Commons in their Amendments Nos. 6 to 11. I shall be speaking also to Amendment No. 14. All such amendments are designed to remove Clause 7 which was inserted at Committee stage in this House. The object of Clause 7 was to grant protection against unfair dismissal to existing employees who were covered by restrictions on night work and so on under existing Acts. I should say, as this led to some debate in another place, that the provisions of Clause 7, as written, were not intended to cover existing employees who were subject to exemption orders. There were no restrictions in operation in their case, and so it was essentially to provide a right of unfair dismissal.
I should like to remind the House why we put forward this proposal at Committee stage, what the Government objected to and why this House at the time rejected their argument. I wish also to examine whether any new or convincing arguments were mounted in another place of a sort that might lead us to change our minds. We proposed the right of unfair dismissal because we said that it was parallel to the position in the Shops Bill—the late and unlamented Shops Bill—where the noble Lord, Lord Glenarthur, had said, in a precise parallel circumstance that
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existing employees who had been attracted to work in shops because they would not have to work on Sundays would suddenly find, because of the passage of the Bill, that they would have to work on Sundays and they were entitled to some protection.
The noble Lord went on to distinguish between the position of these workers and the position of subsequent entrants who would know that Sunday work might well be demanded of them when they entered the job. In other words, he was upholding the old Burkean principle, once so dear to the Conservative Party, that people have acquired rights. And if they have acquired rights, they should be respected in legislation. The noble Lord said that he recognised their special position.
Building upon that example, we suggested that there should be similar provision in this Bill because in this case there are many women or men in baking who have been encouraged to believe that they should not have to do night work. That was the argument. What did the Government say? We were then in the hands of the noble lord, Lord Trefgarne, who made a series of arguments. So far as I can see, there were four arguments.
First, the noble Lord said at col. 558 on llth March, that our suggestion would load the dice against employers; secondly, that it resulted in a two-tier labour force; and, thirdly, that it might in the way it was drafted give rights to those who were under exemption orders, although we do not think that this is the case. The fourth argument was that what we wanted was not like the Shops Bill because much less use would be made of these new provisions—the new freedom of employers—in respect of night work whereas all knew that the moment the Shops Act was on the statute book and became effective hundreds and, in fact, thousands of shops would be opening on Sunday. Those were the arguments, but they did not commend themselves to the House.
In reply we said that these first two arguments could be made against Government proposals on the Shops Bill. We said there was no evidence there would not be widespread moves towards night work; indeed, it may be that there would be more changes than there were in the case of the Shops Bill, because as far as one knows, this legislation is observed at the moment whereas we all know that the regulations in shop work and preventing Sunday work are now largely evaded.
We said there were no problems in existence about the exemption orders, and the issue of exemption orders strengthens our case. The provisions of our amendment did not cover what was already covered by exemption orders. The exemption order system was a system which we accepted was more effective than the one we were proposing. The government spokesman in another place denied that. He said that workers would be in a better position—terrible thought—as the result of our amendment if it stood and that employers would be in a worse position than they would be under the old exemption orders.
I do not think that stands up because the exemption system is a collective system that encourages trade union organisation. It is a system where workers get exemption orders negotiated in effect by their unions. It is a situation where a union can come in and say that

987
if an employer wants to do night work he had better negotiate about it and recognise the union for that purpose. If the employer is found by the factory inspectorate, for example, not to be observing the provisions of the Acts and he does not have an exemption order, that is an offence and he can be fined. One can compare all that with the very mild provisions that we have placed in the clause where all that the individual worker will be able to do is take a case of unfair dismissal to an industrial tribunal and receive a relatively small payment in compensation.
The truth is that in so far as there is an imperfect comparison with the Shops Bill the case for our amendment is strengthened. The difference between the Shops Bill and this Bill is that the Government were in serious trouble on the Shops Bill. They wanted to ensure a majority for the Bill and therefore were prepared to initiate the kind of concessions that the noble Lord, Lord Glenarthur, introduced. The Government did not think they were in difficulty on this Bill and therefore resisted the perfectly reasonable amendments that we wanted to place, but they were wrong. They were passed by the other place and there is no reason why they should not be passed through this House tonight.
Moved, That this House do disagree with the Commons in the said amendments.—(Lord McCarthy.)
Baroness Platt of Writtle: My Lords, the commission's comprehensive report on health and safety legislation, Should we distinguish between men and women, published in 1979, came to the conclusion that there was no longer justification for maintaining legal provision on hours of work that required men and women to be treated differently. The overall recommendation was, therefore, that the legislation should be removed or, where health and safety demanded it, be replaced so it applied equally to men and women. However, in conjunction with such removal the commission recommended that minimum standards of welfare should be specified and provision made to give transitional legal protection for existing workers to ensure that those who might have their hours of work altered significantly could not be forced to leave their employment. I moved an amendment on those lines which I was subsequently unable to persuade my noble friend to accept.
The commission is very disappointed that there will now be no such provision in the legislation if Clause 7 is removed. It is supportive to the provision of protection of existing conditions in the Bill as it left the House of Lords and regrets its rejection in Committee in another place.
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 6 to 11 and I shall speak also to their Amendment No. 14.
The reasons for the removal of the references to Clause 7 from Clause 4, and indeed from Clauses 5 and
988
6, are of course inseparable from the reasons for the removal of Clause 7 itself. Clause 7 provided that the statutory restrictions on hours removed by Clause 4 of the Bill would continue to have effect as contractual conditions of employment for the workers to whom they apply at the date of commencement. The only exception would be if the employee involved agreed otherwise in writing. In other words, individual employees in effect would have built into their contracts the mass of statutory restrictions currently in operation, none of which is particularly suited to today's conditions.
It was the view of another place that this would not have been a desirable position. In a situation where we are attempting to decrease the burdens on business, we should have succeeded in achieving the reverse. Indeed, employers would have been worse off than had there been no move to repeal this legislation in the first place. Employers would have ended up with a two-tier workforce: those employees who retained the statutory restrictions as contractual conditions of employment and those who did not because they had agreed in writing to change or because they were recruited after the Act's commencement.
That was bound to cause totally unnecessary confusion and difficuties for employers and employees alike and to increase employers' costs, curtail flexibility and impair efficiency, thus destroying the deregulatory aim of the hours of work repeals. Employers and employees would have had to spend time picking their way through the mass of current restrictions, attempting to find out what needed to be retained in individual contracts of employment. This time, I am sure, could be better spent by both employers and employees. It would not have been a short-term problem. The outmoded and discriminatory restrictions on hours, some of them originating from the 19th century, would have continued to operate well into the 21st century until the very last of the current generation of employees had left the workforce for good.
Proponents of Clause 7 argue that we exaggerate the problem of the two-tier workforce. With all due respect, that argument misses the vital point. Clause 7 would have created a problem that need not have existed at all. Furthermore, the clause would have removed a degree of flexibility that an employer currently enjoys. This paradox comes about because the legislation permits exceptions and relaxations in certain circumstances. These will be swept away at the same time as the restrictions, so that the employer will be more inflexible than now and even more unable to cope with change. The restrictions will have become well nigh immutable.
In addition, the clause provided that the statutory limits would have remained as contractual conditions until the employee agreed otherwise in writing. This would have made it difficult for a variation to take place. Even if the employee started working new hours set by the employer outside what would have been the statutory limit, her contractual obligations would remain only to work within those limits. She could therefore refuse at any stage to work, say, before 7 a.m. or after 8 p.m. without being in breach of contract

989
even if she had been doing so for some time after the repeals took effect and the employer relied on her to work at such times.
A further fundamental objection to the clause is that it would have perpetuated for many years to come the discrimination that we are seeking to remove by repealing the restrictions on women's hours of work. Women in manufacturing have continued to be treated differently not only from the men working alongside them but also from other women working elsewhere in the economy. This would be entirely unsatisfactory, and could not have been justified.
The clause would also have made it automatically unfair for an employee to be dismissed for refusing to agree to a variation in working hours, but existing employment protection legislation already offers safeguards. A woman dismissed for refusing to work different hours following the repeals could make a complaint of unfair dismissal to an industrial tribunal provided that she had worked for the necessary qualifying period. Similarly, she could make a claim of constructive dismissal if she felt forced to leave her job because the employer tried to change her terms and conditions of employment by making her work hours that proved difficult or impossible for her.
Moved, That this House do agree with the Commons in the said amendments.—(Lord Young of Graffham.)
8.30 p.m.
Lord Wedderburn of Charlton: My Lords, did I hear the noble Lord the Secretary of State correctly? Did he say that in every case where a worker is employed to work certain hours and the employer comes along and says, "I want you to work different hours," and the employer then insists, and dismisses or constructively dismisses, that that would give rise to a claim for unfair dismissal? Does he say that that includes situations of reorganisation of the work and the business, and other areas on which there is a mass of case law to the contrary?
Lord Young of Graffham: My Lords, I said "could". I did not say "would". There are circumstances in which that could apply. I did not say that it would apply.
I went on to say that an employee could make a claim for constructive dismissal if she felt forced to leave her job because the employer tried to change her terms and conditions of employment by making her work hours which proved difficult or impossible for her. Another place, endorsing the Government's view, could not accept that there is any justification for further protecting the expectations of those working hours currently subject to the legislation being repealed. To do so would be to set them apart from all other employees who may be required to change their work patterns from time to time.
Furthermore, additional protections are unnecessary because, as I have said, we simply do not expect
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that lifting the restrictions on hours will prompt radical changes. Anyone even marginally involved in industry will realise this and the alarmist predictions of the supporters of Clause 7 are simply not justified. Machinery is expensive to operate; unsocial hours are expensive. Factories will only vary their hours when their order books justify it.
Any employer wishing to employ women at normally prohibited times is almost certainly already doing so under an exemption order and the majority of employers in the baking industry are working under collective agreements giving exemption under the 1954 Act.
In debates on this clause much has been made of its analogy with the so called "conscience clause" in the Shops Bill. It has been argued that the repeal of restrictions on hours would radically alter the position of factory employees just as the deregulation of shop hours could have fundamentally altered retailing. But there is no true parallel between the two situations.
It has been argued that the need for protection on the grounds of worsened expectations was exactly the same for those employees affected by these repeals as for shopworkers who stood to he affected by the deregulation of shop trading hours. But women in factories have always been aware that working prohibited hours was possible under a special exemption order or one of the regulations which provide some limited exceptions. Similarly in baking, collective agreements give exemptions from the provisions of the 1954 Act. So employees currently covered by the restrictions on hours could never guarantee that they would not, at some time, be called upon to work shifts, overtime or at night. But we were dealing with a different situation with retailing. It is perfectly true that because the law allows only a small number of shops to trade on Sundays, employees taking jobs in shops could be relatively certain that legal Sunday working in the present state of the law would not be asked of them. That was why the Shops Bill provision was framed as it was.
Furthermore, as I have explained, we do not expect working hours to change dramatically as a result of these repeals. The case for shops, on the other hand, was very different. Radical changes in hours would have taken place. After all, a shopkeeper can do business only if his shop is open and the volume of trade during extended hours may or may not make opening worthwhile. It was therefore appropriate to make provision for the wishes of employees in such circumstances. Lastly, the shops legislation would not have discriminated between men and women but Clause 7 would have done so, as I have already explained.
I have explained why Clause 7 was removed in another place. It is vital that, when we consider the provisions of a clause such as this, we fully examine all its implications. We must judge whether its requirements are necessary and practicable. The view of another place was that Clause 7 failed the test on both counts: that its provisions were unnecessary and impractical. I therefore urge your Lordships to agree with its removal from the Bill.
Lord McCarthy: My Lords, the noble Lord gives the same selection of reasons. They are no more convincing now than they were then. He gives no more details. I cannot claim to have written all his reasons down but he says that the existing legislation is not particularly suited. However, the noble Lord neglects to tell us in which precise way it is unsuited. He says that it is a burden on business; he does not say how. In the noble Lord's own publication Burdens on Business there was no mention of this problem. It is true that four per cent. mentioned legislation; but it is quite clear that they were thinking about employment protection legislation. In any case most people talked about VAT and the level of taxes. On the basis of his own survey, nobody thought that this issue was a burden on business.
The noble Lord talks about a two-tier workforce. Everything that he says about the problems of a two-tier workforce—about those who are existing employees and those who come afterwards—could have been said against the noble Lord, Lord Glenarthur, in the debates on the Shops Bill. The Government did not accept the argument then. More amazingly still, the noble Lord says that what we are suggesting is more inflexible in providing that an employer cannot make someone work nights unless a written undertaking is given. The noble Lord says that it would be more inflexible for the employer than the present system of exemption orders. With the present state of the labour market, the idea that employers could not get employees in most cases to agree to have a condition of this kind in their employment contract is totally implausible. The noble Lord says that even if they had such an undertaking they would have to ask continually for changes in the written permission every time they changed the system of work arrangements. There is no evidence for this.
It has been well-established in industrial tribunals that workers can be asked to change their work patterns. If they unreasonably refuse to change their work patterns that is not a basis for a case of unfair dismissal. At first, he said that it was covered by existing legislation. Quite rightly, and very wisely, when my noble friend Lord Wedderburn asked him whether he was really saying that, he backed away. No one can say on what basis an industrial tribunal would be likely to say that any worker who refused to do night work after the passage of this Bill would be unfairly dismissed. I would think that the employer would have to have no reason, and would not seek to explain his reason, or have to indicate that it had anything to do with the necessities of his business, but that he was asking the worker to work nights out of pure vexatiousness. There might be some other substantial reason, but, other than that, no industrial tribunal is likely to say, unless there is this section in the legislation, that there is any protection for the individual worker.
We do not accept that the noble Lord the Secretary of State has given any answers to any of our questions. But it is late at night and we shall not press this to a Division.
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I beg leave to withdraw my Motion, That this House do disagree with the Commons in their Amendments Nos. 6 to 11.
Motion, by leave, withdrawn.
On Question, Commons Amendments Nos. 6 to 11 agreed to.

COMMONS AMENDMENTS
12 Clause 6, page 6, line 16, leave out "sections 4(1) and" insert "section".
13 Page 6, line 17, leave out "they refer" and insert "it refers".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 12 and 13. These changes, which are purely technical, were necessary to remove from the Bill the reference to Section 4(1) of the Equal Pay Act. The whole of Section 4 of the Equal Pay Act was repealed on 25th September 1986 by the Wages Act. To have retained the reference to Section 4(1) of this Bill would have been meaningless. I ask your Lordships to agree to the amendments.
Moved, That this House do agree with the Commons in the said amendments.—(Lord Young of Graffham.)
On Question, Motion agreed to.
[Amendment No. 14A, as an amendment to Amendment No. 14, not moved.]

COMMONS AMENDMENT
14 Clause 7, leave out Clause 7.
Lord Young of Graffham: My Lords, I beg to move, That this House do agree with the Commons in their Amendment No. 14.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
15 Clause 8, leave out Clause 8.
Lord Young of Graffham: My Lords, I beg to move, That this House do agree with the Commons in their Amendment No. 15.
As was explained when the Bill was considered here and in the other place earlier this year—although we understand and respect the motives which caused my noble friend Lady Platt to introduce it—the Government are opposed to this clause in principle. Those in another place shared that view and that is why, after much consideration, the clause was removed. I hope that I can persuade you today that the retention of this clause would result in such practical difficulties that its deletion from the Bill is the only way to proceed.
Clause 8 envisaged that the Health and Safety Commission, after consulting the Equal Opportunities

993
Commission, would be empowered to issue a Code of Practice giving employers guidance on carrying out new duties imposed by the clause. These new duties would be that when an employer proposed to make a substantial change in hours of work he must take into account the health, safety, welfare and the interests (particularly domestic and family responsibilities) of his employees and make appropriate provision for their health, safety and welfare.
This clause therefore imposed a new and onerous statutory duty on every employer in every section of the entire economy—not just the 1½ million or so employees affected by the repeals. The repeals of restrictions on hours of work proposed by this Bill are limited to women in industrial undertakings and men in the baking industry. By removing discriminatory restrictions which do not exist in other sectors, the repeals will simply give these workers the freedom to decide for themselves, in agreement with their employers, the hours which they work just as their colleagues in other sectors do. These repeals cannot possibly justify the imposition of a new statutory duty on all employers especially given the major practical difficulties of such a duty which I shall spell out later.
I should emphasise that clearly the vast majority of employers know that it is good industrial relations practice to consider the welfare and interests of their employees in all aspects of their working lives and the Government actively encourage this. Indeed, the Health and Safety at Work Act 1974 puts all employers under a general duty to ensure the health, safety and welfare at work of all their employees. In addition, the Health and Safety Commission is already empowered by the 1974 Act to issue codes of practice to provide guidance on any of the Act's general duties including hours. However, this clause goes beyond that. It provides that when changes in working hours are contemplated it would be the employer's statutory duty to consider the interests of his employees not only at work but elsewhere, particularly domestic and family responsibilities. This is a totally new departure.
The provisions of this clause mark a significant shift in the current balance of rights and responsibilities between employers and employees and our view has been strengthened by the protests from the employers' representatives who have pinpointed the impracticalities of the Clause 8 provisions.
What would an employer be required to know about his employees' domestic and family responsibilities in order to be in a position to consider their interests? Currently, an employer has no right to know the details of his employees' domestic circumstances although I am sure that in many workplaces he will come to know a great deal about his employees. Equally, the employee will likely know a great deal about the employer. However, individuals have the right to privacy if they so desire and I really cannot see that noble Lords want us to give employers the right to pry into employees' circumstances. However, if an employer does not do this how is he to comply with the duty imposed by Clause 8? Have the differences in how individuals regard their domestic and family responsibilities been fully considered? In exactly similar circumstances one person may wish that his
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personal circumstances be taken into account but his workmate may feel differently. Would an employer be required to treat them differently?
The clause also imposes significant problems of interpretation. What for instance is a "substantial" change in hours? At what stage may the employer consider he has exhausted his duty to "consider" his employees' interests? What does "appropriate provision" mean? These problems are legion and I believe it is extremely unlikely that any Code of Practice could much clarify them.
I appreciate that the intention behind the clause was partly to ensure that women did not find themselves at a disadvantage due to their domestic or family responsibilities. My noble friend Lady Platt explained that the clause was aimed at helping women take up improved job opportunities which may be open to them as a result of the removal of existing restrictions taking place in this Bill. However, I believe that if this clause were to be retained it could quite possibly have the opposite effect and discourage employers from recruiting women whom they judged had onerous domestic responsibilities. Indeed, the Equal Opportunities Commission's code of practice recommends that when recruiting to a job which involves unsocial hours the employer should not ask detailed questions based on assumptions about domestic obligations but only ask questions objectively. I think this highlights the difficulties for employers. An employer trying to comply with the provisions of this clause could possibly find he was in breach of the EOC code of practice, by going about it in the wrong way.
Finally, there is nothing to suggest a need for the wide ranging and inflexible statutory duty imposing an approach which most already pursue. On the contrary, evidence from those sectors of the economy where there are no statutory restrictions on hours, which is the majority, suggests that employers and employees manage perfectly well without this kind of unnecessary government interference. Our purpose in these repeals is to remove outdated restrictions and thus ensure that women have an equal opportunity to participate in job opportunities. Our aim is not to impose new unnecessary burdens on employers. We want them to concentrate on expansion and thereby create new jobs and not to have to spend time checking into their employees' private lives.
It is essential that we create the conditions under which enterprise can prosper and not impose yet more burdens, however well-meaning they may look on the surface. Jobs depend on it.
However, I recognise the very real concern expressed in this House, and in another place, that some form of guidance should be made available to employers who wish to make substantial changes in working hours after the repeal of restrictions on women's hours and of the 1954 Baking Act. As is usual when changes are made to the law there will be leaflets that outline the changes. I will ensure that leaflets to employers on this matter draw their attention to the importance of giving full and proper consideration to such issues as employee consultation

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and the availability of transport. I urge you therefore to agree with the removal of this clause.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
8.45 p.m.
Lord McCarthy: My Lords, we do not wish to spend too long upon this particular point in the business tonight. However, there are a few comments to be made. This provision was produced by the noble Baroness on the other side of the House, and was first suggested at the Committee stage of the Bill. A number of reasonable objections were made to the particular form of words which the noble Baroness used, some of them on this side of the House. As a result, the noble Baroness came back with an alternative form of words on Report; therefore, the Bill now includes this particular clause.
When the Secretary of State comes to us and says—I think I have understood him correctly—that this is an onerous statutory duty then a gulf opens up between us. When he can seriously say to the House that this minimal code of practice, this tiny infinitesimal burden—this flea is a burden—placed up the back of British industry is an onerous statutory duty, then I find the gulf opens up between us.
As has been said in the course of this debate elsewhere, all good employers would carry out the provisions of this code of practice anyway.
Only the bad employer would not carry out the kind of things which the Health and Safety Commission is likely to place in its code of practice. Yet the Secretary of State says that it is an onerous burden. However, he does not give us any evidence. I would suggest that very considerable evidence was deployed in this House and in another place when this issue was discussed at that time.
People mentioned the survey of the Department of Employment on women's employment, published in the Department of Employment Gazette in September 1984. They stressed the evidence of the TUC, the EOC and many other bodies. They stressed the report of the British Crime Survey, which shows that 41 per cent. of women in inner city areas feel unsafe walking home at night and that 63 per cent. avoided going out in the dark. They stressed the GLC transport survey which produced even more significant figures on all these points. Any decent employer would take these factors into account if he was suggesting a great change in hours which involved a substantial degree of night work.
The most remarkable argument against this very modest clause was the one put forward by the Secretary of State himself at col. 446 of the Official Report at the Report stage on 14th April. He did not mention it tonight, but perhaps it lies behind all his other reasons, and I remind him of it. He said that he objected to the proposals which required:
"employers to amend work practices to suit the domestic arrangements of employees".
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He said that he thought for us to put that forward was curious; that it was curious to suggest that employers should amend their work practices to suit the domestic arrangements of employees. I do not find that curious at all.
As I have said, the overwhelming majority of decent employers would try to start shifts to coincide with public transport, which is amending working practices to suit the domestic arrangements of employees. It is the kind of thing that we would include in a code of practice. The overwhelming majority of decent employers would introduce flexitime and try to operate flexitime so that it suited married women. That is just the kind of thing that one might put in a code of practice. Decent employers would try to avoid overtime requirements that reduced public holidays, particularly Christmas holidays. If they abolished the annual shutdown, they would try to let families take their holidays together, and they would try to avoid night work of a kind that most of their female employees might find would result in them going home during dangerous hours, unless they could find some form of transport.
All those things, including amending or changing work practices to suit domestic arrangements, good employers would do. We were simply suggesting that bad employers might have some tiny impress upon them to conform with good practice. It was a very tiny one because the only enforcement mechanism was unfair dismissal; and if you are suggesting unfair dismissal, you might be able to argue that a significant element in the decision to dismiss was a change in work arrangements and that the employer had not taken into account a modest, reasonable code of practice. The chance of it affecting 10 people's dismissals in 10 years would be very small. It was a tiny little weight, but the Secretary of State would not have it. He says that it would be a burden on business.
Baroness Platt of Writtle: My Lords, it was with considerable disappointment that I read this amendment to leave out Clause 8. This was the clause which I moved and for which I obtained support from all sides of your Lordships' House, so that it was passed by a substantial majority of 107 Content to 88 Non-Content.
In another place there were criticisms of drafting of the clause and the scope of its effect. Our intention was that a code of practice should be developed to prevent exploitation of vulnerable women workers by irresponsible employers after the changes envisaged by the Bill.
We are now within a few days of Royal Assent if this Bill is to be passed in this Session of Parliament. The Equal Opportunities Commission sees great merit in the Bill and believes that it will constitute a substantial step forward in progress towards the elimination of discrimination between men and women generally. We have made criticisms which the Department of Employment has heeded, and we are grateful for the alterations made. We are still critical of certain clauses of the Bill, which will not be altered by the Government at present. These may be the subject of future suggested amendments to the law by the Commission.

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Nevertheless, at this late stage, in our view the most important thing is that the Bill should pass into law. I had not intended, therefore, proposing a new amendment at this late stage as I do not in any way want to be responsible for hindering the passage of the Bill into law during this parliamentary Session, and time is now very short before Royal Assent is necessary. I am grateful to my noble friend for his assurance that he will issue notes of guidance to employers proposing changes in women's hours after the coming into force of this legislation. I hope that he will give practical guidance to employers on the consideration that they should give to the health, safety, welfare and interests of their employees affected by the change.
That should particularly cover facilities for transport, which has caused major anxiety on all sides of your Lordships' House and in another place, as sadly these days our streets are not safe at night for either men or women. Notes of guidance are not so strong as a code of practice, but nevertheless they represent a considerable step in the right direction if issued by the Department of Employment. Reasonable employers when changing hours of work, will have regard to that guidance and act accordingly. If irresponsible employers have paid little regard to the notes of guidance and are taken to an industrial tribunal by an employee, the tribunal can, in coming to their decision, judge to what extent they have acted fairly and reasonably towards their employees in that respect. I am grateful to my noble friend for his assurance, and hope that the EOC's co-operation will be sought in drawing up the notes of guidance.
On Question. Motion agreed to.

COMMONS AMENDMENT
16 Clause 9, page 7, line 17, leave out "Subject to subsection (3) below, this Act" and insert "Sections 1, 2 and 6(1) and (3) above and Part IA of the Schedule to this Act").
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 16.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
17 Clause 9, page 7, line 19, leave out "it" and insert "this Act".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 17.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Grurfham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
18 Clause 9, page 7, line 20, leave out "Sections 4" and insert "Subject to subsection (3A) below, sections (Discrimination as to retirement etc.). (Age of retirement etc.: unfair dismissal), 4".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 18.
Moved, That this House do agree with the Commons in the said amendment.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
19 Clause 9, page 7, line 24, at end insert—
"(3A) Except in so far as they come into force at an earlier time under subsection (3) above, sections (Discrimination as to retirement etc.) and (Age of retirement etc.: unfair dismissal) above shall come into force at the end of the period of twelve months beginning with the day on which this Act is passed.".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 19. This amendment concerns the commencement of the Bill and is necessary because of the new clauses which have been inserted in another place.
Amendment No. 19 relates to Amendments Nos. 1 and 2—the Marshall clauses. Its effect is to bring into operation these changes relating to retirement age 12 months after Royal Assent, unless they are brought in earlier by commencement order as provided for in Amendment No. 18.
The Government are fully in agreement that these important clauses should come into operation as soon as practicable. As noble Lords know, we acted very quickly in response to the European Court's judgment. We certainly hope that employers will take account of the judgment and change their retirement policies as quickly as they can, without waiting for the legislation to come into force. Indeed employers who are state authorities should have done so already as the judgment made it clear that their employees can rely directly on European law.
However, I do not think it right to compel all private employers to change their practices in less than a year. Many organisations have retirement agreements based on state pension age and will have planned recruitment patterns and occupational pensions around this. These organisations were not to know that different retirement ages for men and women were contrary to the Equal Treatment Directive, and it is only fair (as I have already said) to give them time to put their houses in order. For example, manpower planning may have already led to the recruitment of a replacement some months before the employee's expected date of retirement. Also, although not required to do so by the legislation, such employers may wish to alter their occupational pension arrangements to better reflect the new practice, and this can take some while. I believe that the 12-month period we have provided gives a reasonable compromise for those who would like to see immediate implementation and others, including the CBI, who asked for a longer period of adjustment. I ask your Lordships to support this amendment.
Moved, That this House do agree with the Commons in the said amendments.—(Lord Young of Graffham.)
9 p.m.
AMENDMENT TO COMMONS AMENDMENT No. 19
19A At end insert ("but no order shall be made under subsection (3) above bringing section 4 into force before the 26th day of February 1988.").
Lord Wedderburit of Charlton: My Lords, I beg to move Amendment No. 19A. It is rather a pity that we do not arrange our business so that the amendment is formally moved, the amendment can then be dealt with, and then there can be a debate on Amendment No. 19. However, it is necessary to move Amendment No. 19A now, and I trust that we can give our attention to the amendment, and when we see whether the Motion is, as it were, amended, then there can be the debate.
The amendment is concerned with the matter of the European social charter, which has been mentioned. I deliberately mentioned it before and did not go fully into it because it seemed right that the Secretary of State should have an opportunity of putting the matter fully to the House. Since the Secretary of State has not chosen to do that I feel obliged to do so on this amendment.
The reason for the amendment is that the United Kingdom, as a party to the European social charter, is under an obligation to provide for certain types of legislation. That obligation can be denounced, in the language of international obligation—it is a rather pejorative word for a simple rescission—by six months' notice given to terminate at certain points. One of those points was the 26th February 1986, as I understand it. The Government chose not to do that. or did not do it. Maybe like us they did not know much about the point earlier. I do not believe that the Government did until some time this summer. I thought the 22nd October; the Secretary of State tells me that it was in June. Whenever it was, most of the debates on this Bill took place in ignorance of this point.
The provisions of repeal in Clauses 4 and 5 are such, as we saw in an earlier debate, as to remove protections that we think are in part important and in part obsolete and which the Government believe are totally obsolete. It is tempting to. go back into the substance of that debate in view of what the Secretary of State said tonight, because the Secretary of State merely repeated all the points put to your Lordships before and which we believe are answered; namely, that it is not true that all will be well for all women workers when the repeal on nightwork legislation takes place, hey presto, because women can discuss the matter with their employers.
That is the Government's position; that employers need not, except for these notes of guidance—and I wonder what they are really to be about—be put under any obligation to consider the domestic circumstances of their workers. We do not agree with that approach, and we made clear that is why we put forward the proposal for equal protection orders where appropriate; we agree with getting rid of discrimination. I feel that our position is not very far from that of the Equal Opportunities Commission taken as a whole. The Government's position is different. They want to
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deregulate. They believe that is important for the future of business, and frankly they do not put their mind very much to many of the points put to them about problems for workers.
It is therefore quite important to some workers; to some groups within the protected categories. There are arguments about just how big the groups are, but it is important for some groups of workers that certain things cannot be repealed now until 1988, whenever it was found out. That is the position now.
The Government say that they are going to repeal the legislation protecting women workers' hours except for the Hours of Employment (Conventions) Act 1936. That was said in another place. It has not been said here yet. My first question to the Secretary of State is whether that is right? Is only the 1936 Act to remain? If it is, why are certain provisions of the Factories Act going to be repealed, and how does that impact upon the social charter?
It is time that the European social charter, Article 8, was read to the House. It has never been put to at least this House of Parliament. Article 8, to which we were an original party with the members of the Council of Europe—and I shall come back to that later—says this:
"With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake:

(4) (a) to regulate the employment of women workers on night work in industrial employment;

(b) to prohibit the employment of women workers in underground mining, and, as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy, or arduous nature".

My second question to the Secretary of State is whether it is the case, as was stated in another place, that the United Kingdom, in its renunciation notice next year to expire in February 1988, is to renounce Article 8(4)(a), or is it to renounce the whole of subparagraph 8(4), or to renounce any other bits of the European social charter, including, of course, the position of young workers? A government who do things like exclude young workers from wages councils and regard them as necessary targets for the lowering of. wages will no doubt be taking a careful look—indeed they have said that they are taking a careful look—at the legislation relating to young workers as well.
Parts of the Factories Act legislation that are being repealed—and indeed Section 129 of the Mines and Quarries Act too—relate to this area of night work. I am a little mystified as to just what the ground is for leaving only the 1936 Act and repealing the 1961 and 1954 Act provisions on night work for women. It is true that these provisions largely overlap, but they are not precisely coterminous, and why are some parts being repealed and not others?
My next question is, if the Government are not denouncing Article 8(4)(b), what right have they to repeal some at least of the legislation they now intend to repeal in the Factories Act, and indeed the Mines and Quarries Act, which surely comes within the phrase of work which is "dangerous, unhealthy, or arduous"? Work which may be prohibited to some extent—and plainly the article allows for that

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interpretation for women in so far as it is "dangerous, unhealthy, or arduous"—will have to be prohibited altogether. Are the Government really saying that, mindful of their international obligations, they can repeal the sections in the Factories Act, for example, restricting work by women on Sundays?
It is very arduous for some women to be required to work on Sundays. They need protection where they are not well organised in a union. What about the legislation that guarantees bank holidays? Is it not onerous to require women to work on bank holidays without any protection at all? Indeed, there are other parts of both the statutes. I should like to hear from the Secretary of State that he is totally convinced that no part of the legislation to be repealed, other than the Act of 1936, falls within the category of "dangerous, unhealthy, or arduous"?
However, there is a further point. Let me sum up the argument so far. It has two parts. The first part is that if one reads Article 8(4) of the charter it appears, we submit, that what is to be repealed will include not only legislation that regulates night work by women workers but also legislation which concerns women workers in relation to work unsuitable for them by reason of its "dangerous, unhealthy, or ardous nature".
There is this second further point. In our amendment we have asked the House to require the Government not to repeal any part of Section 4, night work and other parts, that may refer to dangerous or arduous work within this two-year period. The date we have set is the date upon which we acknowledge that the Government have the right, if they wish, to denounce yet another international obligation of the United Kingdom. But during that period we ask that this be made quite clear, in view of the confusion which has beset the debates on the Bill, nobody having mentioned the matter until late in the summer and now the Government saying that they will denounce a certain subsection and not others and will not bring in an order.
Indeed, the Secretary of State has just said in his reply to my noble friend that people must be clear about what will happen and have time to get their house in order. I should have thought that if that was sauce for the goose it is sauce for this particular gander. Here we need to know what will happen. At the moment it is highly unclear. With respect, the Paymaster-General's words in another place are capable of more than one interpretation as to precisely the ambit of the repeals.
But the argument goes further on the second point in this way. We have said that Parliament should say to the Government that while we are bound by these international obligations Clause 4 cannot come into operation to repeal the legislation concerning women's hours. We did not put in Clause 5 (that is, the Baking Industry (Hours of Work) Act 1954) which restricts parallel night work by men in bakeries. We did not put it in for a good reason. It is a matter on which I ask for the assurance of the Secretary of State tonight.
The reason is that in these nearly two years—it is not precisely a calendar period—until February 1988, women who work in bakeries which fall within the
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Factories Act provisions or within the Hours of Employment (Conventions) Act 1936 will be protected: that is to say those who work in bakeries which are within the legal terms of "factory", which is very wide indeed. In respect of some bakeries orders will be made under the various sections of the Factories Act.
It is clear that most, certainly many, bakeries fall within this area. The women will be protected until 1988 because of the social charter provisions that the Government are about to denounce and which they feel they cannot repeal until then. During that period to repeal the men's legislative protection in the 1954 Act would be discriminatory treatment of a most scandalous character. Indeed I assert this. I go further than to submit—I assert that the repeal of the 1954 Act during the two-year period would infringe the Community's equal treatment directive and make the United Kingdom Government yet again liable in the court in Luxembourg.
We must, I submit, have an assurance from the Secretary of State that in the period of his not being able to repeal women's nightwork legislation in bakeries by reason of the European Social Charter 1961, he will also not indulge in discriminatory legislation against men who will work in the same institutions and parallel factories, parallel bakeries, who will continue to be protected by parallel legislation which happens to be that of the Act of 1954. Indeed, anyone who believes in equality—and I call upon the Equal Opportunities Commission to make this a matter of close study—could hardly think that the women who work in a bakery on night work should continue to be protected for two years and that the men should not receive the existing protection that they have received now for 30 years, and which they and their trade union vigorously protest is necessary not merely for their works but also as a basis for industrial relations in the industry.
That is a point on which I hope to receive the Secretary of State's assurance. We put Clause 4 into the amendment arid that is what we wish to press. There is a final point because the Government themselves have said that they are mindful of international obligations; and, to give them credit, they have always before remembered to denounce. When they wanted to repeal or rescind the fair wages resolution they denounced the ILO Convention No. 94. To slash the powers of the wages councils they denounced ILO Convention No. 26. To ban trade unionism at GCHQ, they acted in flagrant contravention of ILO Conventions Nos. 87 and 151. They were prepared to be censured by the ILO for suspending the Civil Service arbitration agreement. They were prepared not to go forward with most other modern states to ratify ILO Convention No. 154 on promoting collective bargaining; and they have a dreadful record at the Community Court in Luxembourg and appear not to be too worried about making that record worse, because they introduce legislation which, as we have seen this evening, constantly risks offending against the directive when it would not be too difficult to put it right.
That is a pretty bad record in terms of international labour standards. There is certainly not another

1003
democratic government in the last five decades which has denounced so many, or which has broken so many. It is a very sad decline of Britain's moral standards in the labour standards world. Of course, the Government do not forget everything. There is a sister document to the European social charter adopted by the Council of Europe. It was adopted a decade before. It is called the Convention on Human Rights. That includes an article on freedom of association. The Government never forgot that when they were in Opposition or after. They claimed that legislation by the predecessor Labour Government of 1974 was a breach of civilised standards because it broke that international document. They went to the European Court of Human Rights and withdrew a defence, a proper defence, which had been pleaded by their predecessor government and saw to it that the United Kingdom was in difficulty under that convention; and they gave retrospective compensation to the people they said had been improperly dealt with, even though they had not been unlawfully dealt with as the law stood. In other words, they pick and they choose.
The record is plain. When they like an international standard they apply it and they follow it through for their supporters. When they do not like it, they either break it or denounce it. This time they forgot to denounce. This amendment says that they are not to break it and, in saying that they are not to break it before February 1988 when they can denounce it, we say, too, that the House should demand and Parliament should demand that it be adhered to for that period, and not least because, in adhering to it for that period, the principles of equality should be adhered to in that period which carries men and women side by side in bakeries, as well. On those grounds I commend this amendment to the House.
Baroness Platt of Writtle: My Lords, I shall await with interest the reply of my noble friend to the question put by the noble Lord, Lord Wedderburn, as to how he intends to avoid discriminating against men during the interim period referred to as far as bakeries are concerned. To turn to another point, the question expresses disappointment at the inclusion of this period of 12 months' delay before the clauses on retirement age come into force. The Commission has received numbers of complaints and applications for assistance under Section 75 of the present Sex Discrimination Act since the Marshall case.
In passing, I note with interest in the preamble to the Bill the expected effect on public service manpower. The Explanatory and Financial Memorandum refers to some small increases in public service manpower. The OEC itself has already had an increased workload and, with the inclusion of small firms, which we do not regret, can expect a greater workload in future. There is no mention of increased manpower for us. We hope that the Treasury and the Home Office will take note.
The complaints have come so far from women who have already been forced to retire and who are expecting not to be allowed to continue to work until the same age as male employees in their firms. Some major undertakings have acted very sensibly and postponed a decision until after the Act is in force. I welcome the fact that my noble friend has also
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welcomed this practice. Others have stood by the status quo and said that the women must retire.
The situation is further complicated, as the Government realise, in that at present the public sector is covered by the Marshall decision while the private sector may not be. The Commission is supporting the case of Mrs. Dukes v. Reliance Systems to establish whether the private sector is covered by the European Directive on Equal Treatment. Other cases are clearly awaiting the outcome of that decision. In the Commission's view, with all the warnings that employers have received from the publicity attaching to the Marshall decision and the passing of this Bill, there has been a sufficient period for them to prepare for change and the Commission feels that there could with benefit be a reduction in this period of delay so that more women could benefit from the Act and not have the frustrating experience of missing that benefit by a few months. I hope that my noble friend the Secretary of State will reconsider his decision and exercise his power under subsection (3) of this clause to appoint an earlier day.
9.15 p.m.
Lord Young of Graffham: My Lords, Amendment No. 19A would mean that none of the repeals of women's hours of work contained in Clause 4 could take effect before 26th February 1988. I may say that the delay in repealing all of these provisions is unacceptable to us. The noble Lord, Lord Wedderburn, has argued that because we have undertaken to retain the restrictions on women's night work and the Hours of Employment (Conventions) Act 1936 at least until February 1988, we should also retain all the restrictions in the Factories Act 1961 and the Mines and Quarries Act 1954. I am afraid we do not accept that proposition.
It is certainly true, as my right honourable friend the Paymaster-General explained in another place, that the United Kingdom's obligations under Article 8(4)(a) of the European social charter require regulation of the employment of women at night in industrial employment. However, it is open to the United Kingdom to denounce Article 8(4)(a). The next date for denunciation is 26th February 1988, with notice required by 26th August 1987. Until such time as the Article may be denounced—and we will of course consult before denunciation takes place—the Government will adhere to the requirement of the charter.
The noble Lord, Lord Wedderburn, spoke of the bad record of the United Kingdom in cases against us by the European Commission. On the contrary, the United Kingdom has an excellent record—in the top four for the small number of actions taken against us—compared to other countries in the European Commission. The noble Lord also complained, looking at our wages legislation, that we have taken young people out of the scope of that legislation. I am proud to be able to say that we today have youth unemployment below the European average and in our country youth unemployment is going down.
We shall of course adhere to the requirements of the charter until such time as we are free to look at other decisions and we shall do this by retaining the restrictions on women's hours in the Hours of

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Employment (Conventions) Act 1936. Keeping these provisions in force ensures compliance with the charter because the Act prohibits women working at night; night being defined as a period of 11 consecutive hours including the hours between 10 p.m. and 5 a.m. We can see no need to retain the outmoded and discriminatory restrictions on women's hours in the 1954 and 1961 Acts, and we intend to repeal them by order as soon as possible. The intention is that these repeals will take effect three months after Royal Assent.
It may well be that we are now coming to the final stages of this Bill. I thought the noble Lord. Lord Wedderburn, reached the heights of fancy in putting forward the argument that removing one set of discriminations as an interim measure would in itself be discriminatory. It is part of a process, and I am quite happy to be judged as part of that process in removing discriminations and not imposing them.
I think that at times, in all of the matters that we have discussed today, the Opposition has claimed that the repeal of restrictions on women's hours would also be in breach of Article 8(4)(b) of the European Social Charter. That is certainly a claim which the TUC have made to my ministerial colleagues. I have already explained our position so far as Article 8(4)(a) of the charter is concerned. Article 8(4)(b) requires contracting parties,
"to prohibit the employment of women workers in underground mining, and, as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy or arduous nature".
I must stress that the prohibition in the Mines and Quarries Act on women working underground is not touched by this Bill.
So far as other unsuitable work is concerned, no changes are being made by the Bill to the general duty under the Health and Safety At Work etc. Act, nor to the provisions affecting women's employment which are concerned with places of work or the type of process; for example, work involving contact with ionising radiation or with lead. We are satisfied therefore that the repeal of restrictions on women's hours proposed by the Bill does not conflict with Article 8(4)(b). Amendment No. 19A imposes an unnecessary delay before we can restart the process of repeal of the outmoded hours of work legislation. For this reason, I urge the rejection of Amendment No. 19A.
Perhaps I may also say to my noble friend that I hope she will accept that in the 12-month period, which we are putting forward in Amendment No. 19, we are looking at a reasonable compromise between those—and my noble friend knows them full well—who would like immediate implementation, and others, including the CBI, who have asked for a rather longer period of adjustment. There are many changes to take effect in the private sector, altering pension funds is not done overnight, so I hope that my noble friend can bear with me on this aspect.
Lord Wedderburn of Charlton: My Lords, this is the only debate that this House will have upon the international obligations of the United Kingdom Government in respect of these matters, and I venture to think it will look very strange to those who look at
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the report of it after a few years have passed. The noble Lord the Secretary of State resists our amendment. I am not quite sure why he resists the amendment, rather than saying that it goes too far. He does not seem to resist the notion that he is bound not to do anything on the repeal of, at least, night work for two years, until February 1988. He says that that is the part that the United Kingdom will denounce, citing the Paymaster-General in another place, which I think must be the passage of 22nd October. But I shall look again after our previous exchange to see whether there is anything in the report of Standing Committee A. But with this matter being put to Parliament so late, the explanations that we have had are meagre in the extreme, not to say occasionally heights of fancy.
First, we are not told why it is the 1936 Act on women's night work is retained, and why it is not, for example, the section of the Factories Act 1961 which also deals with the matter. Why are some of the other sections not retained? They are not exactly coterminous. The Secretary of State correctly told us that it deals with periods of 11 hours, but we can see that by looking at the statute.
Secondly, what is the answer to our contention that Article 8(4)(b) is relevant to the discussion? I quote it again, and it states that there should be legislation under our obligations which we are going to retain and not denounce,
"to prohibit the employment of women workers —
not in underground mining; of course, we accept that that is retained—
"as appropriate, on all, other work which is unsuitable for them by reason of its dangerous, unhealthy or arduous nature."
Where is our legislation on that? At one stage, it seemed that the answer of the Secretary of State was that it was a sufficient defence to say that the TUC had complained about it. It is quite true that the TUC complained about it when it, along with others, was told the true nature of the situation. Then the Secretary of State suggests that the legislation which protects women workers, and indeed other workers in certain respects, in regard to radiation or lead working would be enough. He did not mention sheet glass working, but there is legislation there, too. There is another area but I cannot remember what it is.
These are very special areas. Is the Secretary of State saying that, if asked where is the United Kingdom legislation to satisfy Article 8(4)(b), he would say, radiation, lead, sheet glass, and perhaps another, if I have not misremembered, but that none of the other provisions of the Factories Act that we have repealed has anything to do with work that is arduous for women?
The Secretary of State is very fond of saying that this is ancient legislation. I assume that he has looked at the development of its history. It was enacted because some of this work was arduous and indeed dangerous for women. What is the protection in factories related to? It is related to the special difficulties of women; and as was said by the Webbs, men workers, too, fought on these matters from behind the skirts of women and achieved some protection because women workers achieved protection. That is what would happen if we equalised now, as we want to do. Over certain areas there would be equality of protection. But the

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Secretary of State says, I take it, that none of the things which are being repealed in the Factories Act, the Mines and Quarries Act, are to do with arduous or dangerous work by women. That would not stand up for a moment.
Perhaps I may refer to heights of fancy. I am glad if I gave the Secretary of State a jolly moment in the evening. I feel that he has had too few with heights of fancy. It is not my job to say so, but perhaps I may in this interpolation at least say how much we have enjoyed seeing him on the occasions he has presented the Bill to us. We have been very appreciative of what he has done to pilot the Bill through the House. But the height of fancy is surely to suggest that the recent repeal of certain provisions on wages councils which exclude young people, can yet have affected the figures in regard to youth employment. No doubt the Secretary of State works quickly and in mysterious ways, but that is rather fast.
My final point is about the bakeries. I feel I have to state it again because I am not sure that I put it so that it was properly understood. Let me put my point the other way round. This country is obliged—and it is an obligation that we cannot denounce, as we saw earlier this afternoon on another Bill—to respect certain obligations under Community law which take precedence over our own legislation unless something extraordinary happens. One of those obligations concerns the directive on equal treatment. That is why the Government brought in new clauses on the Marshall case, another aspect of the directive. The directive on equal treatment says that there must not be discrimination in regard to working conditions as between men and women. In regard to men and women working side by side in a bakery, each protected in relation to night work by legislation, what could be more discriminatory than to repeal the legislation in regard to the women and leave it protecting the men; or vice versa, to repeal it in respect of the men and leave it in regard to the women? It does not matter whether one does that for six weeks, six months, or 18 months or two years. It is discrimination and it is a breach of the 1976 directive on equal treatment. There is no way round this and the Secretary of State has proved it.
Were it earlier in the evening and a less happy occasion than the end of the debates on this Bill we might well want to press the matter. As it is, we shall not withdraw the amendment because it is important for the record to state that we do not withdraw the amendment. But it may well be that we sit silent and that the Secretary of State can at the last have his way.
Lord Young of Graffham: My Lords, I think it only fair to inform the noble Lord, Lord Wedderburn, that Article 2(3) of the equal treatment directive permits the retention of discriminatory legislation protective of women, not discriminatory legislation protective of men. That, of course, is a flaw in the noble Lord's argument. As the noble Lord well knows, the Health and Safety at Work etc. Act also protects against the dangers set out in Article 8(4)(b). I think that we should rest on that.
On Question, Amendment No. 19A, as an amendment to Amendment No. 19, negatived.
On Question, Commons Amendment No. 19 agreed to.

COMMONS AMENDMENTS
20 In the Schedule, page 8, line 3, at end insert—

"REPEALS CONSEQUENTIAL ON SECTION (Discrimination in relation to training)

Chapter

Short title

Extent of Repeal

1975 c.65

The Sex

In section 81, in

Discrimination

subsections (1) and (2),

Act 1975.

"47(4)(b)".'.

PART IA"
21 In the Title, line 1, leave out from "to" to "; to" in line 3 and insert "amend the Sex Discrimination Act 1975 and sections 64 and 73 of the Employment Protection (Consolidation) Act 1978".
22 Line 3, after "to" insert "make provision with respect to requirements to discriminate in relation to employment which are contained in public entertainment licences; to".
Lord Young of Graffham: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 20 to 22. These amendments have already been dealt with.
Moved, That this House do agree with the Commons in the said amendments.—(Lord Young of Graffham.)
On Question, Motion agreed to.

Financial Services Bill
Returned from the Commons with the amendments agreed to.
House adjourned at twenty-four minutes before ten o'clock.