HL Deb 03 November 1986 vol 481 cc998-1008 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.


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 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:

  1. (4) (a) to regulate the employment of women workers on night work in industrial employment;
  2. (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 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 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 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 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 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 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 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.