HL Deb 04 May 1989 vol 507 cc319-33

7.17 p.m.

Baroness Phillips

My Lords, I beg to move that this Bill be now read a second time.

I must preface my speech by saying that I have no vested interest in the Bill. I am not seeking a return to the labour market, I have no intention of dragooning all 80 and 90 year-olds back to work. My interest in this matter stems from some six years ago when, quite unusually, five of my friends—all very distinguished people in jobs of some importance—were made redundant on account of their age. It is interesting that that age was precisely 50. What was worse, they were precluded from the jobs advertised for which they could have applied because all the advertisements said, "not over 45 years of age". That was my first introduction to the strange phenomenon from which we seem to suffer in this country: age discrimination.

Your Lordships will have noticed that if the other place wishes to be particularly insulting about this House, they refer to "the geriatric other place", suggesting that there is something rather curious or undesirable about age. That is typical of the theme that runs through many areas. My first reaction to the plight of my friends was how cruel it was to be rejected because of one's age. My second reaction was different: what a waste of talents and skills which could be used. The more I have investigated the matter the more confirmed I am in the belief that in our society we waste material but, by golly, we waste people even more.

Over the years I have asked Questions of the Government on this matter. Quite recently I received some publicity on it and I was absolutely deluged with hundreds of letters. These were no crank letters but sensible ones stating the case and showing me how much wider the problem went than I had imagined. The letters came from colleges, professions and all groups, as well as from the trade unions—that is for the benefit of my noble friend Lord McCarthy on the Front Bench. I only wish that time permitted me to read some of the letters to you, such as one from a lady who said: I am 39 years old and increasingly frustrated by recruitment advertisements which stipulate an age limit of 35 years. I ask myself what happened to me on my thirty-fifth birthday. My brain cells did not die, I certainly did not lose the use of my faculties. I did not lose my energy, my confidence, my ability or my enthusiasm. I did decide to read for a degree and, four years later, having obtained an honours degree, I found I was too old". I shall now just pick out some specimens to illustrate my argument. The British Association for the Advancement of Science announced that it had some special lectureships. One was offered at Brunel, another at Darwin, another at Kelvin, another at Lister and one at Lyell. The subjects covered were fairly weighty ones. But the association stated that lecturers must normally be below 40 years of age.

As an ex-teacher, I know that a class may contain 24 children who are all seven years old, but the only thing they have in common is their chronological age. Some are larger than others; some are smaller than others; some are more advanced intellectually; and some are more advanced physically. However, one certainly cannot use their age as a measurement. Nevertheless, society does that all the time.

The Latey Report made rather amusing reading. According to that report, people could achieve certain things at 15 and other things at 16, 17, 18 and so on. I cannot imagine what scientific basis there could be for those assertions.

Unilever UK advertised for an assistant manager. I must say that I am horrified by the kind of salaries that are being offered for such posts. The company seeks someone with an honours degree. The company also states that the applicant must be articulate, bright, resilient and have a sense of humour. I presume he must have a sense of humour to cope with the salary. Finally, the company states that the applicant must be under 26 years of age. I wonder where maturity is considered to start.

I shall also mention the example of tax inspectors. I saw an advertisement just recently for tax inspectors. The advertisement stated that applicants should not be older than 36 years of age. That seems to be another magic age. I always remember that when I worked in court I was fascinated at the way people picked ages out of the air.

So it is obvious that age discrimination goes on, and that legislation is necessary. I know it may be said, although not necessarily this evening, that the demographic curve means that the over 40s, and especially the over 50s are the best thing since sliced bread, and that suddenly they will return to the fold and everyone will want them. Someone will probably suggest that this legislation is not needed. However, I think that the present situation shows not a real change of attitude on the part of the employer, but simply a change brought about by necessity. It only needs another swing for us to be back to square one, and for age to be used as a discriminatory factor again.

As an employer, I know what employers want. They want the best person to do the job. We all know that younger workers cost less, but not many employers will be honest enough to admit that is the reason for rejecting older people. From our experience of anti-sex and anti-race discrimination legislation, we have learnt that legal changes alone cannot end discrimination. But at least legislation would give employees recourse against discriminatory practices.

As is so often the case, the legislation of the United States is ahead of us. There it is unlawful for an employer not to employ, to sack or to reduce the employment conditions of a person in any way because of his age. It is also unlawful to limit, segregate or classify workers in any way that would reduce their employment opportunities or adversely affect their status because of their age. Further, it is unlawful to reduce the wages of any worker because of his age.

I have found that employment is only one part of this story, but one has to start somewhere. Even if the Bill is not taken on board by the Government (although I hope it will be) I have started a campaign to which I shall return. However, I hope I can at least ask for justice. I am not talking about justice for any specific age, I merely wish to state that just as one's sex—or gender as we now delicately call it—is not a reason for being refused or accepted for employment, and just as race is not a reason for being refused or accepted, so age, equally, should come into that category. I beg to move.

Moved, That the Bill be now read a second time.—(Baroness Phillips.)

7.25 p.m.

Lord Rochester

My Lords, I am glad to support the concept underlying the Bill which was so lucidly introduced by the noble Baroness, Lady Phillips. If there is one person in your Lordships' House who has shown that she is very far from being geriatric, it is the noble Baroness. She has demonstrated how frequently advertisements for job vacancies specify an age requirement and particularly, that they state the person required should be aged between, say, 25 and 35. That obviously has a highly damaging effect on women in particular, for that is the very period when large numbers of women are out of the labour market bearing and rearing their children.

There is evidence too that age requirements, often for people aged between about 20 and 35, are especially prevalent in advertisements for jobs offering some kind of training; for example, for management and computer trainees, trainee accountants and trainee sales managers. This obviously has the effect of denying to older people the opportunity to train for a new career, just at the time when the Government and the rest of us are stressing the vital need for more and better training to enable this country to match our international competitors in 1992 and beyond.

In my view much more needs to be done if optimum use is to be made of the skills, actual and potential, of the older generation. From last September 600,000 training places were to be made available for the long-term unemployed. In the Government's White Paper Employment for the 1990s, published in February of last year, it was stated in paragraph 5.9 that one of the major objectives of the new training programme would be: to make it possible to meet the Government's guarantee of an opportunity to those aged 18 to 24 who have been unemployed for between six and 12 months, and the Government's aim of making available opportunities to all those aged 18 to 50 unemployed for more than two years". A great many of those 600,000 places have not been filled. When the noble Lord, Lord Skelmersdale, replies I shall be grateful if he would say whether in these circumstances the Government will now consider making training places available to the 300,000 or so long-term unemployed who are aged over 50. I have given him notice of that question. I suggest that a positive decision on this point might help considerably to encourage employers to offer jobs to older people once they have been trained.

Mercifully there are at last signs that employers are beginning to face the demographic facts of life. By 1995, for example, there will be 1.2 million fewer 16 to 24 year-olds in the labour force than there were in 1987. That is a fall of over one-fifth. That means that in the 1990s job applicants will be choosing the organisations for which they wish to work instead of the reverse. Companies which have become complacent are having to recognise that if they are to survive into the next century they will have to expand their recruitment horizons. In doing so they will need to take account of the relationship between demography and the single European market. As the labour market in Europe opens up, countries like West Germany and Italy, which are facing demographic difficulties even more severe than our own, will seek to import skills and labour. In this sellers' market success will go to the countries making best use of their human resources. We must now do our utmost to ensure that the UK is among them.

I have had direct experience of problems associated with early retirement in a large industrial organisation, and have had occasion to observe the miserable waste of talent that that produces. I appreciate that if any group of people has to go to the wall overall it may be least damaging socially that it should be those in their fifties whose children have completed their education and struck out on their own. But that surely makes the case even stronger for enabling those in that group who wish to embark on other careers to do so.

The central question in this debate is whether attempts to counter unreasonable age discrimination in employment can best be made through statutory requirements as absolute as those contained in the Bill that is before us. At a recent forum at St. George's House, Windsor, voluntary initiatives by employers were favoured as a way forward. It was there concluded that such an approach would encourage others to review their policies and practice while retaining their right to use age as a criterion when that was judged to be a necessary requirement. That approach was to be supported by a code of practice to facilitate the process, and by a national campaign to be led by the Government.

My guess is that when the noble Lord, Lord Skelmersdale, replies to the debate he will voice the Government's preference for a voluntary approach. Of course that is what we should all prefer, but, as I have had occasion to say before now, the trouble with voluntarism is that there have to be volunteers. To judge from the statistics volunteers do not yet seem to be coming forward in sufficient numbers. No doubt that was why, at the forum to which I have just referred, it was recognised that there might be a need to supplement best practice guidelines with limited legislation aimed at curbing the use of age limits and criteria in recruitment advertising.

If there are to be statutory sanctions against age discrimination the question arises whether any defences should be made available to employers. In the USA the Age Discrimination in Employment Act contains an affirmative defence permitting the employer to show that age is: A bona fide occupational qualification reasonably necessary to the normal operation of the particular business", or that: the differentiation is based on reasonable factors other than age". In the States public safety has become a key defence involving such occupations as airline crew, air traffic controllers, bus drivers, police and fire staff. The courts over there have consistently ruled that any increase in risks to others resulting from the abandonment of age-related employment criteria should be viewed as an important legal consideration in age discrimination cases.

For my part I would concede that where a firm can demonstrate that an effect of having no age limits would be unreasonably to distort the age distribution of its employees, that too might constitute a justified exception to the general rule. I should like to suggest that the noble Baroness, Lady Phillips, might consider possible amendments to her Bill covering such points.

For the moment this is a Second Reading debate in which we are discussing the general principle that is involved. I am happy to congratulate the noble Baroness on having brought this matter to our attention and, as I said at the outset, to support the concept underlying the Bill.

7.34 p.m.

Lord Seebohm

My Lords, I must declare an interest as President of Age Concern. I consider the principles behind the Bill to be very good indeed. I shall not go into the details because I am quite certain that if the Bill comes to Committee it will need considerable amendment. However, I believe that the general principles are absolutely right and should be given considerable attention.

I look at the matter from two angles, one social and the other economic. On the social side, many people who are full of energy and doing a first class job have to retire when they do not want to and when, in my view, it is quite unnecessary for them to do so. Shortly after I retired from business a young colleague who was still in the business came up to me and said, "How nice to see you again. Enjoying your gardening?" I could have knocked his block off. I could have explained that in the House of Lords we do quite a lot of spade work but the opportunities for doing much gardening are slight. I believe that many people lose a great deal of status and dignity when they retire, despite being full of energy.

Another sad aspect of old age is boredom. Many people who are full of energy could do other things if only they had the opportunity. I believe that the Government have made a very wise decision in allowing people to earn after receiving their pension. That is an enormous change, and I believe that it will allow a lot of people to take up interesting jobs which they have previously been inhibited from doing. That is a very great advance.

On the economic side, as has been explained by the two previous speakers, we are approaching an era when there will be a vast increase in the number of elderly people and a great reduction in those who are producing the goods and the wherewithal for the nation to survive. To waste the experience and valuable contribution to be made by people over the age of 65 seems to me to be a matter which we should look at very carefully. We have to be certain that we make the best use of all available labour and skills.

I am asking for flexibility. There are a great many details which have to be thought through before one can produce legislation. I concur very much with the view that was expressed to me recently by Age Concern. Age Concern would like to see the introduction of a flexible retirement system creating a wide band between the ages of 60 and 70 with entitlement to the state pension at, say, 60 for both men and women, with legislative safeguards precluding the dismissal of employees on the grounds of age up to the higher end of the scale. That may be asking for a little too much. On the other hand, I believe that more flexibility will be essential if we are to survive in the later 1990s because of the demographic change, which we know all about. It is a fact and we cannot change it.

I support the Second Reading in principle but I have no doubt that amendments will need to be made to the Bill.

7.37 p.m.

Lord McCarthy

My Lords, I am sure that we should all want to thank the noble Baroness for initiating this important debate asking why there is not a law to stop age discrimination. So far as I can see from the Bill which she has put before us she is concerned centrally with direct discrimination and not with indirect discrimination.That contrasts with sex discrimination legislation, for example. Nevertheless I think that it is very important that we should debate the matter.

I thank the noble Baroness for two particular reasons. First, it forces one to think through one's own position on this subject. Secondly, so far as I know there is no policy on the matter. There is certainly no policy in the Labour Party or, so far as I know, in the Labour movement. Therefore one is in the unique position of being able to say what one likes and think about the subject as one goes along.

I have tried to think through my own position by asking myself three questions about whether we should be in favour of acting to stop age discrimination. The first question relates to first principles. As an egalitarian, as a liberal, as a radical one normally believes that privilege requires justification. After all, that is the basis on which we have legislation on sex discrimination—a preference for employing men rather than women which is not rooted in their qualifications or merit is unfair to women. It requires justification and it cannot be justified. Similarly race discrimination has to be justified in precisely those terms. One would think that in terms of first principles therefore there must be a similar argument for doing something legally about direct discrimination on grounds of age. The only difference is that very few men become women and even fewer women become men, whereas we all pass through the funnel from youth to age so that there is some difference.

We are not discriminating, as it were, against a minority that cannot become a majority or a majority that cannot become a minority. We are proposing legislation for a process that affects all of us at different ages. But apart from that, it seems to me, on general principles, that there must be a case against age discrimination at any age and the legislation being proposed would defend and protect discrimination against the young, as it would defend and protect discrimination against the old, which is where it is a great improvement on the American legislation which, as I understand it, goes only one way.

So, what of the evidence for actual discrimination on grounds of age? Much of the evidence has been put forward by the noble Baroness tonight. I am bound to say that a lot of it is anecdotal. We lack the kind of large surveys which were done, for example, to establish the extent of race discrimination in the 'sixties and 'seventies. Then we have discrimination legislation on sex discrimination, and we did not really have that kind of legislation to establish sex discrimination. We generally thought that it existed.

In other countries—for example, the United States and Canada—there have been studies and those studies have shown that there is very substantial discrimination, which goes beyond the kind of discrimination that the noble Baroness mentioned where we all see it bristling in local newspapers which say in advertisements, "Young people preferred", "College leavers should apply", "Only school-leavers should apply" and so on.

But discrimination is much more difficult to test in areas such as promotion. There is evidence from other countries of very substantial discrimination. As has been said by previous speakers, there are special reasons why we should legislate now. The over-55s' activity rates have been falling since 1976, because the expectation of life and health statistics have been rising over the same period. Work on the whole is becoming less arduous and less strenuous in a large number of occupations, and therefore the arbitrary retirement ages which were fixed for administrative purposes in the 19th century are increasingly subject to challenge. As has been said by all previous speakers, another factor is the reduction in the number of young people coming on to the labour market in the next 10 years or so. For all these reasons, strong arguments can be placed for doing something about age discrimination at this moment.

So I turn to possible arguments against it. One argument would be that it is impracticable; that it is impossible; that you could not affect ages in promotion; and that it has been extremely difficult to do this in the United States. But, after all, in other areas, such as sex discrimination and race discrimination, we know that it is very difficult to do. We know that the success rate is small but positive. And if the fact that a law was not absolutely effective became a reason for not having a law, then we would have very few laws at all. In any case, a law of this kind would declare what the principles should be. It would declare what the country's position was and what the Government's position was. So I do not regard that as a real argument.

The second argument which we may be getting from the noble Lord when he replies, though I have no desire to anticipate what he says, is that it will create more problems than it will solve; that it will be just another burden on business, just another interference with the free market; that the efficiency of the entrepreneur requires the unrestricted application of discrimination. If that is the way the entrepreneur or the businessman thinks on that morning, then, once again, if we took those as arguments, as the Government sometimes do, we would be dispensing with sex discrimination and race discrimination, and dispensing entirely with unfair dismissal legislation and with all protective legislation including health and safety legislation as well. So I do not believe that that is a significant argument.

However, these are some arguments which concern me and which I would address to the noble Baroness. One argument concerns the consequences of an effective piece of legislation and the impact that that might have upon the criteria for redundancy and retirement. The basic criterion for compulsory redundancy now is age and service qualifications. The basic way in which one gets early retirement is by special inducements, improved settlements, improved pensions and separate payments in order to induce early retirement voluntarily agreed by the individual worker, or at least in many cases.

I am not certain whether this legislation would not, in fact, tell against that; whether one could have age and service qualifications for redundancy if this Bill became an Act; whether one could have special inducements for early retirement to avoid any redundancy at all under this legislation. After all, Clause 5 of the Bill states: It shall be unlawful to implement early retirement procedures with the intention of filling the vacancy thus created or an equivalent post arising from the vacancy thus created with a younger worker. That is the basic objective of most age and service redundancy provisions, and of virtually all special inducements to early retirement, and there are arguments for having these procedures in place.

There are cases where employers wish to change the age profile of their organisations, when they feel that their age profile is slumped at one end and they want to change the overall age profile in order to bring in a more normal age profile. There are cases where they believe that there are very considerable demands on the part of older workers for redundancies. Can we give such special inducements if this legislation comes into effect?

These are the sort of questions that I should like to have answered, because, if we take age out as a legitimate reason for redundancy, then we are placing in the centre of our arguments for redundancy an argument of capacity. We are really saying that people must be dismissed on the employer's basis, because they are not quite as capable as people who are retained at work. Of course much redundancy is done in that way; the employer selects those workers whom he regards as less effective and less efficient. But most of us have thought that a rather inhuman way of doing it. Most of us have wanted to find some semi-objective standard and age and service qualifications have been accepted widely in industry as a rather civilised way of dealing with redundancy. I am concerned about how far legislation of this kind would involve some problem in that respect.

Finally, I come to the argument: can we afford it? It seems to me that there are no significant costs in virtually all that is suggested by the Bill—advertising standards, promotion practices, refusal of a job on the grounds of age. None of this is expensive. The expensive end of age protection, as has been said, is when one deals with retirement. If one wants a flexible retirement policy, if one wants to equalise the retirement age at, for example, 60, that is extremely expensive. But what is suggested here is worthwhile and useful and is a project which the Government would do very well to consider and to give time for.

7.48 p.m.

Lord Butterfield

My Lords, I wonder whether I may crave your Lordships' indulgence. I had hoped to insert myself between the noble Lord, Lord Seebohm, and the noble Lord, Lord McCarthy. Perhaps I may make a few remarks which are in general very much supportive of the fascinating Bill of the noble Baroness, Lady Phillips. I hope it is not thought inappropriate if I say it seems to me that this Bill is probably one of the most major Bills that I have seen introduced here for its potential social impact, since your Lordships so kindly welcomed me into this House.

I just wanted to say how much I agreed with my noble colleague Lord Seebohm, and Age Concern on the whole question of flexibility. I am sure that the noble Baroness, Lady Phillips, will not be distressed about that. There will be—and the noble Lord, Lord McCarthy, touched on this when he spoke about the age profile—some very intriguing problems. Noble Lords will not be surprised that universities which have security of tenure for many of their staff can only restructure if there is some kind of arrangement. However, that might be ruled out by Clause 5(1) which states that it shall be unlawful to implement early retirement with the intention of letting younger people into the posts. I hope that that point will be picked up.

The very important point concerning re-training is incorporated in the Bill. That there should be no age limits on re-training strikes me as a marvellous idea and one to which we should give enormous encouragement.

I am very anxious that we do not block the able young with very geriatric examples like myself who hang on and take retirement later and later. I am reminded of the remarks of the regius professor of medicine at Oxford, Sir William Osler. He referred to men but I know that he would have included women (in those days one only referred to the male patient). He said "a man is as old as his arteries". That is my view. I should like to express my gratitude to noble Lords for allowing me to interject in this debate. Perhaps I may pay a compliment to this House. I am very impressed by the high quality of the cerebral circulation of Members of this great House.

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Skelmersdale)

My Lords, the whole House (not just those few of your Lordships in the Chamber at this moment) will be most grateful to the noble Baroness, Lady Phillips, for introducing this Bill on a subject that is of mounting interest not only to all those concerned with the labour market and the future supply of skilled people, but also to those like the noble Lord, Lord McCarthy, who said he was forced to think this subject out from first principles. I do not think that anyone would disagree in their heart of hearts that age discrimination is unfair.

I should like to make it absolutely clear that the Government share the widespread concern about age discrimination in employment. As the noble Baroness Lady Phillips, pointed out, that is particularly important to older workers. Nothing can be more frustrating than feeling able to make a contribution but being denied that opportunity on grounds of age.

I have much sympathy with Members of Parliament in both Houses who are calling for action to be taken. In recent months there have been several occasions when the Government have been pressed to answer calls for legislation in this area, of which this Bill is the latest example. I can understand Members' motives, but I do not think that legislation would be the right approach, and the Government are particularly reluctant to support it until every effort has been made to persuade employers voluntarily to change their recruitment and other personnel policies. It is in their own interests to do.

The population aged 16–19 is already declining from its high point of around 3.7 million in the early 1980s and will reach a low of around 2.6 million in the mid 1990s—a reduction of some 25 per cent. That means far fewer young people entering the labour market. Unless employers make full use of the talents of older workers, the economy will suffer.

The noble Baroness, Lady Phillips, mentioned the Government as employers. The noble Baroness is quite right. The age limits on recruitment for Civil Service grades have been raised in many cases in recent years and are being actively reviewed in the light of the demographic changes of which I have just spoken.

I believe that at least some employers are beginning to recognise that fact. I understand, for example, that Tesco has helped solve its recruitment problems in the South-East through actively seeking to recruit older workers, including retired people. British Telecom is considering taking on and training older recruits to meet its need for skilled engineering staff. That may be because it is becoming increasingly concerned about the demographic changes. These changes are now a major topic in public debate, and rightly so.

However, I am afraid that despite some outstanding examples of good recruitment practices among such employers, a considerable change of attitudes is still called for. The noble Lord, Lord McCarthy, spoke of evidence in what I understood him to say was a non-Labour Party policy speech. I can tell the noble Lord that a recent survey of vacancies notified to job centres showed that 14 per cent. excluded applicants over 50. Interestingly, however, 12 per cent. of advertisements specified applicants over 25. Other surveys of job advertisements have shown considerably higher levels of discrimination.

Undoubtedly there remains a problem. The Government do not believe that people should be written off on grounds of age. Like other noble Lords, I ask whether this very prescriptive Bill is the right answer.

The Bill seeks to bring about five main changes and to make it unlawful, first, to specify an upper age limit in job advertisements, and in her speech the noble Baroness majored on that aspect; secondly, the Bill seeks to make it unlawful to refuse someone a job on the grounds of age alone: thirdly, to specify an upper age limit for training; fourthly, to include an upper age limit for promotion; and fifthly, to require a person to retire on the grounds of age alone. According to the Bill, that will be unlawful under any circumstances. The noble Lord, Lord Rochester, called it absolute, and I agree with him.

I urge on behalf of the Government that there are some situations where it is reasonable for an employer to take age into account—for example, to ensure proper management succession planning. Firms cannot afford to have all their experienced managers retiring within a short period. The Institute of Personnel Management's code of practice recognises that age discrimination in recruitment can be justified to help sensible succession planning.

Ageing is relevant to capacity to do some jobs requiring physical fitness. The example of fire officers and police officers was cited, and one noble Lord mentioned airline pilots. In saying that, I accept the force in the argument that this point does not necessarily justify rigid age limits, as pointed out by the noble Lord, Lord Butterfield. However, the issue is not one on which there is a consensus in society.

Nor is there any consensus that compulsory retirement is in all cases wrong. I can see the strength of employers' arguments that in some cases it is necessary for their operations to have a mechanism which will ensure adequate opportunities for advancement of younger employees. I can also understand those who argue that in some redundancy situations it may be right to select for dismissal those to whom it may be possible to pay a pension. I did not quite follow the argument of the noble Lord, Lord McCarthy, in this connection. I would not like be so definite and so prescriptive as I felt the noble Lord was.

If there is to be legislation on this front I believe that it would need to be very different from that now proposed. As I have made clear, it would have to make provision for exceptions. The noble Baroness, Lady Phillips, mentioned the United States where the legislation provides for exceptions. To take account of possible exceptions in any legislation would be a difficult matter requiring long debate. In my view it would produce a law which was both complex and hard to administer. That is a further reason why the more flexible approach which is allowed by persuasion is preferable to use of law. I am sure that it would be right to make provision for trying first to resolve difficulties through persuasion and encouragement. Until this policy has worked through, the Government do not believe that legislation should be considered.

As the noble Lord, Lord Rochester, pointed out, we are taking every opportunity to raise the issue of age discrimination with employers and to publicise the demographic changes and their implications. For example, as the noble Lord said, the importance of utilising older workers is brought out prominently in the recent White Paper Employment for the 1990s, and has been the subject of several media interviews with my right honourable friend the Secretary of State for Employment and his fellow Ministers.

Staff in the Employment Department's Jobcentres are instructed to challenge age restrictions imposed on vacancies notified to them for which there seems no good reason, and to try to persuade employers to remove them. Even where an employer has insisted on an age limit, the instructions to staff make clear that this should not prevent them approaching the employer about a clearly suitable older candidate.

The noble Lord, Lord Rochester, kindly gave me notice that he intended to request that we should open the employment training programme to people aged over 50. I fear that there is some misunderstanding. The programme is already open to the over-50s, as are job clubs and the Re-Start Programme. I believe that it has a valuable role to play in re-training older workers in obsolete skills and in giving them opportunities through the planned work experience elements of the programme to demonstrate to employers their capabilities in a work situation. It is true that the Government have a stated aim of offering within the lifetime of this Parliament help back into work for all those aged 18 to 50 who have remained unemployed for two years or more. We also regard it as important to provide opportunities for people over 50. I can assure the noble Lord that the employment training programme is equally available to people in that age group. Not only that, but unemployed people who wish to become self-employed can join the enterprise allowance scheme up to the age of 64. We shall continue and reinforce efforts to encourage better practices among employers and there is evidence that a change of attitude is indeed beginning.

I am glad that the noble Lord, Lord Seebohm, has recognised that we have just achieved a major objective in this field by abolishing the earnings rule for pensions in the recent Budget. By so doing we have already removed a major obstacle to older people who wish to continue working. However the basic issue is whether there should be legislation in this area. The Government share the view of the noble Baroness that age discrimination is wrong. it is both wasteful and unfair, but they believe that the voluntary approach based on persuasion is the right one and far preferable to legislation.

The noble Lord, Lord McCarthy, spoke about the effectiveness of legislation. There are many noble and learned Lords in this House who would be absolutely horrified if the Govenment were to support what I can only regard as public relations legislation. I think that the demographic trends allow us to put powerful arguments to employers based on their own interests. There are encouraging signs that the message is getting through and that the situation will continue to improve. Only if that approach has clearly failed could we consider the introduction of further restrictive legislation on employers at a time when companies need to be as competitive as possible to meet the forthcoming challenge of the single European market. For that reason I regret that the Government have grave reservations about legislating in this field. If this Bill proceeds I agree with those noble Lords who requested somewhat drastic amendment.

8.1 p.m.

Baroness Phillips

My Lords, I should first like to thank all noble Lords who have taken part in the debate on this Bill. I am bound to say that I expected opposition and all kinds of difficulties to be raised. I have never known any idea that I have had or project that I have started in which difficulties of many kinds were put forward. I am not a negative but a positive person. Therefore I have to say to the Government that I regret that they cannot do better. I had intended to make some nice remarks about them with regard to the earnings rule but I now have reservations on that point. I feel that I cannot withdraw the Bill, although I should be quite happy to have it amended.

I do not want to leave the matter to voluntary people and flexible moves. In my lifetime I have too often discovered that if matters are left in the voluntary sphere, the good employers will always take advantage of it and the bad employers will not.

The point made about Clause 5 amazed me. I have always thought that there has been a certain confusion between the state pension and retirement. So far as I know there is nothing whatever in the legislation to stop anyone working and receiving retirement pension. They are two totally different things. It seems that we have confused them by linking company pensions and such with retirement, but the original decision to have a retirement age was not connected.

I am speaking here about something which might have been called redundancy. Originally Clause 5 arose as result of the case of Mrs. Ann Clwyd and a Bill which was introduced in the other place three or four years ago. It was a case in which one of those Japanese employers about whom we are now so enthusiastic had invited anybody over the age of 30 to leave the company and give the job to a younger relative. Not unreasonably most of the 30 year-olds did not see the logic of that proposition. That was the occasion of this measure in the first place.

I understand that the cut-off age for airline crew is 29. By what reasoning has that age been selected? What evidence is there to show that at the age of 29 one's brain is not working very well and that eyes and hearing are not so good. By what are such things measured? There is no sure method. We all know people who are dead from the neck up at the age of 20 and others who are active and alert at 60.

It is significant that if anyone wants to work digging up a road or in the catering trade in the kitchens, nobody asks what is his or her age. It is only the good jobs for which that question appears to be relevant. If one is willing to do a job that is not very well paid or which is hard in some way, there is no age test there. The only qualification stipulated by the employer is that the person can do the job. Noble Lords will remember the lady who was sacked because at the age of 28 she was too old to sell hamburgers. I noticed that the noble Lord on the Front Bench did not consider that I had produced many examples of age discrimination. I could however have produced examples for over an hour. I know of many cases concerning a large number of people, and those instances are not necessarily anecdotal.

The lady who at 28 was too old to sell hamburgers was considered to have the wrong "age profile". I tested that theory out on my 14 year-olds who buy hamburgers, and in that situation the young do not notice whether the person serving is 28, 38 or 48. They want the hamburgers and that is all that they are concerned with. That shows how ridiculous is the "age profile", which is often conceived by someone who has a very unreal idea.

I take the point made by my noble friend Lord Seebohm and the noble Lord, Lord Butterfield, about flexible retirement. However, I still say that whether someone is one of 500 people who are asked to leave because of age or whether one is the only person who is asked to go there is a sense of rejection and a loss of dignity. Any such action must not be taken on the grounds of retirement.

The "age profile" has now crept into voluntary work. At a certain age one has to leave the magistrates' bench. Why? There is no evidence to support such retirement. Our judges do not have to retire; they can go on for ever. There is a case for far more investigation.

It would be nice to take away the Bill and say, "Splendid, we shall have all sorts of voluntary movements". Many years of dealing with legislation have shown me that that is not the way and that is why I want to take the plunge and urge acceptance of this Bill.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

The Earl of Dundee

My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.7 to 8.15 p.m.]

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