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I beg to move,
That the draft Equal Pay (Amendment) Regulations 1983, which were laid before this House on 6th July, be approved.
The debate is on the draft regulations to amend the Equal Pay Act 1970. The regulations arise from a need to amend the Act to conform to our European obligations. To do this in a way that is sensible and fair to everyone requires careful balances to be struck, raising complex matters of law and procedure. I apologise if I have to lead the House into matters which are complicated and which may seem to certain hon. Members on first consideration to be unwelcome. I apologise also, Mr. Deputy Speaker, for the fact that on the first occasion on which I am speaking from the Dispatch Box in your presence I might have to deviate from the injunction for brevity of which you almost constantly remind us. However, there are certain legalistic passages which I might have to deal with at 78 rpm instead of 33. I am sure that the House will understand.
At first sight, the regulations consist of some simple propositions. The Equal Pay Act allows a woman to claim equal pay with a man, or a man with a woman—I do not propose to repeat that disclaimer on every occasion on which it might arise and in all comparative contexts henceforth a man can also mean a woman and a woman can also mean a man— if she is doing the same or broadly similar work, or if her job and his have been rated equal through job evaluation in effort, skill and decision. However, if a woman is doing different work from a comparable man, or if the jobs are not covered by a job evaluation study, the woman has at present no right to make a claim for equal pay. This is the gap, identified by the European Court, which we are closing. We are providing for those women to make claims to industrial tribunals, which will be helped by newly appointed experts who will furnish independent reports on whether the jobs compared are in fact of equal value.
It might be helpful to hon. Members if I summarise the history and background of this amendment. The House will recall the Equal Pay Act 1970—a most progressive measure. Five years later, in 1975, there was promulgated a European Community directive on the principle, and a further four years later, in 1979, the European Community Commission started infringement proceedings against the United Kingdom on the ground that the Equal Pay Act did not provide for equal pay for men and women for work to which equal value was attributed unless that work had already been rated as equivalent under a job evaluation scheme.
I note that some of my hon. Friends are getting slightly restive already—
The speedy bit comes later. The European Court of Justice at Luxembourg gave judgment on 6 July 1982 to the effect that the United Kingdom had failed to fulfil its treaty obligations because United Kingdom legislation did not contain measures to enable employees, where no system of job classification existed, to obtain equal pay for equal work for men and women. We are therefore required to amend the 1970 Act to comply with the court's judgment.
The Government accept the principle of equal pay for men and women and are committed to the full implementation of the European Community directive. We accept the need to amend the Equal Pay Act so as to close the small gap between the directive and the Act found by the European Court.
The European Communities Act 1972 provides a means to do this swiftly and efficiently by regulations, the draft of which we are discussing tonight.
We circulated draft regulations for comment in February. In drawing up that draft, we sought to retain the existing structure of the Equal Pay Act and machinery for deciding cases while making provision for the assessment of the value of work where no job evaluation had been undertaken, thereby bringing the Equal Pay Act into full compliance with the European Equal Pay directive as required by the court judgment.
The draft that we circulated in February provided, as does this one, that a woman is entitled to equal pay with a man in the same employment not only in the circumstances laid down in the current Act—where she is employed on work which is "like" or already "rated as equivalent" under a study—but also where her work is of equal value to a man's in terms of the demands made on her.
I am sure that my hon. Friend understands, as I do, that we joined the European Community so that we could trade with our partners in the European Community. Why do we have this nonsense tonight? What have the regulations to do with trading? Why must we put up with this rubbish?
I do not think that my hon. Friend has fully comprehended the scope of our commitment to the European Community, which is set out in the treaty of Rome, and on which subject we do from time to time have the benefit of his views. I hope that if he should catch your eye, Mr. Deputy Speaker, we will hear those in extended form later.
Where a claim for equal pay arises under the new equal value provision, the draft regulations provide for the industrial tribunal to commission a report from an independent expert on whether the jobs are of equal value. The experts are to be appointed by the Advisory, Conciliation and Arbitration Service, to which I shall henceforth refer as ACAS.
Three specific areas in the February draft were criticised, and as a result we have made changes. The criticisms came from the Equal Opportunities Commission, to which I shall continue to refer as the Equal Opportunities Commission and not as the EOC.
Does the hon. Gentleman want me to abbreviate the text or to speak more rapidly?
First, in the February draft the burden of proving sex discrimination in pay was placed on the woman. We did this because we were anxious to emphasise that a claim should be brought for equal pay for work of equal value only if sex discrimination was involved. On reflection, however, we felt this was unnecessary and what was needed instead was a provision for employers to be able to argue in appropriate cases that sex discrimination was not involved. I shall explain later precisely what provision we have made for this.
The second area in which there was criticism of the February draft was a provision that people already covered by a job evaluation scheme could not bring a case under the new equal value provision. We introduced this limitation because the European Court judgment did not suggest that we needed to enable people whose job had already been evaluated to make a claim. However, representations were made to us by the Equal Opportunities Commission and others that the exclusion of people whose jobs have been evaluated would be contrary to the European equal pay directive.
We appreciate that the fact of creating a new provision to claim equal pay for work of equal value may highlight the difficult position of people whose jobs have been evaluated but who feel that there may have been sex discrimination—particularly indirect sex discrimination — in the evaluation itself. With that in mind, we decided on this point alone to go further than the European Court judgment required and provide that employees whose jobs had already been evaluated might have a claim considered under the new provision on the ground of sex discrimination in the original job evaluation study. Regulation 3(1) of the draft regulations gives effect to that.
I applaud the hon. Lady's sentiments. When she has been here longer she will appreciate that a certain separation between expressed and implied beliefs is endemic among those who hold office.
We have heard the hon. Gentleman speak from below the Gangway on many occasions. If he feels that it was worth while taking ministerial office, he should put the Government's view that they, and he, believe in equal pay, and if he believes in equal pay, he should speak about it with enthusiasm and not in the manner in which he is speaking tonight.
Plainly, an assessment of enthusiasm is a completely subjective matter.
Representations have been made that any delay in implementation must be shown to be reasonably necessary to comply with European law; and in view of the fact that the administrative arrangements can be made within six months, we have decided to advance the date of implementation to 1 January 1984.
I now summarise the provisions of the draft regulations as laid before the House on 6 July, and inevitably I shall have to go into some technical, legal language, and I hope that the House will bear with me. In deference to the wishes of my hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman) I shall accelerate my pace of delivery for this passage.
The draft contains regulations which provide that a woman is entitled to equal pay with a man in the same employment—or a man with a woman—where her work is of equal value to a man's in terms of the demands made on her, for instance, under such headings as effort, skill and decision—regulation 2(1). Where a claim for equal pay is to be determined under the new equal value provision, a tribunal will be able to dismiss an application if it is satisfied that there are no reasonable grounds for determining that the jobs are of equal value—regulation 3(1).
Will the Minister pause and explain the meaning of that last paragraph, because some of us who are skilled in understanding these provisions find it impossible to understand that one? Instead of racing through it, will he pause long enough to say what he believes it means, as presumably he is inviting the House to accept it? Will he remember that he is dealing with a matter which some of us regard with great concern?
I welcome so early a revelation of the fact that when one tries to please an hon. Friend one immediately offends an Opposition Member. I had hoped to disarm criticism on the Government Benches, but I find that I have aroused it on the Opposition Benches. I shall settle for a median rate of delivery between the two extremes.
If the tribunal is satisfied that there are no such grounds, it will dismiss the application.
The hon. and learned Gentleman corrects me, using the very adjective that I was about to choose to suggest that his mastery of such language doubtless exceeds my own and that in the fullness of time he will form his own Government.
The draft regulations explicitly provide that if jobs are already covered by a job evaluation scheme and there is no evidence that that scheme is itself sexually discriminatory, there are no reasonable grounds for the tribunal to let the claim go forward.
On a point of order, Mr. Deputy Speaker. I have read in the newspapers that in the House one is not allowed to accuse another hon. Member of not being sober. However, I seriously put it to you that the Minister is incapable. [HoN. MEMBERS Withdraw."] It is disrespectful to the House and to the office that he holds for the hon. Gentleman to come here—
Order. I understand how the hon. Lady feels. She has not been long in the House. However, she really ought to withdraw that allegation. It is not permitted to accuse an hon. Member in that way.
The regulations expressly provide that there shall be taken to be no reasonable grounds for determining that the work of a woman is of equal value if her work has already been given a different value to that of her male comparator on a job evaluation study and there are no reasonable grounds for detenning that the evaluation contained in the study was made on a system that discrimates on grounds of sex.
The draft regulations provide, in regulation 2(2), that a material factor which is not the difference of sex must, in the case of work which is like or already rates as equivalent, be a material difference between the woman's case and the man's. This is a test applied in the current Equal Pay Act. However, in the case of work which it is claimed is of equal value in terms of the demand made on the employees, the regulations provide that the material factor may be, but need not be, such a material difference.
The purpose of this provision is to enable unequal pay to be justified in situations where the work is of equal value but there is no sex discrimination. We consider that a wider test is required in equal value cases than under the current Act, because "material difference" under current case law has been interpreted as meaning factors personal to the employee concerned, and in these new equal value cases, where the scope for comparison will be much wider than under the current Act, we consider that the scope of the employer's defence needs to be widened accordingly.
I shall come back to that point a little later in my speech.
The decision to widen the scope was taken after consultation. I shall return to that point shortly, but I think that I am satisfied in that regard.
To resume my summary of the regulations, if the tribunal is satisfied at this early stage that the employer has shown that the variation in pay is due to a material factor other than sex, it will dismiss the case. Otherwise, the tribunal will commission a report from an independent expert on whether the two jobs in question are of equal value. The independent expert will be drawn from a list of people designated by ACAS. The experts will have experience of industrial relations and the evaluation of jobs, though they will not necessarily be expected to use formal job evaluation in considering the value of the two jobs in question.
The expert will report to the tribunal on the value of the jobs and the tribunal will make a decision on equal value, taking such account of the expert's report as it considers appropriate. If the tribunal decides that the jobs are of equal value, and unless at this stage the employer can show that the variation is due to a material factor other than sex, the tribunal will award equal pay.
In addition to the draft regulations whose contents I have just been describing, provision needs to be made in procedure regulations for rules governing the operation of the independent expert and of these cases generally.
I shall be as brief as my hon. Friend has been in giving way. He says that equal pay will be awarded. I assume that that means that the man or woman in question will receive more pay. Does that not mean that the product or service that she is providing is likely to become more expensive? If the product or service becomes more expensive, is there not a possibility that the company for which she works will go bankrupt and that she will lose her employment? Is not my hon. Friend a Minister in the Department of Employment, and is it not his job to secure maximum employment opportunities? If so, why is he introducing this measure?
It is, of course, true that where wage increases are reflected in the price of the article produced, they may also be reflected in the balance sheet. However, whether that subsequently leads to bankruptcy depends on the individual case.
In the event that a report is commissioned, we propose to provide for the tribunal to make the necessary request to the expert, for the parties to be sent copies of the expert's report by the tribunal and for the parties to be able to make representations and produce evidence in respect of the expert's report in certain circumstances. The expert would not be open to examination.
Having outlined the legal framework, I should like to say a word or two about the practical effect of these regulations.
The current Equal Pay Act will, of course, still operate. This means that people doing work which they claim is similar to or already rated as equivalent to work done by a person of the opposite sex may have their claim considered by an industrial tribunal, which will consider their claim and also any defence the employer wishes to make to the effect that the difference in pay is genuinely due to a material difference other than sex.
As I mentioned earlier, under the current case law the defence of a genuine material difference other than sex has been interpreted to mean factors personal to the employee concerned—for example, merit, qualifications or length of service.
To take a concrete example, if a woman claims equal pay with a man who is doing the same work but who has worked in the establishment for 15 years longer, the employer is entitled to justify a higher pay for the man on the ground of his length of service, provided this is a genuine reason and not just an excuse for underpaying the woman.
Under the amending regulations which are the subject of this debate, an employee will be able to bring a claim for equal pay with an employee of the opposite sex working in the same employment on the ground that the work is of equal value. When this happens, conciliation will first be attempted, as in all equal pay claims. If conciliation is unsuccessful, the industrial tribunal will take the following steps. First, it will check that the work is not in fact so similar that the case can be heard under the current Act. Secondly, it will consider whether the jobs have already been covered by a job evaluation scheme and judged not to be of equal value. If this is the case, the claim may proceed only if the original job evaluation scheme is shown to have been sexually discriminatory.
Having decided that the case should proceed, the tribunal will first invite the parties to see if they can settle the claim voluntarily. If not, the tribunal will consider whether to commission an independent expert to report on the value of the jobs. It will not commission an expert's report if it feels that it is unreasonable to determine the question of value — for example, if the two jobs are quite obviously of unequal value. Nor, as I have already explained, will it commission an expert's report if the employer shows at this stage that inequality in pay is due to material factors other than sex discrimination.
I have given way twice to the hon. and learned Gentleman. If he catches your eye, Mr. Deputy Speaker, it might be interesting if he develops his theme at greater length.
Let me here digress for a moment on the intention of this "material factors" provision, to which I said I would return. The draft regulations specifically provide that in these equal value cases the defence of material factors may go wider than the current defence of material difference other than the difference of sex.
What we have in mind are circumstances where the difference in pay is not due to personal factors between the man and the woman, but rather to skill shortages or other market forces. If a man is paid more than a woman for work of equal value because his skills are in short supply, this is not sexually discriminatory, provided the reason is genuine and the employer can show this.
The Minister mentioned market value as a material factor which could deny a woman her equal pay claim. Does he not recognise that the market awards higher pay to a man than it does to a woman because of the undervaluation of women's work in the market? The Minister will be providing a complete let-out if he allows market value as a way of excluding equal pay.
Market values on their own cannot operate in that way. What is true is that the market in some cases assesses women higher than men. I feel that it is safe to rely on the market, particularly as more women enter employment and their special skills become apparent in a wider area.
If a man is paid more than a women for work of equal value because his skills are in short supply, that is not sexually discriminatory, provided that the reason is genuine and the employer can show that. In making this provision, we have had regard to the reality that pay is not determined just by the demands made on the worker. At the same time, it must be possible for a woman to get equal pay if there is no good reason for the difference in pay other than sex discrimination.
I return to the procedure that will operate. If a tribunal considers that a claim of equal pay for work of equal value is clearly not going to succeed, either because the work is obviously not of equal value or because the employer has shown material factors unrelated to sex, the tribunal will dismiss the case. Otherwise, it will commission a report from an independent expert on the value of the jobs. Once the experts have reported, the tribunal will copy the report to the parties and at the subsequent hearing the parties will be able to make representations about the report, though not to cross-examine the expert. The tribunal's task will be to come to a decision on equal value in the light of the report.
I have just given way to the hon. Lady. I am greatly looking forward to hearing her speech if she catches your eye, Mr. Deputy Speaker. We are nearly at the end.
If the tribunal finds the work to be of equal value, and comes to the view that there are no genuine material factors other than sex justifying the inequality of pay, it will make an award of equal pay. an award may be backdated to two years, as is the case in the current Act, but no backdating before the new regulations come into force will be possible. That means that, as the regulations will come into force on 1 January 1984, that full award of two years' back pay will not be possible until 1 January 1986.
What my hon. Friend is reading out is of enormous complexity. Bearing in mind that just before the Dissolution his predecessor came to the Select Committee on Employment to give advance warning of this measure, would it not be more sensible for there to be a delay before implementation, so that the Select Committee, when it is set up, can examine not only the complexity of what my hon. Friend is reading out but its impact on British industry? We should have a proper inquiry before we rush into this complicated measure.
Alas, the manner in which the regulations are submitted and verified is not for me. There may be an implied reproach in my hon. Friend's reference to my reading my speech, but as he has been in the Chamber throughout he will appreciate that the complexities are such that it can be presented only by copious reference to the printed word.
There are considerable difficulties for the Minister and the House. He said that the matter could be understood only by copious reference to the printed word. It would have been much easier if the House had had a chance to read his speech before he delivered it.
In all seriousness, if we are to make a measured judgment, which has been made somewhat difficult by the interruptions of Opposition Members, would it not be to the advantage of the House and the good name of Parliament if hon. Members had a chance to read the speech and make a decision on it later?
To make a measured judgment requires a high level of concentration.
I hope that it will be apparent from what I have said that our aim has been to implement the European Court judgment sensibly and quickly, having regard to the need to comply with European law and at the same time safeguard employers against having to give equal pay where there is no sex discrimination.
We have responded to criticisms from the Equal Opportunities Commission and others and the draft regulations incorporate amendments which have been made as a result of comment and discussions during the consultative period.
I commend the regulations to the House.
On a point of order, Mr. Deputy Speaker. The Minister referred to a great deal of information that is not in the regulations. Is it in order to place regulations before the House and then read a prepared explanation of procedures that will take place following, presumably, other regulations not before the House?
It is customary to welcome a new Minister to the Dispatch Box when he makes his first speech. I formally welcome the Minister. Many right hon. and hon. Members consider that he made a frivolous speech on an important subject about which they have strong feelings. Many of us looked forward to hearing serious and convincing views. On reflection, the Minister may consider that his speech was damaging and even demeaning to his Department, which has the tradition of Monckton and Macleod If he did not wish to address himself seriously to this matter, he might have borne in mind the conduct of those previous holders of office in his Department.
The Opposition are attempting to drag the Government —this is what the Equal Opportunities Commission and the National Council for Civil Liberties also wish to do— perhaps kicking and screaming, into line with the spirit as well as the letter of the European Community's directive on equal pay. Our suspicion—indeed, almost conviction—is that this Administration would be pleased to see women penned in the environment of the kitchen and child-rearing against a background of almost perpetual mass unemployment.
The TUC has said that the Government, seem to take an obstructive attitude to women in the labour market. The Minister said that his Department had done something. I concede that some of the criticisms of the August 1982 and February 1983 proposals have caused the Government to modify their intentions.
The Opposition must emphasise today that the background is daunting for a woman who merely seeks a fair deal on equal pay. Later this year, for example, the fair wages resolution will be set aside. Historically, that resolution provided protection against employers paying less than a fair rate, so the scales are now more heavily weighted against a woman seeking and obtaining work at a reasonable wage. Last year the Department introduced the young workers scheme, which offers a generous subsidy to employers who pay less than £40 per week to their employees. The wages inspectorate — the grass roots police who cope with cheating employers — has been whittled down as a result of public expenditure cuts. Moreover, 17 industrial training boards were abolished last year, just when they had begun to offer women equal access to skills training — in many ways the key to higher wages.
Today the Minister has promulgated a three-page statutory instrument of Byzantine complexity. When did anything of that nature last come before the House?
That is ultimately a matter for the Minister, but I appreciate the strong feeling that has impelled my hon. Friend to make that and other interjections so far.
The statutory instrument is legal gobbledegook. It is an algebraic mystery — a small print bonanza for specialists. It is a daunting, obtuse maze of a measure and truly a stumbling block to a female complainant and her advisers, whoever they may be.
At this late stage in the debate I suggest that the House should consider briefly the passage beginning at line 16 of regulation 3. Those 11 unfathomable lines are virtually incapable of comprehension by this honourable House. Nothing that the Minister has said or that the Department has sought to put before us today has enabled any conscientious right hon. or hon. Member fully to comprehend what is proposed. That is the most disappointing aspect of the Minister's speech.
The new section 2A(1) is very much open to criticism on the ground of lack of candour. At present, tribunals may either find for the applicant or reject the application. Under the new proposals there is a third option—to decide that there are no reasonable grounds for determining the question. Tribunals already have adequate powers to deal with trivial, frivolous or vexatious cases. Moreover, the new instrument proposes that a pre-hearing assessment may be used by the tribunal to warn the applicant that costs may be awarded against her.
When those applications have been knocked out, it is hard to see what class of cases section 2A(1)(a) is intended to cover. A tribunal that has gone sufficiently deeply into the merits of an application to form a judgment that there are no reasonable grounds to determine that the woman's work is of equal value to the man's has, to all intents and purposes, determined the question before it, but the Minister did not make that clear. To decide that there are no reasonable grounds for determining equal value is to determine the question. The distinction between determining that a woman's work is not of equal value to a man's and rejecting it on the basis that there are no reasonable grounds for determining that they are of equal value is purely semantic and can only obscure the truth. The Minister has advanced a highly restricted view of what constitutes equal value. That is the kernel of our reservations.
The Minister has put time against all of us. I hope that my hon. Friends will catch your eye, Mr. Deputy Speaker. There are no draft procedural regulations, so uncertainties remain. Will the procedural regulations provide for compulsory adjournments to encourage the voluntary settlement of cases? What qualifications will the independent experts have? What guidance will the independent experts be given? What will happen if an employer refuses to co-operate with an expert who has been commissioned to make a report?
On a matter of such importance and topicality it is utterly unsatisfactory not to present the draft procedural regulations. Moreover, we fault the Government for providing only 90 minutes, under the affirmative resolution procedure, to debate these amending regulations. The House might be aware that the Government are using the procedure under section 2 of the European Communities Act 1972 to amend the Equal Pay Act 1970. They are using that device rather than adopting the route of primary legislation. The Opposition maintain that the latter route would have guaranteed the tabling of amendments and facilitated a genuine debate. In those circumstances, the House might have had the benefit of the Minister's explanation of the regulations. We have had no such explanation today.
It has become clear that Conservative Members do not know what their Minister is proposing. Worse than that, notwithstanding interventions, the Minister made a lengthy speech—but in it there was no sense, rhyme or reason. It is astonishing that that should happen. When did right hon. and hon. Members last witness what we have experienced today? It must be a long time. It is utterly reprehensible for the Treasury Bench to treat the House in that way. It might be that the House has not heard the last of this issue. Perhaps the Minister will want to come back to the House before long, even if he does not consider his own position.
The Department could have given the Minister a brief. The Opposition can get one. Worse, however, is the use of the section 2 procedure rather than primary legislation, ruling out the possibility of the amending legislation being fully retrospective. The Department has taken a sneaky and diabolical liberty. Women should have been entitled to the right to claim equal pay for work of equal value since 1976. However, no order made under section 2 can take effect earlier than the date on which the order is made. Hence, under the amending regulations, no equal value claim will be heard before January 1984 and no tribunal will be able to award to a successful claimant the maximum compensation of two years' back pay until January 1986. The Minister should know that that contrasts unfavourably with the Government's stance on retrospective compensation for victims of the closed shop in the Employment Act 1982. The regulations and the closed shop legislation were two powerful, politically motivated decisions. Under the regulations women will get a shabby deal, and the Minister has been the vehicle of that shabby deal.
Britain is suffering from a severe economic crisis, and every resource must be utilised to speed our industrial and social reconstruction. North sea oil deposits are a prime factor in our fight for survival as an industrial state, but so, too, is our human capital. In this assessment of our national resources, it is apparent to many that Britain's economic resurgence would be more certain and speedier if the undoubted talents and capabilities of millions of women were more readily engaged and the discriminatory barriers against them broken down. The Department of Employment is in the hands of obstructionists. Ministerial responses to European directives are lacklustre, grudging, without conviction, cynical, shabby, and certainly equivocal, as we saw tonight.
A golden opportunity has been missed. This seems like a sell-out to employers' interests. It is a betrayal of the just proposals of those dedicated organisations that have argued positively for a better deal for women at work. The regulations represent the policy of a Government who are walking forwards with their face set stubbornly to the past. The Government should have brought forward primary legislation. The procedural regulations have not yet been published. There is no retrospective legislation. The regulations fall short of the standards required by the directive. It is obvious that the Government's commitment is half-hearted. We shall vote against the regulations.
I congratulate my hon. Friend the Under-Secretary of State on his speech, which made what for us is a very complex issue more or less intelligible and very human. It is as I understand it, my hon. Friend's first time at the Dispatch Box. Some people would look upon it as being a baptism of fire. I think that the problem with the measure that he had to bring to us was that he was in greater danger of being drowned in his own indigestion, and I can quite understand why. It is a most indigestible, unpleasant and unpalatable measure. There are bastard regulations, born out of the Equal Opportunities Commission and sired by the European Court of Justice. It may be the other way round, depending on which of those two organisations is the more butch.
The regulation states:
An equality clause shall not operate … if the employer proves
something to do with sex. Therefore, as my hon. Friend said, the employer is assumed to be wrong, is assumed to be guilty, is assumed to be in breach, unless proved innocent. This is a novel concept in British law. Our employers have enough to put up with without that.
The measure also states that equal pay should be given for work of equal value. Any trouble maker or any potential irritated employee is going to pretend that her work is of equal value. It is an open invitation to any feminist, any harridan or any rattle-headed female with a chip on her bra strap to take action against her employer.
I have heard of barrackroom lawyers and sea lawyers. This is a charter for petticoat lawyers. Why on earth do the Conservative Government bring this nonsense before the House? [HON. MEMBERS: "Hear, hear.'] I understand that as a Conservative Government we are determined to keep public expenditure under control. This does nothing of the sort. It increases public expenditure. I understand that as a Conservative Government we are determined to take the burdens off business and to reduce bureaucracy. This puts massive additional burdens on business and industry, and increases bureaucracy. People will be taking pettifogging cases against their companies, and that will cause strife, concern, trouble, cost and disruption to business and industry. It will cause otherwise successful companies to have problems—perhaps even go bankrupt—and it will cause a loss of jobs.
I understand that we in the Conservative party believe in the market.
I shall not give way, because I shall be brief and I am about to sit down.
Surely, we in the Conservative party believe in the market. There is a different market in many respects between male labour and female labour. The majority of men go to work for a different reason than the majority of women. I do not say all men and all women. Do we not believe in a market? If we introduce these regulations, we shall interfere with the workings of the market. Why? I know why. The reason is that we believe that we are a law-abiding party, and the law has been passed, a directive has been issued, and the European Court of Justice has said that we must take action. Therefore, we must take action.
There is one thing that is more important than that. We here are a law-making Parliament, and I think that it is more important that the laws that we make here should not be bad laws than that we abide by the laws of an institution the other side of the Channel. This is nonsense. We should be against it. We should throw it out. I shall vote against it and I plead with my colleagues to join me.
Twenty-four hours ago in this Chamber we began a debate about Members' pay. The Benches on both sides were packed. I wish that this debate were conducted with the same seriousness as last night's debate.
One of the central themes that ran through that debate was how we could equate our jobs with an outside job specification so that we would not have the unpleasant task from time to time of deciding upon the level of our own pay. We wanted to be linked—in that case, with the Civil Service. In a way, that is what this debate is about. It is about the concept of equal work for equal value for many millions of women who are not in a job and not in a position where they have a man alongside them with whom they can compare their rates of pay.
This debate is about low pay. In a disgraceful speech, which he gabbled at a rate of knots, making it even more incomprehensible than it already was, the Minister—like the hon. Member for Northampton, North (Mr. Marlow) — showed that the Government lack any understanding of what it is like for women who work in low-paid jobs. We are here to try to lift women out of that situation.
There is no doubt that the equal pay legislation left out of consideration the many millions of women who should have been included in the first place. The Government are not doing that properly by these regulations. As has been said, it should have been done by amending the Equal Pay Act 1970.
Much has been said about the consultation procedure to which the Minister referred, which has gone on for 12 months. The majority of the opinions that have been sent to the Department of Employment have said, "For God's sake drop the regulations and do the thing properly." The Department should bring in equal pay for work of equal value on a proper basis. That has been the criticism from the Equal Opportunities Commission, the Fawcett society and the all-party equality group which I chair jointly with the hon. Member for Plymouth, Drake (Miss Fookes). We had two meetings to which we invited a large number of organisations, not necessarily those that would be described as feminist. For example, there were the soroptomists, the townswomen's guilds and representatives of the political parties. All were against the way that this is being done. All were in favour of extending the Equal Pay Act in order to do the job properly.
It is a disgrace that Britain should be taken to court because it failed to fulfil its obligation to introduce the concept in the first place. That will happen again because these regulations do not do the job properly. I emphasise that it is disgraceful to take these steps by way of regulations.
It has been clearly demonstrated tonight that these are complex and badly written regulations. Regulation 2(1)(i) says:
if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable".
I defy any man or woman to decide when they are reading that whether they can bring a case for equal pay for equal work.
Has my hon. Friend noticed that regulation 2(1) is a single sentence of 186 words, with 12 verbs, three subordinate clauses and two clauses subordinate to subordinate clauses? Does she believe, as I do, that it must be possible to write that lot in comprehensible English?
I am grateful to my hon. Friend. I had not counted the words. It is difficult to mouth some of them. The National Council for Civil Liberties has drawn up a model Bill which it introduced at a press conference in the House on Monday and I shall be happy to send the Minister a copy of it. That Bill introduces the concept in a proper way as an amendment to the Equal Pay Act. It is perfectly possible to do it properly, comprehensibly and in a way which will help women. We are here to help women out of the low paid ghetto-like occupations in which they find themselves.
If an employer has a job evaluation scheme which claims to justify the wage differential that will be a complete block to any claim based on equal value unless the woman can prove that that scheme is sex discriminatory. I do not know how she can possibly undertake that task. A woman may feel that she deserves to get more pay. She is faced with the daunting prospect of taking on an employer without the benefit of legal aid. That is the first obstacle that a woman will have to face.
The regulations propose a new section 1(3), in which a new form of material difference defence is set out. What is now proposed is that the material difference defence shall be substantially different and considerably less difficult for the employer to prove. Far from the regulations disadvantaging employers, as the hon. Member for Northampton, North appeared to suggest, they advantage employers all the way through. The employers must prove that the variation is
genuinely due to a material factor which is not the difference of sex".
Whereas in like work the material factor must—that is the operative word—be a material difference between the woman's case and the man's, in this particular case the word has been changed from "must" to "may". As we all know, when "may" is used, there is no need to bother. That is the plain fact. From the imperative it has now gone down to not needing to bother. That is a very serious disadvantage to a woman when she is trying to tackle her own case.
Far from giving the employer an advantage, the regulations give powers to the tribunal which the tribunal does not have in other equal pay circumstances and cases. The tribunal can dismiss a case if it thinks that there are no reasonable grounds for deciding that the jobs are of equal value. There is nothing in the regulations which suggests that the woman, the applicant, has the right of appeal, or, as far as I can see, need even be informed as to why the tribunal does not think that she has a case. The tribunal will establish yea or nay, and no guidance is given in the measure. Even so, if the woman gets over most of those obstacles and gets through, the tribunal, as the Minister said, brings in an expert. Again, the regulations do not specify what the expert is to do or who he will be. I would bet my bottom dollar that the experts will all be men. The regulations do not say what guidelines there will be for selecting the experts, or what guidelines there will be for the experts in the way they are to work. What is to happen in this case is a mystery.
Does my hon. Friend agree that there is nothing in the regulations to say that the expert, when producing the report, must come to the industrial tribunal to be cross-examined on it? The regulations do not say that the experts have to give reasons in their report. Does she agree that it is not clear from the regulations whether the industrial tribunal is free to override the experts' report, or whether the woman claimant can bring in her own expert to challenge the experts? The order simply leaves it completely blank.
My hon. Friend has demonstrated beyond all reasonable doubt that we are right to try to throw out the regulations, because they are riddled with holes, and there is no way in which they can help any woman to achieve the objective which is apparent in the judgment of the European Court.
My hon. Friend referred to regulation 3 and the proposed section 2A(1)(a). Does she agree that a "not" or a "no" has been omitted? In its present form the provision is incomprehensible. My hon. Friend, like the Minister, has tried to make some sense out of it, but it appears that it is impossible to do so because the wording is incorrect.
I had not noticed that. The regulations are incomprehensible and it is difficult or impossible to find one's way through the negatives and double negatives. I defy anyone, including the Minister, who appears no longer to be listening, to make any sense out of them.
The Government have built the equal value concept into the existing procedure for individual complaints. The emphasis is on the industrial tribunal rather than the central arbitration committee. There is no procedure for considering the wider and desirable effects of collective pay structures. What will happen if a woman who works in a factory brings a case and wins? What will happen to the collective agreement which has been negotiated with her employers by her union? If the employer says, "Mrs. Jones has won her case and I must apply her rate of pay to her working colleagues," that will be all right. But if the employer refuses to do that, will each one of her colleagues working alongside her have to bring an individual case? The mind boggles at the difficulties that will arise if we proceed with the regulations.
As I have said, the NCCL has produced a model Bill and I commend it to the Minister. However, this afternoon I presented a private Member's Bill—I was fortunate in the Ballot—called the Sex Equality Bill. I propose to amend and tighten up the sex discrimination and equal pay legislation. At the same time we could take on board the issues that are now before us.
The Government must do better than this. If they wish to be a credible Administration for women, especially low-paid women, in the world outside where people live and work, they must show them that they have a commitment to eradicating low pay. It is not good enough to adopt this miserable skinflint approach that will prevent women from getting what is just and fair. I hope that Members will vote against the regulations and that the Government will introduce proper legislation to ensure that women get the decent deal that we all know they deserve.
The Opposition have been ill-advised in their choice of attack, both in their approach to my hon. Friend the Under-Secretary of State and to the regulations. It should be remembered that the draft regulations were produced in February in an endeavour to comply with the law as conceived by the European Court in as short a time as possible. This is a genuine attempt to amend current legislation to comply with the findings of the European Court in as short a set of regulations as possible after a lengthy period of consultation. Calls for a Bill would inevitably mean the procedure of Standing Committee examination, and, as the comments of some of my hon. Friends have showed, that would probably be a protracted and uncertain process. However, these regulations, thanks to the European Communities Act, are capable of being put through with dispatch to comply with the law and to give the Opposition what they are asking for.
These regulations are a genuine attempt to fulfil our obligations and to meet the reasonable aspirations of women, but all we get is criticism about their complexity. The complexity arises from trying to legislate at all in this area. Many hon. Members have had severe reservations about that attempt. The Equal Pay Act has been on the statute book since 1970, but in the intervening years of Labour government there has not been much attempt to deal with the matter. Here is a positive attempt, which has been out for consultation since February, going through under the expedited procedure.
I am attempting to deal with a complex problem. Part of the complexity arises from the difficulty of legislating in the area of human relations—an extremely dubious form of endeavour.
The hon. Member for Barking (Ms. Richardson) rightly drew attention to the difference between "must" and "may" in new subsection (3) of section 1 of the Equal Pay Act. The hon. Lady will not be surprised if I take a different view from her on the effect of that, but I should be grateful if my hon. Friend could confirm that it is intended to allow a wider discussion than is available under new subsection 3(a) where there is a "must" in the case of a job evaluation or it is the same job. Where there has not been a job evaluation, a wider range of factors can be taken into account. That was the hon. Lady's fear, as I understood it, but if she pauses to reflect she will understand that it is only reasonable that there should be a wider range if it is not the same job and is not the subject of job evaluation.
As my hon. Friend the Member for Northampton, North (Mr. Marlow) said market forces must have an effect. We are talking about the employment of women and job opportunities for women. There is a real danger that the Opposition will be pricing their friends out of jobs —[Interruption.] This must be faced. There is far too much theory from the Opposition. I am concerned to do something practical to ensure that people can get employment and have the protection of legislation. The Opposition laugh about legislation, but we are trying to ensure that it is effective to give equal opportunities, which I thought was a common objective. Perhaps the Opposition do not want equal opportunities.
It is important to understand that there are market forces. I hope that my hon. Friend will confirm that we are trying to eliminate sex discrimination. That is the object of the exercise. The Opposition may laugh, but that is the object of the regulations. The elimination of discrimination lies behind the regulations. We are trying to comply with the European Court. We are trying to get involved not in the further and wider discussion that the hon. Member for Barking was raising, but in the further, wider and different discussion whether anyone, man or woman, should get the same pay for work of so-called equal value which an independent body is supposed to evaluate. I hope that my hon. Friend will be able to help us on that aspect. This is an important matter. We are making a genuine attempt to comply with the law to eliminate sex discrimination, and to do it in as short a period as possible.
Because it is late in the debate, I will speak much more briefly than I had intended, bearing in mind the seriousness of the issue we are considering. It should be on the record that members of the alliance parties were as shocked as the official Opposition by the Minister's speech. One might have wanted to attribute it to first night nerves, but he is not a notably nervous gentleman. One might have wanted to attribute it to incompetence, but it was not covered with appropriate humility.
The hon. Member for Birmingham, Ladywood (Ms Short), whose remarks were ruled out of order on the grounds that they were unparliamentary, was clearly aware of the reality of the situation, the nature of which I believe the Minister had mistaken; he thought he was delivering an after-dinner speech, a task to which he is more suited.
It is inappropriate, in seeking to bring the law of this country into line with the judgment, to proceed by way of secondary legislation in a matter as complex as this. The Minister, in his wanderings through a 35-minute speech, did nothing to explain the matters before the House. There are many issues which we would have wished to debate in Committee and amendments we would have proposed.
The Minister asked us to accept that the Government had succeeded in their objective of bringing our law into line with that of the European Court of Justice. I believe that the Government have failed to do that and that not only is it wasting the time of the House to introduce a measure of this kind, but that it will almost certainly result in further action being taken in the European Court, which will again prove this country to be in breach of its obligations to women under the equal pay directive.
It is not possible in a debate as brief as this to go through all the grounds on which this instrument falls short of the judgment, so I will deal with only two. First, if one considers the procedures set out in the regulations, their sole object appears to be to deter the maximum number of applicants from seeking remedy and to provide the greatest possible resistance to those who persist. That would be objectionable in itself if it did not involve procedures which are themselves arguably in breach of Community law requirements.
Reference has been made to he the independent expert's report. A reasoned report is necessary so that it should be possible to challenge the basis on which the findings of the independent expert have been made, but there is no such provision in the measure. Under the regulations, the expert is not to be permitted to be available for cross-examination. The applicant therefore has no direct way of presenting any challenge at all, and she is not permitted to present alternative expert evidence to sustain the challenge. These two possibilities having been excluded, what is the substance of the fair hearing to which she is supposed to be entitled?
In putting forward this proposition, the Government are denying the applicant the right to a fair hearing, to which she is entitled under article 6(1) of th European human rights convention. The regulations do the House no honour at all. The Government have proceeded in a disgraceful manner, and the Minister's wholly frivolous approach to the legislation was an unfortunate debut which I believe he will come to regret. He made it plain that he does not support the contents or the purposes of the legislation, and he distinguished between the implicit and the explicit views which Ministers can express at the Dispatch Box. Although he mentioned that the Government sought to implement equal pay provisions, he left the house in no doubt about where he stood. Many of his hon. Friends enjoyed his implied repudiation of these regulations and all that they stand for. It is time that television was allowed to reveal the dishonesty of such a proceeding.
I and my hon. Friends will vote against the regulations in the hope that a better piece of legislation will be brought forward—primary legislation, subject to amendment—and that our obligations under the European Community legislation will be fully met.
Finally, my only criticism of much of what was said by the hon. Member for Alyn and Deeside (Mr. Jones) was that it is somewhat surprising to hear the Labour party, which is wedded to pulling this country out of the European Community, urging us to rely upon the European Community to advance our protection of the equal opportunities of women in this country.
These are thoroughly bad regulations, and were introduced in a way that was tasteless, sad and unrevealing. Even for those who are trained to understand legislation, the regulations are impossible to interpret. We must pity those who will have to try to understand them in order to put them into effect. To mention only one example, it is clear that a negative has been left out of new section 2A(1)(a). If there is to be any hope of the regulations being put into useful effect, they will require immediate amendment.
The House has been kept in total ignorance of the way in which the regulations are to be put into force. The procedural regulations have been outlined by the Minister but have not been put before the House for our consideration. We understand that there are to be ways in which independent assessors, who are not to be brought before tribunal—
On a point of ordr, Mr. Deputy Speaker. We have nearly reached the end of a debate lasting for an hour and a half, and, of necessity, the Minister had to spend about 36 minutes explaining to the House the technicalities of this complicted legislation. Many hon. Members on both sides of the House have asked questions, presumably on the asumption that the Minister might be able to answer them. In view of the fact that time is limited—
On a point of order, Mr. Deputy Speaker. You will be aware that, under Standing Order No. 3(1)(b), power is given to the Chair to decide that, in view of the importance of the subject matter, there has been inadequate time for the debate and that it should be adjourned. As the issue is clearly important, as there was an alternative means of legislating, and as the Minister has not been able to reply to the debate, may I ask you to exercise your discretion in that regard?
Mr. Deputy Speaker: I am aware of the Standing Order and had it in my mind throughout the debate. However, I think that the House is ready to come to a decision, and I shall accordingly put the Question.
|Division No. 36]||[12 midnight|
|Alexander, Richard||Brandon-Bravo, Martin|
|Amess, David||Bright, Graham|
|Ashby, David||Brinton, Tim|
|Atkinson, David (B'm'th E)||Brooke, Hon Peter|
|Baker, Nicholas (N Dorset)||Bruinvels, Peter|
|Baldry, Anthony||Bulmer, Esmond|
|Batiste, Spencer||Burt, Alistair|
|Bellingham, Henry||Butterfill, John|
|Berry, Hon Anthony||Carlisle, John (N Luton)|
|Bevan, David Gilroy||Carlisle, Kenneth (Lincoln)|
|Biggs-Davison, Sir John||Chope, Christopher|
|Blackburn, John||Clark, Hon A. (Plym'th S'n)|
|Blaker, Rt Hon Peter||Clark, Dr Michael (Rochford)|
|Boscawen, Hon Robert||Clarke Kenneth (Rushcliffe)|
|Bottomley, Peter||Colvin, Michael|
|Bowden, Gerald (Dulwich)||Conway, Derek|
|Boyson, Dr Rhodes||Coombs, Simon|
|Cope, John||Macfarlane, Neil|
|Couchman, James||MacGregor, John|
|Cranborne, Viscount||McNair-Wilson, P. (New F'st)|
|Currie, Mrs Edwina||Malins, Humfrey|
|Dicks, T.||Malone, Gerald|
|Dorrell, Stephen||Maples, John|
|Douglas-Hamilton, Lord J.||Marland, Paul|
|Dover, Denshore||Marlow, Antony|
|Dunn, Robert||Mates, Michael|
|Dykes, Hugh||Maude, Francis|
|Evennett, David||Maxwell-Hyslop, Robin|
|Fallon, Michael||Mayhew, Sir Patrick|
|Finsberg, Geoffrey||Mellor, David|
|Forsyth, Michael (Stirling)||Merchant, Piers|
|Forth, Eric||Meyer, Sir Anthony|
|Franks, Cecil||Miller, Hal (B'grove)|
|Freeman, Roger||Mills, Iain (Meriden)|
|Gale, Roger||Moate, Roger|
|Galley, Roy||Montgomery, Fergus|
|Garel-Jones, Tristan||Moore, John|
|Goodhart, Sir Philip||Morris, M. (N'hampton, S)|
|Gorst, John||Morrison, hon P. (Chester)|
|Gower, Sir Raymond||Moynihan, Hon C.|
|Gregory, Conal||Mudd, David|
|Griffiths, Peter (Portsm'th N)||Murphy, Christopher|
|Ground, Patrick||Needham, Richard|
|Hamilton, Hon A. (Epsom)||Nelson, Anthony|
|Hamilton, Neil (Tatton)||Neubert, Michael|
|Hampson, Dr Keith||Newton, Tony|
|Hanley, Jeremy||Nicholls, Patrick|
|Hargreaves, Kenneth||Norris, Steven|
|Harvey, Robert||Onslow, Cranley|
|Hawkins, C. (High Peak)||Osborn, Sir John|
|Hawkins, Sir Paul (SW N'folk)||Ottaway, Richard|
|Hawksley, Warren||Page, Richard (Herts SW)|
|Hayward, Robert||Parris, Matthew|
|Heathcoat-Amory, David||Patten, Christopher (Bath)|
|Heddle, John||Peacock, Mrs Elizabeth|
|Hickmet, Richard||Pollock, Alexander|
|Holland, Sir Philip (Gedling)||Powell, William (Corby)|
|Holt, Richard||Powley, John|
|Howard, Michael||Prentice, Rt Hon Reg|
|Howarth, Alan (Stratf'd-on-A)||Raffan, Keith|
|Howarth, Gerald (Cannock)||Rathbone, Tim|
|Howell, Ralph (N Norfolk)||Rhodes James, Robert|
|Hubbard-Miles, Peter||Ridsdale, Sir Julian|
|Hunter, Andrew||Robinson, Mark (N'port W)|
|Jessel, Toby||Roe, Mrs Marion|
|Johnson-Smith, Sir Geoffrey||Rossi, Hugh|
|Jones, Gwilym (Cardiff N)||Rowe, Andrew|
|Jones, Robert (W Herts)||Ryder, Richard|
|Kellett-Bowman, Mrs Elaine||Sackville, Hon Thomas|
|King, Roger (B'ham N'field)||Sainsbury, Hon Timothy|
|Knight, Gregory (Derby N)||Sayeed, Jonathan|
|Knight, Mrs Jill (Edgbaston)||Shaw, Sir Michael (Scarb')|
|Knowles, Michael||Shelton, William (Streatham)|
|Lang, Ian||Shepherd, Colin (Hereford)|
|Latham, Michael||Skeet, T. H. H,|
|Lawler, Geoffrey||Smith, Sir Dudley (Warwick)|
|Lee, John (Pendle)||Spicer, Michael (S Worcs)|
|Leigh, Edward (Gainsbor'gh)||Stern, Michael|
|Lester, Jim||Stradling Thomas, J.|
|Lightbown, David||Terlezki, Stefan|
|Lilley, Peter||Thompson, Donald (Calder V)|
|Lord, Michael||Wakeham, Rt Hon John|
|Luce, Richard||Warren, Kenneth|
|Watts, John||Mr. David Hunt and|
|Mr. John Major.|
|Tellers for the Ayes:|
|Ashdown, Paddy||Litherland, Robert|
|Atkinson, N. (Tottenham)||Lloyd, Tony (Stretford)|
|Banks, Tony (Newham NW)||Loyden, Edward|
|Barron, Kevin||McCrea, Rev William|
|Beckett, Mrs Margaret||McCusker, Harold|
|Beith, A. J.||McDonald, Dr Oonagh|
|Bennett, A. (Dent'n & Red'sh)||McKelvey, William|
|Boyes, Roland||Maclennan, Robert|
|Brown, M. (Brigg & Cl'thpes)||McNamara, Kevin|
|Brown, N. (N'c'tle-u-Tyne E)||Madden, Max|
|Brown, Ron (E'burgh, Leith)||Maginnis, Ken|
|Caborn, Richard||Marek, Dr John|
|Callaghan, Jim (Heyw'd & M)||Meadowcroft, Michael|
|Carlile, Alexander (Montg'y)||Michie, William|
|Clay, Robert||Mikardo, Ian|
|Cocks, Rt Hon M. (Bristol S.)||Miller, Dr M. S. (E Kilbride)|
|Cohen, Harry||Molyneaux, James|
|Cook, Robin F. (Livingston)||Nellist, David|
|Corbyn, Jeremy||Nicholson, J.|
|Cowans, Harry||O'Neill, Martin|
|Craigen, J. M.||Orme, Rt Hon Stanley|
|Dalyell, Tam||Paisley, Rev Ian|
|Davies, Rt Hon Denzil (L'lli)||Parry, Robert|
|Davis, Terry (B'ham, H'ge H'l)||Penhaligon, David|
|Deakins, Eric||Pike, Peter|
|Dixon, Donald||Powell, Rt Hon J. E. (S Down)|
|Dobson, Frank||Powell, Raymond (Ogmore)|
|Dormand, Jack||Prescott, John|
|Duffy, A. E. P.||Redmond, M.|
|Dunwoody, Hon Mrs G.||Richardson, Ms Jo|
|Eadie, Alex||Roberts, Allan (Bootle)|
|Eastham, Ken||Robertson, George|
|Evans, John (St. Helens N)||Rogers, Allan|
|Ewing, Harry||Rooker, J. W.|
|Fatchett, Derek||Ross, Ernest (Dundee W)|
|Favell, Anthony||Ross, Stephen (Isle of Wight)|
|Fisher, Mark||Ross, Wm. (Londonderry)|
|Flannery, Martin||Rowlands, Ted|
|Freud, Clement||Sedgemore, Brian|
|Gilbert, Rt Hon Dr John||Short, Ms Clare (Ladywood)|
|Godman, Dr Norman||Silkin, Rt Hon J.|
|Gould, Bryan||Skinner, Dennis|
|Hamilton, James (M'well N)||Smyth, Rev W. M. (Belfast S)|
|Hardy, Peter||Soley, Clive|
|Harman, Ms Harriet||Spearing, Nigel|
|Haynes, Frank||Thorne, Stan (Preston)|
|Holland, Stuart (Vauxhall)||Varley, Rt Hon Eric G.|
|Hughes, Robert (Aberdeen N)||Wardell, Gareth (Gower)|
|Hughes, Sean (Knowsley S)||Wareing, Robert|
|Hughes, Simon (Southward)||Welsh, Michael|
|Hume, John||Winnick, David|
|Janner, Hon Greville|
|Jones, Barry (Alyn & Deeside)||Tellers for the Noes:|
|Kilfedder, James A.||Mr. Walter Harrison and|
|Kirkwood, Archibald||Mr. Lawrence Cunliffe.|
|Lewis, Terence (Worsley)|