HL Deb 16 October 1989 vol 511 cc651-772

3.2 p.m.

The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve into Committee. —(Lord Strathclyde.)

Lord Cledwyn of Penrhos

My Lords, at almost exactly this time last week my noble friend Lord McIntosh of Haringey protested strongly against the tabling of a large number of amendments to the Local Government and Housing Bill. He was then supported by the noble and learned Lord, Lord Simon of Glaisdale, who also criticised the quantity and quality of current legislation. The noble Lord the Leader of the House was good enough to apologise for the number of amendments tabled, as he said: later than they should have been" —[Official Report, 9/10/89; col. 14.] Today I must register an even stronger protest in relation to the Employment Bill now before us, but on slightly different grounds. Let me explain. On 10th October the Government tabled a series of amendments to the Bill. In order to accommodate them, they had also to table an amendment to the Long Title for otherwise the amendments would not have been regarded as relevant to the Bill. But it should be stressed that what the Government are doing is adding a second Bill concerned with industry training to the Employment Bill.

We are certainly not opposed to proper industrial training. The House knows that we have consistently argued for better training programmes and so have others, notably the noble Baroness, Lady Seear. But this is not the way to go about it. To table a fresh Bill as a series of amendments to an employment Bill which simply contains a series of oddments on employment is not a satisfactory way of dealing with an important and a different subject. Furthermore, with respect, it is not the way to treat this House. It is certainly discourteous to the House of Commons, which has already seen the Bill through all its stages.

I say again that it is not good enough. We should have had a proper Bill with an Explanatory Memorandum and a note of costs, with a Second Reading debate. But the way it has been handled deprives both Houses of their traditional right to scrutinise the mechanisms that the Government have in mind to handle industrial training. I hope I speak for noble Lords in all parts of the House when I say that the Government must give very careful thought to the way they plan and orchestrate their legislative programme and specifically to the consequences of their actions upon the House.

I believe that the House is often worked beyond the limits of what is reasonble. Last week was a good example. Those who worked hard into the early hours on complex legislation deserve our gratitude. But the Government really must not push the House too far. Ministers must respect the procedures of the House. I feel it is my duty to register these points in the general interest. I do not regard this as a party political matter at all. I must therefore ask the noble Lord the Leader of the House to give us a clear assurance that these practices will not become precedents and that this will not happen again.

Baroness Seear

My Lords, I should like strongly to support what has been said by the noble Lord the Leader of the Official Opposition and in particular to stress the way in which training issues are being handled. They should not be tagged on to an employment Bill. Because of their importance they require a Bill in their own right. But to bring about the reconstruction of the industrial training boards —to which many of us have attached a great deal of importance —as amendments to the Bill at this stage is treating the whole issue of training with contempt.

I was also somewhat surprised that during a good deal of the time that the noble Lord the Leader of the Opposition was talking the noble Lord, Lord Strathclyde, was quite plainly paying no attention but was laughing and talking to the Leader of the House.

Viscount Mountgarret

My Lords, I should like to say this from this side of the House. The Government must realise that there is a great deal of concern about the weight of legislation that appears in what is called the spill-over period. We all understand and accept that it is not possible during the normal parliamentary timetable to get through the whole of the legislation which the Government quite rightly wish to see and which has been outlined in the Queen's Speech at the opening of Parliament in the previous year. But it seems to me to be quite wrong that in the spill-over we should have to deal with what is virtually the beginning of a Bill. It has not even been through a Committee stage. For us to have to consider the Committee stage of the complex Bill that we have before us and the even more complex Bill that we had last week —to go through all the ramifications of that properly, for it to return to another place for them to consider all the suggestions that we have made and for them to give the time to consider it and for it to come back to your Lordships' House to be reconsidered yet again —all within the space of barely three weeks seems to me to be quite wrong in the history of our British constitution.

Serious consideration should be given by all parties—because this is not a party political matter—to fixing the date for the opening of Parliament for perhaps the second Tuesday in November. If whichever government are in power find that it is not possible to get through the legislation that they intended for whatever reason, they should put up the white flag and say "Tough. That is the end of that". But to have the goalposts moved by whichever government are in power to suit their legislative programme is verging on an abuse of our traditional methods of running our legislative process. I feel that we ought to consider that very carefully.

The Lord Privy Seal (Lord Belstead)

My Lords, the noble Lord the Leader of the Opposition was quite right that a week ago I agreed with what the noble Lord, Lord McIntosh, said about a large number of amendments being put down to the Local Government and Housing Bill. I apologised unreservedly to the House and I do not renege one whit from what I said a week ago. However, I do not believe that the ground chosen today by the Leader of the Opposition is quite so fruitful. The subject about which he is complaining is the question of Industrial Training Boards. The number of amendments which the Government have needed to table to the Bill in order to deal with that subject is less than half a dozen. There are less than half a dozen amendments to what my noble friend Lord Mountgarret has referred to as a "complex" Bill. There are a total of 70 amendments on the Marshalled List. The Government have contributed only about 30.

If I believed that the Government had sprung the matter on your Lordships' House, then, whatever the statistics showed, I should come forward with an apology. Apart from the fact that we are discussing the subject of a White Paper published in December last year, my noble friend Lord Trefgarne, in moving and winding up the Second Reading debate of the Bill prior to the Recess, made clear to the House that the Government intended to table amendments on the subject. Those amendments amount to only a small handful.

I agree with the Leader of the Opposition and the noble Baroness, Lady Seear, that it is my responsibility to try to ensure that the number of amendments to a Bill is kept as reasonably small and well targeted as possible. My noble friend Lord Mountgarret has said that the Bill is complex and that it is not right to deal with it substantially in the spill-over period. However, we are asking the House to deal with only 15 government amendments on one day and about 15 government amendments on another day. I do not believe that that is unreasonable.

Lord Tordoff

My Lords, I believe that the Leader of the House has misunderstood what was said. I did not hear the Leader of the Labour Party in this House accuse the Government of tabling too many amendments. The point that he made —and which was eloquently expressed by my noble friend Lady Seear —was that totally new matter dissociated from the main purpose of the Bill was being introduced. The illustration was that in order to do so the Government have found it necessary to change the Long Title. It is on that fact that we rest our case. It is on similar premises that the noble Viscount, Lord Mountgarret, rests his case.

We are in the spill-over period. If government business was properly organised it should not be nearly so long nor should we be dealing with it so late in the year. Nevertheless, at this late stage —and when the House of Commons has had no chance to discuss the matter in principle never mind in detail —we are faced with a detailed scrutiny of matters which have only now come before the House.

Lord Belstead

My Lords, it is fair for the noble Lord to raise the point about the Long Title of the Bill. However, as he knows this House very well, he will probably know better than I that it is quite within the powers of any party to change the scope of a Bill. That is frequently done, or attempted, by noble Lords in different parts of the House. I believe that the House would direct very old-fashioned looks at a Member if he were trying to change the relevance of the Bill. However, a change to the scope of the Bill was required, which made a change to the Long Title necessary.

In case that sounds as though the Government are acting in a revolutionary way I repeat the fact that on Second Reading my noble friend Lord Trefgarne gave notice that the Government intended to bring forward amendments on the subject. 'They amount to less than half a dozen.

Baroness Turner of Camden

My Lords, I support the comments made by my noble friend Lord Cledwyn and the noble Lord, Lord Tordoff. I well remember the comments made by the noble Lord, Lord Trefgarne, on Second Reading. Looking at them again, they appear to represent a slender chain on which to suspend a heavy weight of amendments. As has already been pointed out, they constitute a large proportion of the printed matter before your Lordships' House. Six pages—that is, one-third of the Marshalled List —consist of government amendments which in themselves appear to constitute almost another Bill in the area of industrial training. That issue has been a matter of constant concern to this House and clearly there is a great need for debate. It is also clear that we ought to have had a proper Bill with an explanatory memorandum and a note of the financial considerations involved, and should have been given the opportunity of a Second Reading debate.

We have not been give those opportunities. In the circumstances, it appears to me that the comments made by the Leader of the House in support of the Government's actions are unacceptable. As regards Members on this side of the House, I question whether we should continue with our consideration of the Bill with the attachment which represents a fresh Bill in the guise of a set of amendments to the original Employment Bill.

3.15 p.m.

Lord Belstead

My Lords, with the leave of the House, I should like to make one further comment. The noble Baroness is always fair in such matters. She is a doughty opponent and we respect her for that. She made one simple but important point. It is that, although I have claimed truly that the number of government amendments are few, they are substantial. They are of the following nature. First, there is a small group of half a dozen amendments which has an important effect. They deal with a major change to the Industrial Training Boards and at Second Reading my noble friend Lord Trefgarne gave notice of them.

Secondly, the government amendments propose that turban-wearing Sikhs need not doff their turbans on construction sites and wear safety helmets when others must do so. That is important from the point of view of race relations and again my noble friend Lord Trefgarne gave notice at Second Reading.

Thirdly, the government amendments deal with a proposal to assist lone parents in a wide range of employment schemes. We now bring forward amendments in respect of that matter. Finally, there are some technical government amendments.

We are at the beginning of two days in Committee, with about 30 amendments dealing with those four areas. I do not believe that that can be regarded as exceptionable. I must say to the Opposition that, whereas a week ago I agreed with what was said by the noble Lord, Lord Cledwyn, and was ready to apologise, today I shall resist the Question if it is put to the vote.

Lord McCarthy

My Lords, we are talking about the 15 amendments tabled by the Government in respect of the Training Commission. As the matter will not be dealt with until tomorrow it may not be unfair to ask the Government to provide an explanatory memorandum before tomorrow's debate.

Lord Belstead

My Lords, I shall consider the request but I believe that the answer is no. Throughout the past 10 or 15 minutes we have been talking about Industrial Training Boards. If the noble Lord wishes to open up the area of Training Commissions it is his right. However, I believe that we have reached the moment when the House wishes to decide whether to proceed.

On Question, Motion agreed to.

House in Committee accordingly.


Clauses 1 and 2 agreed to.

Baroness Turner of Camden moved Amendment No. 1: After Clause 2, insert the following new clause —

("Dismissal on grounds of pregnancy

2A. In section 64 of the 1978 Act, after the words "section 19(1)" there shall be inserted the words— or on the grounds of pregnancy within the meaning of section 60" ").

The noble Baroness said: I rise to speak to Amendment No. 1 and with the leave of the Committee I shall also speak to Amendment No. 2 because they cover very similar ground.

The Government have rightly emphasised the need to encourage women to take up employment. Indeed, when introducing the Bill on Second Reading the Minister made special reference to the need to involve women in the labour market. He said: In the last 10 years we have already seen a growing involvement of women in the labour market, by no means confined to low-paid or routine jobs. The role of women as administrators and managers, engineers and scientists, doctors, lawyers and accountants, not to say Prime Ministers, has increased dramatically within the last 10 years. For demographic reasons the contribution of women will be all the more important in the coming decade". —[0fficial Report, 14/7/89; col. 521.] He is quite right about that.

One of the main obstacles to career advancement for women, or indeed to continued earning capacity, is one which men do not have to face. If women are to be able to play that full and participative role something must be done to give assistance to women in their child-bearing role. We have a Prime Minister who was fortunate enough to be able to combine a career with motherhood. Not all women have been able to do so. We need to be able to do a great deal more by way of support services (for example, the provision of crèche and nursery services) to enable those women who would like to join the workforce —and there are many of them —to be able to do so. Perhaps this Bill is not a suitable vehicle and we shall have to return to that on a future occasion.

However, we can perhaps make some minor amendments via the Bill to improve the position of women who become pregnant while in work. We can make their position more secure. The objective of the first amendment is to strengthen the law on dismissal because of pregnancy. The second amendment provides that there should be no qualifying period for the right to return to work after pregnancy. I must say that I prefer the second amendment. The latter is strongly supported by the EOC and the TUC.

As the Minister will know, the EOC has produced a comprehensive document outlining the changes it would like to see on equality law. In relation to the European Commission it says that the commission in its medium term programme for 1986 to 1990 is urging member states to reinforce provisions for the protection of pregnancy and maternity in relation to employment. It says: It is the Commission's experience that the vast majority of cases where a pregnancy dismissal is challenged on grounds of sex discrimination occur when an applicant fails to satisfy the two-year qualifying period for an unfair dismissal claim. In the Commission's view one of the most crucial social policy considerations, despite the acknowledged problems for employers, is to enable women who wish or need to do so to maintain continuity of employment despite pregnancy and childbirth". In the longer term separate legislation to deal with the issue comprehensively may well be necessary. In the meantime, the commission proposes that there should be no qualifying period for the purpose of the right to return to work under Part II and Sections 57 and 60 of the Employment Protection (Consolidation) Act 1978 —and that is the second amendment before the Committee.

The commission would also like the matter kept under review. I believe that that would be sensible since there is a case for simplifying the present complicated law on maternity rights and benefits. However, the Bill before us presents us with an opportunity to make some immediate progress in the direction of improving matters for women who become pregnant and who wish to retain employed status. I beg to move.

Baroness Seear

I strongly support this amendment not only in the interests of women but because it is becoming urgent that we should find ways of recruiting more women into the labour market, encouraging them back and making it easy for them to return after child bearing.

There is extensive evidence to show that many employers still have not realised what are the demographic figures and how dependent they will be on women. This is one way of making it easier for women to take part in the labour market and to continue in it after child bearing. We shall need these women. In many parts of the country we already need them and we shall need them a great deal more over the next few years. Every encouragement should be given, including government support for this amendment.

Lord Strathclyde

The purpose of these two new clauses is plain: the Opposition are seeking to reduce the length of the existing qualifying period for a woman to exercise her rights under the main maternity provisions of the employment protection legislation. Under Amendment No. 1 the qualifying period for claiming unfair dismissal because of pregnancy would be reduced to one month. Under Amendment No. 2 there would be no qualifying period at all before a woman acquired the right to return to her old job after a period of maternity absence. The present position is that for most women the qualifying period for these two rights is two years continuous service.

The qualifying period for the right to claim unfair dismissal because of pregnancy is the same as the qualifying period for claiming unfair dismissal for almost every other reason. In matters of employment protection we believe that it is very important to strike a sensible balance between the needs of employers and employees; over-protective regulation stifles enterprise and the creation of new job opportunities. We believe that the current qualifying periods strike a fair balance. The Opposition's proposals would add significantly to the burdens on employers and the net result would be likely to be less rather than more new job opportunities. I believe that that is fundamental, especially in the light of what the noble Baroness, Lady Seear, said.

It is surely right that before a woman gains the right to be away from work for up to 40 weeks in connection with childbirth she should be required to serve a qualifying period with her employer and demonstrate her commitment to that employment. Many employers face difficulties in covering the period of absence and reintegrating the absent employee on her return; many employees do not in fact return to work although before the birth they claim they will do so. Giving all women this right would add to the difficulties employers face with the maternity provisions and can only make them reluctant to recruit women and especially younger women. It would reduce job opportunities for those very people the new clause is trying to help. I hope in the light of what I have said that the noble Baroness will withdraw these amendments.

Baroness Lockwood

I should like to support these two amendments. I find the Minister's response to them very disappointing and I may say very short-sighted. It is the Government's policy, as the noble Baroness, Lady Seear, indicated, to encourage more married women into employment. Because of the demographic changes it will be absolutely necessary for employers to encourage married women to remain in employment.

We must remember that if we are to have an employment market which is composed of 50 per cent. women, the content of that labour market is quite different from a labour market composed of a majority of men. Only women can become pregnant and nobody in this Committee or anywhere else would wish to stop women becoming pregnant because the whole future of the nation depends on that.

Therefore, we must build into our employment provisions the necessary arrangements and protection for pregnant women. The Mininster says that the present arrangement, which .s a two-year qualifying period, strikes the right balance between the interests of employees and employers. The Equal Opportunities Commission takes a contrary view, as do some Members of this Committee.

It was quite clear when the Employment Protection (Consolidation) Act was first introduced in 1978 that the qualifying period of six months led to some problems. When the qualifying period was later extended under the present Government to two years, that led not only to difficulties for women but also to enormous difficulties for the courts in interpreting what are the rights of women and where discrimination against pregnant women arises. These amendments, which make it unlawful to discriminate against women on grounds of pregnancy, are very important and should be embodied in our legislation. Secondly, there should be no qualifying period for such pregnant women and I hope that the Government will reconsider the response which the Minister has given us.

3.30 p.m.

Baroness Phillips

I support my noble friend but on a slightly different line. It was a little unfortunate that the Minister used the example that some people do not return to work. As I understand the law, one should never legislate for hard cases. One should legislate in order that the people who are going to carry out that law will do so.

I remember one of my granddaughters working as an administrator in a hospital under a great deal of difficulty and inconvenience. It is not easy to find people who will look after children these days but she said to me, "I have said that I will return to work and I will honour that promise". She did so. My granddaughter is far more typical of young mothers who go back to work than the unnamed cases quoted by the Minister.

I appeal to the Minister that he should never legislate for the people who do not comply with legislation but think of those who do. There are far more of them.

Lord Somers

I cannot help feeling that there is another side to this matter than that put forward by the supporters of this amendment. A young child should have one of its parents at home when the child is at home. It is highly necessary for the mother to be at home during the child's first two years after birth and for one of its parents, at any rate, to be at home afterwards.

There is too much emphasis on the necessity for the parents to earn money. I cannot help feeling that our present high rate of juvenile delinquency is largely due to the fact that children have no parents at home to teach them the right way of life. I most certainly oppose the amendment.

Lord Boyd-Carpenter

There seems to be a certain lack of logic among the supporters of the amendment. To argue that demographic developments are going to mean, as they are, the need for the employment of more women and at the same time to argue that in those circumstances one must provide additional advantages or protection for employed women seems to be quite illogical.

If there is an increased demand for women's services then the need for protection is obviously so much less. Therefore, there appears to be a little confusion of thought.

On the merits of the matter, if I understand the second amendment aright —and I speak subject to correction —a woman could take employment one week and the next week announce that she was pregnant and take, I believe, up to 40 weeks away from work. That will create a very real difficulty for employers. The two-year rule is, as I understand it, the general basis for wrongful dismissal actions. Again, it does not seem very much of a case to pick out one ground for possible dismissal —pregnancy —while leaving all the others as they stand.

Therefore, although one understands the human sympathy and kindliness which lies behind the proposals in the amendments, they would appear likely to create a harmful muddle.

Lord McCarthy

Before the noble Lord sits down, will he think again on this matter? Surely it is good supply-side economics, which he is supposed to believe in. If we need more women we must encourage more women into the labour force. If we want to encourage them, we must give them some rights. If we did not need any women at all, there would not be any rights.

Lord Boyd-Carpenter

The noble Lord should face the fact that if there is a great demand for women's labour, for that very reason there is less need to protect their rights of employment.

Lord Strathclyde

I am sure that noble Lords opposite will have listened carefully to the noble Lord, Lord Somers, and will take account of his words when making a decision on this amendment.

I entirely agreed with much of what the noble Baroness, Lady Lockwood, said in the first few minutes of her speech. However, after a while she became carried away with the whole idea of having to legislate for this specific aspect. Having said what I did in my opening remarks, I do not believe that that is the right way to go forward.

The noble Baroness, Lady Phillips, accused me of using a bad example and creating a bad case. That was only one of my examples and only a minor one. The point is that we are not seeking to legislate in this situation; it is the Opposition who are trying to do that. I believe, as does my noble friend Lord Boyd-Carpenter, that that will make the situation considerably worse. In the future, employers will have to treat all their employees with a great deal of respect, partly because of the so-called demographic time-bomb about which we have already spoken.

The amendment will not help the rights of women, particularly younger women. Therefore, I hope that the noble Baroness will think carefully before pressing her amendments.

Baroness Turner of Camden

We have had an interesting short debate, but I must say that I found the Minister's response extremely disappointing. My noble friend Lady Lockwood and the noble Baroness, Lady Seear, are, of course, right to say that we must come to terms with the demographic changes that have been referred to on both sides of the Committee. We have a workforce of which women constitute 50 per cent. and therefore we have to take some steps to make employment available for women who are likely to need time off to have children.

I therefore return again to the recommendations of the Equal Opportunities Commission on amendments to strengthen the legislation. I am sure that the Minister will have seen the EOC's document, Equal Treatment for Men and Women: Strengthening the Acts. The document draws attention to the fact that the European Commission is urging member states to reinforce provisions for the protection of pregnancy and maternity in relation to employment. After undertaking a great deal of study and consulting a number of organisations—employers as well as unions —the EOC reached the view that the best way forward would be by the removal of the qualifying period for the purposes of the right to return to work. That was set out categorically in the recommendations made to government about amendments to legislation.

On the second amendment, which has support from the EOC, I should like to test the feeling of the Committee. We must still come to terms with the changing employment situation. We must say to women that we are prepared to accept their special status as women and as child bearers. On the point raised by the noble Lord, Lord Boyd-Carpenter, it is not just a matter of rights for women but also of rights for children and families. On that basis surely we ought to be prepared to look with sympathy on the EOC proposals.

I do not intend to press Amendment No. 1, which I beg leave to withdraw, but I do intend to press Amendment No. 2.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 2: After Clause 2, insert the following new clause —

("No qualifying period for right to return to work after pregnancy.

. There shall be no qualifying period of employment for a woman seeking to exercise the right to return to work after pregnancy under Part II and sections 57 to 60 of the Employment Protection (Consolidation) Act 1978.").

3.40 p.m.

On Question, whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 75; Not-Contents, 113.

Addington, L. Longford, E.
Amherst, E. McCarthy, L.
Ardwick, L. McIntosh of Haringey, L.
Aylestone, L. Mais, L.
Birk, B. Mayhew, L.
Blackstone, B. Milverton, L.
Bonham-Carter, L. Mishcon, L.
Boston of Faversham, L. Molloy, L.
Bottomley, L. Murray of Epping Forest, L.
Briginshaw, L. Nicol, B.
Broadbridge, L. Northfield, L.
Bruce of Donington, L. Peston, L.
Callaghan of Cardiff, L. Phillips, B.
Carmichael of Kelvingrove, L. Ponsonby of Shulbrede, L. [Teller.]
Carter, L.
Cledwyn of Penrhos, L. Reilly, L.
Cocks of Hartcliffe, L. Ritchie of Dundee, L.
Donaldson of Kingsbridge, L. Rochester, L.
Dormand of Easington, L. Sainsbury, L.
Ennals, L. Scanlon, L.
Ewart-Biggs, B. Seear, B.
Ezra, L. Serota, B.
Falkland, V. Shepherd, L.
Gallacher, L. Soper, L.
Galpern, L. Stallard, L.
Gladwyn, L. Stedman, B.
Graham of Edmonton, L. Stewart of Fulham, L.
Grey, E. Stoddart of Swindon, L.
Hampton, L. Strabolgi, L.
Hatch of Lusby, L. Taylor of Blackburn, L.
Hayter, L. Taylor of Mansfield, L.
Hirshfield, L. Tordoff, L. [Teller.]
Irvine of Lairg, L. Turner of Camden, B.
John-Mackie, L. Underhill, L.
Kilbracken, L. Walston, L.
Leatherland, L. Wedderburn of Charlton, L.
Llewelyn-Davies of Hastoe, B. White, B.
Lockwood, B. Williams of Elvel, L.
Ailesbury, M. Holderness, L.
Ailsa, M. Hood, V.
Airey of Abingdon, B. Hooper, B.
Alexander of Tunis, E. Hylton-Foster, B.
Allerton, L. Jenkin of Roding, L.
Ampthill, L. Johnston of Rockport, L.
Annaly, L. Kinloss, Ly.
Arran, E. Kinnaird, L.
Balfour, E. Lauderdale, E.
Beloff, L. Layton, L.
Belstead, L. Long, V.
Bessborough, E. Lucas of Chilworth, L.
Blatch, B. Lyell, L.
Blyth, L. McColl of Dulwich, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brightman, L. Malmesbury, E.
Brougham and Vaux, L. Margadale, L.
Bruce-Gardyne, L. Marley, L.
Butterworth, L. Merrivale, L.
Caithness, E. Middleton, L.
Campbell of Alloway, L. Montgomery of Alamein, V.
Campbell of Croy, L. Mountgarret, V.
Carnegy of Lour, B. Murton of Lindisfarne, L.
Carnock, L. Nelson, E.
Cawley, L. Nugent of Guildford, L.
Clanwilliam, E. Orkney, E.
Cockfield, L. Oxfuird, V.
Coleraine, L. Pender, L.
Colnbrook, L. Penrhyn, L.
Cottesloe, L. Peyton of Yeovil, L.
Cox, B. Porritt, L.
Cullen of Ashbourne, L. Rankeillour, L.
Dacre of Glanton, L. Reay, L.
Daventry, V. Renwick, L.
Davidson, V. [Teller.] St. Davids, V.
De Freyne, L. Sanderson of Bowden, L.
Denham, L. [Teller.] Savile, L.
Dilhorne, V. Seebohm, L.
Effingham, E. Shannon, E.
Elibank, L. Shaughnessy, L.
Ellenborough, L. Skelmersdaie, L.
Elliot of Harwood, B. Somers, L.
Erroll of Hale, L. Southborough, L.
Ferrers, E. Strange, B.
Fraser of Kilmorack, L. Strathcarron, L.
Gardner of Parkes, B. Strathclyde, L.
Gibson, L. Srathmore and Kinghorne, E.
Gibson-Watt, L. Strathspey, L.
Glenarthur, L. Teviot, L.
Gray of Contin, L. Thomas of Gwydir, L.
Grimston of Westbury, L. Trumpington, B.
Hailsham of Saint Marylebone, L. Ullswater, V.
Vaux of Harrowden, L.
Havers, L. Westbury, L.
Henley, L. Whitelaw, V.
Hesketh, L. Wynford, L.
Hives, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.47 p.m.

Baroness Turner of Camden moved Amendment No. 3: After Clause 2, insert the following new Clause —

("Discrimination unlawful on grounds of HIV.

"—(1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person on the grounds that that person has contracted the Human Immunodeficiency Virus (HIV) or is supposed to have contracted HIV, or is believed to be at risk of contracting HIV:

  1. (a) in the arrangements he makes for the purposes of determining who should be offered that employment, or
  2. (b) in the terms on which he offers that person that employment, or
  3. (c) by refusing or deliberately omitting to offer that person employment, or
  4. 663
  5. (d) in the way that he affords that person access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford that person access to them, or
  6. (e) by dismissing that person, or subjecting that person to any other detriment.

(2) This section shall not apply if the person will ordinarily be expected to work in a country which requires people working there to take a test for HIV and to have a negative result.

(3) This section shall not apply if the employer can demonstrate that the person cannot physically fulfil his or her duties at that time.

(4) In this section, HIV refers to the Human Immunodeficiency Virus, HIV-2 and any other virus which may lead to the medical condition known as the Acquired Immune Deficiency Syndrome.

(5) Enforcement of this section shall be as set out in sections 62 to 68 of the Sex Discrimination Act 1975.").

The noble Baroness said: This amendment is designed to prevent discrimination in employment of people carrying the human immunodeficiency virus (HIV) and those who have the acquired immune deficiency syndrome (AIDS). I do not need to tell the Committee that here we are dealing with a serious and what may be a growing problem. The World Health Organisation now estimates that between 5 million and 10 million people worldwide are HIV positive.

Closer to home, the Department of Health survey shows that in February 1989 there were 2,049 people reported in the UK as having AIDS of whom 1,089 had died. Those numbers are likely to rise dramatically as it is known that at least 9,600 people are HIV positive and are likely eventually to develop AIDS.

There is no doubt that a somewhat hysterical press coverage has assisted in spreading something of a panic about this new and dreadful disease. The fact that in the West at least (though not in Africa) it appears to be rife among the male homosexual community has tended to fuel the panic and the prejudice that arose from it. The daily press has emphasised the morbid, infectious nature of AIDS as a disease afflicting groups like homosexuals and drug users. The development of the HIV-antibody test and the knowledge that people were infected did not help matters. Rather than pacify those who believed AIDS was highly contagious, it created new fears about the carriers.

I myself happen to have had some direct experience in this field. For a number of years I was a member of the Equal Opportunities Commission. As the Committee will know, that commission has rather limited legal powers, but one power it has is to institute formal investigations and to make binding awards following such investigations. When such an investigation is commenced, it is normal to appoint a member of the commission to chair it. It so happens that I was appointed to chair the investigation into the employment practices of a certain airline. The airline in question was in the habit of employing only female air stewards. The complaint we were asked to investigate was that the airline was discriminating against men. The reason the airline gave for its practice was that in its view a high proportion of men working as stewards were also homosexual; homosexuals were likely to have AIDS and thus there was likely to be a danger to the health and safety of the airline's passengers.

During the course of that investigation, I, as the chairman, and other commission members had to get to know something about AIDS, and so we sought and obtained medical opinion at the highest level. This confirmed that there was no health risk to passengers. The airline was ordered therefore to cease discriminating against males and has since changed its employment policies. This is only one example of the widespread misunderstandings about the nature of the danger to others.

Many trade unions have responded to the fears voiced by their members, mainly fuelled by scare stories in the tabloid press. They have issued advice and guidance to members. The Health and Safety Executive and the Department of Employment have issued a booklet. The CBI and the TUC have worked closely together to try to set at rest the fears that have arisen. It has been explained that HIV infection cannot be transmitted by sharing cups or towels or from lavatory seats, that the virus cannot live long outside the body and that the infection is caught in a much more initmate way, through an exchange of body fluids, through blood transfusions with infected blood or by using infected needles to inject drugs. Incidentally, what a tragic fate has befallen haemophiliacs who have received infected blood, and how one hopes that some compensation will be forthcoming for them.

Nevertheless, despite all the information and the attempts being made at public education, there is still discrimination against people who are HIV positive, or believed to be, or who have AIDS. The Terrence Higgins Trust, a body doing wonderful work in this field and to which I am indebted for much information, tells me that it has some eight to 10 calls a month in this area and more than 100 inquiries a year from people who say they face discrimination at work. It says that its callers are often reluctant to be identified because they are still in employment or seeking new employment. It has, however, sent me some examples, including a case it is now fighting on behalf of a woman who was employed as a care assistant for mentally handicapped children. She became HIV positive, having caught the infection from her husband who has since died. She has now been dismissed. The trust is taking up her case since it sees no reason at all why she should not continue in a job she likes and which means a lot to her.

The amendment before the Committee has been carefully drafted. It does not involve employing people who are physically unable to perform the work involved. It does not apply if the person will ordinarily be expected to work in a country which requires people working there to take a test for HIV and to have a negative result. It is intended to provide some degree of protection for people who have enough to cope with in the knowledge that they have a condition which is likely to curtail their lives. That is quite a heavy burden for young people —and the people afflicted are mostly young. It is quite enough for them to bear. There is no reason to add to this by treating them as lepers in earlier centuries were treated.

The Government are to be commended on the education campaign they have run. There is some evidence that it has caused changes in the sexual behaviour of one of the high risk groups —young male homosexuals —although unfortunately not, apparently, among young drug users in Scotland. But the campaign does not appear to have educated all employers and employees at workplace level. It is true that some employers have declared that they will not discriminate against people with AIDS. The Midland Bank, for example, says that it will treat AIDS as no different from any other serious disease. A few employers, the Bank of America, Wellcome and Liberty's, and Manchester City Council in the public sector, have developed policies to give support to people with HIV or AIDS. This shows that some employers no longer believe that HIV is highly contagious.

Unfortunately, this is not enough. Discrimination still exists. I hope that the Government have had time to consider the matter further since it was raised in the other place. The Government's view is, I believe, that the law on unfair dismissal provides sufficient protection. I do not think it does. Part of the aim of legislation of this kind, as with legislation against sex or race discrimination, is to change public perception. We have to try to change the climate of opinion that is responsible for discriminating against those unfortunate enough to have contracted a disease which is greatly feared and who are therefore already under very considerable stress. I beg to move.

Lord Cambell of Alloway

The Committee may think that discrimination in this area is best left to representations of the type described by the noble Baroness rather than to statutory proscription. The amendment is well drafted. It could not be better drafted if legislation were appropriate. But is legislation really appropriate? Should legislation be introduced unless it is essential? We have too much of it anyway. Is the case strong enough to warrant putting another statute on to the voluminous statute book? I have every sympathy but it seems to me that legislation is not appropriate.

Lord Tordoff

Perhaps I may say a word from these Benches. It had been my intention to add my name to the amendment but unfortunately I was away for most of last week. I declare an interest in the sense that I am a patron of an organisation known as Catholic AIDS Link, which is honoured to have the Duchess of Norfolk as another of its patrons. The organisation has sought my support for the amendment which I willingly give. I congratulate the noble Baroness on the way in which she moved the amendment. It was a comprehensive speech on an extremely important subject concerning the sad situation that we face as a country and indeed as a world.

The point made by the noble Lord, Lord Campbell of Alloway, is quite wrong. We have to legislate these days on a number of matters on which one would not have thought of legislating many years ago. One wants to set a standard for the country. It is up to Parliament to say what is the standard expected of employers in dealing with their employees. I have a letter from the organisation to which I referred. It is written by a man who is involved in social support for people who are HIV positive. He has worked at St. Thomas's for around three years. He says that he has had a number of cases where people have found themselves coerced into resigning from employment. He says that just last week he had a case of someone being dismissed from his work following a visit to him in and out of a London hospital by his employer. He has raised with the hospital concerned its own discriminatory isolation practices which leads to such action. The point here is that there is some protection under the legislation dealing with transmittable sexual diseases but if an employer goes to see an employee in hospital and finds him in an isolation ward dealing with HIV and AIDS victims, the cover is, as it were, blown.

Until now the Government have quite understandably taken the view that their education provisions will stop discrimination. I submit that such an example —there are many others, of which some have already been quoted by the noble Baroness —shows that this approach is failing. One would greatly prefer these things to be done by education and codes of practice, but when those are seen to be failing, and where people are suffering and suffering greatly, as the noble Baroness rightly said, not only from the disease which they have contracted but from all the other psychological pressures, it is clearly time that we stepped in and made it clear to employers throughout the length and breadth of the country that it is not a proper practice to discriminate against people suffering in this way. I very much support the amendment.

4 p.m.

Baroness Seear

I should like to add a point here to reinforce the argument put forward by my noble friend Lord Tordoff. It concerns the situation where there is a clamour, as sometimes occurs, among employees about people who are so infected. The employer's hand would be greatly strengthened should he wish to support a person suffering from HIV if he could say, "I am not permitted to discriminate against this person". Pressure of this kind exists. For an employer who is under pressure from many quarters for different reasons this is an added pressure. It would be most helpful for him if he could say that he cannot agree to what is said because the law does not allow him to do so.

Baroness Macleod of Borve

I should like to add a word of support to the remarks so cogently made by the noble Baroness who moved the amendment. This is an important matter and it should be included in the Bill. It must be the most ghastly shock to anyone to be told that he is suffering from HIV and that this may lead to full-blown AIDS. Moreover, on top of this to be unable to obtain a job and to find that one is not acceptable to an employer must be the end. Such people must wish that the end would come sooner rather than later. I have seen people who have acquired this ghastly ailment. In my view, if this provision is not made part of the Bill then the employer is under no obligation to give that person a job or to let such a person keep an existing job.

My only worry is in regard to the first few words of the amendment, which read: It is unlawful for an employer". That means an employer of all people at every level of employment. I wonder whether one should make it mandatory that such people should be given employment in the hospital service. Perhaps the Minister will be able to help us on this point or, if not, perhaps he will consider the matter. In the meantime, I think that this provision should form an important part of the Bill.

Lord Boyd-Carpenter

The case which arises as regards this matter is a difficult one. I think many noble Lords will very much share the feelings so eloquently expressed by my noble friend Lady Macleod of Borve. It must be a frightful shock for the person who has innocently acquired this disease to find that he is also, quite apart from the physical injury he is likely to suffer, going to be in difficulty as regards employment.

I share the doubts expressed by my noble friend Lord Campbell of Alloway as to whether it is a good idea to put a specific provision of this kind into the Bill. In the first place, if it is right to put such a provision into the Bill in respect of HIV, what is the argument for discriminating the other way against other unpleasant diseases? I have in mind diseases such as those in the syphilitic group, hepatitis or indeed tuberculosis. If it is to be forbidden to discriminate against HIV sufferers, is there not equally an argument in respect of sufferers of other diseases such as those I have just mentioned? It seems to me that if we are to impose such a provision we would be proposing an incomplete and somewhat discriminatory solution to the problem.

There is also the difficulty, referred to by my noble friend Lady Macleod of Borve, of applying such a provision to all employments. If one is concerned with work in a large factory or a large office, one can perhaps take the robust view that very little risk is involved to other people —although it may well be that many of the fellow workers concerned may not see the situation in that way. There are occupations which would be covered by the amendment where the position is not the same. There is the obvious example to which my noble friend referred; namely, the hospitals. Would one really feel very happy if one was being treated and nursed in a hospital by someone who one knew to be infected with the disease?

There are also other areas. Domestic service hardly exists now but in so far as it does it would be somewhat disturbing to have such a person so employed in one's home. The difficulty would also arise in a great deal of welfare work, including the very example quoted by the noble Baroness of the care of children.

If we were to legislate on this subject —there is obviously a case for this, as was so ably argued by the noble Baroness, Lady Turner of Camden —it would be necessary to except from it many areas, such as those I mentioned, to which there would be very serious objection which would prevent an employer protecting other people—that is, patients, fellow workers and so on —from the possibility of infection.

I am therefore inclined to the view, subject to what my noble friend the Minister may say, that the amendment would do more harm than good. Of course I recognise, as I am sure do all noble Lords, the high and good intentions with which the amendment was moved, but the more one looks at what is proposed the more unhappy one becomes at the idea of putting such a provision into law.

Lord Brightman

It seems to me that there may be another problem which arises out of the proposed amendment. A difficulty can arise under subsection (3), which reads: This section shall not apply if the employer can demonstrate that the person cannot physically fulfil his or her duties at that time". Let us suppose that an employee is sought who is willing to work under a five-year contract. The applicant is HIV positive or infected by AIDS but could physically fulfil his or her duty at that time. In such a situation, has the employer the duty to accept that applicant, although he or she may have a very reduced chance of surviving the five-year period and therefore fulfilling his or her contract? It may be that this could be resolved by amending the wording of the proposed subsection (3). But, as it stands, a victim of AIDS who is physically able to fulfil his or her duty at the time of the application but unlikely to be able to work out the contract would be required to be selected for employment by the employer on exactly the same basis as a person who would be able to complete the contract.

Lord Stoddart of Swindon

In spite of the admirable and sensitive way in which my noble friend introduced the amendment, I feel that I cannot support what is proposed, largely for the reasons which were outlined by the noble Lord, Lord Boyd-Carpenter. Moreover, if the amendment were passed it would be misunderstood. It would be misunderstood by employers and it would certainly be misunderstood by employees on the shop floor. I say that because it would be taken to mean that the only protection which is to be given to people with a disease applies to a particular disease which in the view of most people is personally avoidable. We know that that is not so. We know that AIDS can be contracted by haemophiliacs, by people who work in hospitals and by other means; but it is perceived by the employee and employer as a disease which, in the main, is avoidable.

If we say to people who work in factories and offices and to employers in particular that they must employ people with that disease but that they have the option as to whether they employ people with other serious diseases, I feel sure that it would be misunderstood.

For that reason, the Committee should be diffident and careful about agreeing to the amendment. The right course of action for a period hence is better education, better information and perhaps more money spent on it, if necessary by the Government, to inform people as to the true nature of the disease and the difficulties which it causes for people who have unavoidably contracted it.

Lord Glenarthur

I must apologise to the noble Baroness for not having heard her move the amendment. However, I hope that she will forgive me if I, having heard some of the other comments which have been made, comment briefly upon it. I had a certain amount of experience of dealing with this subject some years ago in the Department of Health and Social Security. While I understand, and have sympathy with, the underlying concern which she has in putting forward the amendment, there may be some difficulty with what seems to me to be the looseness with which the first part of her new clause is drafted, in particular, the words or is supposed to have contracted HIV, or is believed to be at risk of contracting HIV". I say that because there are cases of people contracting HIV through blood products. I hope and I believe that that risk has now been largely removed; but there were those who might have been infected, particularly haemophiliacs, through blood products that arrived from abroad which, at that time several years ago, had not been properly immunised against the disease. Moreover, there are many, who could be haemophiliacs, who might require some sort of employment, but who, inevitably, might be at some small or residual risk of still contracting HIV because of the material that they need to overcome their haemophilia. I hope that that point will also be borne in mind.

Lord Strathclyde

I have a great deal of sympathy with the purpose behind the amendment. I wish also to echo some of the sentiments that we have heard today from all around the Chamber. AIDS is undoutably a horrific, tragic and sad disease. We have had a most sensible debate. I should like to thank all those who have contributed to it.

I agree that employers should not discriminate against employees or job applicants on grounds irrelevant to the requirements of the job. Government advice to employers in the AIDS and Employment booklet makes it clear that in almost all occupations there is no risk of infected persons passing the virus to others, and there is no reason to treat them any differently from anyone else. I am concerned that employers should understand this and act accordingly. No risk should mean no discrimination.

It is an important strand of the Government's public education campaign to continue to ensure employers heed that message, which is strongly supported by the CBI and TUC. I am glad to say that there is currently no significant evidence that the Government's advice to employers is being widely disregarded or is ineffective. However, there are no grounds for complacency and important messages need to be repeated.

It is important to remember that there already exists anti discrimination legislation which may be relevant to the issue; for example, although there is no express provision prohibiting employers from insisting that job applicants submit to an HIV test, they must ensure that they do not fall foul of sex and race discrimination legislation. Also there is nothing in law which automatically entitles employers to subject their employees to medical tests, unless their contract of employment entitles them to do so. The general run of employees will not have such provisions in their contracts.

Under employment protection legislation, an employer must have a valid reason for dismissal. To dismiss someone merely because he or she has, or is suspected to have, HIV infection may well, depending on the circumstances, be unfair. An employee who has completed the two-year qualifying period can complain of unfair dismissal to a tribunal. I am not convinced that any further legislation is needed.

4.15 p.m.

Baroness Seear

Perhaps I may take up a point made by the Minister. The point that is so frequently made is that there is the unfair discrimination protection. But unfair discrimination decisions at a tribunal rarely involve reinstatement; they involve compensation. However, a person with that condition wants a job. He does not want compensation. Compensation helps a little, but it is a job that he wants. Since reinstatement is so rarely used by a tribunal, the defence that he is covered because he can go to a tribunal under the anti-discrimination legislation does not stand up.

Lord McCarthy

Perhaps I may ask the noble Lord a question on that point. Has he any evidence that industral tribunals have decided, as they might possibly be free to decide, that dismissal on grounds of contracting AIDS is unfair on, I suppose, the grounds of some other substantial reason? Have industrial tribunals taken that view or have they taken a different view?

Lord Strathclyde

Those are two important and relevant points. In response to the noble Baroness, Lady Seear, I am not sure whether anyone who had been dismissed because they were suffering from AIDS, and who went to an industrial tribunal before which it was proved that that was unlawful, would necessarily want to return to that job.

As regards the point made by the noble Lord, Lord McCarthy, about whether employment laws are currently adequate, industrial tribunals are most unlikely to accept that the dismissal of someone solely because he or she has, or is suspected to have, HIV infection, is reasonable. That point is clear.

I am sure that the best interests of people with HIV will continue to be served by maintaining our efforts to ensure that employers are well informed on the subject and do not act on unjustified fears about risks in the workplace. To this end we are updating our advice to employers. A revised version of AIDS and Employment will be published shortly. We will also continue to develop our public education campaign and monitor the situation closely, but legislation is not the answer.

Some noble Lords pointed out that there are too many problems with the amendment, and that it is likely that exceptions would be required. In the end, it would not serve the cause of those who suffer from AIDS. I echo those words.

Baroness Turner of Camden

We have had an interesting debate on this subject. I should like to thank all noble Lords who contributed. I much appreciate some of the comments made by the Minister because they answer, to some degree, the points made by my noble friend Lord Stoddart and the noble Lord, Lord Boyd-Carpenter. The Minister made it clear that the Government's view is that there is no risk of passing on the virus at work; there is no workplace risk and where there is no risk there should be no discrimination, which is what my amendment is all about.

I believe that I made it clear when I moved the amendment that the reason I thought it necessary was that I do not believe that the unfair discrimination provisions (and the point has been emphasised by the noble Baroness, Lady Seear) are adequate to deal with this situation. It is a new and very frightening disease which has had a great deal of publicity. The Government have quite rightly taken extraordinary steps for a government to provide education material and to advertise widely the risks involved in certain sexual behaviours which have been influenced quite considerably by that government advertising campaign. Nevertheless there is still a situation where people, in addition to finding out that they have this dreadful condition, are also often faced with the possibility of loss of employment or discrimination in that employment.

I believe that we have to say to the community out there, which is concerned about AIDS —and I am sure that, like myself, many noble Lords will have received letters from people concerned about it —that this is something that must be written into legislation. It is simply not sufficient to rely on existing law on unfair dismissal. The procedures are cumbersome and often very long-winded. As has rightly been said, they rarely lead to reinstatement and they are harassing and harrowing for people already under stress. However, if a clause of this kind is written into the legislation in the first place, such people would not have to face the possibility of discrimination or unfair dismissal.

I am disappointed in the Government's response. I had hoped that they might have said, even if they did not agree with the wording, that they would take the proposal away and bring back something of their own on Report. But since we have not received that kind of assurance from the Government, I feel that I have no alternative but to test the feeling of the Committee.

4.22 p.m.

On Question, whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 114.

Addington, L. Birk, B.
Airedale, L. Blackstone, B.
Amherst, E. Boston of Faversham, L.
Ardwick, L. Bottomley, L.
Aylestone, L. Brooks of Tremorfa, L.
Bruce of Donington, L. Mayhew, L.
Callaghan of Cardiff, L. Molloy, L.
Carmichael of Kelvingrove, L Nicol, B.
Cledwyn of Penrhos, L. Northfield, L.
David, B. Parry, L.
Donaldson of Kingsbridge, L. Peston, L.
Dormand of Easington, L. Ponsonby of Shulbrede, L. [Teller.]
Ennals, L. Reilly, L.
Ewart-Biggs, B. Rochester, L.
Falkland, V. Sainsbury, L.
Gallacher, L. Seear, B.
Galpern, L. Serota, B.
Gibson, L. Shepherd, L.
Gladwyn, L. Somers, L.
Graham of Edmonton, L. Stallard, L.
Hampton, L. Stedman, B.
Hughes, L. Stewart of Fulham, L.
Irvine of Lairg, L. Strabolgi, L.
Irving of Dartford, L. Taylor of Blackburn, L.
Jeger, B. Taylor of Mansfield, L.
Kilbracken, L. Tordoff, L. [Teller.]
Leatherland, L. Turner of Camden, B.
Llewelyn-Davies of Hastoe, B. Underhill, L.
Lockwood, B. Walston, L.
Longford, E. Wedderburn of Charlton, L.
Lovell-Davis, L. White, B.
McCarthy, L. Williams of Elvel, L.
McIntosh of Haringey, L. Wilson of Rievaulx, L.
Ailsa, M. Hailsham of Saint Marylebone, L.
Airey of Abingdon, B.
Alexander of Tunis, E. Halsbury, E.
Allerton, L. Havers, L.
Ampthill, L. Hayter, L.
Annaly, L. Henley, L.
Arran, E. Hesketh, L.
Balfour, E. Hives, L.
Belhaven and Stenton, L. Holderness, L.
Beloff, L. Hood, V.
Belstead, L. Hooper, B.
Bessborough, E. Hylton-Foster, B.
Birdwood, L. Jenkin of Roding, L.
Blatch, B. Johnston of Rockport, L.
Blyth, L. Killearn, L.
Boyd-Carpenter, L. Kinnaird, L.
Brightman, L. Lauderdale, E.
Brougham and Vaux, L. Long, V. [Teller.]
Bruce-Gardyne, L. Lucas of Chilworth, L.
Butterworth, L. Lyell, L.
Caithness, E. McColl of Dulwich, L.
Campbell of Alloway, L. Malmesbury, E.
Campbell of Croy, L. Margadale, L.
Carnegy of Lour, B. Marley, L.
Carnock, L. Marshall of Leeds, L.
Cawley, L. Merrivale, L.
Clanwilliam, E. Mersey, V.
Cockfield, L. Middleton, L.
Coleraine, L. Montgomery of Alamein, V.
Colnbrook, L. Moran, L.
Cottesloe, L. Morris, L.
Cox, B. Mountgarret, V.
Cullen of Ashbourne, L. Munster, E.
Dacre of Glanton, L. Murton of Lindisfarne, L.
Daventry, V. Nelson, E.
Davidson, V. [Teller.] Nugent of Guildford, L.
Denham, L. Orkney, E.
Dilhorne, V. Orr-Ewing, L.
Elibank, L. Oxfuird, V.
Ellenborough, L. Pender, L.
Elliot of Harwood, B. Penrhyn, L.
Erroll of Hale, L. Peyton of Yeovil, L.
Ferrers, E. Rankeillour, L.
Fraser of Kilmorack, L. Reay, L.
Gainford, L. Renwick, L.
Gardner of Parkes, B. St. Davids, V.
Gibson-Watt, L. Sanderson of Bowden, L.
Glenarthur, L. Savile, L.
Gray of Contin, L. Seebohm, L.
Grimston of Westbury, L. Skelmersdale, L.
Southborough, L. Trumpington, B.
Strange, B. Ullswater, V.
Strathcarron, L. Vaux of Harrowden, L
Strathclyde, L. Whitelaw, V.
Strathmore and Kinghorne, E. Wise, L.
Strathspey, L. Wynford, L.
Terrington, L. Young, B.
Thomas of Gwydir, L.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 3 [Restriction of exemption for discrimination required by or under statute]:

4.30 p.m.

Baroness Turner of Camden moved Amendment No. 4: Page 3, line 7, leave out from ("51") to the end of line 44 and insert — ("(1) The Secretary of State shall cause to be published a list of legislation exempt under subsection (3) of this section. He shall review such legislation in consultation with the Equal Opportunities Commission at intervals not exceeding 5 years and shall take steps to repeal or revise such legislation as appropriate.").

The noble Baroness said: This amendment is an attempt to broaden out what the Government are doing. I said at the Second Reading debate that I thought it a pity that they had not taken the opportunity to go a little further in attempting to end discrimination. The Equal Opportunities Commission takes the view that the Government should have used this Bill to remove Section 51 of the Sex Discrimination Act altogether. I understand that the European Commission has issued a reasoned opinion, which has not been published, alleging that Section 51 is inconsistent with the requirements of the European Community equal treatment directive.

Section 51 of the Sex Discrimination Act provides a defence for acts done under legislation prior to the Sex Discrimination Act 1975. As I have said, the EOC believes it should be removed entirely. That is also the view of the TUC. However, the Government have sought to amend it and to introduce a new Section 51. The amended Section 51 permits discrimination in employment and training where its purpose is health and safety protection for women in relation to pregnancy, maternity and other circumstances which give rise to risks specifically affecting women. However, the new section effectively permits the continuation of discrimination under prior legislation in areas other than employment and training. Those areas are education and the provision of goods, facilities, services and premises.

We have here another example of a bits-and-pieces approach to sex discrimination legislation. Instead of new legislation covering the whole spectrum and based on the experience of legislation introduced in 1975 and of European law and case law, and taking account of the recommendations of the Equal Opportunities Commission, we have further confusing amendments via a Bill which is only partly concerned with discrimination.

If we are to proceed in this way, could we not, via this Bill, expunge Section 51 altogether and rely on consultations with the EOC as regards exemptions that may from time to time be necessary? I am by no means absolutely committed to the wording of this amendment. I have made clear the objective of the amendment and I should like to hear the Government's view as regards how they take the suggestions that they should broaden out the provisions of the Bill in this way. I beg to move.

Lord Strathclyde

The aim of this amendment, as I understand it, is to ensure that exemptions from the Sex Discrimination Act are kept under review and that unnecessary exemptions are removed. This is a reasonable aim but I hope to persuade the Committee that the amendment is neither necessary to achieve the aim nor effective in doing so.

First, I must briefly point out, although I do not wish to dwell on it, that there are fundamental difficulties of a technical nature with the amendment as drafted. However, as I have said, I shall not labour this technical problem.

Turning to what I take to be the issues of substance, I understand that the first aim of this amendment is to require the Secretary of State to publish a list of legislation covered by certain exemptions from the Sex Discrimination Act 1975. I have to say that there would be severe practical difficulty in meeting such a requirement. The definition of legislation for this purpose would be very broad. It would include not only public Acts of Parliament but private Acts, statutory instruments, by-laws and other miscellaneous instruments having statutory force. There are literally thousands of pieces of legislation that might in principle be relevant. Of course it may well be—indeed, I am sure it is the case —that only a very small minority of them would in fact be relevant. The problem is that we could not be sure of this without examining each and every one of them. This would be a task for an army of lawyers. Moreover, in the case of indirect discrimination, the provisions concerned would not on their face distinguish between women and men and there is no guarantee that they could be easily identified.

It may perhaps be suggested that we should not aim at perfection, and that we need try only to indentify the more obvious pieces of legislation concerned. The task might then be more manageable, but it would hardly be a satisfactory way of meeting a statutory requirement. There is also a danger that an incomplete list of legislation would mislead the very people it is intended to help.

I must therefore ask what useful purpose would be served and what benefit would be gained in return for a considerable expenditure of time and expert resources. As I understand the aim of the amendment, the benefit would be that, having identified the relevant legislation, the Secretary of State would be under an obligation to review it in consultation with the Equal Opportunities Commission at least every five years, and to take steps to repeal or revise it as appropriate.

I said at the outset that this was a reasonable aim. Where legislation provides exceptions from the general prohibition of sex discrimination, such exceptions should indeed be kept under review. But the Sex Discrimination Act already gives the Equal Opportunities Commission a statutory duty to review legislation relevant to equal opportunities and to make recommendations to the Secretary of State as appropriate. The Health and Safety Commission is under a similar obligation to review legislation in the health and safety field. I am convinced that this is a far more effective way of meeting the aims of the amendment than the cumbersome additional procedures which the amendment itself envisages.

Is it suggested that the Equal Opportunities Commission or the Health and Safety Commission will neglect their statutory duties to keep the relevant legislation under review? Have they done so in the past? On the contrary, I believe that they are vigilant and very quick to identify any problems arising in their fields of responsibility. In the Government's view, a further requirement on the Secretary of State would therefore be quite superfluous. It would offer no practical advantage in return for the additional cost and effort entailed. For all those reasons, I hope the noble Baroness will withdraw the amendment.

Baroness Lockwood

I recognise the difficulties which the Minister has outlined in publishing a list of not only primary but also subsidiary legislation which might have discriminatory effects. However, I should have hoped he would be more sympathetic to the objective of this amendment. My noble friend Lady Turner said that she was not wedded to the wording of the amendment. I think that what we need is some inclusion in the present Bill that not only ensures that those parts of Section 51 that are related to employment and training will be eliminated, but also that the Government will have placed upon themselves a responsibility to take account of and amend other discriminatory legislation.

The Minister said, quite rightly, that the EOC has been quick to identify problems caused by previous legislation. I must say that the Government have not always been quick to accept the advice of the EOC. We had an example of that only this afternoon. Will the Government not give some commitment that they are prepared to look at the intent of this amendment more closely, and perhaps come up with some other amendment which would be wider in its scope but would take account of the real concerns of the EOC?

Baroness Turner of Camden

I said when I moved the amendment that I was not exactly wedded to its wording and that I was aware that there were technical difficulties involved with it. However, I had hoped that the Minister would give us some kind of assurance on the way in which legislation of this kind would be dealt with in future. As my noble friend Lady Lockwood has said, the EOC is certainly not at all backward in reviewing legislation. It has recently reviewed the legislation quite extensively but, as my noble friend has already said, the Government tend not to take any notice of that. It is because governments tend not to take any notice either of the EOC or, very often, of the Health and Safety Commission that I thought it would be a good idea to have something in legislation which was binding upon the Secretary of State and which would ensure that every five years steps would be taken to undertake a proper review in consultation with the EOC.

However, it is not my intention to press the amendment at this point. I shall look carefully at what the Minister has said in Hansard to see whether it might be appropriate to come back at Report stage with slightly different wording. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Schedule 1 agreed to.

Clauses 5 to 7 agreed to.

Clause 8 [Power to exempt discrimination in favour of lone parents in connection with training]:

Lord Strathclyde moved Amendment No. 5: Page 7, line 27, leave out subsection (1) and insert — ("(1) The Secretary of State may by order provide with respect to—

  1. (a) any specified arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State as respects employment and training), or
  2. (b) any specified class or description of training for employment provided otherwise than in pursuance of that section, or
  3. (c) any specified scheme set up under section 1 of the Employment Subsidies Act 1978 (schemes for financing employment),
that this section shall apply to such special treatment afforded to or in respect of lone parents in connection with their participation in those arrangements, or in that training or scheme, as is specified or referred to in the order.").

The noble Lord said: The purpose of the amendments is to extend the scope of Clause 8 of the Bill to cover employment and enterprise programmes as well as training schemes. The clause as it stands gives the Secretary of State power by order to exempt special treatment in favour of lone parents from being unlawful discrimination against married persons under the Sex Discrimination Act 1975. However, an order under the clause could not cover the whole range of my department's employment and enterprise schemes where special assistance for lone parents may in future be thought to be desirable.

The Government recognise that parents who are bringing up their children alone face particular difficulties if they wish to re-enter the labour market. We are already helping many lone parents to improve their job prospects under Employment Training and at any one time some 4,000 lone parents who would not otherwise have been able to enter the scheme are receiving help with child care costs.

We believe that it is right to target special help on lone parents so that they can get the training they need to get back into jobs. An extension of such help to all parents training on the scheme would be hard to justify. There would be substantial costs to the programme in making child care payments across the board. It is estimated that, should an additional 20 per cent. of entrants to the programme claim child care payments, the extra annual cost would be about £100 million. The Government consider that programme resources are better used to enhance the volume and quality of training available under the programme.

The amendments are designed to cover the whole range of the department's current and possible future employment and enterprise measures, including activities such as the enterprise allowance scheme, jobshare and jobclubs. This will not be giving the Government a blank cheque. The Secretary of State would have to make orders specifying the special treatment for lone parents and the particular arrangements, training or scheme to which the exemption would apply. The orders would be subject to the negative resolution procedure.

We have no immediate plans to extend special help for lone parents to other areas of the department's activities. We will first need to see what happens in employment training. However, it is important that we should be able to apply similar provisions to our employment and enterprise programmes should we decide that it is appropriate to do so. These amendments would provide the necessary flexibility to allow for future developments and I commend them to the Committee. I beg to move.

4.45 p.m.

Lord McCarthy

We are very pleased to welcome the amendment and to see that we are passing through a part of the Bill where we have no reason to move any amendments at all. We have passed many clauses and a schedule and we now come to this amendment.

As the Minister said, lone parents are a disadvantaged group. Most of them are women and most of them have considerable difficulties in going to work, remaining at work and returning to work. In those circumstances, where they wish to participate in the Government's training schemes, it is only right and proper that the Government should be free to give them special assistance. We are glad that the Government have seen fit to widen the original intentions of the clause in the amendment. I am particularly glad to hear the Minister say that he has his eye on other disadvantaged groups, of which there are many. When the clause was first discussed in another place, the Opposition asked the Minister to think of what could be done for other disadvantaged groups, so I hope that we shall hear from him in due course. In the meantime, we welcome the amendment.

Baroness Seear

We should also like to welcome the amendment, but it is too good an opportunity to miss not to ask the Minister to think again about one or two possible additions. I take his point that to extend the provision to a wide range of parents would cost a great deal of money, but there is one group of women whom I ask him to consider before the next stage.

As the noble Lord knows, there are a large number of married women who want to get back into the labour market —some are lone parents but a great many are not—but who are not eligible for employment training because they are not registered as unemployed. They include a large number of potentially extremely useful people. I know of a course at Hatfield Polytechnic where women of intitially very high qualifications have come back to do professional refresher courses under their own steam. They are not eligible for any assistance under employment training because they have not been registered as unemployed, but during the course of a number of weeks of training they have had to make expensive arrangements for their children. They do not receive any other assistance from the Government.

If women of that kind —it could be worked out what the limitations on this proposal are —who are not eligible for employment training assistance but who are potentially very useful members of the labour market could obtain assistance for child care during their training, it would cost very little but would be of great assistance and encouragement to those women to do the retraining that they need at this stage to get back into the labour market. They are potentially a good source of much-needed employees. Will the Minister think about that?

Lord Campbell of Alloway

As the clause has been welcomed by the noble Lord, Lord McCarthy, any welcome from me is entirely otiose. Perhaps I may take one point for the consideration of my noble friend the Minister. The power to exempt by Order in Council from the general incidence of the statute as envisaged should surely be by affirmative resolution of both Houses, at all events, as regards future extensions as envisaged by the clause —the further steps to be taken.

Clause 23(4) proposes a negative resolution of either House. The Committee may well think that that is neither appropriate, satisfactory nor acceptable as, by convention as regards a future situation not capable of full discussion before Royal Assent, a negative resolution is not usually appropriate. In any event, as the Committee knows, by convention noble Lords cannot reject subordinate legislation. I merely ask my noble friend the Minister whether some consideration —I ask for no more —could be given to bringing the matter within Clause 23(3) rather than leaving it within the ambit of Clause 23(4). It is a very simple exercise in redrafting. I should be most interested to hear what my noble friend might wish to say.

Lord Strathcylde

It was indeed a pleasure to hear the noble Lord, Lord McCarthy, say what he did about the clauses. I sincerely hope that the remainder of the Committee proceedings over the next couple of days will continue to be so cordial and pleasant.

I fully understand what the noble Baroness, Lady Seear, was trying to say about women, particularly about getting women with children back to work. It is a matter that the Government are continually reviewing. We are also always looking at ways to improve ET so that we can create the best possible training system for as many people as possible.

My noble friend Lord Campbell of Alloway asked about the negative resolution procedure in respect of the amendment. I understand that that is the normal way that we would proceed on this sort of business, but naturally it is something that I shall look at to make sure that there is no better way.

On Question, amendment agreed to.

Lord Strathclyde moved Amendments Nos. 6 and 7: Page 7, line 33, after second ("to") insert ("or in respect of"). Page 7, line 38, at end insert — (" An order under subsection (1) above may specify or refer to special treatment afforded as mentioned in that subsection—

  1. (a) whether it is afforded by the making of any payment or by the fixing of special conditions for participation in the arrangements, training or scheme in question, or otherwise, and
  2. (b) whether it is afforded by the Secretary of State or by some other person;
and, without prejudice to the generality of paragraph (b) of that subsection, and any class or description of training for employment specified in such an order by virtue of that paragraph may be framed by reference to the person, or the class or description of persons, by whom the training is provided.").

The noble Lord said: I beg to move Amendments Nos. 6 and 7 en bloc.

On Question, amendments agreed to.

Clause 8, as amended, agreed to.

5 p.m.

Lord Wedderburn of Charlton moved Amendment No. 8: Before Clause 9, insert the following new Clause —


. —(1) Neither section 9 nor section 10 of this Act shall come into effect until such day as the Secretary of State appoints by order, and different days may be appointed for different provisions of those sections.

(2) No order shall be made under this section until:

  1. (a) the Secretary of State has consulted the Health and Safety Commission and the Equal Opportunities Commission about his proposed order,
  2. (b) three months have passed from the date on which he sent to those bodies the proposed order, and
  3. (c) three months have passed after the publication by him of any advice and recommendations concerning conditions in the field of employment relevant to the proposed order sent to him by either or both of those bodies.

(3) In their advice and recommendations given under this section the Health and Safety Commission and the Equal Opportunities Commission shall —

  1. (a) pay particular regard to the conditions as they affect young workers less than 18 years of age;
  2. (b) consider the need for statutory provisions protecting workers both male and female in their conditions of employment in the fields governed by the enactments contained or referred to in sections 9 and 10 below; and
  3. (c) consider whether the existing provisions of the statutory enactments provide protection for which the reasons are no longer well founded.").

The noble Lord said: This amendment calls for a new clause in the Bill. The effect of the new clause would be to delay for some six months or more the bringing into force of Clauses 9 and 10 to allow for further consultations case by case with the Health and Safety Commission and the Equal Opportunities Commission.

Our reason for putting forward this amendment is that we are not convinced by the Government's rather remarkable consultative document of December 1987 or from what followed it in another place that the Government have engaged in the examination needed to conclude that some of the protections in the legislation concerned, in particular for 900,000 young workers now in employment, are no longer desirable or should not be maintained in an interim manner. The attitude of the consultative document was a presumption that everything should go except very few regulations in this field.

The difficulty in moving this amendment lies in that, as the Government rather complain in the consultative document, this is an extremely complex and detailed area. To put our case in a nutshell, that complexity and detail was built up by the experience of employers, trade unions, factory inspectors and others over a century. When one is repealing a structure of that kind, procedure case by case is a better method than total and immediate demolition.

Indeed, the consultative document refers to very little writing or research in the field. One passing reference is to the Robens Report and there is an implicit reference to Professor Harrington's work of 1978 on night work. We are not alone in taking such a view. From the beginning the Health and Safety Commission —perhaps I may quote from its response to the consultative document —said that these provisions may be unnecessarily detailed and elaborate although not an apparent burden on industry. That is very notable. It goes on to say, however, that, they should not be replaced without some form of control on young persons' hours of work … in order to safeguard their welfare and opportunities for education, training and social development".

The British Institute of Management in March 1988 advocated that all the existing legislation be repealed but stated: In its place, BIM would welcome the enactment of a general provision for young people covering maximum hours of work, rest periods and working at weekends".

The Confederation of British Industry at the same time stated: Many CBI members recognise however that young people could be obliged to work excessive and unsocial hours by unscrupulous employers. We would therefore accept some limitation on night work for young people and some general guidance on what are seen as reasonable working hours for them today". That is not the attitude of the Government. I submit that those approaches would lead to a case by case approach to each of the regulations concerned. Although the consultative document treated them case by case, it simply listed them one after another and then stated that most were to be repealed because they said so. What is more, the reason why we have to deal with Clauses 9 and 10 in this new clause is that it is not true, as the noble Lord, Lord Trefgarne, said at Second Reading, that Clause 9 deals only with; archaic restrictions on the employment of women" [Official Report, 14/7/89; col. 522.] Clause 9, with its appendix, Schedule 2, deals with women workers, young workers and indeed men workers. Perhaps I may stay for a moment with that example because it illustrates our case very well.

The limit on loads which may be lifted lawfully by workers in the woollen and worsted textiles industry has been fixed since 1926. Different levels have been fixed for young workers, women workers and men workers. I shall say something about that distinction in a moment. However, in the Government's repeal all are to go; they show no sign whatever of a desire to maintain some kind of limit upon loads that might apply to all adult workers.

I know that the Government will reply, "There will be new handling of loads regulations". That project has been going on since 1980. A draft was put forward in 1982 and there was a draft in October this year, although on 25th July, as I understand from published material, the Health and Safety Commission decided to turn its attention to the European draft directive rather than to our own regulations. I wonder whether the Minister will confirm that statement, since, as I understand, it has not had official confirmation. That means that it will be an even longer period before we have the new load handling regulations. Of course they will be better than the old ones because much has been learned about ergonomics in the last 50 to 100 years. But why not keep something to protect workers in the interim? Have the Government even examined whether that should be done?

The Government may say, "Well yes, we have, because there are one or two places in the consultative document and now in the Bill where we believe in levelling up". That is what we are suggesting as the presumption rather than repeal —levelling up without the discrimination of protections until, if need be, better drafts are put forward. That is done in regard to young workers' loads in agriculture and in respect of the mines under Section 93 of the Mines and Quarries Act. But there is no explanation of why the same is not happening with regard to the lifting regulations in the jute, pottery and woollen and worsted textiles industries which I have already cited.

When roughly one quarter of serious industrial injuries at work relate to loads and back strain, it is hardly extravagant to ask that there should be detailed case by case inquiry into each of those areas of regulation at least for the interim period until the new regulations or the new directive come into force. There is not a word in the Government's material to show that they have considered that course.

I should like to say a few words about accidents. It is true that the evidence is not clear that workers under 18 are more prone to accidents than others in the wider age group up to 25 years. However, it is common ground in all the material that there is a higher rate of industrial accidents among workers up to 25 years and the jury is still out on the question of young workers under 18 and whether they do not suffer more accidents because of longer hours, night shifts, shifts longer than five hours and so on.

When that is still an unproven matter, it seems less than responsible for the Government to throw away every kind of control over the hours of young workers and to allow —as the CBI puts it —some (if not many) unscrupulous employers to exploit young workers in today's market.

There is one other factor of a different kind which we put forward in support of this clause. The enactment of the Bill —the Government have been very clear—requires the denunciation of yet one more solemn international compact, the ILO Convention 45 (the fifth since 1982) and parts of two paragraphs of the Council of Europe's social charter. That is not the path taken by our partners in Europe. Measures in France, Italy and the German Federal Republic to make the labour market adopt a more flexible legal framework have not included denunciation of minimum civilised standards applicable in those instruments to young workers.

While the 16 year-old in a British factory after this Bill is passed will lose basic protections on hours of work, night work, shift work, protected meal breaks, holidays, half-holidays, Sunday work, and required rooms for rest periods, his French counterpart will still enjoy a much longer list under the Code du Travail. In Italy and France the ban on night work exists still but is being progressively relaxed by consultation and collective agreement. Here it has simply been thrown aside. The extensive 1976 Act in Germany protecting young workers' hours, welfare and holidays will still be in place. None of those countries is in the least worried about its competitive position when it looks at the enactment of this British youth exploitation Act. The countries are not in the least worried about the removal of these so-called burdens from business which the Health and Safety Commission denies.

I must explain carefully our intentions with regard to women workers under this clause. Many of the provisions which originated as protection for women workers are now perceived as discriminatory. Except where they relate to hazards concerning pregnancy and other similar biological risks, they must now be phased out. That is right in principle. That is our Community obligation under the directive of 1976 on equal treatment. We on these Benches wholeheartedly support the fulfilment of that obligation.

However, Community law must not be misrepresented. That very directive speaks of the removal of those laws which are, contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded". The words "no longer well founded" appear in our amendment. If all of them can be shown no longer to be well founded for the reasons they were enacted, they should be repealed quickly. But we doubt very much whether the Government's attention has been quite so close and whether they have looked at the communication of the European Commission (COM. 87/105) of 20th March 1987. In that communication the Commission stated: It may be concluded that many of the protective measures discussed in this report will have to be extended to both sexes or repealed".

I cannot quote the whole document to Members of the Committee. I maintain that the presumption in that document is to maintain an extension of protection at work to both sexes where possible. The Government have not applied that presumption. Their spirit is not the spirit of communication No. 105 of 1987. Indeed, the Commission states: Discussion of the problem [of night work] should no longer concern whether a job should be done by men or women, but rather the legitimacy and necessity of night work at all".

The approach of the consultative document, and in the Bill is not one of levelling up. The Commission in its documents on this aspect and on the lifting of loads presumes that the way to make more flexible, to modernise and to make more sensible the protection of workers is to remove discriminatory material when it is no longer well founded, to replace it with sensible protections for all workers and where possible to do away altogether with harmful working shifts such as night work.

Have Members of the Committee noticed all the consequences of this Bill? Is it well known that the repeal of Section 93 of the Factories Act 1961, hidden away on page 21, will remove all legal prohibitions and regulations for working in a factory on a Sunday; or indeed that Section 126 of the Mines and Quarries Act 1954 will be repealed and that that will repeal similar regulation with regard to Sunday work in the mines? Curiously, the Government have not made similar provisions with regard to the Shops Act, unless I have misunderstood the measure. If I have the Minister will tell me. No doubt that relates to some of their unfortunate experiences in 1985. However, it seems very odd for the Government to say, "We shall deregulate so that everyone can work in factories and mines on Sunday," yet keep the restriction on shops.

There are other examples —I merely take two —where the Government's reasoning, in particular in another place, seems to us to be defective. First, the Government argued that all these restrictions on hours of young persons can be avoided by an employer who obtains an exemption order. Applications for such orders now cover 16,000 young workers. I looked up the figure for 10 years ago. It was then just under 19,000. Given the difference of age group, the difference over the years is not very great. The figure seems about the same.

The Government say, "If about 10 per cent. of those working in manufacturing are exempted from the hours regulation, then the regulations cannot mean much. They should be repealed". That argument overlooks the fact that the employer must, if he obtains an exemption order, observe certain conditions such as welfare facilities, arrangements for further education, and transport for workers leaving shifts at night.

The consultative document records the case of an employer who had the effrontery to apply for an exemption order without making any such arrangements for young workers whose shift ended at 2 a.m. If that employer is to be able to impose those conditions on young workers, it will not do for the Government to continue to say that it is a matter for negotiation. Many of these weakest groups in the workforce, especially young workers, are in areas where trade union organisation does not exist or is not strong. Many of them are at the mercy of an employer who wants what is best in his economic interest. Such situations should be stopped.

Secondly, the Government argue that this measure gives employers a lot of administrative inconvenience. It is in the consultative document; it has been repeated again. The Government say that many employers are not aware that the restrictions exist, and that few cases are brought to court. If the Government do not advertise the law to people and do not bother to enforce it, that would be so. They should enforce sensible, modernised regulations dealing at least with shift work, night work and working hours of young persons of 16 and 17 years instead of decreasing the number of factory inspectors from 740 to 590 in the nine years following 1979.

The Factory Act 1937 was a great measure. It was largely a consolidating measure but also provided new measures on two-shift working and the like. There were extensive inquiries, not by Labour, Liberal or Bolshevik governments but by a Conservative Government that I apprehend I would have opposed on most other measures. However, they felt that to be honourable and responsible they should take care of the regulations which controlled the work patterns of young workers. They were right. To that extent at least the measure was in the tradition of Shaftesbury, though perhaps not quite so radical. This Government have thrown aside their own roots and traditions. I beg to move the amendment to insert the new clause.

Baroness Seear

I very much hope that the Minister will at least consider this amendment. I have never understood the logic of putting together regulations which apply to women and to young persons of between 16 and 18 years. There is remarkably little in common that I have ever been able to note between a woman of, say, 55 or a woman of child-bearing age and a hefty young man of 17. Why the same regulation should be applied to them has always been a mystery to me.

It is extremely important when we are looking to the future that we should not group the two together. Adult women should be treated in the same way as adult men, with the exception of the obvious requirements needed in cases of pregnancy and child bearing, and so on. European directives will surely increasingly require such standards. The Government might as well collaborate with the inevitable and go along with them now. It is always a good plan to co-operate with the inevitable. We recognise that what is required are good working standards for both men and women.

Some of the regulations in the 1961 Act are archaic. There is still some discrimination. I do not agree, for example, with the Labour Front Bench on the question of women in the mines, to which we shall come later. No one will force women down the mines, but that is another matter.

Women and young persons are of a completely different order. Let the Government have as a standard proper working conditions for all adults, both male and female. But when we come to the 16 to 18 year-olds it becomes altogether a different issue. The ages between 16 and 18 ought —the Government with another hat on almost pay lip service to this —to be regarded as years of training/education, when we should be preparing these young people to be effective in a working world which requires them to have the ability to learn and re-learn, to acquire, preferably in advance, competencies and skills comparable with those of our competitors. That is sheer economic sense, let alone any feeling of need for protection.

If we do not do more to educate and train our 16 to 18 year-olds we shall lose out all along the line. I have bored the Committee with this cause over and over again, but apparently it needs saying over and over again.

To me it is totally incompatible with the idea that we need to treat the years of 16 to 18 as primarily years to make people more competent —let us put it at that level —to say that they can work any hours that an employer likes, any shift he likes and through the night. If they are to be properly prepared they have to attend classes and courses and be able to go at a proper time to evening classes and so on. If employers require them to work, all that is thrown away. These are training years. Will the Government please look at this again and recognise that it is extremely economically short sighted to say that there should be no restriction on the hours of 16 to 18 year-olds. The Government will rue it economically if they destroy that opportunity.

Lord Boyd-Carpenter

The noble Lord, Lord Wedderburn of Charlton, in a speech which lasted 17 minutes, made very clear his dislike of Clauses 9 and 10. If he will allow me to say so, he made a speech which might have been even more appropriate either on the Motion that these clauses stand part of the Bill or indeed on Second Reading. He expressed his views with his usual clarity and force. I hope he will not mind my saying that it sometimes gives me an ironic pleasure to see the spokesman for the Labour Party from that Front Bench making so powerful a speech against legislative change. Conservatism spelt with a small "c" is of course the current mark of the Labour Party and this was certainly a very good example.

What in the course of that full length speech the noble Lord did not do was to explain the amendment which he was going through the form of moving. He made it quite clear that he would like to see Clauses 9 and 10 out of the Bill but he did not explain that the amendment that he was in form moving is parliamentarily and procedurally a very odd one indeed. It appears to provide that when both Houses have come to a legislative conclusion on the matter —it is a matter on which noble Lords know that consultations and discussions have taken place over the last couple of years —after all that and after Royal Assent, these clauses should not come into operation until a fairly lengthy procedure had been followed: three months' delay while the Minister consults the Health and Safety Commission and Equal Opportunities Commission; another three months' delay after that and all that after the Bill has become law. If the amendment were adopted it would not have any effect at all until the Bill had become law.

Nor did the noble Lord explain the odd kind of situation that would arise if these two worthy bodies were to come to an adverse view on the proposals contained in Clauses 9 and 10. What does he propose should happen? Does he propose that the clauses in some mysterious way should be repealed or perhaps left on ice while further discussions go on? With great respect —I am surprised to hear this kind of argument from someone of the noble Lord's experience —this makes nonsense of the process of legislation.

We shall be coming in due course lo the Motions that Clauses 9 and 10 stand part of the Bill. We shall be having a Report stage during which they may be mentioned. It may be that some of the noble Lord's strongly felt arguments about those clauses will be discussed. He may persuade many noble Lords of the merits of some of his proposals. Well and good if that is accepted.

But what I suggest is impossible to accept is a procedure that we should go through the whole legislative process and then have these two further periods of delay leaving it wholly uncertain, at the end of the day, as to what is the effect of a provision which ex hypothesi has been legislated through by Parliament. That is not a way to legislate.

5.15 p.m.

Lord Callaghan of Cardiff

I wish to say quite shortly how much I support the amendment and the speeches that have been made in its support. Like the noble Lord, Lord Wedderburn, who moved the amendment, I should much prefer to see these clauses out of the Bill. They are a return in some ways to the kind of attitude which was forgone by the Conservative Party when people like Winston Churchill put his name and his hand to reforms of this character. Without chopping logic with the noble Lord, Lord Boyd-Carpenter—for I have long since learnt that that is not a very remunerative operation for any of us because he is adept and skilful at these things —I should have thought that his complaint against the amendment is that it reflects a certain conservatism on the part of the Opposition and that he would have been in support of it — or has he too deserted his conservatism?

However I am not able and do not need to rely on that particular piece of logic chopping in expressing my detestation of the clauses and my support for the amendment that has been moved. The noble Lord, Lord Boyd-Carpenter, proposes a false dichotomoy when he asks "What will happen if the Health and Safety Commission disagrees with the Equal Opportunities Commission about the proposed order?" What will happen is what will happen anyway. The Secretary of State will make up his mind and he will lay whatever order he thinks appropriate in the circumstances.

But what would be equally clear is that, if there was such a division of opinion, that would obviously be a matter that would concern noble Lords closely and it would be appropriate that such a division of opinion between these two bodies should be debated in this Chamber. I rarely hear the noble Lord make a weak point, but it seemed to me that that was well below the standards that I have become accustomed to from him.

Lord Boyd-Carpenter

The point which I feel, with respect, that the noble Lord is not wholly aprehending is that what he is suggesting is that there should be legislation enacted by Parliament and granted Royal Assent and then, if certain people outside do not like it, the Secretary of State in some mysterious way should be able to cancel it. I am suggesting to him that that is not procedurally the way for Parliament to proceed.

Lord Callaghan of Cardiff

I am not aware that the amendment says anything of the kind. What it says is: No order shall be made … until … the Secretary of State has consulted [these bodies] about his proposed order, [and] … three months have passed from the date on which he sent to those bodies the proposed order, and … three months have passed after the publication by him of any advice and recommendations". I was coming on to the point made by the noble Lord. Is he suggesting that it is unique in legislation to impose a date beyond the passing of an Act before it comes into operation? He knows as well as I do that the statute book is littered with Acts in which that operational date is put beyond the date of Royal Assent. I do not have the Acts to hand, but I am sure that if I went to the Library I should be back within 10 minutes with a sheaf-full. There is nothing strange and novel. I believe that if the noble Lord is trying to lead the Committee to believe that there is something monstrous about the proposal he is attempting to confuse the issue.

What is being said is perfectly sensible, realistic and justifiable. I hope that the Government will take note of it. We are removing from young people a protection which should still exist. People of the ages of 16 and 17 are far more independent than we were. Even the noble Lord, Lord Boyd-Carpenter, and I can remember our youth. I believe that the youth of today are more independent. I shall not say that young people are more intelligent, but certainly they know more about the world than we did.

Any Members who know children or grandchildren aged 16 or 17 know that they are not imbued with a total wisdom that perhaps comes to some of us through experience and the mistakes that we make. There is no reason why Parliament should not allow a measure of consultation in deciding whether the future of inexperienced young people aged 16 or 17 should be considered in matters of work.

As my noble friend Lord Wedderburn said, it is true that a number are not covered by trade union membership, especially those in the industries with which we are concerned. They have occupations in businesses such as hotels, restaurants, shops, and so on, where trade union membership is at its weakest. Parliament is escaping its duty and throwing away its responsibilities if it throws such people totally on the market mechanism in order to determine their conditions.

I am constantly told that the Prime Minister is furious about certain matters. I want to tell the Committee that I am furious about this matter. I do not believe that it should appear in the Bill, but if it must then for heaven's sake let the Government accept the amendment.

Lord Murray of Epping Forest

The amendment raises a small standard against a novel and undesirable doctrine which has been growing in this country in recent years. It is the doctrine of total power and wisdom at the centre. The amendment modestly provides for the fact that there may well be issues about which the Minister concerned and his civil servants are not fully apprised. It may be necessary to consult those in shops, factories and offices who know what is happening and who are aware of the implications and consequences of the new legislation. That is all that the amendment provides.

At one time it would have been regarded as axiomatic that a government should consult widely, not thereby derogating their power ultimately to take decisions but that a Minister should take account of the knowledge, wisdom and experience of those in industry. That is all that is contained in the amendment. It takes nothing away from the Minister except perhaps a short time during which he can engage in reflection. The amendment merely provides that we should ask the views of those whom we have appointed to find out about such matters and whose business it is, and that the Minister should take proper account of them in his final decision. What can possibly be wrong with that?

Lord Strathclyde

The Government see absolutely no need for this clause. We have already consulted fully on all the legislation repealed or amended by Clauses 9 and 10 in our consultative document entitled Restrictions on Employment of Young People and the Removal of Sex Discrimination in Employment. Both the Health and Safety Commission and the Equal Opportunities Commission responded to the consultative document and we have considered their advice very carefully. Therefore, it is not true to say that the Government do not consult widely, often and with a range of experts.

I appreciate that Members of the Committee are concerned that we should not remove any necessary protections for women or young people. I must stress, however, that we are keeping all restrictions on their employment that the Health and Safety Commission has advised are still necessary on health and safety grounds.

As a result of the debate, it appears that there is a belief that all employed young people aged 16 and 17 are in some way regulated. That is not true. There is a whole range of industries in which such young people get on well with their lives as adults; for example, in offices, on farms and in agriculture and in hospitals. Yet they are not discriminated against by their employers. Therefore, why should it be that Members opposite are so disgusted by the changes?

Lord Callaghan of Cardiff

I am obliged to the Minister for giving way. There are about 900,000 people between the ages of 16 and 18. Of those, 600,000 fall under the regulations of the original 1938 Act. The Minister must prove his case. Why should he remove the protection given to such young people because 200,000 or 300,000 do not have the protection? That is the case that he must make and he has not made it. Those 200,000 or 300,000 young people have the least protection and the worst paid and worst regulated jobs. There is no doubt about that.

Lord Boyd-Carpenter

That has nothing to do with the amendment.

Lord Strathclyde

I am keen to answer that point and I shall do so in a general way. Earlier the Committee spoke of the demographic changes that will occur during the next 10 years. That if anything will strengthen the hands of young people more than has happened over the past few decades. Young people will be in short supply. They will not be exploited. It will be up to them to demand what they can obtain from their employers. The firms which will fail will be those that do not invest in training, do not offer a proper career structure for their young people and do not give incentives or instil loyalty. The noble Lord, Lord Callaghan, mentioned tourism and the leisure industry as being poorly represented by trade unionists. Perhaps he believes that as a result there is a substantial amount of exploitation. That simply is not true.

Lord Callaghan of Cardiff

It is true.

Lord Strathclyde

It simply is not true. In the field of tourism and leisure we have seen the largest number of new employees during the past five years. They are not second-rate jobs.

Lord McCarthy

Will the Minister give way?

Lord Strathclyde

Let me finish the point. They are not second-rate jobs. They are good-quality jobs, not part-time but full-time. They offer employment to the kind of people who require it. The noble Lord wished to intervene.

Lord McCarthy

The Minister said that there are more jobs and more people entering those trades. That does not prove that they are not being exploited or that they do not need protection. It merely proves that there are more jobs.

Lord Strathclyde

Perhaps between the hours of 7 and 8 p.m. the noble Lord, Lord McCarthy, will join me in the banqueting house to launch the awards for the best chef and the best waiter. He can then ask them whether they are being exploited.

Lord McCarthy

Will the Minister tell us about the worst chef, the worst waiter and those who are continually sacked?

Lord Strathclyde

Throughout the field standards are continually improving. I do not believe that that has anything to do with whether there is a trade union.

The legislation restricting young persons' hours is not appropriate in modern conditions. It is seriously outdated and hopelessly complicated. That is because it has developed piece by piece since the early 19th century and reflects working practices and conditions which are things of the past. Also it was originally intended to protect persons of a much younger age because the school-leaveing age was lower.

Hours of employment should be a matter of negotiation between an employer and his employees or their representatives. It is impossible to fix a single set of legal limits which will be appropriate in all circumstances, which is why the existing legislation is so complicated and full of anomalies. There was no general health and safety protection when the legislation was introduced. Now all employees have the protection of the Health and Safety at Work Act 1974. Specific legislation has been overtaken by an Act which provides comprehensive health and safety standards for all.

Baroness Seear

What does the Minister say in light of the fact that the numbers of health and safety inspectors have been cut. If the noble Lord has had anything to do with the industry, he will know perfectly well that the legislation is only enforced by inspectors coming round and that it is extremely easy to evade inspection —because I have done it.

5.30 p.m.

Lord Strathclyde

I am very sorry to hear that admission by the noble Baroness. I disagree with her. I think that the Health and Safety Commission does a very good job and will continue to maintain high standards.

The noble Baroness interrupted when I had reached the end of my speech. Therefore, I urge all Members of the Committee who have listened to me to oppose this clause for the reasons I have given.

Baroness Seear

I interrupt again because the noble Lord has not answered my point. Later on the noble Lord will tell us that he believes in training. I ask how this permission to work youngsters all the hours God sends can be in line with encouraging proper training for 16 to 18 year-olds? Does he or does he not believe that young people of that age must be made better use of so that they are properly trained and competent for the labour market of the future? He has not answered that in any way.

Lord Strathclyde

That is why this Government introduced YTS; to provide first class training for those young people. That is why we later introduced employment training and why we are introducing the training and enterprise councils. I know that the noble Baroness said that we should talk about training in the near future, but there are a whole range of areas in which the Government are bending over backwards to help young people to obtain good jobs and good training and to keep those jobs when they have them.

Lord Somers

Does the noble Lord not agree that the best way to deal with under 18 year-olds is to re-introduce the apprenticeship system? It so happens that I saw an example of that at first hand the other day when a carpenter, a very skilled man, came to my house to do a job and he brought with him a young boy. The way in which he was teaching him and showing him exactly how to do the job was ideal. I only wish that I had had as good a teacher myself. Surely that is the way in which the very young should learn their craft. They should not expect just to step into it and immediately be on equal terms with experienced workers.

Lord Callaghan of Cardiff

I really cannot accept what the Minister says, that there is no exploitation among young people. There is exploitation. There is exploitation among particular groups of young people which I know, especially those who either were not born in this country and who have come here because their parents have arrived here or those whose parents were born here but are themselves in depressed and very poorly paid occupations. I assure him that there is exploitation of many young people. I am not saying that that applies to as many as 600,000 or 900,000 but the exploitation is there.

The noble Lord, Lord Boyd-Carpenter, will soon interrupt and ask what this has to do with the amendment. It has this to do with it. I say to the Minister that as long as there is any tiny group which is capable of being exploited —and I can show him groups which are being exploited —the original protections should remain. I agree that the other 800,000 young people do not need it and therefore the provisions of the Bill would be a dead letter for them. However, as long as there is any young person who is subject to abuse, the provisions should remain.

However, as the noble Lord will not accept that, let him please accept that before he makes an order he should be ready to consult the bodies which would know as much about this as I hope he does. Let him consult them in relation to any particular order and let him consult people in the particular occupations and, having consulted them, then reach conclusions. If he had the protection of this Bill he would be able to do so. That is what I ask him to do.

Lord Strathclyde

There is no desire on the part of this Government or myself to create more areas of exploitation among young people, women, immigrants or the disabled. There is no desire by this Government to see that. However, I do not see how this amendment changes what we have today. I passionately believe that deregulation will stop exploitation.

The noble Lord, Lord Callaghan, asked about consultation in bringing forward the orders. I am convinced that the Government have no intention of bringing forward any orders without consulting with the various commissions or experts. The Government do that at present and will continue to do so.

Lord Wedderburn of Charlton

Perhaps I may say a few words in defence of this clause. I thank my noble friends and other Members of the Committee who have supported it. I first take a small point made by the noble Baroness, Lady Seear. Indeed, it is very odd that these regulations have grown up since 1844 dealing with women and young persons in the same clauses. I believe that that is a very good example where everyone would say that there must be modernisation. However, one might find one would modernise them in slightly different ways, case by case.

The Minister said nothing about the case by case approach, which I take to mean that the Government do not believe in it. As regards the noble Lord, Lord Boyd-Carpenter, I plead guilty to his charges that I feel strongly on this matter. It seemed a serious charge coming from his Bench that I took 17 minutes to introduce the amendment. I could have taken a lot longer. I left out the bad legal history in the consultative document.

Baroness Seear

Thank goodness for that!

Lord Wedderburn of Charlton

The noble Baroness says, "Thank goodness for that". There are four or five places where the consultative document does not even understand what the regulations are about, does not understand their origin and wholly misstates their purpose. However, that is by the way.

The noble Lord, Lord Callaghan, has shown the noble Lord, Lord Boyd-Carpenter, how the clause works. I thought at first that the noble, Lord Boyd-Carpenter, had not listened to me, but I knew he would be listening. However, I then realised that in listening to me he had not read the clause. The clause is quite clear, as the noble Lord, Lord Callaghan, said. The Secretary of State would be obliged to bring Clauses 9 and 10 of this Bill into force in whole or in part and in different parts on different days but after consulting those bodies and after certain periods have passed. In the end nothing takes away his right to make an order bringing into force parts of the Bill. Of course that is matched in many Bills on which I suspect the noble Lord, Lord Boyd-Carpenter, has spoken for more than 17 minutes.

As regards the Government, I should like to make one point very strongly. With great respect, the Minister cannot get away —although he uses the same brief with the same words from the Commons and elsewhere —from what is really a sleight of hand. He said that they read what the Equal Opportunities Commission and the Health and Safety Commission said. I am sure they did. He said that they considered their advice and then he said —and I hope this will be roughly what appears in Hansard —"Look, we accepted all their views as to regulations on health and safety". Of course that is right. However, the passage which I read out to the noble Lord is not about health and safety but about hours of work. That is a different category. The Government never will say what is their view of what the Health and Safety Commission, the CBI and the BIM said on hours of work. There is no word in another place on the Government's answer to those arguments, and their silence is their condemnation.

As regards industries outside the regulations, I thought the noble Lord missed the point where he might have done himself some good.

Lord Strathclyde

Perhaps I may, I hope briefly, before allowing the noble Lord to continue respond to that criticism of the consultative document. There were over 80 responses to the document. The majority of the responses recognised the need to reform the legislation restricting the hours that young people work. The CBI said it was confident that the exercise would expand the job prospects of young people, relieve employers of a tiresome administrative burden and promote greater flexibility in the arrangement of work, better utilisation of staff in many manufacturing and service sectors and a reduction of unit labour costs in the Britain of the future.

I am aware that the CBI said that it would be prepared to accept some restrictions on night work. We do not think that the external imposition of such restrictions by government is justified. Keeping the statutory restrictions also means keeping a complex system of exceptions, as at present. It is far better for employers and employees to make arrangements appropriate to them.

It is also true that the CBI said that young people could be obliged to work excessive and unsocial hours by unscrupulous employers. However, I stress that no employer can imperil the health or safety of its employees with impunity, whether by making them work excessive hours or by any other practice. The CBI urged the Government to remove the principal restrictions on young people's hours of work.

The CBI went on to say that it would be prepared to accept some form of guidance on young people's hours. My department will be issuing, jointly with the Health and Safety Executive, a general advisory leaflet for employers on hours of work. The executive is also working on more detailed guidance on the effects of shift work.

The Health and Safety Commission's view was that some restrictions should operate to ensure young people's welfare and opportunities for social development as distinct from health and safety. The Government's view is that this should be a matter for agreement between employers and employees, or their representatives, and not for legislation. Different young people have different needs, as do different businesses.

The BIM said that it would welcome the enactment of a general provision for young people covering hours of work. It also said that it would advocate that, as proposed, existing legislation be repealed. The BIM's comments on the dangers of inadequate supervision and the need for certain protections to ensure that young people have time to gain training experience were related to their working with dangerous machinery and processes. We are keeping those restrictions.

As I said, we received 80 responses to consultation. Naturally, there were many conficting responses to that document from very eminent bodies. We could not possibly have accepted all the expert advice put to us. However, we did consider it very carefully before reaching a decision, particularly the advice of the EOC and the HSE.

I said I would be brief. I think I have taken slightly longer than I intended but I hope I have covered the point concerning consultation.

Lord Wedderburn of Charlton

The noble Lord succeeded in making the point in less than 17 minutes, and these days that counts as being brief. However, the record will show —and I listened carefully to the Minister —that as regards hours of work for young persons, and in particular hours of work at night, the Government (for no clear reason that I could ascertain except that the matter would be complex) have rejected the advice given to them. Let us be clear; they have rejected the advice of the trade unions, the TUC, and various other bodies including the BIM, the CBI —as far as it went, and it goes a long way —and the Health and Safety Commission. Therefore, we have that confirmation.

All the clause might be said to propose is: "Why not take power to look at that in view of the sharp conflict of view which the Government appear to have with, it is clear, all the major bodies who responded and have another look at it?" There are real people out there who rely on this legislation.

The Minister chose tourism as an example and said that it is simply not true that there is exploitation; there are good, full-time jobs which are improving every day. I am sure that there are such jobs, but I would appreciate some figures from the Minister about hours of work and conditions of employment that he or his teams had gone out and looked at. We should then be convinced. Finally—

Lord Callaghan of Cardiff

Before my noble friend gets to his "finally", did he understand from the Minister that there was any single body, whether on the employers' side the management side or trade union side, in favour of the Government's proposals? All the cases I thought I heard the Minister reproduce indicated that they were opposed to the Government on this repeal in regard to hours for young people. Did my noble friend receive a different impression?

Lord Wedderburn of Charlton

I would not, and I am sure the Committee would not, ask the Minister to read all the 80 responses. Perhaps tucked away in them is a response from someone who agrees with everything in the consultative document. Of course the BIM begins, not exactly as I or the noble Baroness would begin, with "Let's repeal everything that is there" but —and this is why I claim the BIM in support of this new clause —it goes on "and let us put in its place a new system of sensible regulation for the hours of young workers". Therefore, none of these bodies is of any help to the Government.

The Government stand alone; and let us be clear on how alone the Government stand in this respect. They stand alone in this country, they stand alone in the Community, and increasingly they stand alone in the world. Everyone must know that it was by the narrowest squeak that the United Kingdom Government were not condemned at this year's ILO conference for various infractions of international regulations.

Therefore, the Government choose the only point that they appear to have in their favour —the notion that young people will acquire enormously greater clout in the labour market in bargaining strength in the 1990s. No doubt some of them will, but it is a fantasy for the Government to believe that that is an answer to the problem. The Government are choosing to repeal at a blow almost all —not all, but almost all —the protection for young workers in regard to their conditions of work and especially hours of work doing shift and night work, on which I lay great stress.

The Government say that a young boy or girl of 16 must now be treated as an adult. Well, they say that here but do they say that about social security where 16 or 17 year-olds cannot have income support even if they are homeless? Do they say that about wages councils when they say that under-21s cannot have the support of the minimum rate of a wages council? The Government pick and choose in order to give greater power to the employer at the place of work. I commend the new clause.

5.47 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 100.

Addington, L. Lockwood, B.
Airedale, L. Longford, E.
Amherst, E. Lovell-Davis, L.
Ardwick, L. McCarthy, L.
Attlee, E. McGregor of Durris, L.
Aylestone, L. McIntosh of Haringey, L.
Birk, B. Mayhew, L.
Bonham-Carter, L. Mulley, L.
Boston of Faversham, L. Murray of Epping Forest, L.
Bottomley, L. Nicol, B.
Broadbridge, L. Northfield, L.
Brooks of Tremorfa, L. Parry, L.
Callaghan of Cardiff, L. Peston, L.
Carmichael of Kelvingrove, L. Phillips, B.
Pitt of Hampstead, L.
Carter, L. Ponsonby of Shulbrede, L. [Teller.]
Cledwyn of Penrhos, L.
Donaldson of Kingsbridge, L. Rea, L.
Dormand of Easington, L. Ritchie of Dundee, L.
Ennals, L. Rochester, L.
Ewart-Biggs, B. Seear, B.
Falkland, V. Shepherd, L.
Gallacher, L. Stedman, B.
Galpern, L. Stewart of Fulham, L.
Gladwyn, L. Stoddart of Swindon, L.
Graham of Edmonton, L. [Teller.] Strabolgi, L.
Taylor of Blackburn, L.
Grey, E. Taylor of Mansfield, L.
Hanworth, V. Tordoff, L.
Harris of Greenwich, L. Turner of Camden, B.
Hatch of Lusby, L. Underhill, L.
Howie of Troon, L. Walston, L.
Hughes, L. Wedderburn of Charlton, L.
Irving of Dartford, L. White, B.
Jeger, B. Williams of Elvel, L.
John-Mackie, L. Winchilsea and Nottingham, E.
Kilbracken, L.
Llewelyn-Davies of Hastoe, B.
Abercorn, D. Ashbourne, L.
Alexander of Tunis, E. Balfour, E.
Allerton, L. Beloff, L.
Belstead, L. Lauderdale, E.
Blatch, B. Long, V.
Boyd-Carpenter, L. Lucas of Chilworth, L.
Brookes, L. Lyell, L.
Brougham and Vaux, L. Macleod of Borve, B.
Butterworth, L. Malmesbury, E.
Caccia, L. Margadale, L.
Caithness, E. Marley, L.
Campbell of Alloway, L. Marshall of Leeds, L.
Campbell of Croy, L. Merrivale, L.
Carnegy of Lour, B. Mersey, V.
Carnock, L. Milverton, L.
Cawley, L. Montgomery of Alamein, V
Clanwilliam, E. Morris, L.
Colnbrook, L. Mottistone, L.
Cox, B. Mountevans, L.
Craigavon, V. Munster, E.
Dacre of Glanton, L. Murton of Lindisfarne, L.
Daventry, V. Nelson, E.
Davidson, V. [Teller.] Orkney, E.
Denham, L. [Teller.] Orr-Ewing, L.
Dilhorne, V. Oxfuird, V.
Elibank, L. Pender, L.
Elliot of Harwood, B. Penrhyn, L.
Fanshawe of Richmond, L. Peyton of Yeovil, L.
Ferrers, E. Rankeillour, L.
Gainford, L. Reay, L.
Gardner of Parkes, B. Renwick, L.
Gibson-Watt, L. Sanderson of Bowden, L.
Glenarthur, L. Savile, L.
Gray of Contin, L. Seebohm, L.
Greenway, L. Skelmersdale, L.
Grimston of Westbury, L. Somers, L.
Hailsham of Saint Marylebone, L. Southborough, L.
Strathcarron, L.
Havers, L. Strathclyde, L.
Headfort, M. Strathmore and Kinghorne, E.
Henderson of Brompton, L.
Henley, L. Swinfen, L.
Hesketh, L. Thomas of Gwydir, L.
Hives, L. Trumpington, B.
Holderness, L. Ullswater, V.
Hood, V. Vaux of Harrowden, L.
Hooper, B. Whitelaw, V.
Hylton-Foster, B. Wise, L.
Johnston of Rockport, L. Wyatt of Weeford, L.
Killearn, L. Wynford, L.
Kinnoull, E. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.55 p.m.

Clause 9 [Repeal or modification of provisions requiring different treatment of different categories of employees]:

Lord McCarthy moved Amendment No. 9: Page 8, line 12, at end insert ("A woman refusing an offer of employment underground in accordance with this section shall not on that account be deemed not to be actively seeking work.").

The noble Lord said: We now move to Clause 9 itself and begin with a very modest amendment for which I hope we can find general support in the Committee. In the light of the debate we had on a previous amendment, I should point out that we are moving seven amendments that deal with Clause 9. In answer to the noble Lord, Lord Boyd-Carpenter, we are not seeking to oppose the clause as a whole. We are not seeking to destroy the clause or to vote it down —at least we are not doing so tonight. We are trying to improve the clause.

The reason we are trying to improve it rather than vote it down in this amendment is that if one reads the clause itself nobody really wishes to say that every single one of these various restrictions is absolutely perfect and correct and should remain where it is. Some of these restrictions are discriminatory and sexist, and we accept that. Therefore, we do not wish to be placed in a position in which we are supporting some regulations that are inappropriate, out of date and sexist, besides other factors to their charge. We wish to improve the regulations in various ways and to extend the best that is in them.

This amendment is extremely modest. Its object is simply to add to the clause so that a woman refusing an offer of employment shall not on that account be deemed not to be actively seeking work. That is to say, a woman refusing the offer of employment underground, in accordance with this clause shall not on that account and that account alone be deemed not to be actively seeking work.

We raise this question in the form of an amendment and seek an assurance from the Government because we have been unable to obtain such an assurance until now. At Second Reading, as reported in the Official Report on 14th July at col. 547, the noble Baroness, Lady Turner, asked the noble Lord, Lord Skelmersdale, whether, in the light of the new Social Security Bill (which as the Committee knows had imported the new test of actively seeking work rather than actually being available for work and seeking unemployment benefit) the Minister could say that a woman who refused to take a job offered underground would be said by the social security rules not to be actively seeking work and therefore not available for unemployment benefit.

The noble Lord, Lord Skelmersdale, said at col. 547: this is something we should debate within the context of the Social Security Bill". One might say that was a flip answer since by that time we had debated that Bill. One might also say that if that is the kind of answer one gets from Ministers at Second Reading, there had been other answers given to this question in another place. That is true. At the Committee stage in another place on 9th February, at col. 165 of Hansard, the Minister said positively that a woman could refuse without risk because the rules—that is, the regulations of the department —say that you can refuse a job for good cause. Unfortunately, he then went on to give an example of the kind of good reason why one might be able to continue to receive unemployment benefit. He said that one might be able to do so if one were unfit and incapable.

If one looks at that carefully one sees that it is no good at all. A woman who refuses to work underground when she is offered a job underground wants to get unemployment benefit not only if she is unfit to work underground or is incapable of working underground. If one assumes that the social security clerks are doing their jobs, they would not offer it to her if she were unfit and incapable, so instancing "unfit and incapable" as good cause gives no assurance at all.

Let us suppose, on the other hand, that the person who is told to take a job underground is worried about the whole idea of women working underground. Let us suppose, not to be too fanciful, that she has come across some of the arguments put forward in this Chamber and in another place, in the press and in the trade union movement by those who say that conditions underground are unsatisfactory for women in regard to sanitation, welfare facilities and the likelihood of accidents underground. Let us suppose that this person also knows, because she is an exceptional person, that we in this Chamber and the Opposition in another place have tried to improve those conditions. We are not opposed to women working underground; we are opposed to women working underground in existing conditions. Let us suppose that she knows that all our attempts to improve conditions for working underground have been refused by the Government. Let us suppose that on that basis she says, "I do not want to take this job". In those circumstances, is that a good cause? Will she continue to get unemployment benefit?

We say that this should be cleared up without qualification and without peradventure. 11.t should be made absolutely clear that if in circumstances of that kind a woman feels that she does not want to work underground —whether she is incapable, ill or whatever —that should be regarded as a sufficient and good reason. Presumably, even this Government have no desire to force women to work underground; presumably, even this Government do not want to impose financial penalties, such as disallowance of benefit, in order to force them to take jobs underground; presumably, even this Government do not want to starve people into working underground or induce people to work underground by denying benefits.

We do not like to believe that. We do not like to believe that the Government wish to be thought to be doing something of that kind. Therefore we consider that there is no argument against the amendment. We consider that the Government, if they want to be thought of as civilised and reasonable, have no alternative but to accept it. I beg to move.

6 p.m.

Lord Stoddart of Swindon

I support the amendment not only for the reasons given by my noble friend but also because I happen to believe —no doubt I shall be called a male chauvinist pig —that working in mines is undesirable for women and indeed for anybody. When I was a young man living in Bromley and engaged in local politics I used to attend meetings which were held regularly by Harold Macmillan. At every meeting there was a little old lady sitting on one of the front seats. She used to say, "We've heard everything you had to say, Mr. Macmillan, but what are you going to do about the pit ponies?" Mr. Macmillan used to reply sympathetically, as he replied sympathetically to everyone. This went on and on because the lady was concerned that ponies should not work in pits. Eventually she was successful. It is now illegal for ponies to be employed in the pits.

Lord Callaghan of Cardiff

I hope that my noble friend will not pursue that line or the Government will introduce an amendment to make it legal.

Lord Stoddart of Swindon

I am obliged for my noble friend's intervention. The ponies were eventually brought up from the pits and put out to graze. Now, in 1989, we are being asked to pass not legislation to allow ponies to be re-employed in the pits but legislation to allow women to be employed in the pits. We have not made much progress if we say that it is okay for women to be employed in the pits but not for ponies.

I am also reminded of my early days in Pen-y-graig, in the Rhondda in South Wales. My father was a coal miner. The debate in our household did not concern whether women should be employed in the pits. My parents did not argue whether it was fair, right and proper that I should be allowed to be employed in the pits and that my sister should not be allowed to be employed in the pits. The argument was clear that neither of us should be employed in the pits because they were hellholes and were not desirable places for people to work. Therefore I declare right away that I am opposed to this part of the Bill which will allow women to be employed in the mines, or pits as we call them in South Wales.

Baroness Seear

Does the noble Lord agree that the pit ponies did not have any option but the women will?

Lord Stoddart of Swindon

That is an excellent point which I shall take into consideration. I am surprised that the noble Baroness appears to be quite content that women should work down the mines. There are areas where we should not endeavour to extend the employment of women and young persons. The pits are one of those areas. Although I appreciate all the arguments about equality and agree with equality of opportunity, there comes a point when we ought to make a stand so that it is not necessary for men or women to work underground to win the coal and all that goes with it.

However, the Government, having decided that they will remove the restriction on women working in the pits, now put them in double jeopardy, as my noble friend explained. They say to women that they may work in the pits and that they will arrange to offer them jobs in the pits, but that, if in a difficult situation they will not accept a job down a pit, they will lose their social security benefits. That is ludicrous and unfair. Unless the noble Lord can give an assurance that this double jeopardy will not hit women, I sincerely hope that my noble friend will press the amendment to a Division.

Lord Strathclyde

There are obviously two clear different principles at stake here. The noble Lord, Lord Stoddart of Swindon, made a case about the role of women in the mines. He made a clear and concise case; I admire him for so doing. However, that is not the issue we are discussing; we are discussing the case put forward by the noble Lord, Lord McCarthy. He has worked hard in an effort to prove that the Government are showing themselves to be uncaring and evil and that they are trying to bring the "actively seeking work" provisions from the Social Security Act 1989 into this legislation.

The intention of this amendment seems to be to ensure that unemployed women are not denied unemployment benefit should they refuse to work underground. It is very doubtful that as drafted the clause would have the intended effect. However, even if this amendment achieved its intention it would be unnecessary in practice and, I believe, unacceptable in principle.

Clearly this amendment is in part a response to the Social Security Act 1989 which was fully debated in this Chamber. It is now a condition for the receipt of unemployment benefit that a person be actively seeking employment. This means taking those steps which offer not only an individual's best prospects of finding a job, but also those which are reasonable in individual circumstances. There are a number of regulations which amplify these requirements; for example, regard must be had to that person's skills, qualifications, abilities and physical or mental limitations. There is no question of a woman being forced to look for work which she is unable to do. We must be in no doubt about that fact.

The Social Security Act 1989 also amended the long-standing provision that people may be disqualified from receiving benefit if they refuse suitable employment without good cause. It removed the qualification of "suitable", but "suitability" and "good cause" cover much the same ground. Regulations require that when assessing good cause, account is taken of, for example, the potential effects on health, domestic circumstances and any responsibilities for caring for members of the family. Women, like men, are able to take advantage of these regulations and refuse work without penalty if they can show good cause as to why they should. Working within the new legislation, the employment service aims to offer work that is appropriate to an individual's skills, qualifications and abilities.

6.15 p.m.

Baroness Turner of Camden

It seems to me that the whole point of this clause is to emphasise the fact that the woman should have the choice. It has nothing to do with good cause; the woman must have the choice. That is why we tabled this amendment. The Government say that women have a choice about working underground.

Lord Strathclyde

Women do have a choice as regards working underground; there is not a shadow of doubt about that. However, we are not only talking about that kind of choice; there is also the choice under the provisions of the Social Security Act. That is what I am dealing with at present.

As I hope noble Lords will recognise, there is ample protection in social security legislation to ensure that no one, male or female, can lose benefit for refusing work which they are physically incapable of doing. Indeed, the law goes further by allowing for factors beyond pure physical capacity, including responsibilities within the home.

However, it is only right that those who wish to receive state benefits because they are unable to find work be prepared to take on jobs they are qualified for and capable of doing when these arise. Do noble Lords opposite seriously believe that a woman leaving university with a degree in mining engineering should be able to receive state benefits intended for people unemployed through no fault of their own, while refusing opportunities for the very work she has studied for and may even claim to be seeking?

Lord Parry

Can the Minister tell Members of the Committee how many people were so qualified last year?

Lord Strathclyde

I cannot give that information at present. We are discussing a general point of principle rather than a specific example.

Lord Parry

So it is a hypothetical example.

Lord Strathclyde

No, it is not hypothetical. As I said. I am not certain at the moment how many women graduated with degrees in mining engineering last year. However, one of the reasons why there have been fewer graduates is because women have so far been unable to work underground. Indeed, the noble Baroness, Lady Seear, made the point that as from now that will be a matter of choice rather than discrimination.

Lord Parry

I am grateful to the noble Lord. I welcome him as Minister for tourism. He is on safer ground there than he is when talking about the Government.

Baroness Seear

The noble Lord mentioned the example of a woman mining engineer. Will he answer this straight question: if a woman says, "I am perfectly physically fit, but I can't stand the idea of going underground so I shan't take that job", will she or will she not be disallowed benefit?

Lord Strathclyde

Let us consider the hypothetical situation of a woman who is perfectly fit and capable of working underground. There is no other conceivable job that she can fulfil above ground; in other words, there is no other choice open to her. It is an extremely hypothetical example; but, potentially, the provisions of the Social Security Act could be put into effect in such a case. In my view we are looking into a tiny aspect of the principles of the Bill, I am sure that the noble Lord, Lord McCarthy, will agree with me.

I understand that the noble Lord, Lord Stoddart, disagrees with the principle as regards whether women should work in mines. That is fair enough; that is his opinion.

Lord Stoddart of Swindon

The noble Lord specifically mentioned a woman with mining engineering qualifications. It seems to me that he was saying—although perhaps I misunderstood him —that in certain circumstances, because the woman had trained for that job and had such a qualification, she could be required to work in a mine or lose any social security benefit to which she was entitled. That is what I understood the noble Lord to say.

Let us suppose, for example, that the woman concerned had studied to be a master of a ship. In the same situation, would she be required to go to sea before she could receive her unemployment benefit, or would she lose it if she refused?

Lord Strathclyde

The point of the legislation is to get people into jobs as quickly as possible so that they may play a full part in the growth of the economy and in the community. We can, perhaps, think of a hundred different examples where there could be exceptions. However, I have listed many such exceptions. I have said how the new legislation is expected to work. It is not discriminatory. It does not try to impose itself unnecessarily. It attempts to offer jobs to people. And they are very worthwhile jobs.

It is only right that those who wish to receive state benefits because they are unable to find work should be prepared to take on jobs for which they are qualified and which they are capable or doing when such jobs arise. We must not find ourselves in a situation where we are wasting talent. If a woman is capable of undertaking work which involves going below ground and that work would not entail a risk to her health, why should she not have access to it? Why should she not be able to take advantage of that work —that is, the full range of such work —in common with her male colleagues? This has nothing to do with social security; it concerns the principle of sex discrimination.

Baroness Seear

I am sorry to interrupt the noble Lord yet again. I support the relaxation of the provisions which prevent women working underground. However, I am bound to say that if the noble Lord will not agree to this change —and it is a big change to allow women to work underground —then perhaps he could agree to a provision which states that a woman has the right to refuse such work, at least for a period of years, if not indefinitely, without losing her entitlement to benefit.

The noble Lord will lose the support of many people like myself who want to see this provision go through but who would be horrifed to know that a terrified women could be forced to work underground because of social security provisions. I should like the provision to be accepted. Can the noble Lord really not reconsider the matter? I assure him that there are many women like myself who welcome this provision, but who cannot accept what he is now saying.

Baroness Lockwood

I disagree with my noble friend, Lord Stoddart of Swindon. The amendment is not about whether women should be allowed to go down the mines. At present, there are circumstances in which some women go down the mines. They may be professional women —doctors, nurses and even geologists. However, the amendment relates to whether women would be forced to go down a mine in any profession in which they might train.

The Minister was ambivalent in his response to the questions asked by the noble Baroness, Lady Seear. It seems he was saying that if there was no other employment available, and if a women refused a job down the mines, she would cease to be regarded as actively seeking work. That is the point, and he has not applied his mind to the matter.

Lord Callaghan of Cardiff

I agree with my noble friend Lady Lockwood. There is more here than the question of sex equality. There is a question also of freedom. I should like to put an example to the Minister and hear his reply.

I recently went to my local ploughing match. As part of it, there was a demonstration of ploughing by horses. Those noble creatures, with their brasses burnished —great shire horses pulling single-furrow ploughs —were going up and down. One of them was driven —if that is the right word —by a lady. She was not big, but she was dexterous. She wore, I noticed, a waistband because the physical effort when one gets to the end of the furrows, as I am sure the Minister knows, of turning the plough behind those shire horses, getting them onto the fresh furrow and ploughing the furrow exactly, is very considerable.

So far as I know, the number of jobs available in ploughing matches and demonstrating with shire horses with single-furrow ploughs is very small. Suppose that lady happens to lose that occupation. I suppose that it would be possible for the Minister to argue, "She is clearly physically fit. Look at the way she hauled those handsome shire horses around". Would she be required to go down the pit or lose her unemployment benefit? We are entitled to a straight reply to a simple question.

Lord McCarthy

I hope that we shall receive a straight reply. The Minister is a most attractive replier on behalf of the Government, because, first, he leaves his brief—a most remarkable thing to do —and, secondly, he appears to believe what he has been sent to do. That puts him in a weak position.

I shall try to see where we are. We have to begin, I am afraid —I apoligise for this —with the social security legislation itself, because that is the villain. It is the change of the criterion of seeking work that has put the Minister into the position he is in. We used to have an objective test —available for work. A person stood there and said, "I am available for work". No one could say that he was not. One would be offered three jobs. If one persistently refused them the unemployment benefit was cut off. It was objective. Everyone knew where they were.

We now have a subjective test —actively seeking work. One must be jumping up and down. What it means is not that there are three jobs, but that there can be one job and the man behind the counter can say, "I have only got one job here. If you are actively seeking work, you will take that job. If you do not take the job, you are not actively seeking work". We argued that point on Second Reading, in the other place and in Committee over and over again. The Minister has admitted it tonight: there is a difference between actively seeking work and being available for work.

The significant difference is that one now has choice. The Minister admits it. That is where he gets to when he starts listing—I have tried to write down all the examples he gave, and if I have left some out I hope that he will tell me —all the examples when our hypothtical lady could have avoided going down the mines: if she was not sufficiently skilled —of course the man behind the counter will decide that; if she did not have the qualifications—he would decide that; what her mental qualities might be —he would decide that; whether he thought that she had sufficient problems in —I hope that I have this down right —her domestic circumstances; or whether she was suitable.

If under all those subjective tests the woman had good cause, she could escape. She could receive unemployment benefit and she need not go down the mine. However, if that good civil servant decided —as he is bound to do —that she is not jumping up and down enough and she is not actively seeking work enough, none of those tests qualify. The mere fact that she was horrified at the idea of going down a mine —the Minister laughs; I am glad that it did not happen to him —and was concerned about the whole idea would not do. She would be free, yes. She would have choice; but she could not get the money. She has the freedom not to go down a mine so long as she does not expect any unemployment benefit. That is what the change means.

The only justification that the Minister has so far given me is what the noble Baroness, Lady Seear, always says on these occasions —"It is a very small baby. This is a tiny mewling infant, and there are not many of them. What does it matter if one or two women are forced down the mines? We will not hear them from where I am sitting". That is what we are being told, but it will not do. I am sorry to have to say that if the Minister cannot give us a better answer we shall have to divide the Committee.

Lord Strathclyde

There seems to be some confusion between refusing work and not actively seeking work. I shall try to clarify that confusion. The Social Security Act 1989 introduced as a condition for the receipt of unemployment benefit and income support, as an unemployed person, a requirement to be actively seeking employment. Failure actively to seek work would lead to both benefits being disallowed although income support at a reduced rate may still be payable to those who would otherwise suffer hardship.

Secondly, social security legislation provides that a person may be disqualified from receiving unemployment benefit for up to 26 weeks for refusing employment without good cause. No unemployment benefit is payable in those circumstances. Those qualifying for income support would have it paid at a reduced rate —80 per cent. or 60 per cent. depending upon circumstances.

Although the Social Security Act 1989 has removed the reference to suitability and made other changes to the circumstances in which that sanction may apply, regulations under the Act contain a new provision so that a person is to be regarded as having good cause to turn down a job, not in his former employment, which is notified to him otherwise than through the employment service. In other words, he can refuse a job without penalty if not in his former employment if it is not notified to him by the employment service. As I said, the employment service aims to offer work that is appropriate to an individual's skills, qualifications and abilities.

I started my discussion by saying that there seemed to be two clear points. One was sex discrimination and the other related to social security. I feel that there is a certain amount of confusion about what we are discussing coming from noble Lords opposite. If it is social security, why are noble Lords opposite not asking for a similar provision for men? Why is it that we are concerned only with women in the amendment? Noble Lords opposite failed to answer that point.

Baroness Seear

I think that I gave the Minister the answer. I recognise that in saying what I said —that there should be an exemption for women —one might say that that breaches strict discrimination because men are unable to refuse. The difference is that women have never before been down the pits. The Government are introducing something new which to some women is a frightening prospect. That is why I asked the noble Lord whether he could consider this provision at least for a period of years. It may be that in a generation's time young women will feel differently about the matter. There are women today to whom the provision could apply and for whom the prospect would be terrifying. For that reason I am prepared to be inconsistent. One does not always have to be consistent about everything. I simply ask that for a period of time women should have the right to choose.

Lord McCarthy

The noble Lord has left us without any confusion. The question is quite simple. We have asked it and he has answered it. Can this hypothetical woman obtain her unemployment benefit and income support if all she is is horrified and terrified about this, but the social security gentleman says that she is qualified? The answer was no, she cannot obtain it, and therefore we shall divide the Committee.

6.30 p.m.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 87.

Airedale, L. Brooks of Tremorfa, L.
Amherst, E. Callaghan of Cardiff, L.
Ardwick, L. Carmichael of Kelvingrove, L.
Attlee, E.
Aylestone, L. Carter, L. [Teller.]
Birk, B. Cledwyn of Penrhos, L.
Bottomley, L. David, B.
Donaldson of Kingsbridge, L. Mulley, L.
Donoughue, L. Murray of Epping Forest, L.
Dormand of Easington, L. Nicol, B.
Ennals, L. Ogmore, L.
Ewart-Biggs, B. Parry, L.
Falkland, V. Phillips, B.
Gallacher, L. Pitt of Hampstead, L.
Galpern, L. Ponsonby of Shulbrede, L. [Teller.]
Graham of Edmonton, L.
Grey, E. Rea, L.
Grimond, L. Ritchie of Dundee, L.
Hanworth, V. Rochester, L.
Hatch of Lusby, L. Seear, B.
Howie of Troon, L. Shackleton, L.
Irving of Dartford, L. Stedman, B.
Jeger, B. Stoddart of Swindon, L.
Kilbracken, L. Strabolgi, L.
Kilmarnock, L. Taylor of Blackburn, L.
Llewelyn-Davies of Hastoe, B. Taylor of Mansfield, L.
Tordoff, L.
Lockwood, B. Turner of Camden, B.
Longford, E. Underhill, L.
Lovell-Davis, L. Walston, L.
McCarthy, L. Wedderburn of Charlton, L.
McGregor of Durris, L. White, B
McIntosh of Haringey, L. Winchilsea and Nottingham, E.
Meston, L.
Abercorn, D. Lawrence, L.
Alexander of Tunis, E. Long, V. [Teller.]
Allerton, L. Lucas of Chilworth, L.
Arran, E. Lyell, L.
Balfour, E. Macleod of Borve, B.
Beloff, L. Malmesbury, E.
Belstead, L. Margadale, L.
Blatch, B. Marley, L.
Boyd-Carpenter, L. Marshall of Leeds, L.
Brookes, L. Merrivale, L.
Butterworth, L. Mersey, V.
Campbell of Alloway, L. Milverton, L.
Campbell of Croy, L. Morris, L.
Carnegy of Lour, B. Mottistone, L.
Carnock, L. Mountevans, L.
Cawley, L. Murton of Lindisfarne, L.
Clanwilliam, E. Napier and Ettrick, L.
Colnbrook, L. Nelson, E.
Colwyn, L. Norfolk, D.
Craigavon, V. Orkney, E.
Davidson, V. [Teller.] Orr-Ewing, L.
Denham, L. Oxfuird, V.
Elibank, L. Pender, L.
Elliot of Harwood, B. Penrhyn, L.
Ferrers, E. Peyton of Yeovil, L.
Gainford, L. Prior, L.
Gibson-Watt, L. Reay, L.
Glenarthur, L. Russell of Liverpool, L.
Gray of Contin, L. Sanderson of Bowden, L.
Grimston of Westbury, L. Savile, L.
Hailsham of Saint Marylebone, L. Seebohm, L.
Skelmersdale, L.
Headfort, M. Southborough, L.
Henley, L. Strange, B.
Hesketh, L. Strathclyde, L.
Hives, L. Srathmore and Kinghorne, E
Holderness, L. Swinfen, L.
Hooper, B. Thomas of Gwydir, L.
Hylton-Foster, B. Trumpington, B.
Johnston of Rockport, L. Ullswater, V.
Kenilworth, L. Vaux of Harrowden, L.
Killearn, L. Whitelaw, V.
Kinnoull, E. Wynford, L.
Lauderdale, E. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.37 p.m.

Lord McCarthy moved Amendment No. 10: Page 8, line 15, at end insert— ("For the purposes of this Act, cleaning of machinery shall be carried out by a competent adult person who has (a) completed sufficient training or (b) is under the full supervision of a person who has a thorough knowledge and experience of the machine.")

The noble Lord said: We have here a characteristically mild and modest amendment. It was moved by the Opposition in another place as part of the general attempt on behalf of the Opposition to accept the drift of Clause 9, subject to a number of safeguards. We then suggested five different safeguards, and this one on the machinery and the working of machinery by adults with sufficient training and full supervision is one of the safeguards. Therefore we are reintroducing it in the Committee tonight.

All attempts to modify the clause and to introduce more safeguards into it were refused. They were regarded as burdens on business or we were told that it made no difference whether there were regulations or not, or that people were protected anyway. They were said to be protected in particular by Section 2 of the 1974 Act.

Our argument is that many of the protections involved in the legislation which is being repealed extend further than the 1974 Act. Our argument is, as we said during previous periods and on previous amendments moved in the Committee, that there is no general support and in particular no widespread support for the abolition of the protection on cleaning of machinery. Finally, we suggest that no good employer would wish to have machinery cleaned in any other way. We should have thought employers would want this job carried out by competent persons who had completed sufficient training, or who were, under the full supervision of a person who has a thorough knowledge and experience of the machine".

Only a bad employer would cavil at our amendment. Only a bucket shop entrepreneur would wish to have dangerous or moving machinery cleaned and put into working order by untrained, unsupervised people. We regard this as a modest amendment. I beg to move.

Lord Strathclyde

This amendment is slightly confusing because it refers to the purposes of this Act without making clear which Act it means —the Bill itself or the Factories Act 1961. The amendment as drafted would amend Clause 9(4) of the Bill rather than Section 20 of the Factories Act, as I assume was intended. The amendment is also far too draconian because it applies to the cleaning of any machinery, not just dangerous machinery. Most cleaning can be undertaken in a manner which does not give rise to risk of injury at all.

However, setting aside those obvious deficiencies with the amendment, the Government sympathise with some of the concerns behind it. Clearly, no one should clean dangerous factory machinery unless he is competent to do so or is being closely supervised. We do not, however, accept that a new provision of this kind is necessary because there is already sufficient statutory protection. Section 2 of the Health and Safety at Work etc. Act 1974, apart from imposing a general duty on an employer to ensure the health, safety and welfare of his employees at work, also requires, so far as reasonably practicable, the provision and maintenance of safe plant and safe systems of work; that safety is ensured in connection with the use of articles at work; and the provision of necessary information, instruction, training and supervision.

In addition, Section 6 of the Act requires the designers and manufacturers of articles for use at work to ensure that they are safe when being set, used, cleaned or maintained. That means that, so far as reasonably practicable, the risks of cleaning work equipment should be eliminated from the outset. The machinery safety directive adopted last December will reinforce that.

I should add, however, that we are by no means complacent about machinery safety. The Committee is no doubt aware that there is a proposed European Community directive on the safe use of work equipment which is expected to be adopted by the end of the year, and the question of how it will be implemented in the United Kingdom is under active consideration. I hope that in the light of what I have said the noble Lord will feel able to withdraw his amendment.

Lord McCarthy

The noble Lord will not be surprised that he does not convince us. He said he was not sure which Act we were referring to and then he told us the Act we were referring to. He is quite correct; that is the Act we were referring to. The Minister believes that an amendment should apply to dangerous machinery and that, as drafted, our amendment may apply to any machinery. If the noble Lord is prepared to tell me that he will accept the amendment if we reword it to make it clear that we are only talking about dangerous machinery, we shall bring the amendment back on Report as half a loaf is better than no bread. However, I suspect that is not the case. I suspect that the Minister's answer will be the stock answer that has been given in another place, which is that everything is all right because we shall still have parts of the 1961 Act in operation and we shall still have the 1974 Act.

As was said in another place, that is no answer because both the parts of the 1961 Act referred to and the 1905 legislation, which is also to be abolished, go wider and give wider protection than the parts that are left. The general provision of the 1974 Act is not an alternative because it does not give rise to a basis for civil actions and also, as has been said by so many people in this debate and elsewhere, it is now becoming largely ineffective because of what the Government are doing with the factory inspectorate.

The 1974 Act is only enforceable through an active and highly participative factory inspectorate. That is the kind of Act it is. It has been denied that the inspectorate has been cut by over one-third and that most of the investigations are now done on the telephone without visits. Anyone with any real concern for health and safety in this country is seriously worried about the adequacy of the Health and Safety Inspectorate and the way it has been treated by this Government in the past 10 years. Therefore, we cannot accept the assurances that the Minister gives us. However, at this time of night I do not wish to divide the Committee yet again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Wedderburn of Charlton moved Amendment No. 11: Page 8, line 26, after ("effect") insert ("save to the extent that the Secretary of State by order amends them so as to assimilate the treatment of both male and female workers in order to provide general limits on manually shifted loads and apply standards that lower the point of physical strain.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 12. The effect of Amendment No. 11 would be to modify the provision for the repeal of the measures in Schedule 2 to the Act. It would give the Secretary of State an ability to continue some of those provisions, if he saw fit, to assimilate the treatment of workers whether they be men or women, to provide general limits on manually shifted loads and apply standards that lower the point of physical strain".

The Minister and his noble friends may have discovered the origins of those words. If that is not the case, they will be revealed in due course. Amendment No. 12 is a broader amendment which would give a rather parallel power to the Secretary of State on a rather wider footing. It seemed right to us on reflection to put Amendment No. 11 to the Government on what is after all a specific matter. It is not merely a plea for levelling up. We failed to convince the Government of that before. However, it is a plea in a narrow area in respect of the lifting of loads and dangerously heavy work of that kind.

This is a serious problem in industry and indeed in offices and all places of work. That is quite clear from statistics. It is an area where injuries sustained lead to the loss —if one cares to put it that way —of 2 million working days a year. These injuries account for one in four of all serious reported occupational injuries. Back injuries are the single biggest cause of serious job-related injury. I chose those phrases as there appeared to be common ground between all those who spoke on the matter in another place.

In this amendment we are addressing a particular area, whereas before we addressed the matter generally. The amendment seeks to level up, or at least to give the Secretary of State the chance of levelling up rather than merely repealing the various measures in respect of which we have at present protective legislation which applies sometimes to young persons, sometimes to women and sometimes also to men, but with different limitations.

The words of the amendment come from the communication of the European Commission of March 1987 —document No. 105. In that communication the Commission stated on the subject of manual lifting and shifting of loads: There are two ILO instruments on the regular manual shifting of loads, Convention No. 127 of 1967, and Recommendation No. 128 of 1967. These instruments come out firmly in favour of there being a lighter maximum load for women … In contrast, the idea has developed that it is inadequate to talk in terms of a 'standard man' and a 'standard woman'". The document goes on: Better knowledge of general load-carrying facilities and consideration of the age, height, etc. of the worker could lead to a disappearance of the difference between men and women in the establishment of rules. Instead there could be standards that apply to everyone via general selection based on physical strength. Furthermore, mechanisation and a better understanding of ergonomics has made many jobs easier, and technological advances may have caused some bans to be outmoded. In these circumstances, it would be better to provide a general limit on manually shifted loads, combined with adequate training in carrying loads up to that limit. Mechanical aids should be obligatory above this common weight. In this area, social progress means finding standards that apply to everyone and lowering the point at which physical strain begins for everyone".

We adopted such terminology and put it to the Government in that form because we thought it right that the Secretary of State should have the power to take hold of the regulations on the statute book, before the Bill repeals them utterly, and say —at least in respect of those industries where there have always been albeit discriminatory or different levels of lifting regulations —"I shall have that level applied to all workers" with perhaps a more severe limit for young workers. That would be an interim measure because the European directive will eventually come into force. The Health and Safety Commission has been working on drafts since 1982, when it produced its consultative document, and has issued a draft this year.

However, if the regulations, which will no doubt be better than anything we can devise now, take a decade to come into force and are not implemented before 1992, the many people who might well be protected by the kind of regulation that is about to be thrown away should surely receive some interim consideration. When we know that there will be carefully modulated directives and regulations at the other end of the process that has gone on for so long and when there are certain regulations which, inadequate though they are, help, at the moment, I ask the Government: why produce a legal void in the interim? Why not at least give the Secretary of State the chance to make orders that would cover some part of the issue?

I wish to take the three examples that mentioned earlier to make the situation clear. The Government would repeal the lifting regulations in the jute industry where they exist for women and young male and female workers, in the pottery industry where they exist for young male workers, and in the woollen and worsted textiles industry where the regulations for 1926 impose limits on lifting for young male and female workers and for women and male adult workers. Once again, here and in one or two other places in the schedule, we find that, in the repeal of discriminatory regulations, the Government are also removing the protection of adult male workers just as they did in the bakeries Act 1954 and in the Sex Discrimination Act 1986.

It therefore seems quite reasonable to ask for an interim ability of the Secretary of State to prevent one of the most common problems for working people of all sorts —namely, lifting loads —especially when in some cases the Government are maintaining such regulations and levelling them up. In the case of agriculture, which I believe the Minister mentioned earlier this afternoon, the Government are not only maintaining the 1959 regulations under which the weight limit is 180 lbs for any worker —that is far too high —but are extending Section 2 of the agriculture safety Act 1956 to all workers instead of applying it merely to the limited number to which it refers.

This is a limited amendment. But it meets the growing knowledge both of the existence of those injuries and of how to deal with them, not so much by setting absolute weight limits such as 180 lbs as in our old-fashioned regulations, but by at least allowing some kind of protection in the interim before the new regulations and the new European directive come into force. I ask the Government why in this respect, in this matter and in this period, they wish to produce a void in the interim. I beg to move.

Lord Strathclyde

The purpose of amendments is to give the Secretary of State power by order to remove the different treatment of males and females in certain subordinate legislation by assimilation rather than revocation. Where an order was made under that power, the effect would be to retain legislation which is obsolete or, in the case of the lifting provisions, inconsistent with medical advice that lifting capacity varies with the individual. It is suggested that the Government should make regulations in those areas setting appropriate levels of protection for all workers, after consulting the HSC. But we have already consulted the HSC. It tells us that it is already working on draft regulations designed to ensure safety when loads are handled manually and that it is content for the other subordinate legislation to which Section 6(a) applies to be revoked.

I therefore urge noble Lords opposite to read the Health and Safety Commission's consultative document, Handling loads at work. They will see that their objective of safeguarding health and safety —which I share —will be much better achieved by the HSC proposals than by this amendment. The proposals consist of draft regulations and draft guidance. Perhaps I may give a few examples which will give the flavour. The documents states: The regulations require positive action by the employer … [they] follow normal good practice for health and safety at work by requiring first a systematic assessment and then action to prevent reasonably foreseeable injury, in accordance with the basic philosophy of the HSW Act. The dccument goes on: the guidance reflects modern knowledge about the way in which back injuries are caused and proven methods of prevention: the need for a safe system of work is identified as the first priority, with selection and training of personnel as useful complements but not substitutes; caution is expressed about the indiscriminate use of weight limits". The draft guidance emphasises that manual handling should be minimised by the use of powered or mechanical aids. For the remaining jobs, factors to be considered include working level and posture, storage systems, work organisation and the characteristics of the loan. For those reasons, reliance on maximum permissible weight limits is likely to be misleading and may be positively dangerous.

All employees in factories already have the protection of Section 72 of the Factories Act 1961 which bans anyone from being employed to lift, carry or move a load so heavy as to be likely to injure them. In this Bill, a similar provision in the Mines and Quarries Act, which applies only to women and young people at present, is extended to cover men. There is also the general duty on employers to provide a safe system of work, so far as is reasonably practicable, under Section 2 of the Health and Safety at Work Act.

As to the requirement for women to be provided with suitable overalls and head coverings when they are employed to clean or repair sacks in cement works, that provision was almost certainly inspired primarily by paternalistic concerns, not health and safety. The Cement Works Welfare Order 1930 requires persons of both sexes exposed to considerable amounts of cement dust to be provided with suitable goggles. It also requires boots and/or waterproof coats to be provided for persons employed in various wet processes. But it was only thought necessary to try to keep females' hair and clothing clean. I cannot prove the negative that cleaning and repairing of sacks is never undertaken in cement works, but I am content to accept the Health and Safety Commission's advice that the process is virtually obsolete and that the provision can therefore be removed.

The Tin or Terne Plates Manufacture Welfare Order 1917 requires the occupier to provide and maintain suitable accommodation for clothing put off during working hours, with adequate arrangements for drying that clothing if wet, for the use of all women and girls. The process is now obsolete and Section 59 of the Factories Act 1961 requires "adequate and suitable" clothing accommodation to be provided for all employees.

The three parts of the Pottery (Health and Welfare) Special Regulations 1950 listed in the schedule which do not deal with handling loads are outdated. They prohibit certain groups from being employed in wheel turning or lathe treading, which are obsolute processes, and specify that the washing and cleaning of floors and the removal of clay may only be done by nominated adult males, which is ridiculous in this day and age.

Maximum limits on loads that can be moved by hand are not necessary to safeguard health and safety. Both medical opinion and the Health and Safety Commission agree with that. Their view is that there are wide variations in individual capacities and in the demands made by various tasks.

It has been suggested that the Government are only using equal treatment of the sexes as an excuse to repeal health and safety legislation. Nothing could be further from the truth. We are keeping whole swathes of protection for young people, for instance, where the Health and Safety Commission advised us that it was still necessary —and the noble Lord mentioned agriculture. Hence those provisions do not appear in this Bill. We shall "equalise up" where appropriate and Clause 9(2), which extends protection to men, is a case in point.

Therefore I cannot advise the Committee to accept these amendments and I hope that the noble Lord will understand that and seek to withdraw them.

7 p.m.

Lord Wedderburn of Charlton

The Minister's answer ended with a long passage that was not about anything to do with the matter. He did what was done in another place in its rather longer Committee stages where speakers go on for more than 17 minutes. He gave us a laughing list of the obsolete provisions of the regulations. It is a well known laughing list and it is the same brief. Of course it has nothing to do with the case.

What we are talking about is the statement —which I adopt —that medical advice, and indeed all expert opinion, is agreed that absolute weight regulations are out of date, that men and women differ far more than the old regulations suggested, that regulations should require positive action by the employer for prior diagnostic assessment about the handling and lifting of weights and so on.

There is a bulky literature on this matter and the Health and Safety Commission has put this point to the Government. It has been putting it to the Government since the turn of the decade in fact. The work began gradually in the 1970s, there was a consultative document in 1982 and a draft only last October which it put out. I asked the Minister earlier whether or not it was true that the Health and Safety Commission had now stopped work on what one might call the United Kingdom regulations in order to concentrate on the draft directive. That was a genuine request for information. In some ways it will be a pity if they do that but one can understand how the commission can be pushed in that direction.

However, one way or another we agree with all that. It was part of our case. That is why I read the passage from the European Commission's document of 1987. Flowing from that, however, it is clear that the new regulations or directive, whichever it is to be and however enforced, will take a long time coming. They will not be here next year or probably the year after in terms of law.

With great respect to the Minister, I found a statement quoted in the other place without dissent from the Government to the effect that, albeit engaged in that enterprise and albeit given that advice and will press on to the new style regulations for lifting and loads —and I quote from its document cited in another place during Committee stage —the Health and Safety Commission would have preferred to await the proposed comprehensive new manual regulations (the future ones) before repeal of the present regulations.

I understand from other sources that the commission certainly expressed that view to the Government and said that a total repeal before the new lifting regulations on this specific matter of back strain and lifting was not really the best course. Therefore I suggest to the Minister that what he has put to the Committee is not quite the full story. So far as concerns Section 72 of the Factories Act, which I have with me, it is a breach of that Act if a person is employed to lift or carry any load that is likely to cause any injury to him.

There is a text in front of me which comes from the main textbook on the subject. It reveals that there is no breach of this section unless the load is likely to injure by its weight alone. Of course many injuries are caused by the movement, method and mechanisms of loading. Dr. Munkman, the author of the best known textbook on the subject, comments that this gives rise to very troublesome questions of fact. He goes on to the case law —it is a massive case law of a most complex kind —in civil actions to enforce Section 72. The reason why we have regulations is partly that Section 72 and its predecessors are not good enough.

We have regulations. I repeat, we have them especially in the jute, woollen and worsted textiles and potteries industries as well as in agriculture. In agriculture the Government are keeping the regulations but in the other three industries they are not doing so even as an interim measure. I do not think that the Minister answered my main point. Why have a total void in the interim before the great new future regulations are with us? There is no answer at all to that.

Lord Strathclyde

Perhaps I may put the answer to that point. There was a response which I omitted to give. The responses to the consultation about UK regulations are under consideration by the HSC. The regulations are under consideration alongside the European directive. Therefore it is not the case that the regulations are no longer being worked upon. They will continue to be considered.

Lord Wedderburn of Charlton

I am grateful to the Minister for that information and very glad to have it. However, it means that there will be an interim between this Bill coming into effect as, an Act and the time when those regulations come into force. It is that interim about which I ask. We should very much like to come back to it on Report. This is a very specific matter and one which is of great concern to many people, especially those who have families who have suffered from these very terrible injuries. As one author says, it is not so much a question of a back injury but the gradual wear and tear on the intervertebral discs from which many people suffer in certain types of job.

With the thought that perhaps we can push the Minister a little further and obtain at Report stage some more information from him as to the progress of the regulations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

Lord Reay

This might be a convenient moment for the Committee to adjourn. I suggest that the Committee stage begins again at ten minutes past eight o'clock.

[The Sitting was suspended from 7.7 to 8.10 p.m.]

Clause 9 agreed to.

Lord McCarthy moved Amendment No. 13: After Clause 9, insert the following new clause—

("Establishment of Royal Commissicn

. There shall be established a Royal Commission which shall undertake a full investigation of safety and health provision in the mining industry, in order to improve current mining safety legislation and practice. The Royal Commission would establish agreed standards of hygiene and appropriate facilities for female and male workers.")

The noble Lord said: With this amendment I should like to speak to Amendment No. 40 to which it refers. These two amendments intend to ensure the removal of restrictions on the employment of women in the mines. The removal of those restrictions is not to be introduced until two things happen: first, there shall be a Royal Commission which will investigate the adequacy of the current health and safety provisions in the mines; secondly, there shall be the implementation of any reforms which that Royal Commission should propose. These are two amendments for the establishment of a royal commission to investigate and comment on the current standards of health and safety provisions in the mines before the proposals in the Bill should come into effect.

In many ways the amendment is similar to, and in some respects identical with, an amendment which was put in another place at Committee stage on 2nd February. Therefore there is a danger that for the most part I shall say what was said by Members of another place and that the Minister will say very much what was said by the Minister, Mr. Cope, at Committee stage in another place. In an attempt to avoid that, I should like to summarise the Government's objections to this proposal, as I understand and remember them. There were five.

First, the spokesman for the Government said that safety in the mines had been fully investigated and was the subject of a special review by the Health and Safety Executive in 1983 which produced a programme of 16 sets of regulations in November 1988 and that several of those regulations were in force. He implied that the reason they had not gone further—and they did not get very far —was that to change such matters in the mines is a long, involved consultation process. There was the implication that it might have something to do with the attitude of the National Union of Mineworkers. That was the first heading under which the Government sought to rebut the amendment.

The second argument was that there was not and is not any significant evidence that safety standards in the mines are deteriorating. The trends of fatal and near fatal accidents, are down. Indeed this is bound to be the case, since the mining industry is becoming increasingly safe because of new technology. As new technology comes in, there is greater predictability and less exposure to risk and one has a cleaner and healthier environment. Therefore not only is there no evidence of any significant deterioration in safety but one would not expect there to be anyway.

Thirdly, the Government argue that if one wishes to investigate the state of safety in mines the least appropriate method would be to set up a Royal Commission, which would take years to produce many different reports. If one wanted the investigation undertaken it would best be done by the existing institutions, for example, the Health and Safety Executive. But the Health and Safety Executive undertook such investigation a little time ago.

Fourthly, any time that the Government turn down proposals of this kind we have to hear of our old friend, burdens on business. The British coal industry needed to get rid of unnecessary regulations in order not to be subjected to unfair competition. Indeed it wanted to get rid of such regulations rather than to provide more.

Finally we were told about the inalienable right of women to work underground, especially in such attractive jobs as mining engineering. Those who put forward this amendment are said to be reactionary people who are trying to prevent that.

I wish to try briefly to answer these arguments. On the notion that the special review of the specified renewal programme has done it all, there are three comments to make. First, the wheels of God grind small, but this is ridiculous. It is six years since it started and not one fraction of the regulations is in draft form, let alone in force. It is difficult to blame that on the National Union of Mineworkers.

Secondly, the review did not deal with the problems of women and the possible difficulties: the appropriate ergonomic standard, satisfactory sanitary arrangements, the special problems of lifting and transporting weights and so on. We have tried to stress all these factors this evening and in another place. Of course the Health and Safety Commission could not consider those matters because there was then no proposal for women to work down the mines.

Thirdly, many have argued —not only members of the National Union of Mineworkers —that increasingly the specified renewal programme, far from being concerned with maximising health and safety in the mines, is much more concerned with removing the barriers to greater productivity. One could give many examples. I shall give only three alleged examples. Two of them are absolutely beyond challenge. The first concerns the proposal to abolish the unique role of the deputy as the primary safety officer in the mines with effectively a veto on safety. The proposals in the specified renewal programme are seriously to modify the unique historical traditional role of the deputy. The second concerns the relaxation of the rules which prevent the introduction of outside untrained contractors. The third concerns the alleged reductions in the number of roof supports.

In these and in many other ways that I do not have time to go into, it is argued that the specified renewal programme, far from exemplifying a determination to raise health and safety in the mines, is essentially a way of removing barriers to greater productivity. A measure that was invented some years ago, which had nothing to do with women and which is now said to be centrally concerned with the removal of barriers to greater productivity, is not a satisfactory way of investigating the present state of safety in the mines.

We pass to the second objection raised by the Government: trends in safety and other statistics. I defy any objective student of this extraordinarily complicated subject to decide between the conflicting interpretations which are now advanced in debate between the contestants on these issues. The debates in another place at Committee stage—which stretched over three Sessions—are a very good summary of the differences. The Labour Members of that Committee from the statistics that they quoted proved a fall in the number of serious and fatal accidents. But the fall does not keep pace with the fall in the underground labour force and points therefore to an increase in the density of accidents. At the same time they suggest that there has been a deterioration in other indices: of hygiene and health, absence, and fatigue. They put special emphasis on the growth of the number of serious fires. It is very impressive if you read what the Labour Members say.

On the other hand, I know that the Minister will have none of this information at all. He claims that the fall in accidents has more than kept pace, at least until last year. He does not deny that there was a very significant increase in the number of accidents last year. He suggests that all the evidence on other indices of hygiene, health, absence and fatigue is suspect or impressionistic. In any case, he says, all this is in hand because of the renewal programme. As I say, any competent arbitrator looking at this would say that the verdict was unproven. He would send out for more information. He would insist that he should be able to specify and direct the collection of that information, which is just what a Royal Commission would do.

That brings me to the third set of answers. Even if there were a case for some kind of investigation into what is happening to health and safety in the mines; even if recently, in the past 12 months, trends show a sharp deterioration; even if the renewal programme is changing its context and its direction; and even if the special problems of absorbing women's labour into the mines could not possibly have been studied by the Health and Safety Commission, it is best done by the existing agencies rather than by a Royal Commission.

We know that the Government do not like Royal Commissions. They do not have any. I do not think they have ever had any. Royal Commissions are packed with the great and the good and they are not usually on the ladies' side. In any case, they always used to include a trade unionist. The Government have privatised everything in sight, changed the face of local government, introduced the market mechanism in all areas of economic life and never had a Royal Commission. Why should they have a Royal Commission now? To the Government that is a strong argument, but for the rest of us surely this is what has been part of the problem: that a Royal Commission can include appropriate independent people who serve not because they are one of us —whoever "we" may be—but precisely because they are invited to be independent, to decide for themselves and to say what they think.

A Royal Commission can take its evidence in public. Indeed, it can invite evidence from other leading controversialists in the issue. It could even produce minority reports —and we used to think years ago that that was a good thing and a way to get at the truth. It might even provide a range of options from which the Government could select the way to go. I suggest to the Committee that this is just what the problem needs at the moment. If one is trying as we are told the Government are trying, to cool controversy in the post-Blackpool situation, this in one of the ways of doing that.

I therefore come to the fourth argument for pressing on, our old friend Burdens on Business. That is true. There is some significant sign that the present safety regulations are regarded by the management of British Coal as a significant burden on its profit-making potential. There are indications that if it is to prepare itself for privatisation there is a pressure towards higher productivity. It sees the present safety regulations as some kind of barrier to higher productivity. There is a considerable volume of bits and pieces of evidence being produced to that end.

I do not know whether any Members of the Committee saw an article in the Guardian of 26th August which produced alleged evidence of a link between the drive for productivity and the eventual sell-off of British Coal, including some remarkable quotations from the vice-chairman of British Coal, Ken Moses, and a coroner investigating one of the recent disasters. Asked about the pressures produced by the struggle for profit, Mr. Moses said: We're probably under more pressure than any other industry, It causes problems, hut in some ways it's very exciting to be faced with this kind of challenge".

Asked to give advice to the jury on the causes of a number of deaths caused by falling steel equipment, the coroner, Mr. Wain, said: You may think [when you have looked at this information] there were some drastic things wrong with the running of this mine".

So it is accepted, or at least very strongly alleged, that there is a conflict between the present standards of health and safety in the mines and the pressure under which Mr. Moses says the industry now is to maximise its profitability.

We come to the final defence: the inalienable right of women to work underground and the fact that our proposals would delay the accession of that right to women. I suggest that the answer to that is that it is not even suggested by the Government that they are in a hurry to introduce women into the mines and that it is such a pressing affair that it must be done in advance of any objective investigation into the present state of safety measures in the mines and what needs to be done to make the mines even safer. For all those reasons we believe we can answer all the objections so far raised to the amendment and we look forward to hearing some more objections. I beg to move.

Lord Boyd-Carpenter

Even if there is a case for investigation of health and safety in the mines, the effect of the amendment —I think this is its true purpose —is simply to delay implementation of the first three subsections of Clause 9. A Royal Commission is not exactly a speedy means of proceeding. I suppose that on average something like three years from its appointment to the production of its report would be expected. For those three years, the whole operation of the first three subsections of the clause would be held up.

Even more significant and pointing even more to the real purpose of the amendment is the following new clause, Amendment No. 14, which states: The provisions of subsections (1), (2) and (3) of section 9 shall not become operative until the Royal Commission established under section [whatever it is] has reported and reforms and improvements recommended have been put into effect."). In other words, if the Royal Commission proposes things which the Government do not agree with and do not want to put into effect, the operation of the clause is indefinitely postponed.

The noble Lord, Lord McCarthy, is sufficiently experienced in these matters to know perfectly well that that would be the effect of his amendment if it were adopted. For that reason —and that reason seems to me to be wholly sufficient —I hope that the Committee will reject it.

Lord Rochester

Earlier today my noble friends and I went along with Amendment No. 8, proposed by the noble Lord, Lord Wedderburn. It proposed that no order made by the Secretary of State removing restrictions on the employment of women and young persons should come into effect until there had been consultation with the Health and Safety Commission and the Equal Opportunities Commission. It was also proposed that some months should pass before Clause 9 should take effect.

We went along with that, despite the fact that my noble friend Lady Seear must have made very plain already today that in general we are prepared to accept the removal of restrictions relating to the employment of women. As the noble Lord, Lord Boyd-Carpenter, has said, Amendments Nos. 13 and 14 raise different issues. I shall not rehearse them in detail again, but they involve the establishment of a Royal Commission. I have no particular objection to such a commission being set up.

However, it is also the case that it would not be possible to introduce subsections (1), (2) and (3) of Clause 9 until the Royal Commission has reported. We do not appear to be justified in holding up the operation of Clause 9, with which in general my noble friends and I have sympathy, until such time —and it may be a long time —as the Royal Commission reports. For that reason I hope that the noble Lord, Lord McCarthy, will not press the amendment.

8.30 p.m.

Lord Renton

That is my feeling too, and I should also like to add one or two points to the telling remarks of my noble friend Lord Boyd-Carpenter. First, I had the honour of serving on the Royal Commission. It was in fact the commission on the constitution. And it lasted not for three years but for more than four years. So far as I know there is no precedent for establishing a Royal Commission by Act of Parliament. Royal Commissions have always been established by Royal warrant; hence the expression "Royal Commission". That is the first strange point about Amendment No. 13 which should be emphasised.

Secondly, the second sentence of the new clause states: The Royal Commission would establish agreed standards of hygiene and appropriate facilities for female and male workers". Royal Commissions do nothing of the kind; they can make only recommendations to Her Majesty and to Parliament. The word "establish" as used in the amendment suggests that the Royal Commission will legislate. That would be quite unprecedented.

Also unprecedented is Amendment No. 14. As my noble friend Lord Boyd-Carpenter pointed out, if the procedure outlined were followed it would result in an extraordinary delay. It might also mean that the clause, referred to as "section 9", would never come into force. I am sure that there is no precedent whatever for stating that a clause in an Act of Parliament shall not come into force before a Royal Commission has been established. I do not believe that the two new clauses should detain the Committee for long.

Lord Strathclyde

It was a pleasure to hear the remarks made by my noble friends Lord Boyd-Carpenter and Lord Renton concerning Royal Commissions. I found them educative. I also thank the noble Lord, Lord Rochester, for his support because obviously the Government are not happy to accept the amendments.

I was deeply saddened to see the clause not because of any lack of concern for mining safety but because the proposed Royal Commission would simply duplicate some of the responsibilities and work in hand of the Health and Safety Commission. I hope that it does not indicate a vote of no confidence in the HSC by the noble Lord, Lord McCarthy.

The noble Lord, Lord McCarthy, has already indicated that he read carefully what happened in Committee in another place; therefore I do not plan to go over old ground. However, there are already a number of bodies looking at mining safety, working practices and so forth. They include the Health and Safety Commission; the Safety in Mines Research Advisory Board; the Mining Qualifications Board; British Coal Safety and Health Committee; and the European Safety and Health Commission for Mining and other Extractive Industries. Those provide plenty of scope for British Coal, the mining unions, the Health and Safety Executive and academic institutions to contribute to safety in mines. To that list the noble Lord wishes to add a Royal Commission.

One point made by the noble Lord must be refuted. It is the allegation that the trend in key safety statistics is upward. It is not; the trend for accidents is firmly downward, although the law on reporting has changed twice since 1979. Both NADOR and RIDDOR made more stringent the requirements to report accidents and dangerous occurrences and increased the number of such incidents which are reportable. The total accident rate has come down from 81.04 per 100,000 manshifts in 1979 to 32.23 in 1988–89. That is more than halved.

The noble Lord also mentioned deputies. A deputy assists the mine manager in carrying out the manager's legal obligations. The deputy's duties include inspection of the workplace and a responsibility for the men in his charge. The deputy is always answerable to the manager and the manager can overrule the decisions made by a deputy. The HSC recently published new proposals on mines' management. These would not take away but rather reallocate the existing duties of deputies to officials who must be qualified at least to the level of deputy. The principle behind the proposals is that responsibility for safety must rest with those who have greatest authority over a particular operation. The Health and Safety Executive is currently considering comments received about the proposals as a result of the commission's consultation.

Underground work in mines entails no risks specifically affecting women. Some work may be arduous and unpleasant. However, that has not been an acceptable argument for excluding women from other jobs. Since Victorian times conditions have greatly improved and there is now a framework of modern health and safety legislation. No doubt conditions could be improved still further. For example, I could point to the USA where women miners have obtained improvements to the benefit of both sexes.

I sincerely hope that the noble Lord, Lord McCarthy, will be able to withdraw the amendment.

Lord McCarthy

I am prepared to accept the fact that many of the points made against the two amendments strike home. However, that does not put me off the basic objective. As the noble Lord, Lord Boyd-Carpenter, said, the effect of the amendment would be to delay the operation of Clause 9 in order to ensure that it is safe. We do not believe that it is safe. We do not believe that the evidence suggests that it is necessarily safe and therefore we wish to have an investigation. That would result in delay; that is perfectly fair.

The noble Lord is on better ground when talking about the problems of Amendment No. 14. It shows the problem of taking an amendment straight from another place which, after all, should know about such matters but does not always appear to do so. I fully accept that this is a precedent and that it would be quite novel for a Royal Commission to be given such a power. There may be other ways of doing it, and I hope that in the meantime the noble Lord, Lord Boyd-Carpenter, will tell us that we are conservative. We are being rather radical in proposing such an unprecedented provision. The trouble is that the noble Lord does not like it. However, perhaps we can come back on Report with a better way of achieving it.

Similarly, the noble Lord, Lord Renton, said that he knows of no example of a Royal Commission being established by an Act of Parliament. Very well, if it is better done by a Royal warrant and that were the only criticism which could be made of our proposals, I do not believe we need be delayed for very long.

I come to the remarks of the Minister. I am sorry that he is deeply saddened by these amendments. Perhaps that is because of the time of night. Perhaps it was not quite so gay crowning the best young chef of the year or the worst ancient short-order cook of the generation. I do not know. Perhaps that was not so comic. However, if he is deeply saddened it may be that rather than these amendments which is causing his sadness, because the amendments are not all that sad making.

Of course we are not attacking the Health and Safety Executive. We suggest that this job would best be done by a separate organisation. It may be that the Minister is right and that what we are suggesting would best be done by the Health and Safety Commission. It may be that that is what we should say on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 14 not moved.]

Schedule 2 agreed to.

Clause 10 [Removal of restrictions relating to employment of young persons]:

Lord McCarthy moved Amendment No. 15: Page 8, line 44, leave out subsection (3) and insert — ("(3) The Secretary of State may, with the agreement of the Health and Safety Commission and of the Equal Opportunities Commission, by order repeal or amend any statutory provision in consequence of subsection (1) and (2).").

The noble Lord said: This is another very modest amendment and I do not believe that it sets any precedents. I am afraid that it has to be explained in a little detail. This amendment was moved in a different form in another place. In effect, it attacks Clause 10(3), which, as I understand it, is as it were a residual provision because Clause 10(1) repeals a whole series of provisions which apply only to young persons. The second subsection amends provisions in statutes and orders which apply to young persons and children. It amends the provisions applying to young persons in that respect. It is only subsection (3) with which we are concerned. The amendment is concerned only with that part of the clause, although it would have consequences for subsections (4) and (5).

As I understand the clause, that part of the clause gives the Secretary of State an order-making power so that, even when he has abolished all appropriate restrictions which he can think of and he has amended those which he does not wish entirely to abolish, if any others come up above the skyline which he cannot think of at the moment then he takes a residual reserve power so that he can make an order abolishing or amending them as well.

We are saying very mildly and modestly that that is going rather too far. We say that in the case of those amendments which he cannot think of because he does not know about them, because if he knew about them he would put them in the Bill or the schedule, there should be some kind of surveillance beyond the simple parliamentary surveillance of an order which can be prayed against in the usual way.

Our amendment provides for an agreement with the Health and Safety Commission or the Equal Opportunities Commission before any subsequent order, repeal or amendment of any statutory provision can be carried out for the purposes of this Bill.

What are the arguments for that? I have already deployed the main argument. The Secretary of State has very considerable deregulation operations in process as a result of the rest of the Bill. Schedule 3 deals with the hours worked at night, holiday entitlement, mealtimes, the debarment of certain occupations, requirements for medical supervision, the need for registers, working on Sunday, performances of a dangerous nature and working abroad for profit. All those matters can be abolished or amended. A whole range of different Acts and regulations are either to be totally abolished or very severely curtailed. Therefore, we are only dealing with matters which the Secretary of State cannot think of and which he does not give us any arguments for at all. In those circumstances the least that could happen is that there should be some independent investigation of the adequacy or otherwise of those, as yet unnamed, regulations.

As happened on the previous amendment, I may be told that it is inappropriate, wrong and without precedent to involve the Health and Safety Commission and the Equal Opportunities Commission in this process. Perhaps Members of the Committee will suggest alternative ways of achieving our aim. We never stick to the words of particular amendments. We are saying that, if the Secretary of State wants to have a reserve power to abolish regulations which are as yet unnamed as far as thought can reach, then there should be some way of overseeing that power. I beg to move.

Lord Boyd-Carpenter

This amendment has one rather curious aspect, inasmuch as it equates the Health and Safety Commission and the Equal Opportunities Commission with the Secretary of State in the making of regulations.

As I understand the constitutional position, the Secretary of State makes regulations which are subject, whether by the negative or affirmative procedure, to the agreement and approval of Parliament. He is fully entitled, if he so wishes, to discuss matters with the Health and Safety Commission, which is a very admirable body and, indeed, with the Equal Opportunitites Commission, which is also a very worthy body. However, to make their agreement a condition of the validity of his making the order strikes me as constitutionally very odd, if not improper.

8.45 p.m.

Lord Renton

There are occasions when the power is given to Ministers to order the repeal or amendment of existing statutory provisions but they have generally been very minor amendments and that has generally appeared from the context in which the power is given. When we have given that power, we have nearly always said that the order shall be in the form of regulations laid before Parliament, and there is no suggestion of that here. I suggest to the Committee that, if we are to give this power, which is precedented, to the Secretary of State, then in the particular circumstances the better judgment which we should exercise is to require the repeals or amendments to be made by regulations which need to be approved by Parliament.

Lord Strathclyde

The effect of this amendment would be to limit the order-making powers in Clause 10 so that they could only be used to make consequential repeals and amendments following on from subsections (1) and (2)—in other words, the power currently provided by subsection (3)(a). However, it would also build in the proviso that the Health and Safety Commission and the Equal Opportunities Commission must agree.

I appreciate that Members of the Committee are concerned that the Government should not use these powers to remove health and safety protections necessary for young people, and it is certainly not our intention to do so. However, I cannot agree that this falls within the EOC's area of expertise and I do not believe that it would be right for either the EOC or the HSC to be given what is in effect a power of veto over the decisions of a democratically elected government. My noble friend Lord Boyd-Carpenter has said as much when we have dealt with other amendments as well as this one.

I should point out that we propose to use these powers to revoke or amend provisions in only 15 statutory instruments. Four of these relate to the restrictions repealed by subsection (1) and are therefore consequential, and all but two of the rest refer to young persons under 16 or to persons generally who are over or under 16. These latter restrictions apply to children as well as young people. We are therefore going to revoke only those provisions that apply to those few young persons over school-leaving age who have not yet reached their 16th birthday and amend those provisions that currently apply to children as well as to young persons under 16 so that they will refer instead to persons under or over school-leaving age. All of the restrictions in question were included in the consultative document Restrictions on Employment of Young People and the Removal of Sex Discrimination in Legislation. The HSC and the EOC have therefore been consulted already.

We are not removing any protections that the Health and Safety Commission has advised are still necessary to ensure young people's health and safety. The document included many restrictions on young people's employment; for example, on their operating dangerous machinery. That is being retained for health and safety reasons.

I can assure the Committee that we do not intend to use the powers in Clause 10 to remove these protections against the commission's advice. Clearly, there would be no point in the Government having an expert body on health and safety if they were not going to consult it on health and safety measures.

I appreciate that in theory these powers could be used to remove health and safety protection for young people. However, as I have said, it is not our intention to do so. Therefore, I give a commitment to the Committee that, should we wish to use the powers under Section 3B(2)(d) to revoke or amend relevant statutory provisions under the Health and Safety at Work Act 1974, and if we have not previously consulted the commission on the restrictions in question or if the commission has previously advised that it is still necessary for health and safety reasons, we will consult the commission before doing so.

On that basis and in the light of that commitment I hope that the noble Lord will feel able to withdraw his amendment.

Lord McCarthy

The noble Lords, Lord Boyd-Carpenter and Lord Renton, as I understood them, raised constitutional objections to what we propose, particularly in respect of the role which we appear to be giving to the Health and Safety Commission and the Equal Opportunities Commission. What they do not appear to advance are arguments on the merits. Once again I say that we are not committed to the words of these amendments. We are seeking to flush out the Government to find whether they have a case. However, the noble Lords did not give me the Government's case; only the mistakes and the weaknesses they see in the drafting of the amendments.

The proposals which the noble Lords advance as a way of dealing with those defects in our amendments—particularly from the noble Lord, Lord Renton—is to go back to exactly the same procedure which the Government propose in the Bill; that is, they can do it by regulations. That is exactly what we are saying—but that is not enough. Therefore, although I accept some of the criticisms made by the noble Lords, Lord Boyd-Carpenter and Lord Renton, they do not go to the merit and the guts of the amendment itself.

Therefore, I turn to what the Minister said. The Minister gave an indication of most of the things that the Government will subsequently do with this power. I shall agree with that when I see them. They are just consequential, carrying through the consequences of subsection (1), paragraphs (a) and (b) of the clause.

The Minister said that when any action is taken under this part of the clause the Government will consult the Health and Safety Comission and that it would be ridiculous not to consult the commission. In fact he has been saying to us all this evening that the Government are absolutely punctilious in the way they consult the Health and Safety Commission. They consult it in the way that people were consulted on the guillotine—about which way they wanted to sit. The trouble is, the Government do not take any notice. If the Health and Safety Commission says, "Do not do it at all" and not "Do not do it that way"—in the way that the commission made certain recommendations on hours and on night work which we discussed earlier—the Government take no notice. They say that they do not have to take notice; they need only consult.

Lord Strathclyde

We are Parliament.

Lord McCarthy

That is right. They say "We are the bosses; we are Parliament and can do what we like". However, the Government say that they consulted. When somebody says to me at this stage of the Bill, "Trust us, it is only consequential, and anyway we will consult the Health and Safety Commission and would not think of anything else; of course, if we do not agree we shall say 'We are Parliament' ", it is not very reassuring. Although we withdraw the amendment at this stage we give notice that we may come back on Report.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 16: Page 9, line 12, at end insert— ("(e) The Secretary of State shall not make an order under this Section relating to a change in the hours of work unless a secret ballot has been held of all the employees and trainees affected by the proposed change and a majority vote in favour has been recorded.").

The noble Lord said: Here we have an amendment for which I think we can find a precedent. The object of the amendment is, and I quote it: The Secretary of State shall not make an order under this Section relating to a change in the hours of work unless a secret ballot has been held of all the employees and trainees affected by the proposed change and a majority vote in favour has been recorded. The aim is to secure that the further order power can only be used after a ballot of those affected.

Surely the Government cannot say that there are no precedents. If there is one thing that this Government have a name for it is ballots. In the field outside industrial relations—in local government, for example—we have ballots to decide if council estates are to be privatised. It is true that those who do not vote do not count, so that there can be a 10 per cent. poll and then the whole estate is sold; nevertheless, the Government have ballots outside the area of industrial relations.

The Government have ballots in the field of education—and strange ballots they are —in regard to grant-maintained schools. It is not much of an exaggeration to say that you go on having ballots until you get the right answer. If you get the right answer, you do not have another ballot. In order to make sure of getting the right answer of course, those who do not agree with your answer are not allowed to circulate the ballot papers giving their side of the case on the envelopes.

It is true that the Government are extremely reluctant to have ballots on free standing hospitals in the NHS. When we come to industrial relations, however, every year they propose ballots for all sorts of things. In the days when the closed shop was lawful we had that strange 80 to 85 per cent. ballot in order to validate a closed shop. We had simple majorities for all national executive members, even those who did not have votes. Then we had ballots for validating official strikes. The Green Paper proposes similar ballots to validate unofficial strikes.

Therefore there are plenty of examples of ballots. The Government might say that that is nothing to do with regulations. However, there is a ballot. Under the Factories Act 1961, Section 97 (maintaining an order first introduced in 1936) if an employer wants to change shift work patterns—if, in effect, they want young people to work unsocial hours—they have to hold a ballot. For women and young people they must hold a ballot and Section 97 specifies the terms of that ballot. In those days, in 1936, we did not have all these fancy figures but just a simple majority.

There are, as I said, plenty of examples of using ballots outside industrial relations and inside industrial relations and even in the regulation of working hours. We are therefore saying that it is perfectly reasonable that in this area, where we do not know exactly what the Minister intends to do, we should have a ballot system.

I said that this question was raised in another place. Mr. Nicholls was asked on 21st February whether he would give the Government's policy on an amendment of this nature. He had to be asked a second time because when he summed up on the various amendments being discussed at the time he forgot to mention it. He apologised and gave his answer in this way: I am grateful to the honourable gentleman for reminding me that I did not deal with ballots at work. One must take a view on whether it is appropriate to ballot the work force to get a decision on how workers feel. We have also to consider whether there are greater responsibilities here and that the Government ought to give a lead when it comes to preserving or not preserving legislation that does nothing to protect young people but represents a substantial barrier. That is the responsibility of government. Going to ballot on that would be to avoid the responsibilities of office". —[Official Report, Commons, Standing Committee, 21/2/89; col. 284.] I suggest that that is not an answer but merely a statement of the position that you have ballots only when you are likely to get the right answers. I hope the Minister can give a better answer this evening.

Lord Strathclyde

The noble Lord thinks he is on to a good thing here. I have to disappoint him by saying that he is not.

This amendment would require a ballot to be held with the employees and trainees affected and a majority vote to be obtained before an order relating to changes in hours of work was made. Our intention is that all the primary legislation restricting young people's hours of work will have already been repealed by Clause 10(1)(a). Most of the subordinate legislation restricting or granting exemptions from restrictions on their hours of work was made under that primary legislation and will therefore lapse automatically. We shall only need to use the power in subsection (3)(a) to revoke hours of work provisions in a total of only three instruments. All of these contain exceptions to the main hours of work restrictions in the primary legislation. Without those restrictions they will therefore be meaningless and of no effect. It will be pointless to ballot on removing them. That will have already happened. There is no need for secret ballots.

Nothing in Clause 10 will have the effect of requiring an individual employer to change the working hours of his young employees. He will simply no longer be bound by statutory restrictions and will be free to propose changes to his employees if he wishes. The employee is not required to accept. It will be for negotiation in the normal way and the usual considerations relating to changes in contracts of employment will apply. I hope that the amendment will be withdrawn.

9 p.m.

Lord McCarthy

I believe I heard the noble Lord say that the legislation in this area is about to be repealed. Is that correct?

Lord Strathclyde

There is no requirement to have a ballot at the moment.

Lord McCarthy

Never mind. I gave the noble Lord an example of where it was necessary to have a ballot. I may have misunderstood and the matter is not central, so we can get on. I understood the noble Lord to say that Section 97 of the Factories Act 1961 is about to be repealed.

The noble Lord said that I know I am on to a good thing. If you have faced the hard hearted lot who have sat on the Benches opposite for the past 10 years you would not think you were on to a good thing when you say something that is modest and reasonable. Not at all. In fact we are once again faced with the same argument.

Lord Renton

I am grateful to the noble Lord for giving way. I am very surprised to hear the noble Lord say that, in this field of legislation relating to employment and the trade union laws close to it, we have been hard hearted. The main effect of our legislation has been to restore power to the members of trades unions.

Lord McCarthy

The noble Lord should not make remarks like that at 9 o'clock at night. In my experience we have been debating these issues at least since 1980. He has been here all that time: he knows that we have fought to the best of our ability the greater part of that legislation. He knows what we have said and what we think. It is a bit thick to come along at this time and to ask us to agree with him that the Government are not hard hearted.

I return to the amendment. The noble Lord said what is always said in these circumstances. It is said that it is up to the workers. If it is a situation where there is no trade union—there are a few trade unions left despite the legislation—and the employer changes the terms and conditions of employment, the worker can always refuse to accept it, leave and go somewhere else. That is the kind of thing that we expect to be said and that is why we say the Government are hard hearted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 10 shall stand part of the Bill?

Baroness Turner of Camden

This clause seeks to remove restrictions governing the employment of young people. We sought to amend it through our Amendment No. 8. We have failed to make any impression and therefore all that is left to us now is to oppose the Motion that the clause shall stand part of the Bill.

From the contributions already made in debate, it is clear that we on this side of the Committee are totally opposed to the concept contained in this clause. With very few exceptions all sections of industry will be affected if the clause is put into effect. The legislation will enable young people of school-leaving age, for example, to carry out a newspaper round at 6.30 in the morning, attend school and then work in a supermarket after school with no restrictions on when to cease in the evening. It will enable a school leaver of possibly 15 or 16 years of age to work long hours without any controls governing rest, breaks or holidays.

At present there are approximately 900,000 16 to 18 year-olds in the workforce. I gather that about two-thirds of them will no longer be protected by legislation. Perhaps, through social pressure, possibly in areas of high unemployment, many young people will work as many hours as they can in order to bring money into the household. There are pressures in poor households for young people to get out and earn. Moreover, failure to work long hours might also jeopardise that person's employment prospects with a particular employer. The result will be a workforce that is exhausted. Yet the years 16 to 18 are those when rest is important for development. So there will be an unhealthy young workforce.

It can also mean further hazards at work. Tired employees are more accident prone; there seems little doubt about that. This is particularly true of young people who lack experience and training. Accident rates on YTS give some cause for concern. I have here newspaper cuttings concerning horrendous accidents that have happened to young people on YTS. A young trainee worker lost both legs when trapped in a power harrow on a farm. He was on a YTS. It was held that the accident would not have happened if the machinery had been properly guarded.

Lord Strathclyde

I must object. That kind of accident happens occasionally and it is greatly to be regretted. However, it is ridiculous to argue that the accident occurred because the young person was on YTS.

Baroness Turner of Camden

Perhaps I may finish my argument. We already have examples of this kind. We all agree that they are regrettable. These accidents happen now. They are much more likely to continue to happen if there are no restrictions for 16 to 18 year-olds. We shall have circumstances where young people are tired and therefore more accident prone than they would otherwise be. So I think I am quite justified in referring to accidents which have already happened and pointing out that, if we are not careful and if the clause stands and becomes operative, we are likely to see an increase in this kind of regrettable occurrence.

Moreover, long hours diminish opportunities for essential recreational and educational activities. There is also the problem of transport to and from work for young people working long hours and who thus have to come home late at night. Young women in particular are at risk in some of the more violent urban areas. A later amendment will attempt to deal with the whole question of transport to and from work. But why are the Government seeking to sweep away all controls that currently protect young people? There are controls in factories which currently prevent young people from working at night or for more than nine hours a day and which provide for breaks after four and a half hours' work. Why should they not continue to operate? There is also protection under the Shops Act 1950 limiting the number of hours young people may work.

Do not the Government understand that the transition from school to work can sometimes be a traumatic experience for young people and that an abrupt transition from the world of school to the world of work is often difficult? In attempting to sweep away these controls the Government are acting quite differently from other industrialised countries, most of which have regulations governing the employment of young people. My noble friend Lord Wedderburn made reference to that in his contribution earlier this afternoon.

What the Government are doing, will involve denouncing the European Social Charter which deals with the rights of children and young people at work. Indeed, the charter specifically provides that, with the exception of certain occupations provided for by national law or regulations, young persons under 18 years of age shall not be employed at night. Furthermore, it provides that persons under 18 years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical controls.

There may well be a case for providing an entirely new framework of law to protect young people at work. I understand that the CBI would not be averse to that, and that is certainly the view of the British Institute of Management. However, the Government will have none of it. They are replacing the existing legislation with absolutely nothing at all. This is all done in order to provide a more flexible labour market. The Government seem to think that flexibility demands that opportunity be provided for unscrupulous employers to exploit vulnerable people.

There are employers who will behave decently to young people, who will be genuinely concerned about their welfare and who will provide them with proper training opportunities; but not all employers are good employers, and young people are often very vulnerable, particulary those living in poor urban areas where there is already substantial unemployment and—this is all too often the case—where there has been little opportunity for proper skill training.

There is an obligation to protect young people. As the Government appear unwilling to accept the responsibility to do that and to introduce a new and improved framework for the employment of young people, we have no alternative but to oppose the Motion that the clause stand part of the Bill.

Lord Rochester

I support the noble Baroness in what she has just said. I accept that much of the legislation relating to the employment of young people is now out of date, but I do not see that as a reason for sweeping it all away; nor, despite what the noble Lord, Lord Strathclyde said earlier today, does the CBI. It stated that many of its members recognised. that young people could be obliged to work excessive and unsocial hours by unscrupulous employers". Similarly, the response of the British Institute of Management to the Government's consultative document called for the enactment of a general provision for young people, covering maximum hours of work, rest periods and working at weekends, to replace existing laws.

The noble Lord, Lord Strathclyde, stressed that the Government were keeping all the safeguards that the Health and Safety Commission advised them were desirable. I do not dispute that. The commission does an excellent job within the resources that are available to it. The trouble is that there are simply not enough inspectors to ensure that the law is being observed, particularly by small employers. The Government pride themselves on all they are doing to improve the quantity and quality of training, especially of young people. How they reconcile that with permitting unlimited hours of working, including night work for 16 to 18-year olds, has not been explained to my satisfaction or that of my noble friends.

Indeed, as my noble friend Lady Seear earlier made plain, we feel strongly that the years between 16 and 18 should be devoted primarily to education and training—in which case the question that we are discussing would not arise. I should add here that, if we can find a suitable means of putting that belief into an amendment on Report so as to do something about education and training for that age group, we shall take the opportunity to do so.

If the Bill is enacted in its present form—and the noble Baroness, Lady Turner, has just made reference to this—there will, in contrast with our European neighbours, no longer be any legislation in this country governing the hours of work for young people. Such young people have already been removed from the scope of the wages councils and now they are even denied the right to income support if they are at work.

It would be understandable if the Government had sought to bring existing legislation up to date and thereby establish a new framework in place of the old. But to do away with all the measures which now protect young people would, in my view, be to incur the unacceptable risk of them being involved in yet more accidents and being otherwise exploited. For all those reasons, I too oppose the Question, That the clause shall stand part of the Bill.

9.15 p.m.

Lord Boyd-Carpenter

This clause is a very important part of the Bill and represents what seems to me to be a most courageous decision on the part of the Government to sweep away the mass of obsolete or obsolescent legislation which up to now has inhibited and made more difficult the employment of the younger generation. However, it is a mistake—one which I think the noble Lord, Lord Rochester, made—to believe that if you do away with the legal restrictions upon the hours which young people may work you are automatically deciding that they will work excessive hours. Apart from anything else, that view ignores the fact that the numbers in the younger generation—as noble Lords will know from the demographic changes which are now taking place—will be limited. Moreover, if employers are to obtain their services they must be able to offer such young people, generally, terms and conditions of work which are attractive. That, of course, includes reasonable hours of work.

It is a mistake to believe that, if you do away with the legal restrictions, you automatically open up the certainty, or even the likelihood, that excessive hours will be worked. The young people themselves will be those who will decide the matter. Some of them will wish to work very hard because they and their families want the money. However, they will not be disposed to work hours which bring them, so to speak, to a standstill. Moreover, from the point of view of accidents, I very much agree with the intervention made by my noble friend Lord Strathclyde at an earlier stage of the proceedings. We really cannot connect the accidents which regrettably occur to people of all ages with the number of hours worked. Indeed, it was curious that the example quoted by the noble Lord opposite was of an accident which took place while the current restrictions were in force. Quite plainly, therefore, such restrictions had not in fact prevented the accident. Thus it really is a mistake to call the point in aid in support of this argument.

I ask Members of the Committee to bear in mind the encouraging factor that our younger generation is probably physically fitter and stronger than any in our previous history. Good feeding, good educational provision and good care have produced a remarkably physically strong generation. Even if you could argue that the less fit younger generation of some years ago required very careful legal cover, you can still take the view that today this has ceased to be necessary.

Obviously there will be changes with the coming into effect of this section of the legislation. I am sure that my noble friend the Minister will tell Members of the Committee—at least, I hope he will—that the Government will watch carefully how this considerable transition operates. I am sure that they will not hesitate to act if even a fraction of the claimed forecasts which have emerged from the Benches opposite are justified. Obviously when one makes major changes—this is a major change, there is no getting away from it—any responsible government of any colour will watch carefully the outcome.

I see no reason why we should preserve the present restrictions. The Motion before the Committee, that the clause be dropped from the Bill, would merely have the effect of retaining a whole out-of-date body of restrictions. I am sure that those Members of the Committee who are concerned with the matter do not want to see that. The right thing is to do away with the old restrictions and to ask the Government at the same time to watch, and watch carefully, the effect of the change when it comes into operation.

Lord Renton

I am sure that all of us everywhere in this place should rightly be vigilant, and therefore I do not complain that the noble Baroness moved that we should discuss Clause 10. We should be vigilant about anything which might weaken the protection given to young people at work. We know that some of the earlier legislation applied to children at work when the school age was low; but we are now presented with the proposition that it is those below school-leaving age to whom we should particularly address our minds. School-leaving age could one day be raised. There is no proposal for doing that at present, but in our democracy it might be a natural evolution in some years' time. The clause anticipates it.

It is young persons—I understand that a young person is anyone under the age of 19, strangely enough—with whom we are concerned. I endorse what my noble friend Lord Boyd-Carpenter said. I would just remind the Committee that, to the extent that the Secretary of State is given power to deal with some of these matters, he will in making orders have to lay them before Parliament in the form of regulations. Parliament will be able to annul them. The negative resolution procedure will come into effect if honourable Members in another place consider that the order should not be made. There are safeguards. We are proceeding cautiously. Bearing in mind the change of circumstances, with the evolution of our society which my noble friend Lord Boyd-Carpenter mentioned, there is a strong case for allowing the clause to stand part of the Bill.

Lord Strathclyde

The purpose of Clause 10 is to remove unnecessary and unjustifiable restrictions on young persons employed. Young persons are those who are over the minimum school-leaving age and under 18. We are talking broadly about 16 and 17 year-olds plus a few who are permitted to leave school who have not reached 16 as a result of a quirk in their birth date.

Clause 10 is important because we have a duty to young persons to ensure that as many employemnt opportunities as possible are available to them. We are also committed to removing unnecessary barriers to flexibility in business. However, I want to stress that Clause 10 will not reduce the level of protection for children in employment and will not remove health and safety protections for young people as a whole. We are keeping all restrictions that the Health and Safety Commision advises us are necessary on those grounds. The main effect of the clause will be to remove the restriction on young people's hours of work. But it will also lift other unnecessary restrictions on the kind of work they can do and some related administrative burdens on employers.

I should like to announce at this point that my department and the Health and Safety Executive will be producing a joint advisory leaflet for employers on working hours. This will outline the legal position in the light of the changes introduced by the Bill and will contain advice on matters of good practice that employers should consider if they want to change their employee's hours. The new leaflet will be broadly similar to the leaflet Women's Hours of Work which was issued to cover the repeal of restrictions of woman's hours by the Sex Discrimination Act 1986.

This Government do not claim that young people are adults. We recognise the fact that in some circumstances it is necessary to give them additional protection. That is why we are keeping restrictions on their working in pubs and with dangerous machinery, for example. But that does not mean that we should keep archaic restrictions on young people's employment that are no longer justifiable or necessary.

It has also been suggested that the present regime should be replaced by a simpler basic framework of restrictions on hours. Many of the responses to the consultative document said this too. But no one has yet suggested what that framework might be and no one has addressed the uncomfortable fact that any framework will instantly need a range of exceptions to suit the different needs of various industries. So we would be back where we started.

It has also been suggested that for some reason young people will have more accidents because they will become more tired. But employers' duties under Section 2 of the Health and Safety at Work Act mean that they cannot ask employees of any age to work excessive hours or unsuitable shift systems likely to lead to fatigue-induced accidents or ill health. Work schedules also need to allow for adequate rest periods.

There is no evidence whatsoever to suggest that the accident rate for young people in employment generally is getting worse. What data there are suggest that it is in fact getting better and that young employees are no more at risk of injury than other employees, if not less so. Perhaps I may give a couple of statistical figures as evidence. In the age span 16 to 19 there were 1.25 fatal injuries per 100,000 employees in 1986–87. In all ages it was 1.4. For all injuries, for the younger age group it was 512.3 and for all ages, 758.3. I hope that that shows that it is—I give way to the noble Lord, Lord Wedderburn.

Lord Wedderburn of Charlton

I am grateful to the Minister for allowing me to intervene before he finishes his sentence. I think those figures are the same as the ones produced in another place in answer to the figures for 1984–85, which show a greater incidence of accidents on the part of young people. I think I am right in saying that the figures for 1984–85 are the only ones concerning young workers which have been made public. The Government keep producing these other figures of later years, which I am sure are absolutely right, with which it is difficult to deal because one has not seen them in advance.

Will the Minister consider putting in the Library a running set of such figures in detail from the year 1984 onwards? I am aware of course that there have been changes in the manner of calculation of injuries during this time, but this could be put out of the way because the Government themselves are putting forward figures for the years which I think the Minister gave, 1986–87 or 1987–88. Perhaps he would put them all in the Library.

Lord Strathclyde

The noble Lord is right. These are the figures for 1986–87. The all-injury figures have been quoted in answer to Parliamentary Questions in the House of Commons but the other figures of fatalities have not. I shall certainly put them in the Library as soon as possible.

We have no reason to believe that removing the restrictions on young persons' hours will result in them being exploited. There has been a shortening of the basic working week in all sectors of employment this century, whether they are regulated by hours of work legislation or not. Hours of work in many sectors of employment, for example, office work, have remained completely unregulated and there is not a shred of evidence that this has led to young people being exploited. Ninety per cent. or more of young people usually work less than 44 hours per week in both the regulated and unregulated sectors. That is well within the current legal maximum of 48 hours for most 16 and 17 year-olds.

It is impossible to guarantee that no young person will never be exploited by an unscrupulous employer. However, I believe strongly that the Committee may be guilty of underestimating young persons a little. Today's youth is surely one of the most dynamic sectors of this country's population and one of the most dynamic sectors that we have seen for many years. I believe today's youth is genuinely capable of working out for itself whether or not it is being offered a raw deal.

The noble Lords, Lord Boyd-Carpenter and Lord Renton, both made the point that we must keep an eye on the changes. Of course we shall keep an eye on the changes. These are fundamental changes. However, as the number of school-leavers falls they will increasingly be able to pick and choose between jobs. Employers will have to offer attractive conditions to recruit and retain young people. I hope therefore that the Committee will support the broad aims of this clause, which are to remove unnecessary barriers to young people's employment and to promote flexibility in business while keeping the necessary protections. These are worthy aims and I commend the clause to the Committee.

9.30 p.m.

Baroness Turner of Camden

I have listened with some attention to the noble Lord, but I am afraid I remain unconvinced. I agreed with the noble Lord, Lord Rochester, when he said that 16, 17 and 18 year-olds should ideally devote their time to training and certainly not to a situation in which they may be exploited by having to work much longer hours than they might otherwise have to do were restrictions in force.

I believe I had every justification for citing the accident rates which unfortunately have occurred on youth training schemes. I know I have been criticised for doing so. However, the point of those remarks was to indicate that if those accidents occur now, the situation could be a great deal worse if young people were subjected to conditions where they were tired as a result of working much longer hours.

It has been said that there is obsolete legislation. Our answer to that is that if there is obsolete legislation, a framework should have been introduced along the lines recommended by the British Institute of Management, the CBI, the TUC and many others. I do not take the view that it would be difficult to arrive at such a framework after appropriate consultation with all those concerned with industry and commerce. Incidentally, the Minister made a reference to office workers as though their hours were short. The hours may be short, but if office workers commute to London they are not likely to arrive home very early. Therefore, their working day may be extremely long. However, that is by the way.

We on this side of the Chamber believe this is a very important part of the Bill—perhaps the most important part. We see it as a far-reaching change. We do not believe there is any basis for what the Government have done. If it really is held that the hours will not be extended if this part of the Bill goes through, I fail to see why it is necessary to bother about repealing the law at all.

I should have thought there was an obligation upon us as a community to protect vulnerable young people from employers who might exploit them. As I said earlier, good employers will not exploit young people and we do not need this kind of protective legislation for good employers. We have never needed protection from good employers, but young people need protection from bad employers and bad employers exist. For those reasons I intend to press this Motion.

9.35 p.m.

On Question, Whether Clause 10 shall stand part of the Bill?

Their Lordships divided: Contents, 43; Not-Contents, 12.

Ampthill, L. Hooper, B.
Arran, E. Johnston of Rockport, L.
Balfour, E. Long, V.
Belstead, L. Lucas of Chilworth, L.
Blatch, B. Lyell, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brougham and Vaux, L. Morris, L.
Butterworth, L. Norfolk, D.
Caithness, E. Reay, L.
Carnock, L. Renton, L.
Clanwilliam, E. Skelmersdale, L.
Davidson, V. [Teller.] Southborough, L.
Denham, L. [Teller.] Strange, B.
Elliot of Harwood, B. Strathclyde, L.
Elliott of Morpeth, L. Strathmore and Kinghorne, E.
Ferrers, E.
Gainford, L. Thomas of Gwydir, L.
Glenarthur, L. Trumpington, B.
Grimston of Westbury, L. Ullswater, V.
Henley, L. Wise, L.
Hesketh, L. Wynford, L.
Hives, L. Young, B.
Carmichael of Kelvingrove, L. Rochester, L. [Teller.]
Stoddart of Swindon, L.
Dormand of Easington, L. Taylor of Blackburn, L.
Houghton of Sowerby, L. Turner of Camden, B.
McCarthy, L. Underhill, L.
Ponsonby of Shulbrede, L. [Teller.] Wedderburn of Charlton, L.
Whaddon, L.

Resolved in the affirmative, and Clause 10 agreed to accordingly.

9.41 p.m.

Schedule 3 agreed to.

Lord Strathclyde moved Amendment No. 17: Before Clause 11, insert the following new clause—

("Exemption of Sikhs from requirement to wear safety helmets on construction sites

—(1) Any requirement to wear a safety helmet which (apart from this section) would, by virtue of any statutory provision or rule of law, be imposed on a Sikh who is on a construction site shall not apply to him at any time when he is wearing a turban.

(2) Accordingly, where—

  1. (a) a Sikh who is on a construction site is for the time being wearing a turban, and
  2. (b) (apart from this section) any associated requirement would, by virtue of any statutory provision or rule of law, he imposed—
    1. (i) on the Sikh, or
    2. (ii) on any other person,
    in connection with the wearing by the Sikh of a safety helmet,
that requirement shall not apply to the Sikh or (as the case may be) to that other person.

(3) In subsection (2) "associated requirement" means any requirement (other than one falling within subsection (1)) which is related to or connected with the wearing, provision or maintenance of safety helmets.

(4) It is hereby declared that, where a person does not comply with any requirement, being a requirement which for the time being does not apply to him by virtue of subsection (1) or (2)—

  1. (a) he shall not be liable in tort to any person in respect of any injury, loss or damage caused by his failure to comply with that requirement; and
  2. (b) in Scotland no action for reparation shall be brought against him by any person in respect of any such injury, loss or damage.

(5) If a Sikh who is on a construction site—

  1. (a) does not comply with any requirement to wear a safety helmet, being a requirement which for the time being does not apply to him by virtue of subsection (1), and
  2. (b) in consequence of any act or omission of some other person sustains any injury, loss or damage which is to any extent attributable to the fact that he is not wearing a safety helmet in compliance with the requirement,
that other person shall, if liable to the Sikh in tort (or, in Scotland, in an action for reparation), be so liable only to the extent that injury, loss or damage would have been sustained by the Sikh even if he had been wearing a safety helmet in compliance with the requirement.

(6) Where—

  1. (a) the act or omission referred to in subsection (5) causes the death of the Sikh, and
  2. (b) the Sikh would have sustained some injury (other than loss of life) in consequence of the act or omission even if he had been wearing a safety helmet in compliance with the requirement in question,
the amount of any damages which by virtue of that subsection, are recoverable in tort (or, in Scotland, in an action for reparation) in respect of that injury shall not exceed the amount of any damages which would (apart from that subjection) be so recoverable in respect of the Sikh's death.

(7) In this section— building operations" and "works of engineering construction" have the same meaning as in the Factories Act 1961; construction site" means any place where any building operations or works of engineering construction are being undertaken; injury" includes loss of life, any impairment of a person's physical or mental condition and any disease; safety helmet" means any form of protective headgear; and statutory provision" means a provision of an Act or of subordinate legislation.

(8) In this section—

  1. (a) any reference to a Sikh is a reference tc a follower of the Sikh religion; and
  2. (b) any reference to a Sikh being on a construction site is a reference to his being there whether while at work or otherwise.

(9) This section shall have effect in relation to any relevant construction site within the territorial sea adjacent to Great Britain as it has effect in relation to any construction site within Great Britain.

(10) In subsection (9) "relevant construction site" means any construction site where there are being undertaken any building operations or works of engineering construction which are activities falling within Article 7(a) of the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 1989.").

The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 18 and 66.

At Second Reading of the Bill my noble friend Lord Trefgarne announced the Government's decision to bring forward these amendments. Their purpose is to exempt turban-wearing Sikhs from any requirement to wear a safety helmet on a construction site. The exemption is necessary because we intend to make new regulations which will generally make it compulsory for construction workers to wear safety helmets.

I am sure that Members on all sides of the Committee will appreciate that the decision to exempt Sikhs from the new regulations was not an easy one to take. We are firmly committed to improving safety standards in construction and we are convinced that the regulations will be a significant step forwards. However, the many representations that we received from the Sikh community convinced us that the regulations would cause real hardship for orthodox Sikhs who for religious reasons will not wear anything on their heads except a turban in public.

It was decided on balance that in this case the wider issues of religious freedom and relations with the Sikh community must take precedence and I hope that the Committee will be sympathetic to these aims.

Understandably, employers take the view that, as they will not be able to require Sikhs to wear helmets, they should not be liable for the consequences of the Sikh's failure to do so. The clause therefore provides that employers and others will not be liable to the Sikh for an injury that he has sustained which would have been prevented had he been wearing a helmet.

I hope that these amendments will be acceptable to the Committee. I beg to move.

Lord Stoddart of Swindon

The amendment certainly is not acceptable to me. It may very well be acceptable to my Front Bench; but in my view, in proposing such an amendment and such legislation we simply get ourselves into an awful mess. What is it that is proposed? First, Et is proposed to exempt people who are of the Sikh religion from wearing something for their own safety and indeed the safety of their whole operation. That is discrimination. One cannot get away from it. It is discrimination in favour of one particular religion.

If it is in favour of one particular religion and one section of the community, it discriminates against another section of the community. Let us make no mistake about it. That is operation of the amendment and that will be its consequence. It is emphasised as being discriminatory since Amendment No. 18 then seeks to protect this section from the consequences of that discrimination. It is becoming quite absurd that we should propose legislation of this kind. It causes difficulties of race. It causes difficulties between peoples. That cannot be right.

I have worked in industry. I worked in a power station. Apparently a power station is not a construction site; it is an operational site. However, in a power station one has equipment called boiler drums which are at the top of the boiler between 60 and 90 feet above ground level. They have to be maintained on an operational basis. Workers use spanners, and spanners can be dropped from boiler drums in the same way as from office blocks under construction. Will a Sikh working on a building construction site, putting up a block of flats or an office block, be exempt from wearing a safety helmet but not be exempt if he works in a power station where a hammer or a spanner can be dropped from a boiler drum? May we please know the answer because it is important that Sikhs should know when and where they will be exempt?

When I worked in a power station, well in advance of legislation we had a safety committee. I was the secretary of the safety committee. The Committee would be surprised to know how difficult it is to get people to wear protective clothing for their own safety. I can assure noble Lords that huge numbers of non-Sikhs do not like wearing protective headwear. They say, "If I wear this protective headwear I cannot work because my head gets very hot. I become fuzzy. On a construction site that is dangerous not only to me but to others, because if I become fuzzy I am not working as well and I am not as alert as possible". Alternatively they say, "Wearing a helmet makes me feel claustrophobic". They say that they have a medical condition; if they wear anything on their head they become claustrophobic and that also affects their work.

If people say that they have a medical condition they will not be excused from wearing a protective helmet but because they are of a particular religious organisation they can be exempt. I assure the Committee, having worked on the shop floor, that that causes very great resentment indeed. Those people who will not be exempt from wearing helmets will not look kindly on their fellows who are.

I urge the Government to think about this again. I know, because I was in the House of Commons at the time, that legislation went through the House exempting Sikhs from wearing helmets while riding motor cycles. I did not vote for that legislation. I shall not vote for this either. I believe that it will do the utmost harm to relations—not only to race relations—between people at work where it is most important in dangerous situations that those relations are good and of the best order.

Are we really thinking of exempting people working underground from wearing steel helmets?

An underground site may be a construction site: falls may occur any moment and any day. We are saying to people of a particular religion that it does not matter if a rock falls on their heads; they need not protect themselves.

I hope that the Government will think again about this measure in the interests of good practice in industry. I feel quite sure that industry already has arrangements whereby Sikhs can change in private and where they can wear steel helmets over their turbans. This provision will undermine the good practices which have been brought in voluntarily by good employers. It will undermine the position of those employers. I sincerely hope that the Government will think again. It looks as though the amendment will go through. The Government will therefore have to withdraw it if they are to think again.

Lord Boyd-Carpenter

My noble friend did not mention it, but I believe that we are taking Amendments Nos. 18 and 66 with Amendment No. 17. I disagree with the noble Lord, Lord Stoddart of Swindon, when he says that other people will resent this concession to the Sikhs' sense of religion. I do not believe that ordinary decent people in this country will fail to understand that this is a concession to a sincerely held religious view. Most of us—certainly I speak for myself—greatly respect people who take their religion sufficiently seriously to adopt this line. They must be aware of the increased risk of injury to themselves in the event of an accident. They have apparently weighed this up and have come to the conclusion that their duty to their religion, their faith in it, demands that they should not wear a helmet. The Government are right to accept that view.

It may seem to some people rather an odd view, but there is no doubt that it is a seriously held religious conviction. It has always been a view in this country, a view of which we are proud, that we respect the religious views of other faiths. Indeed, when one sees the loyalty of Sikhs to their religion one sometimes could wish that some of our fellow Christians held their views with comparable force and sincerity.

Lord Houghton of Sowerby

If this is not a hot potato, it should be. And that is one reason why I intervene. I support my noble friend's contribution on this subject. We are in danger of having religion brought into a great deal of our legislation. It will increasingly intrude in our debates on various legislation unless we are clear in our minds about our attitude in principle to those who come here or who are born here and have religious views which bring them into conflict with the law of the land.

This is not the only case in point. I do not wish to widen the debate by discussing the principle. However, we should question the concessions sought by those who come here or who are born here and who adopt religions which require them to depart from laws imposed on Christians, agnostics and atheists.

I agree with my noble friend on the issue. I was surprised that the noble Lord, Lord Boyd-Carpenter, did not pursue his point to what I thought would be his conclusion. One may take it that religious views should be respected and that those who sincerely hold such views, however strange and inconvenient in modern society, should in certain circumstances be made exempt from laws applicable to the rest of us. But when, as the clause proposes, we provide in law not only to exempt them but to exempt them from the consequences of that I believe that harm can be done to other people. One may say of anyone holding religious views that the fact that he wishes to risk his own life or sustain an injury shows his sincerity. However, when for the purpose of the law we treat him as though he were not exempt there is a form of discrimination in the application of the law, apart from any other discrimination in a particular matter.

I revert for a moment longer to the general issue. We must regard the question as important and we may need to distinguish what we mean by a multi-racial society and by an integrated society. Do people come here to comply with our mode of life and our law or do they come to pursue their own religious observances? There are some things we will not stand for. However contentious it was, we decided not to stand for that disgraceful mutiliation of women called female circumcission. We said that it shall not be carried out in Britain, whatever people's religious views. If one cares to study that matter one will find a whole volume on the ritual of the reproduction process which is absolutely shocking. The revalation of what is done to women under the strict laws of convention or religion is absolutely abominable.

We have yet to settle the serious problem of how we shall deal with the Moslems. I believe that we may have to adopt as a principle that religious observance which may harm other people or which are in conflict with the laws of cruelty to animals shall not be permitted. There is undoubtedly looming here the growing problem of ritual slaughter. Immunity was granted years and years ago to small groups of lascars who came to the Scottish ports and wanted to slay their sheep on board ship under disgusting conditions. They were granted immunity from the secular method of slaughter provided it was undertaken on registered premises and under proper supervision. Now look where we are on that particular matter. These are very important issues.

On this particular subject we are really saying that, if anything happens to another worker on a building site which may have involved a Sikh also working on that site, an injury sustained by another person will not be actionable except on the assumption that the Sikh was wearing a protective helmet. He will be assumed to have been wearing it for the purpose of the right to proceed for compensation or reparation.

That is not only a dispensation from doing something but, as my noble friend pointed out, excuses the individual concerned from all the consequences of claiming exemption under the law. I believe that that is wrong because it means that some people may fail to get compensation for injuries which occur to them as a consequence of Sikhs not wearing protective helmets.

For example, let us assume that a Sikh is not wearing a protective helmet, something hits him on the head, he falls off the scaffold, falls on somebody else, knocks him to the ground and breaks his neck. As I understand this amendment, that Sikh cannot be proceeded against for compensation because it will be assumed for the purpose of action that the Sikh was wearing a protective helmet. In order to get compensation one must prove that the accident would have occurred even if he had been wearing a helmet.

I believe that that is quite unjustified and is impossible to defend. I hope that the matter can be reconsidered. I believe that we must view these matters quite fearlessly, with proper spirit but with firm expression of our views. Otherwise we shall get very sloppy on these matters. We shall become cowards in the face of pressure and we shall get an entirely wrong idea of what is the position of religion in society.

I tell the Committee this. Very shortly, we shall be discussing charity law. If some people have their way, they will want to raise the whole question of cults. Cults which upset some people will be up for criticism and possibly for excommunication from the charity laws, while other religions which are not called cults, which are deeply respected and which are believed to have a firm hold of the intellect, the mind and the notions of people will be treated as a separate group. Therefore, that must be squared up one day and that day will probably come sooner rather than later.

With those few words, temperately expressed as usual but with just as firm conviction as anybody with religious views, I believe that we should register some dissent or, at any rate, we should always question this assumption. There are some things which should always be questioned because failure to do so leads to a sloppy approach to the situation. One is religious bigotry—concession:3 from the law on religious grounds—and another is to introduce a guillotine on Bills in Parliament. They should all be questioned on principle. That is what I am doing.

10 p.m.

Lord Renton

I agree with my noble friend Lord Boyd-Carpenter that it is right for us to respect the Sikh religion and this part of it on wearing turbans. We have been over this matter on previous occasions when we exempted Sikhs from wearing crash helmets. That situation has existed for some years and it has not aroused the emotions referred to by the noble Lords, Lord Stallard and Lord Houghton of Sowerby.

However, I feel obliged to make two points. First, there are other Indians in addition to Sikhs who sometimes wear turbans. If one goes to India one notices that very much. It was a practice in the Indian army for various regiments to wear turbans even though they were not regiments of Sikhs. I just wonder whether, in the application of t he law relating to crash helmets, that point has been made and has caused any difficulty. If the Government have any knowledge of that it would be worth knowing about it.

I go further. Just suppose someone finds that he has some trouble with his skull or his scalp and finds that wearing a factory helmet is uncomfortable for him but that he could solve his problem and get some protection, in spite of what the noble Lord, Lord Houghton, said, by wearing a turban. Any Member of the Committee might wish to wear a turban. I do not know whether Members would, but I should think that it is possible.

That brings me to a drafting point which arises on subection (2). Between now and Report my noble friend should ask those advising him to look at subsection (2) because, frankly, I find it ambiguous and a little mysterious. There is reference in subsection (2)(b)(ii) to on any other person". That is a requirement imposed by law. Presumably that refers to an employer who is obliged to provide safety helmets and see that his employees wear them. However, that could well be made clear because otherwise someone might come along and say, "Look here, I am not a Sikh but I should like to wear a turban. What about this phrase 'on any other person'? Does that entitle me to do so?".

With those thoughts, I broadly support this new clause but I suggest that my noble friend should make inquiries about the points which I have raised.

Lord McCarthy

I and those on this side of the Committee who have participated in this debate fully appreciate the complexity, the difficulties and the problems involved in the Government acting in the way they have done. Nobody suggests that their decision has been an easy one. I do not want to suggest, and I do not think anyone on this side of the Committee suggests, that in making their decision they have acted in any other way or with any other motive than to wish to respond to a genuine and deep-felt demand.

On the other hand, I am afraid that with great reluctance we have to point to the fact, as the noble Lord, Lord Renton, said—I am glad that the Leader of the House is in the Chamber at the moment—that once again we are being asked to debate the matter at the last moment, with no preparation and no written government statement of the reasons and consequences, or even the meaning of some of the details of the amendments.

That squares with what we were saying earlier regarding the way in which the Government have loaded this Chamber with complicated issues at the very last minute at the fag end of the Session. So far as I remember, the noble Lord the Leader of the House actually mentioned that the Government were introducing these amendments and that they were being introduced at the last moment. Noble Lords opposite must not be surprised if those on this side of the Chamber raise perfectly legitimate concerns and objections.

It is very difficult to know how one answers them. I do not believe that the Minister attempted to do so. I say with genuine regret that the Minister spoke as though he were unaware of the objections. I am not saying that he was unaware of them but he spoke as though that was the situation. He gave a very short explanation. The noble Lord the Leader of the House thinks it is funny, but I do not and I wish he would stop laughing.

The Minister's reply was based on two factors. The first, he said, was a desire for religious freedom; the second was relations with the Sikh community. That reply does not answer any of the legitimate objections made on this side of the Committee. Personally, I believe that what the Government are attempting to do is right. My view is a utilitarian one. We should allow religious groups in this country who feel as deeply as the Sikhs on this matter freedom to do what they want unless we can demonstrate that they are significantly damaging people other than themselves by their actions.

To me the issue turns on whether other workers are being damaged, whether the employer is being put at risk and whether measurable damaging circumstances can be shown. If these factors cannot be shown then I am not concerned if the issue is said to be a special case or a form of discrimination. I agree with the noble Lord, Lord Boyd-Carpenter. I do not believe that there is going to be significant resistance on the part of the workforce. As has been said, it has not happened in other cases where Sikhs have been allowed to wear turbans.

Nevertheless, the Government have brought forward this matter at a very late stage and have given very few explanations. Even now, it would be possible for the Minister to withdraw the amendment and to bring it back subsequently with more explanation and a longer speech. A written explanation and answer can then be given to some of the significant points that have been raised.

Lord Strathclyde

My first reaction is one of surprise at the noble Lord, Lord McCarthy. He says that I have not gone into the case sufficiently. When I mentioned the wider issues of religious freedom and relations with the Sikh community, he said that that was not necessarily enough. Then the noble Lord agreed with me in principle and said that this amendment was all right. I think he agrees with what we are doing.

We have had a far-ranging debate on the issue. I understand the views of the noble Lords, Lord Stoddart of Swindon and Lord Houghton of Sowerby. I can see clearly why they feel so strongly on this issue as well as the great matters of principle that are at stake. It is not an entirely new issue, as the noble Lord, Lord Stoddart, said. He was in another place when legislation was introduced regarding motorbike helmets. I suspect that he felt very much the same way then as he does now.

The decision to provide an exemption for Sikhs in construction was difficult for the Government to take because we place prime importance on health and safety at work. In general we are opposed to granting exemptions that are not justifiable on health and safety grounds. However, the construction industry is a special case. It is estimated that up to 40,000 Sikhs are employed in it. There is no similar concentration of Sikhs in any other industry. Sikh construction workers would have been immediately affected by the proposed regulations: we therefore had to consider them as a very special case. There has been no consultation on an across-the-board exemption and there are no plans to extend the exemption further at present.

Some noble Lords said that Sikhs might be prepared to remove their turbans or wear specially designed helmets over their turbans. I am sure that some Sikhs would. Indeed, I understand that in some cases they already do. However, we have been given to understand by the Sikh community as a whole that these solutions are totally unacceptable to orthodox Sikhs and therefore to the Sikh community as a whole. Many Sikhs will not wear anything on their heads except a turban.

The noble Lord, Lord Stoddart, also referred to a power station. That is not a construction site. The exemption we are discussing here will apply only to a construction site.

10.15 p.m.

Lord Stoddart of Swindon

Does the noble Lord not accept that that is an absurd state of affairs and that before long he will have representations from Sikhs working in situations other than construction sites? That is why my colleagues and I believe that this needs further thought. Otherwise we shall find the Government coming forward again. They will have representations because a given number of orthodox Sikhs want exemption for sites other than construction sites. I urge him to think about it.

Lord Strathclyde

A great deal of thought has gone into seeing whether or not the exemption should take place. It has been decided in this specific and special case of Sikhs on construction sites, and construction sites only. I made the point that there are no plans to extend the exemption further at present. That situation remains.

Perhaps I may return briefly to third parties. If a third party was injured as a result of a Sikh being injured, the third party would still be able to claim against the person responsible for the act causing the Sikh's injury. Where, for example, the Sikh is injured by a falling brick which has been knocked off scaffolding by an employee, an injured third party would be able to claim against that employee or his employer if he is vicariously liable. It must be remembered that the person who causes the Sikh's injury will have been negligent in the first place, and in the case of the innocent third party it must be right that he should remain liable. To bring in the point raised by the noble Lord, Lord Houghton, it would not be right for the Sikh to remain liable for failing to wear a helmet. One cannot exempt a person from a duty but provide that he should remain liable for failing to comply with that duty. The exemption would be meaningless and the position would become nonsensical.

As I have said, this is a difficult question in principle and one that has been gone over in the past. I very much hope that, in the words of the noble Lord, Lord Houghton, we have questioned what we are doing here. I say to my noble friend Lord Renton that I shall take a close look at the drafting to ensure that we have not made any errors, particularly in regard to the points that he raised. I hope that in the light of the Opposition's general support of the principle of the amendment, and in the light of what I have said, we can put the amendment on to the statute book.

Lord Wedderburn of Charlton

Before the Minister sits down, perhaps he can assist us further in the matter. I support the approach of my noble friend Lord McCarthy—what he called the "utilitarian approach"—to the matter. The noble Lord said that the Government had done much work in the matter by way of consultation, and obviously they have. It may be thought, however, that one of the most important factors is the question whether what one wishes to do in principle may nevertheless bring injury to third persons; that is, other workers or whoever it may be. Can the Government, therefore, further assist us by printing or placing in the Library any of the studies or estimates which have been carried out as regards construction sites where the rate of industrial injury is far too high? Further can such material be made available before the Report stage?

Lord Strathclyde

I can reply briefly to that request. It is difficult to predict how many accidents the proposed regulations would prevent. However, a special analysis of head injuries undertaken by the Health and Safety Executive over a two-year period revealed the following: first, there were some 2,000 reported acidents causing absence from work of over three days; secondly, approximately 50 per cent. of such accidents were caused by persons being struck by an object or by materials; thirdly, about 20 per cent. of accidents were classified as serious and involving fractures, concussions and internal injuries; fourthly, in each year one death could have been prevented by the wearing of a suitable helmet.

On Question, amendment agreed to.

10.22 p.m.

Lord Strathclyde moved Amendment No. 18: Before Clause 11, insert the following new Clause —

("Protection of Sikhs from racial discrimination in connection with wearing of safety helmets

.—(1) Where—

  1. (a) any person applies to a Sikh any requirement or condition relating to the wearing by him of a safety helmet while he is on a construction site, and
  2. (b) at the time when he so applies the requirement or condition that person has no reasonable grounds for believing that the Sikh would not wear a turban at all times when on such a site,
then, for the purpose of determining whether the application of the requirement or condition to the Sikh constitutes an act of discrimination falling within section 1(1)(b) of the Race Relations Act 1976 (indirect racial discrimination), the requirement or condition shall be taken to be one which cannot be shown to be justifiable as mentioned in sub-paragraph (ii) of that provision.

(2) Any special treatment afforded to a Sikh in consequence of section (Exemption of Sikhs from requirement to wear safety helmets on construction sites) (1) or (2) above shall not be regarded for the purposes of the Race Relations Act 1976 as giving rise, in relation to any other person, to any discrimination falling within section I of that Act.

(3) Subsections (7) to (10) of section (Exemption of Sikhs from requirement to wear safety helmets on construction sites) above shall apply for the purposes of this section as they apply for the purposes of that section.").

On Question, amendment agreed to.

Lord Wedderburn of Charlton moved Amendment No. 19: Before Clause 11, insert the following new Clause —

("Duty of Health and Safety Commission

It shall be the duty of the Health and Safety Commission and its agents to inspect premises in which young persons are engaged at night (a) to ensure adequate supervision and welfare facilities are provided: (b) to ensure that where necessary, employers provide adequate and suitable transport to convey young persons to and from work and (c) to make such orders on the employer as will ensure that health, safety and welfare facilities are provided.").

The noble Lord said: By the vagaries of the Marshalled List this amendment appears as a kind of postscript to Clause 10. However, after consultation with my noble friends, it has been decided that it is only right to put the matter briefly to the Committee.

The amendment seeks to retain some residual powers for the Health and Safety Commission in respect of securing welfare facilities supervision and, especially, suitable transport in respect of young persons who work at night. We have discussed the question of young persons' night hours before and Members of the Committee will not expect me to cover the same ground. I shall therefore be most brief on the matter.

However, perhaps I may point out to the Minister that at 9.24 p.m. this evening he made, in our view, a most important announcement: he said—he will, no doubt, correct me if I am wrong—that a joint advisory leaflet on good practice is to be published jointly by the Health and Safety Executive and the Department of Employment as regards young persons' hours of work. He waited until after dinner to pull out this plum from his otherwise, to our mind, rather unsavoury brief. But it is a most interesting and important plum and we wish to take the opportunity to ask him some questions on the matter before Report so that we may be better advised.

First, will the guidance as regards what hours should be worked, especially night hours, take the form of anything in the nature of a code of practice? The Minister mentioned an equivalent document of the Equal Opportunities Commission but we are not sure what that is. If it is not to be a code of practice, then why is it not to be so if the matter is important enough to warrant the issue of guidance notes?

Further, will it be a document which a court may take into account in legal proceedings when determining whether an employer has observed his obligations? That consideration applies not only to Section 2 of the Health and Safety at Work Act, which the Government always cite in this connection, but also to the many other obligations which, thank heavens, will still remain on the statute book or in regulations regarding the health, safety and welfare of workers generally. It seems only right that we should put that question to the Minister. We do not necessarily require an immediate answer; we wish only to be guided on the matter before the Report stage because it is a subject to which we wish to return.

The announcement is relevant to what the new clause provides: that there should be a code of guidance to employers to ensure that where they have young workers working at night they should provide suitable welfare facilities and, above all, suitable transport. That is something which the exemption orders at the moment always ensure, where it is required. Section 97 of the Factories Act takes it as an obvious matter that an employer must provide for young workers in that situation. It is of course taken for granted in all the international conventions and the European social charter, although of course they go further and would not have workers of that age working at night.

In that connection perhaps I may ask the Minister a question although he may not have the answer now. It is something which has floated across the debate throughout the afternoon and evening. It is time that it was put forward squarely. The school leaving age is not 16. It is, as the Minister made clear, for at any rate a number of young people, 15 years and eight months or something below 16. The Government's position, as I understand it, both in their consultative document and their Bill, is that they are dealing with the repeal of legislation for 16 to 18 year-olds; but, in fact, though I do not specify them because the Minister will know them well, provisions are being repealed which apply also to those under 16 in the Factories Act, the Mines and Quarries Act and so on. The Government's reply to that is "Ah, but that will be taken account of in legislation which prevents those young people doing those things where they are below school leaving age". That leaves a gap. There will be young people of 15 years and eight or nine months who will not be protected by the legislation and will not be caught by the residual legislation which the Government say will still be in place. There is of course an ILO convention of 1958 which is strong in its condemnation of persons under 16 years of age working at night.

There are serious issues in addition to those which have already been debated. Answers on the matter in another place were, need I say it, even less convincing than those of the Minister tonight. He repeated one which bears condemnation again; that is, the idea, as it was put in another place, that none of this matters because before night work is embarked upon, the matter will be resolved locally and the need for the employer to provide transport will vary and young people's choices will be wider than they were before.

Young people of 16, 17, and now it may even be in some cases 15 years and eight months, ending a shift at 2 a.m. must have proper transport home. If there is no other point in the amendment which is left on the record, let that be on the record. It is a scandal that the Government should allow the possibility that people of that age in urban areas should be left to find their own way home. The Government may assume that their families all have transport. I believe that they do not make that assumption, but that leads to the question: what on earth do they think they are doing? If there is to be guidance by the Health and Safety Commission, why not give the commission this tiny residual power contained in Amendment No. 19, which I beg to move?

10.30 p.m.

Lord Strathclyde

I am glad that the noble Lord, Lord Wedderburn, welcomes what I said at 9.24 this evening—if that is the right time—about the new leaflet. Perhaps I may repeat what I said. That joint advisory leaflet will outline the legal position in the light of the changes introduced by the Bill. It will contain advice on matters of good practice that employers should consider if they want to change their employees' hours. The new leaflet will be broadly similar to the leaflet Women's Hours of Work which was issued to cover the repeal of restrictions in women's hours by the Sex Discrimination Act 1986. Perhaps the noble Lord will wish to say more about that at a later stage in the Bill.

Furthermore, his point about the school-leaving age is something which I shall look at further, but he is right that when we talk about young people we mean between school-leaving age—which can be as young as 15 years eight months—and 18.

As for this new clause, the Government are opposed to it for two main reasons. The first is that we consider it unnecessary because of the existing provisions in legislation. Section 2(1) of the Health and Safety at Work Act 1974 places a general duty on employers to ensure so far as is reasonably practicable the health, safety and welfare of all their employees, irrespective of age. This covers in particular the provision of instruction, training and supervision (under Section 2(2)(c)) and the provision of adequate welfare arrangements at work (under Section 2(2)(e)).

Section 18 of the 1974 Act already places a duty on the Health and Safety Executive and other enforcing authorities to make adequate arrangements for the enforcement of relevant statutory provisions under the Act. Inspectors already have powers to enter any premises in order to do so and to serve notices requiring any contraventions to be remedied

The second reason for our objection to this clause is that it would require disproportionate resources with no evidence that those resources are necessary. We do not accept that night work is a bad thing in itself or a health and safety risk. Yet this clause would require the Health and Safety Commission and its agents to inspect every single premises where young persons are employed at night, irrespective of that. It is for the commission and its executive to decide where best to devote their resources in order to fulfil their duties under the Health and Safety at Work Act in the most efficient and effective way.

The conclusion of the Harrington Report in 1978 was that there is no evidence to suggest that working unsocial hours affects the health of any age group, other than, if irregular hours are involved, to exacerbate certain digestive disorders in some cases. It can of course disrupt sleep patterns and circadian rhythms but this does not justify banning it altogether.

I accept that night work is not something everyone wants to do, but there is no reason why young people, like adults, should not be allowed to choose for themselves. Young people may be more intolerant of night work for social reasons and they may well prefer to use their evenings to further their education or pursue other activities. However, this is a matter of choice and I think that young people themselves are perfectly capable of deciding what their priorities should be. The facilities and the availability of transport are certainly matters that young people and employers will want to consider, but there is no need in our view for additional statutory provision beyond the requirements in the Health and Safety at Work Act. There is nothing to stop an employer laying on transport. We just do not consider that a matter for regulations. I therefore urge the noble Lord to withdraw his new clause.

Baroness Seear

Surely the Minister will agree on the question of transport so that both sexes are able to work night shifts from the age of 16 if this goes through. Is he really saying that he thinks that it is satisfactory that girls of 16 should leave the factory at 2 a.m. to make their way home as best they can?

A noble Lord

Boys too.

Baroness Seear

The noble Lord says "Boys too". Let us not be discriminatory. But the Minister knows perfectly well the state of the streets. I do not know whether he has a daughter. He may not even have a wife, for all I know. But if he has a daughter, would he really like her to be coming home night after night at 2 a.m. if there is inadequate transport? The tubes may have stopped running. How is she to get home? Can we not at least specify transport in the welfare provision? That is a minimum surely, if nothing else. It is a very serious consideration if young girls are to try to find their way home at 2 a.m.

Lord Strathclyde

I understand fully what the noble Baroness is saying. She is correct; I have neither a daughter nor a wife. However, I am sure that if I did I should not like the idea of their returning home from work in the middle of the night, perhaps at two o'clock in the morning. However, that is not really the point. We are talking here about the clear decision of people to choose for themselves whether or not they wish to work at night and the conditions under which they accept that work. There are plenty of examples—I am sure the noble Baroness knows of them—of employers offering night time employment in, for example, pubs, clubs or restaurants and offering transport home. That is a decision between the employer and the employee.

Baroness Seear

I really cannot let this go. Does the Minister understand that, yes, there is choice of employment in many parts of the South-East where people do not have to take a particular job but that in many areas of the country there is no choice? In small towns with smaller employers there is not much choice of employment. The Government are punch drunk in their enthusiasm for smaller employers; however, such employers are often the people who make the worst arrangements for their employees. The Minister must be in cloud cuckoo land if he thinks that a great employment market operates between a girl of 16 and an employer who controls one of the few opportunities of employment in the area where she lives. That situation does not constitute a market. All we are asking is that a minimum transport protection should be provided for women and particularly girls if they are going to be employed on the night shift. There are areas in the country where the choice of job is extremely limited. I know the Minister knows this, but he does not seem to take my point. In those areas, if women do not accept the night shift work they will not get any work at all. It is not asking a lot to ensure that transport arrangements are provided as a right for women working on night shifts. I ask the Minister to think again about this matter.

Lord Strathclyde

As I said earlier, I understand quite clearly what the noble Baroness is trying to say. However, I am not sure that she has convinced me or provided sufficient evidence for me to withdraw my objections. I am sure that we can return to the matter on Report.

Lord Wedderburn of Charlton

We are very grateful to the Minister for his last sentence but not for much else. I am sorry. We are grateful to the Minister for his explanation of the leaflet. We should like to consider that further. We are grateful too for the Minister's agreement to consider the problem of those who leave school at 15 years and eight months. I feel we should all consider that matter before Report. I do not wish to be categorical as the regulations are very complex and the Minister's advisers would score much better than myself in any exam on the subject. But there is a possibility of a gap between the ages of 15 and 16.

As regards the other comments, if British Ministers want to understand why their counterparts at meetings in Europe—I do not mean socialist ministers from France or other countries, but Christian Democrats and Conservatives—regard them as almost neanderthals in this area of social policy, transport home for young workers late at night could be the best issue to educate them in that regard. The words of the noble Baroness, Lady Seear, must make the Minister reflect on whether or not a provision could appear in the Bill, not just in some leaflet, to tell employers that they must provide for the dangers that exist for these young workers.

The Health and Safety at Work Act is quite irrelevant. Section 2 provides for prosecutions. We are not talking primarily about sanctions at all; we are talking about prevention. That is what we want out of this. Surely inspectors can serve notices on employers. Yet, however many inspectors we have after this Act, the use of their powers will not be the answer. Some kind of condition placed upon night work, at any rate in a narrowly circumscribed area, is the only answer. Every other European country thinks so and most people who observe the ILO standards think so. The Minister said that the Government would reflect on the matter a little tiny bit; perhaps they could reflect a lot before Report.

Lord Dormand of Easington

Before my noble friend sits down, perhaps he would like to comment on the fact—and perhaps the Minister will listen—that in this very place, the Palace of Westminster, we provide transport home for everyone, including some of the younger staff, after 11 o'clock. It may be midnight, but I believe that it is 11 o'clock. Surely what is good for the goose is good for the gander.

Lord Wedderburn of Charlton

My noble friend makes a good point which enables the Minister and I to join in paying tribute to the staff for all their help to us. But it is a fact that that is done. Both the Minister and I know that it is right and it would be right for other workers too.

Lord Strathclyde

I should like to be associated with the tributes to the staff who look after us so late at night. Surely that is the point that I was trying to make. This is a voluntary agreement with the staff.

Baroness Seear

Does the noble Lord think that all employers in the Midlands and the North-East are like the employers in the House of Lords? If he does, he should think again.

Lord Strathclyde

I want to come back to the case that the noble Lord, Lord Dormand, made about this place. This is a perfect instance of where voluntary arrangements are working extremely well.

Lord Wedderburn of Charlton

As I rise to withdraw the amendment, I must point out to the Minister that not all employers are as good as they are in this place, or at least as I hope we are. Some employers will unscrupulously use the new freedom under the Bill to exploit workers. Those are not my words, but those of the CBI. If the CBI can recognise that, why cannot the Government? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 20: Before Clause 11, insert the following new clause—

("Protection of employees by contract compliance

. Nothing in the Local Government Act 1988 or in any other statutory provision shall make it unlawful for a public authority or other body or person to require, as a condition:

  1. (a) of the conclusion of a contract with a person, or
  2. (b) of the inclusion of a person in a list of persons from whom tenders for contracts are or may be invited, an undertaking from that person that he will comply with, and where stipulated will provide evidence of compliance with, any or all of his legal obligations as an employer in respect of:
    1. (i) the health, welfare, safety or training of persons who are or will be in his employment, or
    2. (ii) the equal treatment of men and women and avoidance of sex discrimination in respect of such persons.").

The noble Lord said: The amendment inserts in the Bill a new clause which relates to the Local Government Act 1988. Perhaps I may try to explain in one sentence the nature of this and certain other amendments that my noble friends and I have put forward.

We call the amendments the fairness amendments. There are certain areas of the Government's employment legislation over the last eight to 10 years which are now widely recognised as having gone over the top. We have therefore put forward certain amendments, not in order to try—I want to stress this point to the Minister because it limits the area of debate—to make the statute book what we would have it be, nor in order to reverse the Government's main principle on any of the matters on which the amendments touch. There is no need for a wide debate. The fairness amendments are simply particular points in a Bill relating, as the Long Title says, to employment law which we believe it is proper to put forward for improvement.

Perhaps I may explain the amendment briefly in the hope that the Minister will look at it. Section 17 of the Local Government Act prevents local authorities and several other types of public body from taking account of non-commercial matters in making contracts with contractors, for example, for refuse collection or other services with private firms. The amendment does not seek to challenge that enactment, but one of the non-commercial matters included in the 1988 Act is the, terms and conditions of employment by contractors of their workers or the composition of, the arrangements for the promotion, transfer or training of, or the other opportunities afforded to, their workforce". The important words are "terms and conditions employment".

The amendment does not seek to unseat that general principle, but the question has recently arisen as to whether that prevents the public body concerned from saying to the proposed contractor, "You must comply with the law on sex discrimination and with the basic law relating to the health and safety of the employees or others for whom you might be responsible". It may be that our amendment is too narrow in that respect. Public bodies have continued to require those terms through what is normally called contract compliance. They have gone much wider, but the amendment does not go wider than that.

The point is that in March this year the High Court in the case of Regina v. Islington London Borough Council, ex parte Building Employers' Confederation, had to decide upon a large number of clauses proffered to contractors by the Islington Borough Council. Four are relevant here. There was one which asked them to abide by and comply with the Race Relations Act and the Sex Discrimination Act. The second required them to comply with the Factories Act 1961 and the Health and Safety at Work and various other safety legislation requirements. The third sought to ensure the permanent attendance of a safety officer at work. The fourth was to ensure that their workforce was competent.

As many commentators in the field had long feared—and I make no complaint about the judgment because technically the construction appears probably to be right—these conditions offended against the 1988 Act in two respects. First, although the Act permits the local authority to make certain, although limited, stipulations about race discrimination, it contains no such permission in respect of sex discrimination. Lord Justice Parker commented that the clause therefore did relate to non-commercial matters and accordingly, because it was about terms and conditions of employment and sex discrimination, and there being no saving provision as there is in the case of the Race Relations Act, it offended against the Local Government Act.

Our amendment would change that. It would allow public bodies, in the same way as any other person or company may lawfully do, to use their contractual relations to ensure equal treatment between men and women at work. It is a preventive measure which we think is right for others, which is still lawful and which should be right also for local authorities.

Secondly, the High Court went on to uphold the requirement that the contractor must have a competent workforce and the condition that he must appoint a safety supervisor. But it felt bound to strike down the clause requiring the contractor to comply with the requirements of the safety legislation. Lord Justice Parker said that: it is a list of instruments and documents which relate to, or may relate to, the terms and conditions of workers [involved]".

So it is lawful for the council to demand a safety supervisor on the construction site, but it is not lawful for it to require of its contractor the observance, and evidence of observance, of the levels of safety in machinery and system of work that are no more than the general law and legislation on safety at work require.

That is an absurd state of the law and we think that it is also a wrong state. The amendment does no more than change the basic elements of that absurdity by means of the two short paragraphs (i) and (ii) at the end. One is on health, welfare and safety and the other one on equal treatment of men and women. It would permit public bodies the liberty, which is taken for granted by government ministries, companies and private persons, to decide whether or not to contract with someone who refuses to give any undertaking or asssurance that he will abide by the general law, here on sex discrimination and safety at work.

We believe that both such matters are so important to the effort to provide equality and bring down the rate of accidents that we feel certain that the Government must surely think seriously about accepting this amendment. I beg to move.

10.45 p.m.

Lord Strathclyde

The noble Lord, Lord Wedderburn, prefaced his remarks by saying that we were coming to the stage of the fairness amendments. He may well call them that. I think that they are the unnecessary amendments, because so much of what they contain is already well provided for in existing legislation.

The new clause proposed in Amendment No. 20 seeks to amend the Local Government Act 1988 and enable local authorities and others to be able to seek undertakings and evidence from contractors of their compliance with their legal obligations as employers in respect of health and safety and sex discrimination legislation. Local and other specified public authorities are prohibited from having reference to non-commercial matters in relation to public supply and works contracts under Section 17 of the Local Government Act 1988.

In relation to public authorities this matter has already been discussed by this House and another place during the passage of the Local Government Act. The Government's position during those discussions was that the introduction of non-commercial matters into the public authorities' contractual process is wrong. That is still our view today.

The Committee will not be surprised to hear that the Government are not able to accept this new clause. We believe that public authorities should not be in the business of setting themselves up as extra-statutory enforcement agencies on matters which are already the subject of existing statutes and which already have, where appropriate, their own enforcement processes. In the areas covered by the clause we already have a comprehensive legal framework and one that has been well tried. That is what the Health and Safety at Work Act and the Sex Discrimination and Equal Pay Acts are there for. That legislation contains substantial enforcement provisions in which the Health and Safety Commission and the Equal Opportunities Commission play a key part. It is those provisions that provide the mechanisms for ensuring that employers comply with their statutory obligations.

Furthermore the Government believe that non-commercial matters of the kind contained in the new clause do not have any place in the contractual process of a public authority over and above the requirements of the law. Only where the law places a statutory duty on an authority and it seeks information from contractors as a means of fulfilling that obligation is the position different.

To sum up, this clause would place unacceptable and unnecessary burdens on those employers who would have to provide the information. It would undermine the responsibility of a local authority to achieve value for money in its purchasing policy. Furthermore, in view of existing legislation and the duty upon all employers to abide by the law, it is unnecessary and would be of no practical value. I therefore ask the noble Lord to withdraw his amendment.

Baroness Seear

The Minister states categorically that the amendment is unnecessary. But he will have noted that either today or yesterday the Equal Opportunities Commission produced a report pointing out that women were still at a very considerable disadvantage in employment. The noble Lord says that there is machinery for enforcement. The Sex Discrimination Act has been in force since 1975, 14 long years. He knows as well as I do—and if he does not I shall be delighted to enlighten him—that the enforcement machinery is extremely weak. Those of us who have studied these matters in some countries, in particular in the United States, are convinced—I for one am profoundly convinced—that the most effective instrument for bringing about equal opportunities is not further legislation but contract compliance.

Contract compliance should be combined with an advisory service to help people give practical effect to their equal opportunity policies. Contract compliance has proved itself in the United States and it is a very effective instrument. The Minister may not like it. He is absolutely entitled to say that. But when he says that it is unnecessary and implies that everything has been done as though nothing more is required, he is totally out of touch with reality.

Lord Wedderburn of Charlton

I agree with the noble Baroness. I am very disappointed with the Minister's answer.

I make three points. First, if the Islington case goes to appeal and is reversed in the Court of Appeal we can expect legislation from the Government to reverse the position. They feel strongly on the matter. There were those who predicted a different result. They said, "You can demand that an employer abide by safety legislation, and that is not about terms and conditions". It was an argument which was lost in the High Court, but if it succeeds in the Court of Appeal the Government are poised for new legislation to put down this terrible evil of contract compliance enforcement.

If it is also lawful not only to demand a safety supervisor on the site but to demand one whose job it is to see that the law on safety is observed, no doubt we shall have further legislation from the Government. They will spend all their time blocking up the avenues for the enforcement of the law on sex discrimination and health and safety at work, while the Equal Opportunities Commission demonstrates to them that it is not working properly and the accident rate increases. What stance is that for a reputable government? It is absurd.

The argument is absurd. The Government always put great stress on this argument in this area. They say that these Acts have their own enforcement process. Therefore it should not be done by contract compliance. I understand that argument. I do not understand why it applies only to local authorities. Why can companies use contract compliance and say, "We will only contract with you if you observe your obligatons under this or that statute"? There is nothing unlawful about that. They had better put in a Bill to stop that. I can say to the Minister—although I am not sure I would—"I will make a contract with you to pay you£1 if you ensure that the staff's contractual right to a taxi home tonight is put into effect". The staff have their own enforcement process in their contracts of employment, but that contract would be quite lawful. On the argument he has put forward I should not be allowed to make such a contract. I think that is absurd.

People often make arrangements in a free society where part of the price they demand of the other party is the observance of the general law on one matter or another. There is another enforcement process. There may be a dozen enforcement processes, as there is—a whole congeries—in safety legislation. The fact that we have civil actions plus criminal actions plus improvement notices plus prohibition notices does not mean that one only of those enforcement processes should be allowed. It is absurd, and the treatment of such a narrow and carefully couched amendment in this manner by the Government leads one to realise that they cannot recognise a fairness amendment when they see it. They regard fairness amendments as unnecessary amendments. On that basis we certainly have it in mind to come back to the matter on Report or perhaps on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seear moved Amendment No. 21: Before Clause 11, insert the following new clause—

("Discrimination on grounds of age.

. It shall be unlawful for any person to offer employment at an establishment in the United Kingdom which may discriminate unreasonably against any person on the grounds that he or she is older or younger than any other person or persons in:

  1. (a) any advertisement or other arrangement made to notify prospective employees, or
  2. (b) the terms and conditions on which employment is offered, or
  3. (c) refusing to offer employment.").

The noble Baroness said: I expect the Minister will say that this introduces a subject which goes beyond the original intentions of the Bill. However, as the Government have themselves introduced a good deal of new material I see no reason why the Opposition should not do the same. I also argue that legislation to limit—because it does not by any means totally ban—discrimination on grounds of age is a most appropriate element to have in something which calls itself an employment Bill.

The noble Lord will be familiar with many of these arguments because the noble Baroness, Lady Phillips, introduced in the last Session a much more limited Private Member's Bill which I understand is still going through the House; but that, as I see it, is no bar to incorporating the same ideas in a more extended form into this employment legislation. We all know the much greater ease with which, if the Government are willing, statutory legislation can get through the House, compared with a Private Member's Bill.

The case for limiting discrimination on grounds of age is not just a question of fairness—I shall not argue it primarily on those grounds—but a gross waste of people and their talents in this country. Indeed, the Government Front Bench excluded, this Chamber is a very good example, I should have thought, of what can be done by utilising the talents of older people.

Lord Wedderburn of Charlton

Some of us!

Baroness Seear

Some of us; indeed. Seriously, we know that this is an ageing population. We know that the number of school leavers has fallen in a period of nine or 10 years by 25 per cent. and that we are grossly wasting the experience and knowledge of older people.

Much of this is simply traditional. It happens—varying in some ways; and I go back to my experiences of long ago when I was involved in this kind of work—that when people get applications, especially where there are a large number, they wonder how they ae going to sieve the applications. They sieve on grounds of age and do not see anybody over the age of X—40 or whatever it may be. That is ridiculous at any time and it is particularly ridiculous today. We are not asking that any privileges or advantages should be given to older people. We are saying simply that they should be given a chance on merit to apply for and get the jobs that are available. In this amendment it is not particularly a question of their own interests, but because of the gross economic waste of failing to use older people now and over the next decade.

At this time of night I shall be brief because the noble Baroness, Lady Phillips, made most of the points. I merely reinforce what was said and ask the Government to consider very carefully whether if they do not like this amendment, they will introduce something of their own to bring this question of age discrimination on to the statute book. I beg to move.

11 p.m.

Lord Stoddart of Swindon

I support the amendment. I have stayed to do so because I received a letter only last week from a former constituent. He applied for a job as a warden of a complex housing people of an older generation, although not an old people's home. All the experience necessary was available. The application was sent and the person concerned was refused only because he was 65 years of age. There was no other reason. It was not that he could not do the job or did not have the qualifications but only that he was of a certain age. That is no longer good enough.

I sincerely hope that members of the Government Front Bench both here and in another place listened carefully last Friday to the case of a certain lady. At the age of 53 she started a new job for which she had no previous experience. She lasted in the job for 10 years after being asked on two occasions by her employers to continue. I shall not say whether she did a good or bad job: the fact of the matter is that she is still there. I am sure that she will be most annoyed with the Minister if he does not accept the amendment tonight.

Lord McCarthy

We are pleased to support the amendment. We supported the Bill proposed by my noble friend Lady Phillips on Second Reading and we shall support it on Third Reading. My reasons complement those already advanced by the noble Baroness, Lady Seear. I believe that it is a matter of equity and fairness. Discrimination on grounds of age is as unjustified in principle as discrimination on grounds of sex, race, religion or political conviction. It is just as bad and just as unjustified. In any legislation there is just as much a case for including age.

Studies which have been carried out largely in the United States demonstrate that at entry there is considerable discrimination on grounds of age. One of the aims of the amendment is to deal with advertisements and the offering of employment. Some have already been mentioned. Although there is a great deal of practical difficulty in promoting and enforcing non-discrimination on grounds of age, the American experience suggests it is not impossible. In particular, it is not impossible to make an impact at the level of entry for work; that is at the advertisement stage. On the grounds of non-discrimination, equality and fairness, quite apart from the economic argument mentioned by the noble Baroness, there is a real case for the amendment.

My only reservation about promoting non-discrimination on the grounds of age—and it can be dealt with—is that, from the point of view of the employer, there is a legitimate consideration in making compatible with non-discrimination sensible manpower planning. There are certain structures in the labour force at certain points of time and certain distributions of the age composition of the labour force so that it should be perfectly possible for a management to negotiate, for example, voluntary arrangements for redundancies, early severance and so on which encourage and induce people of senior positions in the firm or people nearing retirement to take early retirement without that operating as a form of discrimination.

It is perfectly possible—and it is done in the United Statest—to combine sensible manpower planning with provisions to prevent discrimination on grounds of age. For all the reasons put forward by other Members of the Committee, I hope that the Government will give a friendly reception to this amendment.

Lord Strathclyde

I was glad that the noble Baroness, Lady Seear, did not introduce this amendment as a fairness amendment. I was not quite sure why I felt that but I did. When the noble Lord, Lord McCarthy, tried to compare old age with sex and race, I realised that fairness had nothing to do with this at all. Perhaps I could point out to the noble Lord that sex is fixed at birth, as is race. Old age is something which, God willing, we all come into and the comparison between old age, sex and race is not a direction which I shall follow.

Lord McCarthy

The point is that we cannot help any of those things. We cannot help our sex, our race or old age. Therefore, we all need the legislation. It is exactly square.

Lord Strathclyde

No, that is not the case because the important matter is that I cannot hope to be female, I cannot hope to be black but I most certainly can hope at some stage to reach old age. I have much sympathy with the intention of the noble Baroness, Lady Seear, in tabling this new clause which seeks to outlaw discrimination by potential employers on the grounds of a person's age. The Government firmly believe that employers should recognise the valuable resource represented by applicants of any age. It can clearly be wasteful for employers to refuse to consider applicants solely because they have or have not reached a certain age. This is a message we have frequently sought to get across to employers; for example, in my department's recent White Paper Employment for the 1990s.

There are barriers of both prejudice and lack of knowledge to overcome. We believe that the best way to overcome them is not by legislation but by encouraging and persuading employers to amend their personnel policies where necessary. When taking details of vacancies, jobcentres try to persuade employers not to impose often arbitrary and usually unnecessary and pointless age restrictions. Where an employer insists on an age restriction the employment service seeks to persuade him to treat it as a preference rather than an absolute requirement. The ES will also contact an employer if a recruit becomes available who is clearly suitable in all respects other than age. Guidance to jobcentre staff on challenging age restrictions on vacancies is being reinforced. Employers are showing increasing flexibility in this area; for example, Tesco's is already actively recruiting for older workers to fill vacancies and British Telecom is considering taking on and training older recruits to meet its need for skilled engineering staff.

A substantial investment is also being made to help older unemployed people get jobs. Longer term unemployed people up to the age of 60 are able to obtain guidance on ways back to work through the restart programme. The employment training programme is open to people up to the age of 60 and offers unemployed older workers with out-of -date skills the opportunity to retrain through training packages tailored to their individual needs. Through offering work experience it also allows them to show prospective employers what they are capable of. The jobclub programme can also offer particular help to unemployed older workers through training them in how best to present themselves to prospective employers and how to make effective speculative approaches to employers who have not advertised vacancies. For unemployed people who wish to become self-employed, the enterprise allowance scheme is available up to the age of 64.

However, what is clear—and ultimately far more effective than this new clause woud be—is that demographic trends will put very real pressure on employers to consider a much wider range of applicants than they might do at the moment. Discrimination against younger workers should be reduced as the numbers of young people aged between 16 and 19 in the population fall.

Employers will also need to give great consideration to older workers for their vacancies. As I have already explained, some employers already take a sensible lead in doing so. Employers who fail to improve their personnel practices will learn the hard way that it is in their own economic interests to ensure that they heed the messages that the Government are putting over on these issues.

The noble Lord, Lord Stoddart of Swindon, used the example of the Prime Minister last week in Blackpool. It would be only fair of me to point out that that is success without this sort of legislation. I believe that there are countless examples where older people, who sometimes have felt discriminated against, have been able to overcome the problems and achieve real success in the employment market.

Lord Stoddart of Swindon

Is the noble Lord aware that in industry the right honourable lady would never have stood a chance of obtaining an appointment at her age?

Baroness Seear

Perhaps I should not say it, but the right honourable lady was turned down by a great company; but that is by the way.

I wonder whether the Minister has ever seen an employer outside the rarefied upper echelons of the best organised companies. He should spend some time roaming around the Midlands or some of the backwaters of industry where he thinks all these benighted ideas are being taken up and used intelligently.

Persuasion never got the women's issue off the ground. It never got race relations off the ground. It will not get anti-discrimination on grounds of age off the ground. Of course the more enlightened employers will not discriminate. They never have; but they are only a small proportion of the whole. The Minister clings to his fantasy about the market working everywhere. There are countless examples of employers simply ignoring the advantages to them of employing older women. Look how long it took employers to see the advantages—and there are still many who do not—of employing women. Why should they see the advantages of employing older people when they have been convinced for ages that older people cannot do the work that needs to be done?

The Minister gave examples of areas where advances in this respect have been made. I could give innumerable examples of older people who have been turned down, as the noble Lord, Lord Stoddart, said, simply on grounds of age. I assure the Minister that change will not take place unless there is legislation.

I do not propose to press my amendment tonight but I very much hope that the Government will think again. If they are not prepared to come back with an amendment of their own—even a modified form of my amendment—we shall certainly return to the subject at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seear moved Amendment No. 22: Before Clause 11, insert the following new Clause—

("Discrimination on grounds of disability.

. It shall be unlawful for any person to offer employment at an establishment in the United Kingdom which may unreasonably discriminate against any person on the grounds that he or she is disabled in:

  1. (a) any advertisement or other arrangement made to notify prospective employees, or
  2. (b) the terms and conditions on which employment is offered, or
  3. (c) refusing to offer employment.").

The noble Baroness said: Again, this is a further extension of the concept of anti-discrimination, in this case in relation to people with physical disabilities. Although I accept what the noble Lord, Lord McCarthy, said about the previous amendment, of course there is an equity element here.

However, there is also an economic element. Many people are convinced that because an individual has a disability he or she is unsuitable for all work, tout court. The fact is that there are many people who have a serious disability, in itself, but that disability is in no way a hindrance to them doing a great many useful jobs. For example, I well remember in the days when I was in industry that there were blind people who were extremely well trained as typists and who were excellent at that job. They were not employed because one felt sorry for them being blind but because they were excellent typists.

That view is not widely accepted. There is a strong belief that a disabled person will be a burden on the payroll. That is simply not the case. All one is asking in this amendment is that disabled people should be considered on their merits. If their disability is such that it is a disadvantage in doing the job properly, we are not asking that they be employed; but we are asking that employers should consider carefully whether the disability is of such an order that it makes any difference to whether they can do the job.

There is another point. When disabled people get a job they are often very reliable because they know that if they lose the job it will be that much more difficult for them to get another. I remember seeing towards the end of the war a marvellous exhibition regarding disabled people who had been trained to do work that badly needed doing. They were doing the work absolutely up to the standards of the able-bodied. In such circumstances it is sheer folly and prejudice to stop them. This amendment is simply asking that such people should be considered on their merits without any prejudice arising from the fact that they seem to be disabled where that disability has no relevance to the work to be done. I beg to move.

11.15 p.m.

Baroness Turner of Camden

I rise briefly to support the amendment moved by the noble Baroness, Lady Seear. In the past this Chamber has always looked with sympathy on the problems of the disabled. It seems appropriate, when discussing an employment Bill, to take the opportunity to make some provision in order to give the disabled protection against discrimination.

As the noble Baroness said, there is quite definitely prejudice against employing people with obvious physical disabilities. Yet I know from my own experience in industry and commerce that if such people have the opportunity they often turn out to be very good employees. I do not know whether it still applies, but at one time there was a quota system for taking on staff a certain number of disabled people. Unfortunately, that scheme never worked well, mainly because it was not monitored by the local inspectorate as it should have been.

The provision suggested in the amendment is a much better way of handling the whole issue. If we can have in legislation a measure that there should not be discrimination against those who are disabled—if that were a legislative requirement and it were unlawful to discriminate—I believe that would ensure that people who very often have a great deal to offer but never get to the point of being able to do so would have the opportunity of playing the part they are able to play. I therefore have much pleasure in supporting the amendment on behalf of these Benches. I hope that there will be a sympathetic and favourable response from the Government.

Lord Strathclyde

I welcome the opportunity to discuss with the Committee the very important subject of employment opportunities for people with disabilities. I sympathise with the motives underlying the proposed new clause. However, I do not believe that this clause would prove helpful in securing the changes which we all wish to see.

I should like to begin by emphasising this Government's absolute commitment to ensuring that people with disabilities are allowed to develop their talents fully in the world of work. That commitment is backed up by a variety of practical measures. Wherever possible, people with disabilities are encouraged to participate in employment and training programmes and there are relaxed eligibility criteria to enable them to do so. For those who need specialist help there is a range of services providing help and advice specifically aimed at people with disabilities.

A few figures may serve to illustrate what is being done. In 1988–89 over 75,000 people with disabilities were placed into jobs; over 40,000 joined training schemes and over 19,000 were being supported in sheltered employment. All this involved expenditure by my department of more than £350 million.

At the same time, we recognise that government employment and training schemes for people with disabilities can be a success only if we obtain the support and involvement of employers. It may be that some employers discriminate against people with disabilities, though the scale of the problem is not clear. The question, however, is how best to ensure that all employers assist the sorts of positive policies that are already a feature of the best organisations.

On the one hand, we have calls for anti-discrimination measures like the one proposed here. I fear that such measures could be difficult to enforce and might well be counter-productive, making a constructive approach by employers less likely. However, there is an alternative way of ensuring that the required results are achieved. It lies in securing the voluntary commitment of employers through providing information, advice and where necessary practical and financial help. Three initiatives, all of them introduced by the present Government, seek to do this.

First, there is the Disablement Advisory Service. The officers of this service help employers to adopt positive policies and produces in the employment of people with disabilities. Secondly, there is the Code of Good Practice on the Employment of Disabled People. The code has the support of both employers' organisations and the trade unions. It is full of practical advice and guidance on recruitment, career development, retention of existing employees who become disabled and so on. It was the first of its kind in Europe when it was introduced in 1984. Thirdly, there is a range of special schemes which include providing special employment aids for people with disabilities and helping employers to modify their premises and equipment so as to enable them to recruit or continue to employ such people.

The changes in employers' attitudes which these initiatives are helping to bring about are being reinforced by current demographic changes. The Government are keen to ensure that people with disabilities are able to take full advantage of the opportunities resulting from these demographic changes. Noble Lords will have recognised from what I have said that much is already being done to ensure that this is so. We are, however, concerned to ensure the adequacy of our provision and are currently undertaking a review of all of our services for the employment and training of people with disabilities. This will also give us a clear view of the impact of this provision as a whole rather than as a range of separate programmes.

In the light of that, and in the light of the review due to come out very shortly, I hope that the noble Baroness will not press the amendment.

Baroness Seear

I fully accept that the noble Lord has the review under way although he does not yet have the data from it. He gave us a list of things which the Government have done, and I accept that they have made progress in this area. Has he any evidence about results? If they have brought in these new initiatives, they presumably have some way of monitoring to see what the effects are. Otherwise we are all in the dark. Presumably that monitoring has produced some results even though the full results from the survey are not yet in. Can he give us any of this information? So often these things are well intentioned but they do not achieve anything. The old quota system for the disabled, which I think was a mistake, achieved remarkably little, yet we attempted to deal with the problem on that basis for at least 30 years. What is the information on the subject?

Lord Strathclyde

The noble Baroness makes a good point. I do not have any figures as to whether the initiatives set up by the Government have made any difference. With the knowledge I have of the initiatives, I feel that they have been greatly welcomed by people with disabilities and are working very successfully. While I am dealing with that point, perhaps I may draw attention to something said by the noble Baroness, Lady Turner, about the quota scheme. It is one of the key issues at which the review will look when we get to that. I do not have at hand the figures wanted by the noble Baroness, but when I have some I shall make sure that she receives a copy.

Baroness Seear

I thank the noble Lord for that. It would be extremely valuable to have this information. All through the evening the Minister's argument has been that voluntary encouragement and leaflets from the ministry are doing the trick, but he never produces evidence to show whether any tricks have been taken, so to speak—you go on dealing the cards but you never seem to win. That is not satisfactory. It is because we do not see very much evidence that we are asking for legislation in this field.

At this time of night I shall certainly not press the amendment, but I think it likely that we shall bring it up at a later stage unless before that time the Government are able to show us that in fact all these voluntary encouragements that they talk about are bringing the chickens home to roost. I beg leave to withdraw the amenement.

Amendment, by leave, withdrawn.

Clause 11 [Provision of particulars of disciplinary procedures]:

The Deputy Chairman of Committees (Lord Grantchester)

I should point out to Members of the Committee that, if Amendment No. 23 is agreed to, I cannot call Amendment No. 24.

Lord McCarthy moved Amendment No. 23: Page 10, line 11, leave out subsection (3).

The noble Lord said: This is a simple amendment. Under the Employment Protection (Consolidation) Act 1978 a worker is entitled to a written statement of the main terms and conditions of his employment within 13 weeks of appointment. That includes a note of the disciplinary procedures which apply to him.

The main aim of the present clause is to exempt firms which consist of less than 20 workers from issuing this note on disciplinary procedures. Of course, that is not all. Subsection (2) of the clause also proposes that no statement of any kind is required if a worker is re-engaged within six months by the same employer. There are also other subsidiary parts to the clause. However, we are not dealing with them; we are concerned with the main aim of the clause as set out in subsection (3), which is that no disciplinary note is required where there are fewer than 20 employees. That is why this amendment, which deals with the substance and centre of the clause, is not the same as a Motion that the clause should not stand part. We shall reach that stage subsequently.

Two justifications for this measure have so far been put forward in another place. The first is our old friend balance, which is really another name for burdens on business. The Government said by way of Mr. Nicholls in Committee in another place on 23rd February that when one is dealing with such matters there is a paradox and that, if too many restrictions, fetters and safeguards are put upon employers, there will be no jobs. He went on to say that that would be unacceptable to everyone on the Committee. But, equally, if one went too far in the other direction and removed all protection, that would also be unacceptable.

Therefore we come back to the well-worn territory of balance. We must ensure that we get the correct balance. However, the trouble is that the balance keeps shifting and it keeps shifting against the employee in favour of the employer. Moreover, this clause shifts the balance still further. The answer to this problem is that there has never been any evidence—indeed, this Government have given up providing us with such evidence—that the particular aspects of individual rights which they wish to curtail and restrict have resulted in there being no jobs or any reduction in jobs.

There was a time in the early 1980s when the Department of Employment and the PSI carried out studies on the effect on employment of various forms of legislation. However, the results were appalling. They showed that employers, even dwarf employers, were mostly concerned about such matters as VAT, the level of taxation and so on. They were not remotely concerned about such findings. Therefore the Government gave up carrying out such studies. As I said, there is no evidence.

Further, if we take note of the views which are put forward by the CBI, the BIM and so on, it will be seen that they are all, on balance, against proceeding in this way. Therefore, on the general question of whether this will be a burden on business or whether protection will reduce employment, the Government just make assertions. They do not provide us with any evidence.

The second justification was put forward in Committee in another place by the honourable Member for Elmet. This was enthusiastically taken up by the Government. He said—and this may be what the Minister will say tonight—that the whole thing was justified because the purpose of a disciplinary procedure was to determine an area of uncertainty. Therefore such provision was only required in large firms when there was uncertainty as to who the supervisor was or who should be approached if there was a complaint. He also asked why, since everyone in a small firm knows who the boss is—for example, he is the supervisor, the middle manager; in fact, he is everything—there should have to be a procedure which deals with discipline.

If that is to be the argument which is to be trotted out by the Governent this evening, I suggest to the Minister that he tears it up. I say that because it is complete and absolute nonsense. It makes the mistake of confusing a disciplinary procedure with some kind of consumer complaint. A disciplinary procedure is designed to deal not with complaints of the supervisor but with the criticisms of the worker by the supervisor. They are complaints made against the worker. It is not a question of knowing who makes them. The worker knows who makes them in small or large firms. They are the bosses' complaints and they are the same in firms of any size. What the worker needs to know is what he or she is supposed to have done and what the penalty is likely to be if he or she does it again. What he or she requires, in a small or a large firm, above all is a chance to answer criticism and complaint before the discipline is imposed, especially if the discipline goes to the point where it involves dismissal.

What the worker in a firm of any size requires is some kind of quasi-judicial atmosphere which gives him or her a chance to state his or her case, and, if possible, some kind of appeal against any penalty, or the opportunity to appeal before that penalty is imposed. That is needed just as much in a small firm as in a large one. What the worker wants, and what fairness means, is consistency rather than favouritism, equity rather than waywardness and a chance to improve as an alternative to the sack. That is required in small firms as well as large firms. It is the simple elementary operation of natural justice.

In many ways, that is more required and less easily found in small firms than large ones, if only because large firms are bureaucratic. They tend to be consistent; they tend to have the levels of authority where they can easily have appeals. Small firms do not. That is not said as a hostile attack upon small businessmen. Many small businessmen have been ill-served by the Government's constant prating that they do not need disciplinary procedures, that they should be afraid of employer legislation; that they should be fearful of going to industrial tribunals; that they cannot operate early warning systems and final warnings are not for them.

Most small employers fall into two categories: those who are afraid to sack anyone, and in practice never sack anyone until they lose their temper; and those who sack anyone with less than two years' service because they believe it says in the book that no one with two years' service can be sacked.

What we are saying is that the small employer requires, as much as anyone else, to provide the worker with a disciplinary procedure. The worker requires it. It has no ill effects. It is one of the best things to come out of the Industrial Relations Act 1971, which was introduced by a Conservative Government. There is no case against it, and that is the case for the amendment. I beg to move.

11.30 p.m.

Lord Rochester

As I put my name to the amendment perhaps I may speak to it briefly. The amendment seeks to maintain the right of people working in firms with fewer than 20 employees to receive a written notice on disciplinary procedures, as the noble Lord, Lord McCarthy, has told us.

As I understand it, about 25 per cent. of the working population is now employed in establishments with fewer than 20 employees. It follows that what the Government here have in mind would remove from a quarter of the workforce what should, in my view, be a basic employment right. Surely the determining factor in this matter should be the principle that is involved and not the number of people who may be affected by it.

The British Institute of Management, to which the noble Lord, Lord McCarthy, referred briefly, takes the same view. Perhaps I may quote from its briefing memorandum on the Bill in relation to the clause: The BIM does not support any further erosion of employment protection with regard to written notices". The same memorandum explained that when the institute's members were questioned last October, 78 per cent. said that in their view the current level of employment protection was about right. In its guide to management practices, it further stated that verbal notices of disciplinary procedures, especially when given in small organisations where inter-personal relationships may be strongest, are likely to carry diminished weight and credibility.

From that, as the noble Lord, Lord McCarthy, has suggested, it appears that the BIM believes that there is even more need for a written statement in smaller organisations than in large ones. The Institute of Personnel Management agrees. It is strongly opposed to dividing employment practices on the basis of an arbitrary figure of 20 employees. It says that what is good for five is good for 5,000 people and if differentiation is called for, there is evidence of a higher incidence of unfair dismissal claims in the small company sector. The institute gives strong grounds for not using the size of an organisation as expressed by numbers of employees as a criterion in regulations. It says that size is becoming increasingly unrealistic as a threshold, with the developments in new technology and the feasibility of running what were formerly large factories with fewer than 20 permanent staff by using temporary or contract staff. Such artificial thresholds create problems in themselves and there is also the possibility of manipulation to stay small.

The institute has a lot more to say, but I shall not weary the Committee with it at this time of night. However I suggest that Clause 11 is a good example of how the Bill tilts the balance that in my view there should be in all employment legislation between the interests of employers, including small employers, and employees still further in favour of employers. For that reason, I believe that the clause should be amended by simply eliminating subsection (3) altogether.

Lord Strathclyde

Let me first clarify the reasons why we have included this clause in the Bill. It is to make a further contribution to our general policy of reducing burdens on business, in particular by simplifying legislative requirements for small firms. The legislation currently provides for most employees to be given a written statement of their main terms and conditions within 13 weeks of starting the job, along with an additional note which should include details of any disciplinary rules which may apply.

Under Clause 11 of the Bill, we are providing an exemption for small firms with fewer than 20 employees from the need to give their employees the additional note on disciplinary rules. In such cases the employer will simply need to give his employees a note specifying the person they should go to if they have any complaint about their employment. In most cases, as the noble Lord, Lord McCarthy, pointed out, this is likely to be the boss. The effect of the Opposition's amendment would be to preserve the status quo. It would therefore frustrate the Government's policy of reducing the administrative burdens on small firms.

I would not deny that this is of itself a small measure, but we believe that it is an important contribution to our general policy of simplifying legislative requirements for small firms in particular, thereby creating the conditions in which they are able to grow and provide new job opportunities. That is something which surely we all want. I therefore urge the noble Lord to withdraw his amendment.

Lord McCarthy

So far as I understand what the noble Lord is saying, even if the clause is passed, the small employer still has to give the man a note but it does not have to contain the procedure. I do not understand the benefit of that, how it will induce people to be employed and how by itself it will reduce unemployment. It is an enormous burden on business; whether or not the procedure is in the note, there must be a note.

The fact is that small firms are notorious in comparison with any firm of any other size in the way that they deal with questions of dismissal or discipline. Anybody who serves on an industrial tribunal will tell you that the overwhelming majority of cases that come before them involve small firms. In the majority of cases it is the way in which the dismissal has been done, the absence of an adequate procedure and natural justice and the fact that a procedure was not followed at all that leads to a small employer discovering that he has unfairly dismissed someone. It is true that he has to pay only a small sum in compensation, but he has to appear before a tribunal in certain circumstances. We are saying that it would greatly improve industrial relations and the operation of dismissal procedures if the small employer also had to provide this little piece of paper with something on it instead of a piece of paper with practically nothing on it. Nevertheless at this time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 24: Page 10, line 27, at end insert— ("( ) If the number of relevant employees becomes twenty or more, the employment of an employee to whom subsection (1) has applied shall be deemed for the purposes of this section to have commenced on the date on which the number ceased to be less than twenty.").

The noble Lord said: If we are to have this clause in the Bill, we need to know whether it will work. Our submission is that it will not work without our amendment. This is the reversal of a policy instituted by a Conservative government of 1972; that is, that employers should be told about procedures on these matters. The ACAS handbook on discipline at work stresses very much the importance of these procedures. In recent decisions of the Judicial Committee of this Chamber, Law Lords have stressed the great importance, in terms of justice, of treatment of employees, not merely in respect of unfair dismissal although mainly so, but also of what the noble and learned Lord, Lord Bridge, of Harwich, termed recently, and what may conveniently be classified by most authorities as, procedural matters. So these matters are regarded widely by eminent authorities as important.

We have reached the point where the Government will not accept that this provision should be even in part rejected. So we come to the question of whom it applies to. It applies in common parlance to firms which employ fewer than 20 employees. The noble Lord, Lord Rochester, is no doubt right to say that this will constitute some 25 per cent. of the workforce. However, the problem is that, as the clause stands, no one will know who they are. Let us take one example of that. Green is an employer with 18 employees. He takes on Jones on Monday; that makes 19 employees. Jones does not have the right we have been discussing but on Thursday he takes on Robinson. As Robinson is the twentieth employee he has the right, so his little bit of paper will have both a name and a procedure, and a terrible burden will descend upon Green.

However, something worse happens. Interest rates go up alarmingly and there is a threat of insolvency, so Green dismisses and makes redundant 10 employees. Now he is down to 10 employees. Looking for an answer, he takes on a new employee. The new employee, Lawson, is a skilled accountant. Green hopes the accountant will get him out of the mess. When Lawson is taken on, that makes 11 employees, so Lawson has no right at all. We think it is quite wrong that Lawson should not know the terms of the procedures under which he may be dismissed if he fails to get Green out of his insolvency. But help is at hand, because Green has an associated employer, Brown, and it turns out that the day before Lawson's engagement Brown had engaged a new employee to bring the workforce up to nine. So the total for the associated employers goes up to 20 and Lawson has his right to the full procedure.

That is quite absurd. It is not just a matter of making fun at the edges. Some of us make fun of legal rules every day. However, I am not making fun at the edges; I am saying that is a wholly unworkable arrangement because the Bill states that the axe falls upon an employee whose employment began on the day the number of employees was less than 20. That employee is left for ever afterwards in a ghetto of those without the right to a full procedure.

This matter was raised in another place and the Parliamentary Under-Secretary of State admitted this was an anomaly. He said that we were left with the anomaly. Having created the anomaly, he then pleaded incapacity and said that the drafting to get out of it would be so unbelievably complex that they did not think it was right even to bring it before the Committee; it was an anomaly on the face of the Bill but in practice he could not see it being a problem.

We may not have our drafting right, but the principle of it is that where a small firm has fewer than 20 employees the Government have their way, but if the number rises to 20 or above everyone is encompassed and has the right in question. Once that happens everyone is at the same starting gate. There may be a few incorrect words in our draft, but we do not believe the matter is unbelievably complex. In a sense it gets the Government out of a mess. However, we are a constructive Opposition; we are never negative in our approach. We do not want to see the Bill remain in that absurd condition. I beg to move.

11.45 p.m.

Lord Strathclyde

Perhaps I may begin by reminding the Committee that our purpose in introducing the clause is to reduce the burdens on small firms by exempting them from the requirement to provide an additional note on any disciplinary rules. Employees in these firms will still need to be given the name of a person to whom they should apply with any grievance.

The amendment would require employers to give a note on disciplinary rules to all employees once the number employed reaches 20. I cannot deny what the noble Lord, Lord Wedderburn of Charlton, said; namely, that the Government's proposal could produce the effect that employees in one particular firm may have different statutory entitlements. Those who joined the firm when it was small and had fewer than 20 employees will have the statutory right to be told the name of a person to go to with any grievance, whereas those who join once the firm has grown will be entitled to receive a note of any disciplinary rules in the normal way. As my honourable friend in another place said, to take account of fluctuations in size of firms would make the legislation more complex—the very opposite of what we seek to achieve with this small but important step.

In trying to tackle the issue the Opposition's amendment would not only have the effect of making the arrangements for very small firms more complex and bureaucratic but would also to a large extent undermine the benefit of the exemption for firms whose workforce subsequently increase to 20 or more employees. Of course some employers may choose to provide a note on disciplinary rules to all their employees on a voluntary basis. That is entirely a matter for their discretion.

I want to make clear that the clause makes no changes to the arrangements for complaining of unfair dismissal. It is for an industrial tribunal to decide whether a dismissal was unfair.

Finally, perhaps I may stress that the amendment will make the legislation more complex for those small firms on the threshold of expansion. I therefore urge the noble Lord to withdraw it.

Lord Wedderburn of Charlton

I am genuinely astonished that the Government wish the measure to go forward in this form. I gave the Minister a simple illustration of the way in which the clause did not work. I had not reached the complex illustrations. He says that our clause is more complex. He should give an illustration of that but has chosen not to do so.

Our clause is not more complex. The Government have their way. Where the number of employees in a firm is under 20, no procedure need be stated. However, if the number exceeds 20, the employees who were engaged before that time have equal rights. That is a clear and easy rule to apply. Anyone can understand it, but goodness knows what will happen to poor old Green with the great burden of giving procedures to some but not to others and giving names to Lawson and so on. It is quite absurd. It is a kind of juridical yo-yo that goes up and down according to whether the firm becomes larger or smaller. I cannot imagine why the Government want to legislate in that way. However, if they wish to do so, on their head be it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Clause 11 agreed to.

Viscount Ullswater

I beg to move that the House do now resume.

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

House resumed.