§ 7.20 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyle) said
My Lords, I beg to move that the House do approve the draft Sex Discrimination (Northern Ireland) Order 1988 which has been laid before it under the Northern Ireland Act 1974. The draft order contains provisions analogous to those enacted in Great Britain by the Sex Discrimination Act 1986. Together with Articles 7 to 10, which replicate changes introduced in Great Britain in 1976 subsequent to the enactment of the Sex Discrimination (Northern Ireland) Order of that year, the amendment will bring Northern Ireland law into line with that in Great Britain. The contents of the order demonstrate the Government's continuing commitment to promote equality of opportunity in employment between men and women and to eliminate all unjustified discrimination on the grounds of sex.
Your Lordships will be aware that Northern Ireland has its own separate legislation and administrative framework for the promotion of equality of opportunity between the sexes and the control of unlawful sex discrimination. In reality, however, the law in Northern Ireland has tended to mirror that in Great Britain. This is hardly surprising because much of the provision is rooted in our obligations as a member of the European Community and they bite as much in Northern Ireland as elsewhere in the Kingdom. Similarly, the issues addressed in the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976, and in subsequent measures in this area, are common to Great Britain and Northern Ireland.
Of course it is important that, in following the 1986 Act, we should also take account of Northern Ireland views. For this purpose separate consultations were held in respect of Articles 3 and 11 and 4 and 5 on a par with earlier exercises in Great Britain. The totality of the order has also been the subject of consultation as part of the normal arrangements for Northern Ireland legislation of this type.
Several of the main provisions of the order, namely Articles 3 and 11 and Articles 4 and 5, stem from 81 separate judgments of the European Court of Justice and are designed to meet the court's ruling that, on the issues concerned, the United Kingdom's sex discrimination legislation did not fully meet the requirements of the European Community Equal Treatment Directive.
Articles 3 and 11 are a response to a judgment which found that the 1976 order was deficient on three counts covering its exemption of private households and of small firms with five or fewer employees, and its application to collective agreements and the rules of undertakings, independent professions and occupations. Articles 4 and 5, on the other hand, reflect the court's ruling in the case of Marshall v. South West Hampshire Area Health Authority in February, 1986; that the dismissal of a woman solely because she had reached state pensionable age, where that was different for men and women, was contrary to Article 5(1) of the Equal Treatment Directive.
That, then, is the background to the production of the draft order. I now turn to deal swiftly, but with reasonable courtesy and detail, with the substance of the articles. Article 3 repeals Article 8(3) of the 1976 order which exempts private households and businesses with five or fewer employees from the requirement not to discriminate in employment. The article goes on to make a new, more limited, exception for private households. This will protect an employer's freedom to choose a man (or woman) for a job living or working in a private home where there could be reasonable objection to someone of the other sex having the degree of physical or social contact with a person living in the home, or the knowledge of such a person's affairs, which the job is likely to entail.
Noble Lords may recall that there was considerable discussion in this House during the passage of the 1985 Act on the extent to which the law governing employment relationships should impinge on a person's freedom to choose the sex of employees who will be closely involved in his or her home life. In the Government's view, the wording of' this article achieves an acceptable balance between eliminating unreasonable sex discrimination and reflecting the view of the European Court that the principle of respect for private life was also fundamental.
Article 3 also removed the exemption for small firms. Noble Lords will be aware that while Government are committed to freeing such firms from burdensome and inappropriate rules and regulations, they accept that the removal of this exemption is a requirement of our membership of the European Community. In any case, it is good economic sense for companies, regardless of size, to recruit the best person for a particular job irrespective of sex.
Your Lordships may also recall that during the passage of the 1985 Act their suggestion that partnerships consisting of five or fewer persons should also be brought within the scope of the sex discrimination legislation was accepted. This was a logical extension which reflected the increase in the number of women entering business on their own account and the Government's commitment to self employment. This provision has been replicated in 82 full in the draft order. It is to be found at the top of page 3; Article 3(3).
Articles 4 and 5 are a particularly welcome extension of equality for women in employment. These articles, as I have already mentioned, deal with the implications of the European Court of Justice judgment in the Marshall case. The court in that case rule that the dismissal of a woman solely because she had reached state pensionable age, which is different for men and women, constituted sex discrimination contrary to Article 5(1) of the European Equal Treatment Directive. 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. As, however, the position of private sector employers was unclear the Government readily accepted that they should legislate to ensure the same rights for women in the private sector.
Article 4 makes it unlawful for an employer to treat a woman differently from a comparable male solely on grounds of age, in relation to retirement, promotion or training. In consequence of this change Article 5 gives a woman unfairly dismissed by her employer the right to claim unfair dismissal up to age 65 or as appropriate, the same retirement age applying to men and women in the organisation. Employers will have up to six months to rearrange their procedures and adjust their personnel planning to comply with the new provisions, but we hope that all of Northern Ireland's employers will implement these changes as quickly as possible.
The aim of Article 6 is to remove an administrative hurdle facing bodies which wish to provide training for persons of one sex—I shall explain that in due course —the need to be designated for this purpose by the Department of Economic Development under Article 48 of the 1976 Sex Discrimination Order. Experience in Northern Ireland, as in the remainder of the UK, has shown that this procedure has been of no particular value as a check against abuse of Article 48 and there is no practical reason to retain it. Trainers in firms or in Government areas however will still have to comply with the other strict requirements of Article 48. For example, single sex courses should only be provided for women (or men) in occupations where they are seriously underrepresented or in special need of training because they have been out of the labour market discharging domestic or family responsibilities.
I move on now to Articles 7 to 10 of the draft order. These extend to Northern Ireland the provisions which were introduced into the Great Britain sex discrimination legislation by the Race Relations Act 1976.
Article 7 will enable the Equal Opportunities Commission for Northern Ireland to prepare and issue codes of practice. The aim of such codes will be to give practical guidance aimed at eliminating discrimination and promoting equality of opportunity. The Equal Opportunities Commission in Northern Ireland already publishes a range of booklets of high quality. Its booklet on sexual harassment for example is considered to be a model and has been used as such in Great Britain. These 83 codes will be admissible as evidence before an industrial tribunal and can be taken into account by a tribunal in deciding whether or not an act of unlawful discrimination has taken place. They will, therefore, be an important reference point for employers, trade unionists and individuals in understanding their rights and responsibilities under sex discrimination legislation.
Article 8 specifies a new requirement which the Equal Opportunities Commission must fulfil before it can embark on a formal investigation. When the commission proposes to inquire into whether a named individual has committed an unlawful act, it will be required to inform that individual of the commission's intention to investigate and to offer that person both the right to make oral or written representations and to be legally represented. It is clearly right that in the field of sex discrimination the powers of the investigating body, and the rights of those who might be the subject of such investigations, should be the same throughout the United Kingdom. That is what we believe Article 8 will achieve.
Article 9 clarifies the maximum amount that an industrial tribunal is to apply in complaints presented to it by individuals under the Sex Discrimination Order. This limit has been set at £8,500 since 1st April 1987. Article 10 is a minor amendment that the Equal Opportunities Commission will welcome since it extends the commission's discretion to assist individuals in the preparation and presentation of complaints to industrial tribunals.
Turning to Article 11, I should stress, first that this also is designed to bring our equality laws into line with the European Community Equal Treatment Directive. The European Court judgment which gave rise to the Article 3 changes also required us to make void any discriminatory provisions in collective agreements, internal rules of undertakings and rules governing the independent occupations and professions. The court accepted that United Kingdom law partly embodies this aspect of the Equal Treatment Directive by virtue of Section 77 of the Sex Discrimination Act 1975 and Article 77 of the Sex Discrimination (Northern Ireland) Order 1976. Article 77 of the Northern Ireland legislation makes void discriminatory terms in contracts—which would include legally binding collective agreements—but it is necessary to make corresponding provision for agreements and rules which are not legally enforceable.
Although the judgment concerned only the European Community Equal Treatment Directive, there is a parallel requirement in the Equal Pay Directive. Article 11 therefore amends Article 77 of the Sex Discrimination (Northern Ireland) Order 1976 to make void any term of a collective agreement, whether or not it is legally enforceable, and any rule made by an employer for his or her employees in so far as it would breach the Sex Discrimination Order or the Equal Pay Act (Northern Ireland) 1970. This also applies to any rule by an organisation of employers or workers, a professional or trade association or a body which confers qualifications. The voiding of discriminatory terms and rules will 84 not impair employees' rights under their contracts of employment, which are specifically protected by the article.
I should not expect this article to have major practical effects. Trade union interests and employer organisations are, I am confident, fully committed to eliminating sex discrimination, and I should be surprised to find negotiators having joined collective agreements that were contrary to sex discrimination or equal pay legislation. The 1976 order already makes it unlawful for the organisations concerned to discriminate between male and female members or would-be members and already provides a remedy through the industrial tribunals for any employee who suffers discrimination, whether or not it flows from a collective agreement.
Another objective of the order is the repeal of restrictions on hours of work. We find a major step in this direction in Article 12 which provides for the removal of outmoded and discriminatory restrictions on hours of work for women from the Factories Act (Northern Ireland) 1965. It also removes the power to impose such restrictions under the Mines Act (Northern Ireland) 1969 and the Quarries (Northern Ireland) Order 1983. These repeals will not only put women in the manufacturing section in Northern Ireland on a par with men in the same occupations but also with women in other jobs where there are no legislative restrictions on hours of work. A number of these restrictions date back to the middle of the 19th century when working conditions, the status of women, and society in general differed greatly from today. We think your Lordships will agree that it is illogical that women in the one sector should be denied the opportunity to determine their own hours of work with their employers without the law's intervention. The change is directed at discriminatory legislation that has outlived its usefulness and will allow women in the manufacturing sector to shed the somewhat second-class status which these restrictions imply.
I should stress that these proposals increase women's freedom to choose. Repeal of the existing measures should not lead to a situation where women are forced into working hours they do not want, any more than male workers are forced into shift working at present. In the unlikely event of a woman employee coming under pressure to work hours which are currently prohibited, it would be open to her to refuse and, if as a result she was dismissed, to claim unfair dismissal.
The repeals will also lift the bureaucratic millstone from employers in the manufacturing sector. The current restrictions are complex and entail a mass of paperwork detailing the period of employment, hours, overtime, meal breaks, etc., of women employees. They will allow employers and their workforces additional flexibility with the prospect of organising working hours to optimum effect for both employees and employers.
I am particularly sensitive to the need not to expose women to greater hazards to their health, safety and welfare at the workplace. I should emphasise that there is no question of repealing those provisions aimed at protecting the unborn child or women who 85 have just given birth. The Health and Safety at Work (Northern Ireland) Order 1978, which is analogous to the Health and Safety at Work Act 1974 in Great Britain, continues to impose on all employers a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of employees. Employers must still consider the effect of changes in the hours of work of all their employees. This issue was widely debated during the passage of the Sex Discrimination Act 1986 and clearly the outcome of that debate is equally applicable to Northern Ireland. The draft order provides the basis for advancing the necessary repeals.
Finally. Article 13 of the draft order closes a small loophole in the sex discrimination laws by preventing district councils from using public entertainment licensing powers in a discriminatory way. No district council in Northern Ireland is known to discriminate in this way but as the European Commission considers our legislation to be deficent in this respect the Government have taken the necessary steps to remedy it.
This order represents a further step in the promotion of equality of opportunity and flexibility in employment. I hope your Lordships will give the House the benefit of your thoughts on it. I hope and I believe that it will secure necessary and worthwhile changes in existing legislation. Therefore, I commend it to your Lordships.
§ Moved, That the draft order laid before the House on 17th May be approved.—(Lord Lyell.)
§ Lord Prys-Davies
My Lords, I thank the noble Lord, Lord Lyell, for his presentation of this order and for his explanation of the background of its main provisions. I am sure that most of the articles in this order will be warmly welcomed in Northern Ireland.
According to my count, five of the main provisions have been specifically introduced to comply with the terms of the important European equal treatment directive, 76/207. Identical changes have already been made to the Great Britain legislation. I am sure that the Department of Economic Development in Northern Ireland will know that there is, in general, a great deal of criticism in Northern Ireland about the delay—described by one organisation as inordinate—in introducing these changes into Northern Ireland, particularly as the need for the reform is almost certainly greater in Northern Ireland than in Great Britain. That is borne out by the research on the subject of attitudes to all women in Northern Ireland by Dr. Kremer and Ms. Curry which was carried out in 1986. I am sure that the department is fully aware of that report.
Therefore, why the delay? Why the delay particularly as one of the possible effects of the order is to extend the remit of the equal opportunities legislation to cover small firms employing less than five employees? Given the nature of Northern Ireland society, many more people are employed in small firms than is the case in Great Britain. Therefore, I am tempted to ask whether the department is a reluctant legislator in this field.
I understand that the Equal Opportunities Commission for Northern Ireland considers that it 86 could be argued—I do not put it any higher than that—that at least two sub-paragraphs contained in the order may be in breach of the equal treatment directive. That mischief, notwithstanding the assurances from the noble Lord, Lord Lyell, this evening, is possibly to be found in Article 3(2)(ii) and again in Article 4(2)(c). I am sure that we are all agreed that we do not want to produce legislation which can be the cause of a long, tortuous and costly journey to the European Court of Justice. Is the Minister therefore in a position to assure the House that the department has taken proper steps to satisfy itself that there is no reasonable basis for the Commission's concern?
I now turn to the new articles contained in the order, which mirror the provisions to be found in the Sex Discrimination Acts of 1975 and 1986. While the general thrust of these provisions is to be welcomed, I understand that there is opposition to Articles 8 and 12 as drawn. It may be for the convenience of the House if I deal with those two articles before going on to raise one point of detail on Article 11.
The Equal Opportunities Commission for Northern Ireland is disappointed that Article 8 imposes on the commission the obligation to satisfy itself that it has grounds for believing that a person may have acted in breach of the order before it is at liberty to investigate his or her conduct. The effect of this new requirement it to stiffen considerably the test which the commission has to satisfy before it can embark on an investigation of a person's conduct.
The Minister may reply that this amendment merely brings the legislation in Northern Ireland into line with legislation in Great Britain. That would be correct, but this is one situation where the Northern Ireland commission does not want parity thrust upon it, because parity will be an obstacle rather than a help. Indeed, the Minister may mention to his ministerial colleagues that this is a situation where Great Britain could, with benefit, seek parity with Northern Ireland. I am told that what is needed in Northern Ireland is encouragement for the commisson to continue with its good work rather than putting up obstacles which will constrain its ability effectively to discharge its functions.
By stiffening the test, Article 8 introduces a limitation, a constraint, and indeed a significant departure from existing practice. Yet this major restriction was not brought out in the explanatory document published last December. Indeed, the article is described in the explanatory note printed at the back of the order as, if you please, a "minor amendment". One would conclude that this was merely a piece of tidying up. The commission will not swallow that one.
I should now like to say a few words about Article 12, which the Minister explained at length. This article removes restrictions on working hours and conditions of employment. There is some opposition to this article as drawn. I do not think that can be dealt with by merely calling on the services of logic, as the Minister appears to have done. This opposition has been expressed in particular by the Northern 87 Ireland Committee of the Irish Congress of Trade Unions. It puts part of its case in this way:There is no guarantee that women would have a choice whether to work at night or not. At present, night shifts can be worked by women with their consent. This would not be the case in the future. The abolition would alter the shift-work patterns and would necessitate all workers to operate the new shift patterns, or risk them losing their jobs.The Equal Opportunities Commission pursues another worrying aspect of this article, which states:The Commission is concerned that any removal of protective legislation should not adversely affect the health of employees. It recommends that the Government should carry out detailed research on the implications of the removal of protective legislation concerning shift work and overtime on all employees".I believe that the Minister made some reassuring and sympathetic observations on the application of this article. If I have correctly understood him, I am sure that those observations will be well received in Northern Ireland. Nevertheless, if the Minister can give more assurances when he comes to reply that this article will not have the adverse effects which the Northern Ireland Committee of the Irish Congress of Trade Unions and the Equal Opportunities Commission fear that it may have, that will also be welcome.
Article 12 also gives power to the department to make consequential and transitional provisions. Can the Minister elaborate on the scope of those provisions? I understand that this has been the subject of consultation, but I do not know how prolonged the consultation was and how thoroughly it was prosecuted. Perhaps the Minister can tell us something about the consultation. In particular one would wish to know whether the consequential provisions will provide protection for existing employees and will they provide some safeguards to prevent the misuse or exploitation of Article 12. Is it anticipated that the provisions will differ in any material respect from the GB provisions?
I wish to raise a question as regards Article 11. I found this article to be a complex one dealing with collective agreements. As I understand the article, a discriminatory provision in a collective agreement will henceforth be unenforceable. That is fine. But does any person or body have the power to remove the offending provision from the collective agreement? Will that power be available to the Equal Opportunities Commission? Again it is not clear what remedy is available to an employee who suffers as a result of the employer acting as if the provision were enforceable.
For example, if the exercise of the discrimination means the dismissal of the employee, what is her remedy? Presumably she can recover damages, or does she have to prove that she suffered a detriment before she can recover damages? A possibly more important question is whether she can recover her job. Where will she seek relief —in the county court or before a tribunal? Will legal aid be available to take such proceedings? Perhaps the Minister can answer some of those questions when he comes to reply or perhaps he will write to me at a later stage.
The explanatory document states that the order will have no significant effects on public expenditure.
88 But as the functions of the Equal Opportunities Commission will be extended, if only by extending its remit to cover firms of five or fewer employees, will its budget be increased to reflect the anticipated increased burden? I have asked those few questions and I indicated to the noble Lord, Lord Lyell, that I would be raising some of them in the course of the discussion this evening.
It remains for me on behalf of these Benches to express our appreciation of the contribution of the Equal Opportunities Commission in Northern Ireland under the committed, vigorous and effective leadership of its chairman, Mrs. Mary Clark-Glass, and all its chief officers.
§ Lord Harris of Greenwich
My Lords, I propose to say a few words only about this order. I do so in the context of the situation when I remember speaking in this House as a Home Office Minister and we were dealing with legislation as regards Great Britain in the period of the then government. I welcome the general thrust of this order. I believe that it improves the position as regards working women. I do not think any of us should have doubts about that. It is also clear that the position of working women would not be improved if we were not members of the European Community. In this country there are constant complaints from some tabloid newspapers and some politicians directing criticism at our membership of the Community. If we were not members of it we would not be discussing this order today. I believe it is necessary sometimes to say that with a degree of emphasis.
I make two other observations. Unlike the noble Lord who has just spoken, I do not take the view that Article 12 is in any respect objectionable. I believe a question arises as regards the case of Mrs. Marshall, which I believe all of us recognise as having been a landmark case. It seems to have taken an astonishing amount of time for the Northern Ireland Office to take action upon it. I recognise the pressures upon public servants in Northern Ireland as elsewhere, but why has it taken so long? We would very much value some explanation from the noble Lord, Lord Lyell, combined, I hope, with an assurance that in future there will be more speedy action.
§ Lord Monson
My Lords, the bland and innocuous-sounding title of the order conceals contents some of which are far from innocuous, albeit not wholly unexpected. Time is short so I shall confine my remarks to the three articles which in my view merit criticism, starting with those which are marginally less objectionable.
As the noble Lord, Lord Prys-Davies, pointed out, Article 12 removes certain safeguards which have traditionally protected women in certain fields of employment, safeguards which the great majority of people of either sex and throughout the United Kingdom have hitherto thought to be entirely reasonable. There are some who will claim that the removal of those safeguards constitutes some kind of liberation. The women working in the jobs concerned may take a somewhat different view. I can see it only as one more step in the insidious campaign to defeminise women, with all the dangers—not least 89 demographic ones—to the long-term future of our society which this implies.
Incidentally, it is interesting to reflect that one of the features of the Soviet Union which attracts the greatest criticism from foreign visitors is that most of the heavy manual jobs in that country are performed by women. How curious it is that we should wish to follow the Soviet Union down that road.
Article 4 forbids discrimination by employers in the field of retirement age. This sounds fair and reasonable until one considers that once it comes into effect many women, doing exactly the same job as a man of the same age and ostensibly drawing the same net salary, will in reality have that salary augmented by the retirement pension to which her male fellow worker is not entitled. It is curious that, while both the Equal Opportunities Commission and evidently the European Court, never cease to castigate, perhaps rightly, retirement age discrimination by employers, they remain strangely muted about retirement age discrimination by governments. That is a much greater scandal, given that women have a life expectancy seven and half years greater than men.
The really objectionable article in this order is Article 3. As the noble Lord, Lord Lyell, mentioned, we have been here before when in 1986 similar legislation was proposed for the rest of the United Kingdom, legislation which attracted a great deal of strong criticism from various parts of this House.
I remember my noble friend Lady Saltoun of Abernethy, who I am sorry to see is not present tonight, being particularly scathing about the then equivalent of what is now Article 3. It is one thing to back this kind of legislation, which can be described as coercive liberalism, when one is dealing with large and rather impersonal firms and partnerships or even with medium sized firms and partnerships. It is quite a different matter when one is dealing with a partnership of six or fewer or with a firm with five or fewer employees. As an employer in such a case one does not necessarily want the best qualified man or woman for a job irrespective of other considerations. Naturally, skills and qualifications are always most important but whether the new individual fits in and whether the chemistry is right between an employer and an employee are equally important factors. This applies with much greater force to employment in private homes, where additional considerations come into play over and above those of personal compatability.
A woman employer in a private home may prefer to employ a woman rather than a better qualified man because of some traumatic sexual experience at an early stage of her life. An elderly male employer may prefer to employ a female nurse rather than a better qualified male nurse because he likes to have a pretty face around. Conversely, either sex may prefer to employ a male gardener or a male chauffeur rather than a better qualified female one, because the employer lives in an area with a growing crime rate and wants somebody around who is able bodied enough to fend off burglars, vandals and hooligans.
The tragedy is that the number of potential private employers preferring one sex is probably exactly balanced by the number preferring the other sex, so 90 the preferences cancel one another out and there is really no need for this repressive legislation. Interfering social engineering measures of this nature are profoundly unconservative—both with a capital C and a lower case C. I am absolutely certain that the Prime Minister, for example, has no love in her heart for this kind of measure, whatever she may be forced to agree at the official level, and that in this distaste, as in so many other things, she reflects the feelings of the majority of the people of the United Kingdom.
§ 8 p.m.
§ Lord Lyell
My Lords, I should like to thank those noble Lords who have spoken on the order this evening. Their remarks clearly show that there is a great amount of detail and interest in the order before the House and that it is not only the Equal Opportunities Commission which will be grateful for the questions that have been asked of the Government.
The noble Lord, Lord Prys-Davies, took us mildly to task over the delay in implementing Articles 7, 8, 9 and 10. The noble Lord, Lord Harris of Greenwich, also asked a number of questions on this matter. I am able to tell the House that this is the first opportunity—I have in my notes "substantive" opportunity but I would call it the first realistic opportunity—the Government have had to incorporate the four measures into legislation. We have had further consultation and I note that the noble Lord felt that there was still a lacuna in that area. In balancing the consultation process and the need to push such legislation on to the statute book, this is the first occasion we have had to bring forward these four articles.
The noble Lord, Lord Harris, asked about the Marshall case. There is separate Northern Ireland legislation in the area of sex discrimination and once again I have to give the noble Lord the same answer as I gave the noble Lord, Lord Prys-Davies. This is the first opportunity we have had to bring all the aspects of the Marshall case into law. The noble Lord will accept that it was wise to consult on the two or three items that rose as a result of the Marshall judgment. We took note of those questions and hiccoughs and we hope that Articles 4 and 5 provide the relevant remedies. I shall come back in a moment to the other item raised by the noble Lord, Lord Harris, who kindly supported Article 12.
The noble Lord, Lord Prys-Davies, also mentioned Article 3, as indeed did the noble Lord, Lord Monson. The noble Lord asked me about Article 3(2) (bb) (ii). In response to his question, a judgment in the European Court of 8th November 1983 held that an exception for all private households from the prohibition on sex discrimination was too broad. The judgment indicated that, in attempting to reconcile the principle of equality of treatment with the principle of respect for private life, some degree of exception was permissible. Perhaps I may quote an example which we think is realistic. I am sure that the noble Lord Lord Monson will also take this to heart. I take as an example a job involving access to the knowledge of the intimate details of the life of a person living in the home. In this respect we think the 1983 judgment to be well founded. In the case of 91 a companion to an elderly lady (who might well take exception to a man dealing with her laundry) the provision makes an exception in the interests of privacy.
In the same context the noble Lord, Lord Prys-Davies, asked me about Article 4 and wondered whether it might not be too narrow. Article 4(2)(c) repeats the provision of the Sex Discrimination Act 1986. This has not drawn any complaint from the European Commission of failure to meet any of our obligations under the equal treatment directive of the European Community and matters are still covered by the retirement exclusion—the Marshall case. They include:other benefits, facilities or services and any other detriment other than that which results in dismissal or demotion".The "benefits, facilities or services" would be appropriate to all the issues raised by the Marshall case.
The noble Lord, Lord Prys-Davies, also asked about the budget increase for the Equal Opportunities Commission. The Commission recently made proposals to the Department of Economic Development in Northern Ireland for an increase in staffing and budget levels. A review of the implications of these discussions is being conducted. We hope to consider the outcome jointly with the department and the commission. I am afraid that I cannot be too conclusive this evening. If I gain any helpful information perhaps I may write to the noble Lord after tonight's debate. If there is nothing to report I may have to get in touch with the noble Lord at some stage in the future.
The noble Lord asked about Article 8, which is what we like to call, particularly in relation to Northern Ireland legislation, a parity measure. We think it right, and I am sure all your Lordships will agree, that employers in Northern Ireland should enjoy the same right in respect of formal investigations—which is what Article 8 is concerned with—as their counterparts in Great Britain.
I do not think that the provisions of Article 8 will in any way constrain the Equal Opportunities Commission in Northern Ireland from undertaking any formal investigations. So far as we are aware, the commission has only undertaken two such investigations under its existing powers in the 12 years of its existence. I do not think that the mild changes which we are making in Article 8 will have any earth-moving effect.
The noble Lord also had one special query on Article 11 about collective agreements and the enforceability and unenforceability modes. At the outset, we would hope that with trade union help, if the lady concerned was a member of a trade union, she would be able to seek a solution through discussion with her union representatives and her employer. However, if that brought no satisfaction or solution then the next step, which is indeed logical and which I think is enjoyed throughout the United Kingdom, would be that she should seek relief through the industrial tribunal. In the case of a dismissal, she may seek resinstatement if that is what she wants. But if she is still not satisfied with the 92 decision of the tribunal she may appeal against that decision.
Article 11 goes on to make discriminatory terms void. Paragraph 5 of the article is designed to ensure that what we call voiding will not leave individuals worse off than they were before. In practice, this would mean that the term involved would be frozen and would continue to operate until the question of whether it was discriminatory was finally resolved. Noble Lords can see the relevant paragraph at the bottom of page 8.
The noble Lord also had a further query about legal aid. I am advised that it is not available. If I can glean any further details on the matter or can amplify that fact, perhaps I may reply to the noble Lord in writing. I think that if we start discussing legal aid now we may go quite wide of the mark this evening. So if I can gain any further information on the subject, I shall certainly write to the noble Lord.
Article 12 caused a good deal of discussion with your Lordships. The noble Lord, Lord Harris, very much supports it and we are most grateful for that support. The noble Lord, Lord Monson, was especially worried about it and I was fascinated by the thought of the noble Lord comparing the Soviet Union with Northern Ireland. I must assure the noble Lord that he will not find squads or gangs of ladies involved in heavy roadwork in Northern Ireland. Therefore I hope that I can assure him, and your Lordships, that there is no insidious campaign to deprive women of any work where they want it.
However, I should like to stress to the noble Lord, Lord Monson, and indeed to the noble Lord, Lord Prys-Davies, that Article 12 really gives women freedom; it removes restrictions which they might find, or quite often do find, burdensome. It is not in any way seeking to exploit women or to place them in conditions which are unfavourable. If women believe that any of the provisions in Article 12 will be detrimental to them, they have the usual mechanism of the industrial tribunal and the usual avenues of complaint available to them. I must stress that Article 12 is purely permissive and seeks to place women where they wish to be; that is, in the same position as men.
The noble Lord, Lord Monson, also raised one or two points about Article 4, which deals with pensions and that particular aspect of the Marshall judgment. Perhaps I may consider more carefully what he said and write to him on that stated case.
As regards Article 3, I think that all the remarks I made in my opening speech agree totally with what was said by the noble Lord. However, I shall stress them again. In the Government's view, the wording of Article 3 achieves an acceptable balance between eliminating unreasonable sex discrimination and reflecting the view of the European Court that the principle of respect for private life is also fundamental. That is the Government's view and I think that it also reflects the judgment in 1983 of the European Court. I believe, as do the Government, that it will strike the balance between what is acceptable in private homes and in private life for private individuals and seeing that there is no unreasonable discrimination.
93 I think that I have said everything I can about the order this evening. However, if there are any points that I have missed, I can surely deal with them when I write to your Lordships. I commend the order to your Lordships.
§ On Question, Motion agreed to.
My Lords, I beg to move that the House do now adjourn during pleasure until twenty minutes past eight.
§ Moved, accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.16 to 8.20 p.m.]