HL Deb 03 November 1986 vol 481 cc977-85

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in the Mines and Quarries Act 1954, the Factories Act 1961 and the Baking Industry (Hours of Work) Act 1954 would be repealed by way of order under the provisions of the Bill as it left this House, with Clause 4 for the women's hours and conditions and Clause 5 for the men's hours in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. 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- 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?" 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 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 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 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.

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.
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.
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.