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Orders of the Day — Sex Discrimination Bill [Lords]

Part of the debate – in the House of Commons at 9:30 pm on 22nd May 1986.

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Photo of Mr Ian Lang Mr Ian Lang , Galloway and Upper Nithsdale 9:30 pm, 22nd May 1986

The hon. Gentleman should recognise the speed with which we have reacted to the European Court's ruling. That was a ruling on the inadequacy of legislation passed by the Labour Government.

The Opposition motion is not accurate. It states that we have failed to apply the Sex Discrimination Act 1975 to collective agreements. That is not so. A copy of the Bill was sent to the European Commission when it was published so that they could see how we were planning to implement the judgment. We have not been asked to make any changes.

The Government accepted a number of proposals put forward for improving the Bill from another place. For example, there is the improvement which provides for provision in partnerships put forward by the chairman of the Equal Opportunities Commission.

The hon. Member for Ipswich (Mr. Weetch) accused the Government of yielding to European judgments with bad grace. However, that is evidence of the Government's flexibility in that matter. Contrary to what the hon. Gentleman said, the court ruling did not cover partnerships. That was an improvement to the Bill which my right hon. and noble Friend the Secretary of State for Employment accepted in another place when it was put forward by Lady Platt. My hon. and noble Friend also made it clear that he opposed discrimination in any size of firm but recognised that small firms do not always have the administrative resources to deal with complex legislation.

The scope of the private homes provision, to which the hon. Member for Barking (Ms. Richardson) referred, has been clarified following expressions of concern that the original wording was imprecise and could lead to unnecessary litigation. I know that some hon. Members are deeply concerned over what they see as an intrusion by the Bill into private life, but I can assure the House that the Government, and indeed the EC, consider that the principle of respect for private life is fundamental. It will still be possible to choose an employee of a particular sex in circumstances where the job holder would be involved in the household's private life; for example, where the job is to give nursing care or companionship to a member of the family.

Clause 2 has also been improved in another place to provide that discriminatory rules by an employer in respect of applicants for jobs will be void.

There was another interesting debate on equal opportunities in the House last Wednesday. The Government asked the House to take note of three EC proposals on equal opportunities which we regard favourably and to endorse the Government's commitment to the principal of equal treatment. Again, the Opposition put down a quite inaccurate amendment referring to lack of commitment to the principle of equal treatment on the part of the Government, and in particular our so-called obstruction of equal pay for work of equal value. The Government were able to describe the array of provision we have made in all aspects of equal opportunities, in particular our record on getting women into jobs and on improving vocational training opportunities. We also pointed out that we had implemented the European Court ruling on equal pay for work of equal value, which resulted from a gap in the original Labour Government's Equal Pay Act 1970. The Opposition also attempted to criticise the Government for their failure to extend invalid care allowance to married women, which again was discrimination introduced by the previous Labour Administration.

The Opposition's amendment says that the Bill fails to act on collective agreements. The equal treatment directive requires that any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions, shall be or may be declared null and void or may be amended.

The Government argued before the court that that requirement is already met in relation to collective agreements under United Kingdom law and they argued that on two main grounds. First, "void" must. in the Government's view, mean of no legal effect. Where a collective agreement is not legally binding, as is the case with the vast majority of collective agreements in the United Kingdom, none of its provisions, whether discriminatory or not, is of legal effect. Where exceptionally a collective agreement is made legally binding, section 77 of the Sex' Discrimination Act makes void any term in it which will involve those carrying it out in an act of unlawful sex discrimination.

The court was satisfied that section 77 of the Sex Discrimination Act dealt adequately with legally binding collective agreements but ruled that the directive covers all collective agreements and that there should be corresponding provision for non-binding agreements. Discrimination arises when collective agreements includes single sex terms such as separate provisions for men and women or provisions applicable to one sex only. That is why the Government are proposing in the Bill to amend the Sex Discrimination Act so as to formally void discriminatory terms in present and future collective agreements, whether the terms occur in the same agreements or different agreements between the same parties. It is not thought that there are many such terms in existence today or that they are likely to be negotiated in future.

Therefore, I cannot agree that the clause on collective agreements will not work satisfactorily. Of course we hope that very few discriminatory collective agreements have been entered into. But in so far as they have, the offending terms will be void, and it is in the interests of the parties to negotiate a new non-discrimatory term to fill the void. Until they do, every employee who suffers discrimination as a result of the original term will be able to complain to an industrial tribunal under existing provisions and possibly be awarded compensation or back pay. No sensible negotiators will want to live in such an uncertain situation. But the Bill ensures that the delay in renegotiation will have no adverse effect on the employment contract of an individual employee.

I imagine that there may be interesting discussions in Committee about the need for the Central Arbitration Committee to be involved in enforcement of the provisions of clause 2. I do not want to anticipate those, but must say that having listened carefully to the points put forward by some hon. Members today I am not convinced that such an enforcement mechanism is necessary. We are convinced that we have implemented the European Court judgment and equally convinced that victims of sex discrimination have effective redress through our industrial tribunal system.

We do not need a new system of enforcement for sex discrimination cases, and the European court ruling did not suggest this. Its judgment was essentially a technical one and we are implementing it with this Bill. The court accepted that section 77 of the Sex Discrimination Act 1975 implemented the directive in relation to legally binding collective agreements, but held that the lack of corresponding provision for non-binding agreements meant that the directive was not fully implemented. In our view, the court saw a formal voiding provision as an important presentational measure which would set the tone for collective agreements and filter through to practical results on the ground. This change implements the court's judgment, and the Government do not see the need to establish a special enforcement procedure beyond what is required of us.

My right hon. and learned Friend the Paymaster General said at the start of the debate that we wanted to hear the views of the House on the three substantial additions made to this Bill in another place. We have listened to the arguments put forward, but we are still not convinced that the additional clauses are necessary.

The hon. Member for Ipswich spoke about clause 3 which was introduced by an amendment tabled by Lord Wedderburn in the other place. In practice, it will impose further delays before the existing discriminatory restrictions on hours of work can be removed. If the Health and Safety Commission or the Equal Opportunites Commission were so minded, it could prevent the Secretary of State simply repealing legislation under clause 9(3) and force him to follow the procedure set out in the new clause.

This procedure involves a time lapse of at least a year during which a lot must happen. The Secretary of State must conduct extensive consultations with employers and trade unions and he must seek the views of the Health and Safety Commission and the Equal Opportunities Commission. He must also publish a draft report of interim proposals, and nothing can happen until a final report is published setting out the proposals for amendments. After all this, the Secretary of State may finally make an equal protection order amending any of the relevant enactments or may carry forward the necessary repeals. It is not clear to us what purpose this further delay would serve. The issue has been discussed for six years, ever since the Equal Opportunities Commission recommended the repeal of the restrictions affecting women in 1979.

Before 1979, the Equal Opportunities Commission had consulted widely and given the whole matter careful consideration. In 1979 the Health and Safety Commission was asked to consider the EOCs proposals on women's hours but has been unable to reach a consensus on how this discriminatory legislation can be reformed. That is why the Government have decided to act now. Further consultation is unlikely to achieve any greater degree of consensus than now exists. Indeed, it is more likely that at the end of the further consultation period that this new procedure would require, the Secretary of State would be no further on than he is now. He would still have to take decisions weighing in the balance the same arguments that the Government have taken into account.

We are not convinced of the case for keeping clause 7, introduced in another place by an amendment tabled by the noble Lord McCarthy. The clause aims to limit the discretion of industrial tribunals by giving new absolute rights to employees who, at the date of the commencement of the Bill, are subject to the restrictions on working hours and other working conditions which are removed by the Bill. The so-called protection provided by this new clause is to a great extent implicit in existing employment protection legislation, and we wonder whether Opposition fears are not out of all proportion to the size of the problem that this clause is meant to remedy.

The repeal of these hours of work restrictions will not lead to the wholesale imposition of dramatic changes in working hours. A manufacturer will only alter hours if he has the orders to justify it or if circumstances demand it. He is not likely to incur the additional costs that longer or unsocial hours usually involve without good reason, and is certainly unlikely to do so without fully consulting his work force.

Another difficulty stems from the uncertainties of the employer confronted by the new clause. What exactly does it require of him? If he lets things ride, then presumably his employees will continue to have their conditions dictated by the restrictions, and he must continue to shoulder the bureaucratic burden of record keeping, posting notices and so on. If he attempts to rid himself of this burden, he must secure the agreement of each of his workers, but they are unlikely to give this until they know precisely what they are letting themselves in for. Either way, the employer is stuck with the burden. As his work force turns over, new employees will be taken on and will accept employment on the terms that he offers.