§ Report received.
Baroness Turner of Camden moved Amendment No. 1:
After Clause 2, insert the following new Clause—
§ ("Qualifying period for work after pregnancy.
§ The qualifying period of employment for a woman seeking to exercise the right to return to work after pregnancy under Part III and sections 57 to 60 of the Employment Protection (Consolidation) Act 1978 shall be six months' continuous employment.").
§ The noble Baroness said: My Lords, at the Committee stage of this Bill I moved an amendment which would have ensured, if carried, that women could return to work after pregnancy without a qualifying period of employment. That amendment did not find favour with the Committee. Nevertheless, I believe that there is a case for the qualifying period to be less than two years as at present. Two years seems a very long while. Almost all the organisations consulted by the Equal Opportunities Commission, when it sought views, favoured a reduction in this two-year period. I believe, for example, that the British Institute of Management would be happy with the period being reduced to the six months mentioned in this new amendment.
§ Although I personally still feel that there is a case for doing away with the qualifying period altogether —as does the Equal Opportunities Commission —nevertheless I have attempted in this amendment to meet the views expressed by a number of organisations that they would support a reduction in the period but not complete elimination.
§ As we know, the Government are anxious to encourage women back into employment. We are all familiar with the arguments about demographic change: 50 per cent. of the workforce is likely to consist of women in the coming years. It will be in the interests of employers to retain women in employment, even after the shorter qualifying period.
§ What of the employer who has attracted into his employment a highly-qualified woman? This may increasingly be the case. He will not want to lose her if she becomes pregnant within a year or so of her taking up her appointment. Six months was the period stipulated in the original legislation providing for maternity leave. I believe that it was chosen because six months is the normal probation period in many types of employment.
§ However, the longer period of two years which is now in operation is not satisfactory. It fails to take account of a woman's need to work which is increasingly the pattern nowadays. Most mortgage arrangements at present take two incomes into account. If that were not the case, many young couples embarking upon house purchase for the first 8 time would simply not be able to acquire living accommodation at all.
§ Thus we are not nowadays talking about women working for pin money, if ever that was the case. It is a necessity which should be interrupted for as short a period as is commensurate with the health of the woman and child. It is not a special right for women; it is a family right. With this Bill there is an opportunity to make matters easier for working women. We urge that that opportunity be taken. I commend the amendment to your Lordships.
§ Baroness Seear
My Lords, I wish to support the amendment. The noble Baroness, Lady Turner, has made most of the points but I should like to stress the great importance of retaining women in employment. We shall need them desperately. If they have an established right to come back then obviously they are more likely to do so than if they have to apply again, as anybody else would do who has not previously been in the firm or organisation. Therefore, to limit it to the shortest possible period of time to establish rights is in the interests of the employer as well as of the woman.
§ Lord Simon of Glaisdale
My Lords, there are two issues behind the amendment. In my submission both point clearly and cogently in its favour. The first is what one might call the equal opportunities, women's rights issue. The second is the one that has been mentioned forcefully today—the demographic, economic argument.
As to the first, my own concern has mainly been to entrench the rights of married women in the matrimonial home and its contents. But so far as I have been able, I have also supported the efforts of the Equal Opportunities Commission in this field and its principal spokespeople in your Lordships' House have supported my approach.
The argument here is plain and cogent. It is only through women becoming pregnant that society has continuity. In doing so women endure nine months of nausea and discomfort, followed by hours of pain and peril. That raises a concomitant duty on society to see that that sacrifice is adequately reflected in the law. However, there is more to it than that. There is the second argument which was put forward by the noble Baroness, Lady Seear, just now. There will be an urgent need for married women in particular and for women in general to continue in employment. They must be given an opportunity and indeed an incentive to do so.
When the matter was raised in Committee, I felt, in spite of what the noble Baroness said, unable to support the approach because it seemed to me that the point put forward by the noble Lord, Lord Boyd-Carpenter, was very difficult to gainsay. He said that if there were no period of probation, one might get a situation whereby a woman claimed pregnancy rights having been only two days in employment. That reflects the fact that, even though society owes a duty here, it does not properly perform that duty if it puts the whole, or an incommensurate, burden on a particular individual —here, the individual employer.
9 However, six months seems to me to be a really fair spread of risk. The noble Baroness, Lady Turner, said that that period had commended itself to a number of organisations, including some representatives of employers. I hope that the Government will see their way to accepting what seems to me a very plain case, and that the amendment will succeed.
§ 3 p.m.
§ Lord Boyd-Carpenter
My Lords, I am indebted to the noble and learned Lord, Lord Simon of Glaisdale, for bringing up again an argument which I used at an earlier stage. As always, he recalled my words with punctilious accuracy. However, I do not think the position is quite so simple as he suggests. There is no dispute that there should be a right to be employed again if one has worked prior to pregnancy for a certain period. It is simply a question of specifying the period.
I believe that it is the general experience that a period of six months does not on the whole give an employer very much opportunity to judge the quality and reliability of an employee. There is obviously a case for a rather longer period than six months. However, whether the present period of two years is dead right is another matter, but six months seems to err on the short side.
I suggest, with respect, that the noble Baroness, Lady Turner, gave her case away when she said that there was a great demand for women's labour for demographic as well as for other reasons. Of course she is right, but if there is a great demand, the necessity to provide a woman with a right to return to work, as opposed to having the opportunity to return, is quite another matter.
I believe that the noble Baroness is right to say that there is a great and increasing demand for women's labour. However, if that is the case, one is not penalising women who give up their job because of pregnancy if one insists, if they are to have a right of return, on their having completed a substantial period of employment prior to the pregnancy. If, in other words, there is such an overwhelming demand for their services, they will be re-employed whether or not they have that statutory right. On the other hand, if they have a statutory right based only on six months' experience, I doubt whether that is satisfactory. I doubt whether in any other field of employment six months would be regarded as an adequate period of trial. Although one can argue about whether the two-year period is right, I am pretty sure that the six-month period is wrong.
§ The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde)
My Lords, this amendment is obviously of great concern to women. I am grateful to the noble Baroness for bringing the issue back to be discussed on Report. However, I must say at the outset that the arguments I have heard so far have not convinced me to change my mind.
The new clause seeks to give all women employees the right to return to work after having a baby after only six months' continuous service with their employer. As your Lordships know, presently most 10 women employees have the right to return to work after childbirth provided they satisfy certain conditions relating to length of service and hours worked. These are as follows: a woman who is employed to work at least 16 hours a week must have been continuously employed by her employer for at least two years before the beginning of the eleventh week before the expected week of confinement. Women working at least eight but less than 16 hours a week require five years continuous employment in order to qualify.
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 reasonable qualifying period with her employer and demonstrate her commitment to that employment. The length of a qualifying period must of course be a matter of judgment, but we feel that the current qualifying period of two years strikes the right balance between the needs of employers and employees. Certainly six months is far too short, although I recognise that it is an improvement on the amendment tabled in Committee which sought to abolish the qualifying period altogether. Some employers face difficulties in covering the period of absence and re-integrating the absent employee on her return. Many employees return to work but unfortunately many others do not, although before the birth they believe that 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 younger women. It would reduce job opportunities for those very people the new clause is trying to help.
We have heard arguments in Committee and again today that demographic trends mean that married women should be encouraged to remain in employment and that therefore the employment protection legislation should make the right of return to work after pregnancy available to more women. I recognise that demographic trends mean that many employers will need to look to attracting married women back to work. But the best way to proceed is not to impose a further legislative burden on employers. Employers should be left to agree with their employees such arrangements as may be necessary to meet their need for married women. Some may wish to improve on the statutory provisions with regard to the right to return to work after pregnancy; others may wish to introduce flexible working hours and so on. To impose an extra legislative burden on employers irrespective of their own particular needs and circumstances does not make sense.
The noble Baroness, Lady Turner, referred to dual income mortgages. I have no great experience in that matter, but I am sure that building societies need evidence of a person's commitment to continue working. I am not sure that they would regard six months as being a long enough period.
I have no argument with the noble and learned Lord, Lord Simon of Glaisdale, when he says that women make a great sacrifice when they have children. However, I disagree when he says that this is a plain case. I am not at all certain that it is. My noble friend Lord Boyd-Carpenter put the case 11 extremely cogently. I hope that the noble Baroness will agree to withdraw the amendment.
§ Baroness Turner of Camden
My Lords, that is a very disappointing response from the Minister. I am very sad that, despite the fact that we debated the matter in Committee and brought back an amendment to meet some of the objections raised, the Minister does not find our amendment acceptable.
I cannot accept the arguments that have been advanced on the basis of demography. It seems to me that if the intention is—and clearly it is —to encourage women to remain in or to return to the workforce, there must be a lead from the Government. What better lead could there be than an improvement in maternity leave arrangements, spelt out in legislation?
When we first had legislation on maternity leave, six months was the qualifying period that was included. As I said in my opening remarks, six months was originally chosen because a six months' probation period is very common in industry and commerce and it was felt that a six months' qualifying period would chime in with many employers' arrangements. There is no evidence that the six-month period imposed a heavy burden on employers.
I do not accept the argument that changing the qualifying period would impose a further burden on employers. If it is left to employers to make their own arrangements many good employers will do so. As we have often said in debates on this Bill, it is not necessary to legislate for good employers. However, we have to ensure that minimum standards are available in order that less good employers will meet a reasonable standard. That is what statutory rights in employment are all about.
I am extremely disappointed with the Minister's response. In the circumstances I feel that I have no alternative but to test the feeling of the House.
§ 3.11 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 71; Not-Contents, 98.12
|Amherst, E.||Dormand of Easington, L.|
|Ardwick, L.||Ennals, L.|
|Aylestone, L.||Ewart-Biggs, B.|
|Birk, B.||Ezra, L.|
|Bottomley, L.||Falkland, V.|
|Brightman, L.||Fisher of Rednal, B.|
|Broadbridge, L.||Gallacher, L.|
|Bruce of Donington, L.||Galpern, L.|
|Burton of Coventry, B.||Gladwyn, L.|
|Carmichael of Kelvingrove, L.||Graham of Edmonton, L.|
|Cledwyn of Penrhos, L.||Hampton, L.|
|Cocks of Hartcliffe, L.||Hanworth, V.|
|David, B.||Hayter, L.|
|Dean of Beswick, L.||Henderson of Brompton, L.|
|Diamond, L.||Hooson, L.|
|Irvine of Lairg, L.||Rochester, L.|
|Irving of Dartford, L.||Sainsbury, L.|
|Jay, L.||Scanlon, L.|
|Jenkins of Putney, L.||Seear, B.|
|Kearton, L.||Simon of Glaisdale, L.|
|Leatherland, L.||Soper, L.|
|Liverpool, E.||Stallard, L.|
|Llewelyn-Davies of Hastoe, B.||Stedman, B.|
|Stoddart of Swindon, L.|
|Lloyd of Hampstead, L.||Strabolgi, L.|
|Longford, E.||Taylor of Blackburn, L.|
|McCarthy, L.||Taylor of Gryfe, L.|
|McFarlane of Llandaff, B.||Tordoff, L. [Teller.]|
|Mason of Barnsley, L.||Turner of Camden, B.|
|Molloy, L.||Underhill, L.|
|Nicol, B.||Wallace of Coslany, L.|
|Peston, L.||Wedderburn of Charlton, L.|
|Phillips, B.||White, B.|
|Ponsonby of Shulbrede, L. [Teller.]||Williams of Elvel, L.|
|Winchilsea and Nottingham, E.|
|Alexander of Tunis, E.||Kinloss, Ly.|
|Allerton, L.||Kinnaird, L.|
|Ampthill, L.||Knollys, V.|
|Annaly, L.||Long, V. [Teller.]|
|Arran, E.||Lyell, L.|
|Barber, L.||McColl of Dulwich, L.|
|Beaverbrook, L.||Mackay of Clashfern, L.|
|Belhaven and Stenton, L.||Malmesbury, E.|
|Beloff, L.||Margadale, L.|
|Belstead, L.||Marley, L.|
|Bessborough, E.||Merrivale, L.|
|Birdwood, L.||Monson, L.|
|Borthwick, L.||Montgomery of Alamein, V.|
|Boyd-Carpenter, L.||Mottistone, L.|
|Brabazon of Tara, L.||Mowbray and Stourton, L.|
|Brougham and Vaux, L.||Moyne, L.|
|Bruce-Gardyne, L.||Munster, E.|
|Butterworth, L.||Nelson, E.|
|Caithness, E.||Nugent of Guildford, L.|
|Carnock, L.||Onslow, E.|
|Cayzer, L.||Oppenheim-Barnes, B.|
|Constantine of Stanmore, L.||Orkney, E.|
|Cottesloe, L.||Pender, L.|
|Cullen of Ashbourne, L.||Penrhyn, L.|
|Dacre of Glanton, L.||Reay, L.|
|Davidson, V. [Teller.]||Reigate, L.|
|De Freyne, L.||Rodney, L.|
|Denham, L.||St. Davids, V.|
|Eccles, V.||St. John of Bletso, L.|
|Effingham, E.||Saltoun of Abernethy, Ly.|
|Elibank, L.||Seebohm, L.|
|Ellenborough, L.||Shannon, E.|
|Elles, B.||Sharples, B.|
|Erne, E.||Shaughnessy, L.|
|Erroll of Hale, L.||Slim, V.|
|Faithfull, B.||Somers, L.|
|Ferrers, E.||Strathclyde, L.|
|Gainford, L.||Strathmore and Kinghorne, E.|
|Hailsham of Saint Marylebone, L.||Strathspey, L.|
|Havers, L.||Thomas of Swynnerton, L.|
|Henley, L.||Thorneycroft, L.|
|Hesketh, L.||Trefgarne, L.|
|Hives, L.||Trumpington, B.|
|Home of the Hirsel, L.||Ullswater, V.|
|Hylton-Foster, B.||Vaux of Harrowden, L.|
|Ironside, L.||Wise, L.|
|Jenkin of Roding, L.||Wynford, L.|
|Kimball, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.13
§ 3.20 p.m.
Baroness Turner of Camden moved Amendment No. 2:
After Clause 2, insert the following new clause —
§ ("Discrimination unlawful or ground on 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 except where such employment is the subject of an exemption order issued under subsection (6) of this section —
- (a) in the arrangements he makes for the purposes of determining who should be offered that employment, or
- (b) in the terms on which he offers that person employment, or
- (c) by refusing or deliberately omitting to offer that person employment, or
- (d) in the way 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
- (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) The Secretary of State may, in consultation with the Health and Safety Executive, make such exemption orders as he thinks fit in such industries and services as he deems appropriate.
§ The noble Baroness said: My Lords, at the Committee stage I introduced an amendment designed to protect against discrimination in employment people unfortunate enough to have contracted the HIV virus or full-blown AIDS. That amendment did not commend itself to your Lordships' Committee, but there was a good discussion and I had the impression that there was some sympathy for what I was trying to do.
One of the points made against the amendment in Committee was that it was too all-embracing—that there were certain industries and services where there might be a case for allowing exemptions. I have given a great deal of thought to that. I do not believe that there are likely to be many industries and services where, given a reasonable standard of hygiene which should apply anyway, it would be unsafe to employ people suffering from HIV or AIDS. There is no real threat to fellow workers or to the general public in most working environments and, as the Minister said in Committee:
No risk should mean no discrimination".—[Official Report, 16/10/89; col 669.]
§ Hysterical press coverage, mostly in the tabloid press, has been responsible for spreading much misinformation about HIV and AIDS, but we know from medical evidence available that the virus itself is very delicate. It cannot live long outside the body and can be passed on only through an exchange of 14 body fluids in intimate sexual contact or by injection with infected blood or by infected needles.
§ Arguments were advanced in Committee that it was itself discriminatory to forbid discrimination against HIV sufferers while permitting it to continue against sufferers of other serious diseases. It seems to me that the answer to that is that there is something quite especially frightening about AIDS. That is largely because of the publicity which has surrounded it, but also because there would appear at present to be no known cure. It has claimed a number of well known victims, some of whom have been pictured in the last stages of the disease. The suddenness of its appearance, at least in the West; the perceived dreadfulness of the disease; the fact that it afflicts mainly the young —all those factors have combined to produce a special atmosphere which distinguishes HIV and AIDS from other serious diseases. So this is a very special case.
§ The Government acknowledge that fact. Their advertising campaign has been virtually unprecedented. There has not been a similar campaign in regard to any other disease in recent times. The campaign has had some success in changing the sexual habits of those most at risk, but people still become infected. As I said in Committee, it is bad enough for a young person to be diagnosed as having become infected; to have one's employment put at risk as well must be horrifying indeed. It must induce a state of near desperation.
§ I am therefore returning with another amendment. I do not accept the government argument that people are already protected by the existing legislation on unfair dismissal. It takes a great deal to mount a case to an industrial tribunal and, even if the case is won, it rarely results in reinstatement. What we want to do in this amendment is to prevent discrimination at the outset. I believe that introducing legislation of this kind will help to change public perceptions of HIV sufferers. There is a great deal of concern about discrimination in employment. I have received many letters about it, as I am sure have other noble Lords.
§ I must tell the House that I am not entirely happy about the wording of the amendment. I have included in it a provision for the Secretary of State to exempt certain industries and services, but I believe that in practice the number of such industries and services will be few indeed. Nevertheless, there is a risk that an HIV sufferer might end up with less protection as a result of the amendment if he or she happened to work in industries or services that became the subject of an order. So, from my point of view, the amendment is not perfect. But it might offer some protection more generally to HIV and AIDS sufferers. For those reasons, I commend the amendment to the House. I beg to move.
§ Lord Boyd-Carpenter
My Lords, as the noble Baroness reminded noble Lords, there is a difference between this amendment and the one which your Lordships discussed in Committee; namely, the provision in subsection (5) which the noble Baroness herself quite plainly does not like very much and which gives to the Secretary of State the power to exempt certain occupations.
15 As the noble Baroness said, that point was raised at an earlier stage. It was pointed out—it hardly therefore needs re-emphasis—that there are certain areas in which it would be very understandable that people should not wish to employ HIV sufferers. An obvious example is hospitals. Another obvious example is domestic help in the home, care of children and the like. To a point, therefore, in bringing forward the amendment, although she does not like it herself, the noble Baroness has sought to meet that point by giving to the Secretary of State power to exempt particular occupations. However, perhaps I may respectfully disagree with her. If the amendment were to become law, subsection (5) would be of some considerable importance because there are a number of occupations —one has only to think of them—in which most noble Lords would feel very unhappy at being compelled to employ a sufferer from that unfortunate disease.
However, the noble Baroness has not met the other great objection which was put at the Committee stage; namely, why pick out a particular disease? There are other diseases—for example, hepatitis, the syphilitic diseases and tuberculosis—sufferers from which are perhaps not very well placed for employment. One would be nervous of employing people who have suffered actively or are suffering actively from complaints of that sort. HIV is the disease which makes the headlines at the moment and attracts the attention. But if, by putting forward the amendment on the ground of fairness to the sufferers themselves, there would seem to be no justification for excluding from its benefits sufferers from other difficult diseases, unpleasant diseases and diseases which have been known to carry infectious power for a considerable time, it seems to me that the argument that my noble friend the Minister put at an earlier stage still stands; namely, that one should rely on the general law rather than pick out this particular disease for special treatment. I hope very much that your Lordships will not feel it necessary to accept the amendment.
§ Lord Tordoff
My Lords, in contrary distinction to the noble Lord, Lord Boyd-Carpenter, I wish to support the amendment. We had considerable discussion at Committee stage and I believe that the noble Baroness has gone out of her way to find ways of dealing with the criticism that was offered on that occasion.
Frankly, I do not accept the argument that, if the amendment were passed, it would be unfair to sufferers of other diseases. As the noble Baroness has pointed out, it is a question of how contagious those various diseases are. Tuberculosis, for instance, is a totally false analogy. There would be many cases in which tuberculosis was a danger to fellow employees. That is not the case so far as concerns HIV and AIDS, as will be known to those people who have taken the trouble to read and inwardly digest the Government's advertising and information.
We are dealing with people who are being unfairly discriminated against. We are not just dealing with people who are being discriminated against. Clearly, 16 in some cases, it may be necessary to discriminate against people because they are unsuitable for a particular occupation. If that is the case with HIV —and one has little evidence of situations where that would be the case —that discrimination may have to take place.
As we said at Committee stage, however, many people are being unfairly discriminated against because their employers find that they are suffering from this malaise and they are automatically being thrown out of work. That is unfair discrimination and this House should set its face against it. It appears that we have singularly failed to get across even to Members of your Lordships' House some of the realities of this disease. How much more have we failed to get them across to the general public and to employers? I believe that we must lay down a minimum condition which will allow people to carry on with their work. They are already suffering, as we said before, from all sorts of problems, psychological and other, as a result of having caught this disease.
I had the slight feeling at the last stage of the Bill that there were also people who discriminated between those who had caught the disease through routes which they considered acceptable and those who had caught it through routes which they considered unacceptable. I hope that noble Lords will dismiss that thought from their minds. People who have this disease, however caught, are suffering from it. They have a right not to be discriminated against. I certainly support this amendment.
§ 3.30 p.m.
§ Lord Strathclyde
My Lords, the noble Baroness opposite has tabled an amendment which closely resembles one tabled at Committee stage. As I made clear in that debate, I share the general concern that employers heed the message that the workplace risks from the AIDS virus are negligible and there should be no discrimination. As I said before, no risk means no discrimination.
The difference between us is over the meaning of getting that message across. In the Government's view the continuing public education campaign is the most effective approach. However, we certainly need to continue to monitor the situation carefully and to develop the campaign as effectively as possible. As I have announced, to that end we shall shortly be launching an updated version of AIDS and Employment which will come out very soon. Education, not legislation, is the way forward. In her opening remarks the noble Baroness, Lady Turner, usefully explained once more how AIDS can be picked up.
The current amendment includes a subsection which would empower the Secretary of State to make exemption orders, in consultation with the Health and Safety Executive, in such industries and services as he deems appropriate. That would give the Secretary of State a surprisingly wide power but not necessarily an appropriate one. Even in sectors in which there may be a potential risk of infection (such as the health care sector) those risks vary with the precautions taken.
17 The subsection seems to be based on the assumption that in those sectors, if people are careless over hygiene precautions, that would justify discrimination by employers in those sectors against those with the virus. But surely the solution should be better enforcement of hygiene precautions, not discrimination. Although the proposed power of exemption is meant to be helpful in response to some of the points made by noble Lords at Committee stage. I fear that if the clause were adopted and the power used it would be counterproductive to the aims of our education campaign.
It is worth repeating that to dismiss someone merely because he or she is suspected of having HIV infection is likely, depending on the circumstances, to be unfair. The point has been made that tribunals should order reinstatement more often. As with other unfair dismissal cases, those who want reinstatement should make it clear from the outset. If the dismissal is unfair, if there is no contributory fault and if reinstatement is practicable, then the tribunal would give it serious consideration. But I suspect that a very large number of applicants in tribunal cases do not want to return to their old job.
I am concerned that the Government should be successful in convincing employers that the risks of being infected by the AIDS virus in the workplace are negligible, that discrimination is not justified and that it is in their interests to adopt sensible policies in relation to AIDS. But, as I said earlier, education must be the answer and not legislation.
I hope that the noble Baroness will feel able to withdraw the amendment.
§ Baroness Turner of Camden
My Lords, I thank the Minister for that response. In many respects I found it very useful and helpful. I am very glad to learn that the updated version of AIDS and Employment is shortly to be issued and that the Government accept the argument—the Minister restated it—that no risk must mean no discrimination.
I am very glad to learn that industrial tribunals are to be urged that reinstatement should be used as a remedy far more frequently than it is at the moment and that better enforcement of hygiene is something which should be carried out in any event in many occupations. I do not intend to press the amendment this afternoon. We have given the argument a very good airing again. We have emphasised the view held on this side of the House that individuals who have this appalling disease have enough to put up with psychologically without having to face the risk of unfair discrimination in employment. We have emphasised once again that HIV and AIDS represent a very special case. It is not in any way apposite to compare it with other diseases.
The noble Lord, Lord Tordoff, dealt at some length with those arguments. I agree with everything that he said in that area. I shall withdraw the amendment but would like to say that we hope that, should discrimination apparently continue, there will be another opportunity some time in the future, if education does not seem to be working, once again to return to the legislative field so as to ensure that 18 people faced with this disease are not also faced with unfair discrimination in employment. With those words I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Power to exempt discrimination in favour of lone parents in connection with training]:
Baroness Seear moved Amendment No. 3:
Page 7, line 36, after ("parents") insert ("and women returning to work after pregnancy").
§ The noble Baroness said: My Lords, again this amendment is similar to one moved at Committee stage. It has to do with the need to get more women back into the employment field. Its purpose is to enable women who return to work after pregnancy to have the advantages in the Bill. They are not included at the present time. So many women who want to return to work are not eligible for benefits of one kind or another because they have not been unemployed. The need to get these women back into work is very great indeed. I beg to move.
§ Baroness Turner of Camden
My Lords, we on these Benches fully support the amendment. In our view it is very necessary to give support to women who return to work after pregnancy and in particular to ensure that training and other special arrangements can be made for them to play a full part in employment following disruption of their working pattern.
We accept that such amendments do not entirely cope with the situation in which most women find themselves when they have to discontinue work in order to have their children. There is a need for a proper programme of measures, including crèche and child care facilities, career breaks and so on, as well as better pregnancy leave to make this possible.
However, the measure proposed in the amendment is a step which I think can be taken via this Bill. We hope that it will commend itself to the Government.
§ Lord Rochester
My Lords, I should like to add a few words in support of this amendment. In Committee the noble Lord, Lord Strathclyde, said that there would be substantial costs in extending child care payments across the board. It is partly with that in view that my noble friend deliberately confined the amendment so as not to cover all married women returning to work at any time after bringing up their children but only those who return to work after pregnancy. It is therefore a limited amendment.
I suggest to your Lordships that it has the further advantage that it should not give rise to any problems of definition because the right of employees to return to work after absence due to pregnancy is adequately defined in Section 45 of the 1978 Act as:any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls".Last Tuesday the Secretary of State is reported to have said that a survey of 2,000 British firms had found that only one in three companies was trying to adapt its training, employment and working 19 practices to tap alternative sources; that fewer still were looking at more radical changes to employment policies such as child care; that only 3 per cent. of companies had introduced such schemes; that 5 per cent. more were considering initiatives; but that there was little interest outside financial and business services, transport and distribution.
In the light of that indictment of the current situation by the responsible Minister, I hope that the Minister here will feel able to accept the amendment. Many of these women are of very great potential value to the economy. They would soon repay in tax the grants for retraining that they would receive if the Government were to invest in them in the way proposed in the amendment.
§ Lord Strathclyde
My Lords, I must first point out that there are some technical difficulties with the amendments of the noble Baroness as drafted. As it stands, the clause deals only with discrimination on the grounds of marital status. To give favourable treatment to "women returning to work after pregnancy" would involve sex discrimination against men. It would therefore be necessary to amend subsection (2) of the clause to include a reference to Section 1 of the Sex Discrimination Act. Moreover it is not clear whether the amendments would cover women undertaking training with a view to returning to work. Neither is it clear for how long after a pregnancy a woman would continue to be able to receive special treatment.
However, setting aside those technical objections, I recognise that the intention of the amendments is to enable special help to be given to women returning to the labour market after a period of domestic responsibilities. In fact, the noble Baroness and other noble Lords who have spoken in this debate may not be aware that the Government already provide a special entry route into employment training for both men and women who have been out of the labour market for two years because of domestic responsibilities and have not received unemployment benefit or credits. In addition, individual training managers and training providers are free to offer créche facilities at or near the place of training, flexibility in the timing of training or distance-learning materials so that some training can be undertaken at home.
§ Baroness Seear
My Lords, the noble Lord raises a very important point. It is true that at one stage there were facilities provided for training women who did not qualify because they had been receiving unemployment benefit. But the numbers were very limited. Have those numbers very greatly increased recently? That is part of our objectives. Those places were valued but initially the numbers were very small.
§ Lord Strathclyde
My Lords, the noble Baroness makes a very fair point. It is a matter that I shall consider. Perhaps I may write to the noble Baroness at a later stage and let her know whether the numbers have indeed increased.
20 As I told noble Lords when introducing the Government's amendments to this clause in Committee, we believe that it is right to target special help on lone parents so that they can receive the training they need to get back into jobs. The cost of extending child care payments to all parents on employment training would be very great. It would unacceptably reduce the resources available for helping long-term unemployed people to get back into jobs. We believe that programme resources are better used on enhancing the volume and quality of the training available under the programme.
Lone parents face particular difficulties if they wish to re-enter the labour market because they have no partner with whom to share the responsibilities of child care. We firmly believe that it is right to target special help on this category of parent.
The noble Lord, Lord Rochester, raised a point about companies not changing their practices. That is exactly why my right honourable friend the Secretary of State and other Ministers are leading the campaign to persuade companies to realise some of the problems that they will face over the next 10 years and fundamentally to change their attitudes towards not only married women but also older workers and young people.
§ Baroness Seear
My Lords, there is no point in dividing the House on the amendment. I very much hope that the Government will bear it in mind. I hear in the Minister's reply traces of sympathy with the objective. If we keep on long enough he may realise that it really is in everybody's interests that it should be made as easy as possible for these women to return to work. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 4 not moved.]
§ Clause 9 [Repeal or modification of provisions requiring different treatment of different categories of employees]:
§ 3.45 p.m.
§ Lord McCarthy moved Amendment No. 5:
Page 8, line 15, at beginning insert—
("(8) The provisions of subsections (1) (2) and (3) of this section shall be brought into effect by order made by the Secretary of State, and different orders may be made for different days for those provisions; but no such order shall be made until he has received a special report from the Health and Safety Commission concerning the implications of such orders for the health, safety; general welfare of the women and the young persons affected.").
§ The noble Lord said: My Lords, I should like to speak at the same time to Amendment No. 28 which is a consequential amendment. Clause 9 deals with the repeal or modification of provisions requiring different treatment of different categories of employees. Our amendment is designed to modify the operation of subsections (1), (2) and (3) of that clause. At present the amendment would open up access to the employment of young persons or women wherever they are protected—both in the specified areas in the Bill and in any other areas that the Minister may subsequently discover —for the 21 operation of winding apparatus, for heavy work, and of course for their employment underground.
§ The amendment simply provides that any change in the existing restrictions will operate only after a special report from the Health and Safety Commission; and that no such order shall be made until the Secretary of State has received that report concerning the implications of such orders on the health, safety and general welfare of the women and young persons affected.
§ At Committee stage we moved four different amendments which were designed to seek to modify the unrestricted right of the Secretary of State to abolish these restrictions, including those not specified in the Bill and any that he subsequently finds. We were quite unable to persuade the Committee to do that. Many noble Lords who spoke said that they were concerned that there should be some check on the powers given to the Secretary of State, although they found that in other ways they disagreed with the detail of our amendments.
§ I submit that most of the criticism directed at our amendments in Committee concerned their inadequate drafting, or it was said that they presented certain precedents—in particular precedents that affected the role of Parliament. We have sought to deal with those matters in these amendments. We are not interposing a commission—whether it be the Equal Opportunities Commission or the Health and Safety Commission—and providing that the will of Parliament must be delayed, modified, prescribed or regulated as a result of the intervention of that commission. We are not saying—as some noble Lords stated that we should not say —that a Royal Commission should stand between Parliament and Parliament's intentions. We are trying to meet the objections that were raised.
§ The amendment covers the deregulation provisions in the Bill —Clause 9 subsections (1), (2) and 3). It narrows its modifications to cover only those of health and safety. It involves only the Health and Safety Commission. The delay that it prescribes is only until there is a special report on a specified aspect of the regulations for women and young persons. The amendment protects Parliament's position. We consider that we have met all reasonable objections. Therefore it is worth reminding the House of the case that was put in Committee.
§ First, we said that the position of most of the interested organisations on the employers' side—the BIM, the CBI, the IPM and so on—is very much at variance with the unqualified abandonment of all regulation of young persons and women of the kind prescribed in the Bill. Secondly, we said that some of the implications of the Bill—for example, those concerning night work for young persons—are almost certainly against EC regulations and international standards. Thirdly, we said that the Government's continued defence of their policy that everything can be solved by relying on Section 2 of the 1974 Act will not stand up. The 1974 Act creates only criminal liabilities and is mortally wounded by the absence of an effective inspectorate. For all those 22 reasons, and for some others with which I shall not burden the House at the moment, we say that the Government themselves admit that there is some exploitation and that something needs to be done to protect those who might be affected by total deregulation.
§ The only argument which the Government have advanced to us is that deregulation is now in some sense justified and is even required by the increase in demand for labour, particularly for young persons and also perhaps for women. We argue that this does not follow. A high level of labour demand does not affect the whole of the labour market. It affects the skilled parts and leaves unprotected significant numbers of workers—older workers and workers who are not necessarily affected by high labour demand in periods of high labour demand—who require a floor of statutory protection. This is admitted in most other European countries and it should be admitted in this country. I beg to move.
§ Lord Strathclyde
My Lords, as with most of the Opposition's amendments to date on the subject of women and mining, these amendment are simply a delaying tactic which will have the effect of perpetuating unequal treatment between men and women. There have been lengthy debates, both here and in another place, on the conditions below ground and whether or not they are suitable for women, but they have really been quite irrelevant to the central question: are there any grounds to justify treating women differently from men as regards a ban on working underground? The answer is no. There are no health and safety risks underground specifically affecting women and not men to justify such a ban.
Perhaps I may remind noble Lords that case law has established that the EC equal treatment directive allows special protection of women only against risks specifically affecting them as women. That is the approach we are following in Clause 3 of the Bill. Beyond that, women should be in the same position as men as regards working underground and should not be subject to any special dispensation or prohibition. These old-fashioned, discriminatory, protective attitudes cannot be allowed to perpetuate themselves through our legislation.
As I am sure noble Lords are aware, we have already consulted the Health and Safety Commission on the legislation in subsections (1) to (3) through the consultative document Restrictions on Employment of Young People and the Removal of Sex Discrimination in Legislation. In response to the document, the Commission stated categorically that it,fully supports the removal of statutory protection which differentiates between men and women, where this can no longer be justified on health and safety grounds".
§ Lord Stoddart of Swindon
My Lords, the noble Lord appears to be saying that, in relation to dangerous jobs underground or elsewhere, any protection should be removed from women, presumably because absolute equality is required. However, the Home Office has recently issued a code of practice for men which expressly tells them that they should be protective of women and should 23 not put women under threat. When it suits them economically, the Government advocate measures which are against the best interests of women, but in other instances they do the very reverse. When will the Government get their act together?
§ Lord Strathclyde
My Lords, the noble Lord says that he is not, but I believe that he is. We are removing discrimination between the two sexes. There does not seem to be any reason why women should not be able to work underground as successfully and as capably as men. The Home Office report to which the noble Lord referred deals with an entirely different issue. It is about intimidating women. I do not think that any woman who wished to go underground would then end up being intimidated by her working colleagues.
So far as concerns the Commission, we are not removing any necessary health and safety protection for women in subsections (I) to (3) of Clause 9. Nor are we removing any age-based restrictions in those subsections. The Commission recommended that we should keep the protection for young people in the machinery provisions in subsection (1), but that we should delete the discriminatory references to gender. That is what we are doing.
In subsection (2) we are extending to men the protection of Section 93 of the Act, which currently prohibits women and young people from being required to lift loads so heavy as to be likely to cause injury. Obviously that can only possibly be viewed as an improvement in health and safety provision and not unnaturally the Commission supported it "in principle". I am surprised that noble Lords opposite should want to delay extending this protection to men.
However, it is subsection (3), which repeals the ban on women working underground, that is at the heart of these amendments. The Health and Safety Commission declined to make a specific recommendation on this. It said that it would prefer to see that other responses before coming to a final view because of the social and welfare issues raised. Significantly, it did not say that the restrictions were needed on health and safety grounds and, as I have already said, it wholeheartedly gave its support to the removal of differences in treatment that are no longer justified on health and safety grounds.
I therefore see no merit in requiring the Commission to produce a report before subsections (1) to (3) are brought into force. I hope that the noble Lord will feel able to withdraw the amendment.
§ Lord McCarthy
My Lords, the House will not be surprised to know that we are not satisfied with the Minister's reply. For a large part of what he was saying I thought that he had the wrong notes. He seemed to be talking entirely about the position of women as though the clause and the amendment had nothing to do with young persons. They do. The issue does not concern women alone.
24 The noble Lord also said that we were perpetuating discrimination. The object of the amendment is not to perpetuate discrimination. It provides for an investigation by the Health and Safety Commission of the consequences of removing the regulations. It may well be that noble Lords should have more faith. It may well be that if the Government sometimes searched for the facts before reaching for legislation they would find that the facts were on their side. It may well be that if the amendment were carried and there were an investigation of the health, safety and general welfare of women and young persons affected by the clause, it would be found that they came away with a clean bill of health and the provision would run forward.
The provision would run forward in a non-discriminatory way. That is what we are suggesting. Even if they found that certain matters were at risk, it would be easy enough for the Government to amend the regulations in such a way as to take that into account. We are not being partisan and we are not proposing anything discriminatory. We are asking for a simple ordinary concession. The Government will not accept it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McCarthy moved Amendment No. 6:
Page 8, line 25, at end insert—
("(3A) Where a woman has been denied unemployment benefit, or any other benefit to which she is otherwise entitled under a statutory provision, on the ground that she is not actively seeking, or has refused an opportunity for, work underground of a kind to which subsection (3) applies by reason of her refusing to do that work, that decision shall be set aside if she proves that she objects to doing that work on the ground of conscience or other deeply held personal conviction.").
§ The noble Lord said: My Lords, this amendment deals with the position of women working undergound. We have already moved many amendments on this matter. We have sought to try to get the House to accept our amendments, but unfortunately the Government have at no stage felt that they could do anything of the kind.
We now come before the House with a very modest amendment, which states:
Where a woman has been denied unemployment benefit, or any other benefit to which she is otherwise entitled under a statutory provision, on the ground that she is not actively seeking, or has refused an opportunity for, work underground of a kind to which subsection (3) applies by reason of her refusing to do that work, that decision shall be set aside if she proves that she objects to doing that work on the ground of conscience or other deeply held personal conviction".
The Minister and noble Lords on the other side of the House will recognise the phrase:
on the ground of conscience or other deeply held personal conviction".
It has been used before by the Government in industrial relations legislation. They have used it in relation to closed shops. They have said that workers who have a conscientious or other deeply held personal conviction should be able to operate in a non-closed shop environment, (in the days when closed shops were allowed on any grounds) as long as it could be shown that they had an objection on the ground of conscience or deeply held personal
conviction. We believe that what applies in the closed shop area could reasonably apply here.
§ It may be that the argument is made that we are doing something for women which we are not doing for men. It may be that the argument is made that we should say that the terms of the amendment should also apply to men; but we believe that that does not stand. The basic weakness of the Government's position and the basic problem as it arises from the point of view of the individual worker is, as I sought to say in Committee, that they have shifted from an objective test of availability to work, under which both men and women had to refuse three alternative jobs before they could be denied benefit, to a subjective test; that is, "actively seeking work". That now applies to both men and women. In the context of introducing at this point in time the removal of restrictions on women working underground, that is an illegitimate advance and a reduction of their rights.
§ We are saying that there could be many good reasons why women feel conscientious or deeply held convictions against working underground. They could agree with many of the arguments advanced by the Trades Union Congress, individual unions and other organisations that the present conditions underground are not adequate or appropriate for women. There could be all sorts of reasons which do not apply to men.
§ The Government have never told us that they wish to impose some sort of penalty to force women underground. They always say that they are stuck by the fact that the social security legislation has moved from an objective to a subjective test. We cannot deal with that legislation in this House at this time. If we attempted to do so, we should be told what we were told by a Minister on a previous occasion. We are trying to deal with this problem in as modest a way as possible and that is what the amendment seeks to do. I beg to move.
§ 4 p.m.
§ Lord Boyd-Carpenter
My Lords, I find this amendment puzzling. The noble Lord did not explain, I imagine because it cannot be explained, how anyone could have feelings of conscience against working underground. People may well not want to work underground and may be frightened of doing so. As the noble Lord said, the conditions may not be appropriate for women to work underground. However, perhaps he could explain, certainly to myself and perhaps to other noble Lords, how any human being could have feelings of conscience against working underground.
§ Baroness Seear
My Lords, I found some difficulty with the word "conscience" as regards working underground. Nonetheless I hope that the Government will think again about this matter which we discussed at considerable length on Second Reading and in Committee. I believe that the arguments put forward then were more powerful than the arguments put forward today by the noble Lord, Lord McCarthy. I understand that he has done this because he is desperately looking for a suitable phrase to put in at this stage of the Bill.
26 Can we not come to the simple fact that we are asking the Government to find a way of saying that no woman should be forced to take work underground if she is really frightened and wretched at the thought of doing so and that if she does not do it she will not lose her financial support? That is what we are asking in plain English.
I agree that the amendment makes an exception and that it is inconsistent with some elements of the Sex Discrimination Act. Someone said that consistency is the bugbear of little minds and I do not believe that the noble Lord has a little mind in a little body. I seriously ask the Government to see a way of removing this measure, which will be most unpopular and will be used against them. It will be said that this Government are trying to force women underground by starving them if they refuse to take work there. It is not asking a great deal that they should make this exception, perhaps for a period of years, so that for an interim period, until people become used to the idea, no woman will be told that, if it is the only job offered and it is refused because of fear of going down the mine, financial support will then be removed. I am sure that there is some way of meeting that point without going through the contortions of saying that it is a matter of conscience and so on.
§ Lord Harmar-Nicholls
My Lords, as always the noble Baroness shows good sense and there is logic behind her argument. However, that is not what we shall be asked to vote on if the matter is pressed to a vote. As my noble friend said, the amendment brings in this almost unbelievable idea that there could be a conscientious objection. While one sees the force of the argument of the noble Baroness, I do not believe that that applies in considering whether we can accept this amendment.
§ Lord Stoddart of Swindon
My Lords, I believe that the noble Baroness, Lady Seear, has answered the question posed by the noble Lord, Lord Boyd-Carpenter; namely, that my noble friend proposes the amendment in this form because he is desperately anxious to achieve something as regards this problem.
I shall not go through all the arguments which I advanced in Committee. However, I say this to the Minister in relation to this amendment and indeed the amendment moved in Committee. If he had worked or been underground and had seen the conditions there —the dust, the grime, the noise, the dirt, the dark, the filth and the sweat —he would understand why women who perhaps were initially attracted to mineworking may not wish to go down a mine again. They may indeed be terrified and may have a conscience not only as regards themselves and women working underground but anybody working underground in such abominable and disgraceful conditions as still exist in some of the mines of this country where the seams are very narrow.
Even if the noble Lord is unable to accept this amendment, I hope that he will at least accept that noble Lords on this side of the Chamber, and indeed I hope on his side, are most concerned about this problem and are most concerned that women who 27 perhaps have decided to try mineworking should not thereby be penalised at some future date. I urge the Minister to give his full attention to this matter. Even if he cannot support this amendment, perhaps he will try to come forward with an acceptable proposition which we can discuss on Third Reading.
§ Lord Strathclyde
My Lords, I am grateful for the debate which we have had on this subject. I am particularly grateful to the noble Baroness, Lady Seear, who said she felt that I did not have a tiny or small mind.
I am sure that everyone in the House agrees with the general thrust of what was said by the noble Baroness. I hope that I will be able to argue exactly why an amendment is not required. I know that the noble Lord, Lord Stoddart of Swindon, is totally against the idea of women going down mines, and I respect his views, but I think that that is part of a wider sex discrimination issue rather than the amendment now before us.
The noble Lord, Lord McCarthy, with this amendment seeks to provide a particular escape from benefit sanctions for women, though not for men, in certain circumstances. If such an amendment were law women, but not men, would be able to refuse jobs underground or refuse to look for such jobs if they had,ground of conscience or other deeply held personal conviction".The intention is that certain women should not be put in the position of having to take jobs down mines or else risk losing their benefit.
Noble Lords will see that the amendment does not seek to provide an automatic escape from benefit sanctions for all women and I welcome, at least, recognition that there may be occasions when a woman has to make a choice between underground work and benefit. However, the protection that already exists for women—and, I am pleased to say, equally for men—will ensure that such cases would be so few and far between that once I have explained the position I hope noble Lords opposite will recognise that they have no legitimate cause for concern.
However, first of all let us be clear that the amendment is discriminatory and therefore against the whole spirit and nature of this Bill. Noble Lords are well aware that the Government's policy is to remove unjustifiable discrimination between men and women in employment. This amendment would of course be discriminatory against men. As such it would potentially place this country in breach of its obligations under EC Directive 79/7 on equal treatment for men and women in matters of social security. Article 4 of the directive states unequivocally that,there shall be no discrimination whatsoever on ground of sex either directly or indirectly [among other things] in the scope of the schemes and the conditions of access [and] the conditions governing the duration and retention of entitlement to benefits".There is absolutely no justification for treating men and women differently as regards benefits in relation to mining any more than there would be in relation to other forms of industrial employment.
28 Turning now to the provisions of the Social Security Act 1989, as your Lordships are aware —not least from the lengthy debate on a not dissimilar amendment in Committee —this Act amended the Social Security Act 1975 relating to benefit disqualification for refusal of employment. The onus is now on the claimant to show that he or she had good cause for refusing a job. However, the regulations made under the Act say that, in the first place, sanctions can only apply in the sort of circumstances that concern noble Lords if the job in question was offered through the Employment Service. The Employment Service staff will, of course, act in good faith in administering this responsibility and will not offer jobs to people which are clearly inappropriate to their circumstances.
Nevertheless, I should explain that the regulations also set out a number of matters to be taken into account in considering whether good cause was shown. The list includes,any religious or conscientious objection, sincerely held by the person to his undertaking a particular employment".Much of what noble Lords are seeking is thus already and obviously enshrined in law.
The regulations also require that in considering good cause account should be taken of,any condition or personal circumstance of that person which indicates that a particular employment… would be likely to… subject him to excessive physical or mental stress".It may be helpful at this point if I remind your Lordships that when there is a doubt about a claimant's entitlement to unemployment benefit the decision is made not by a member of the benefit office or Jobcentre staff but by an independent adjudication officer. The chief adjudication officer issues guidance in interpretation of the law in the form of the Adjudication Officers' Guide and says that a claimant may be likely to suffer excessive mental stress if working in an environment of which he or she has a particularly severe dread.
I mention this because of the emphasis placed now and in Committee by noble Lords on the fact that terrified women should not be forced down mines. Although interpretation of the law is for the independent adjudication officers and must be undertaken in the light of the circumstances pertaining to any individual case, it must be clear to noble Lords that there already exists ample protection for women—and, as I feel I must keep stressing, for men—who have good reason not to wish to work down mines.
The Social Security Act 1989 also amended the 1975 Act to make it a condition of receipt of benefit that people actively seek work each week. Noble Lords opposite wish women to be effectively excused this in certain circumstances. However, the Government believe that people who really have no prospects of getting mine work and for whom it would clearly be inappropriate will not actually fall foul of the actively seeking work requirement for benefit.
The regulations that relate to this condition say that the steps which a person is required to take are such of the steps which are reasonable in his or her case as to offer him or her the best prospects of 29 receiving offers of employment. People now, therefore, have a personal responsibility to look for work and from time to time will have to demonstrate that they are doing so to Employment Service staff. They will be able to do this by showing that they have taken active steps to find the sort of work that is appropriate to their particular skills and experience, bearing in mind the length of time they have been unemployed and so on. The Employment Service will not lay down what sort of work this will have to be, though guidance may well be offered.
If a person without any experience or qualifications in mining —the sort of person noble Lords are talking about —chooses to look for any work other than mining, then, so long as that person takes reasonable steps to look for the sort of work that is available and such steps offer the best prospects of obtaining it, the person will satisfy that condition. In effect, people will be able to meet the actively seeking work condition by looking for work that will meet their own requirements so long as they broaden their horizons if they are unsuccessful. But, in case any noble Lords are still not clear as to this, people genuinely fearful of working down mines have little prospect of getting such work and the Employment Service would have no intention of suggesting that such people should look for it.
I hope that what I have said in the course of a lengthy speech has satisfied noble Lords opposite about the effect of the Social Security Act and that the noble Lord will therefore feel able to withdraw his amendment.
§ 4.15 p.m.
§ Lord McCarthy
My Lords, the noble Lord, Lord Boyd-Carpenter, does not like the word "conscience". I can remember when in this House in 1980 we were trying to get the Government to say what was the difference between conscience and a deeply held personal conviction. Finally we persuaded the Minister to say that there was no difference. A "conscience" meant a "deeply held personal conviction" and vice versa, and he could just as well have one as the other.
§ Lord Boyd-Carpenter
My Lords, if there is no difference between the two why has the noble Lord put both in the amendment?
§ Lord McCarthy
My Lords, I am coming to that. It is because I am seeking to convince the Government. The last time I asked the Government to take out "conscience" because "deeply held personal conviction" would do they would not do so, even though the Government finally admitted that they could not see the difference.
Therefore, in an attempt to go with the Government I am saying, "Right, let us have the phrase you preferred last time of 'conscience or deeply-held personal conviction"'. We are at a late stage in the Bill but we can always come back at Third Reading if the Minister says that he would vote for the amendment if we take out the word "conscience". I shall happily take out the word on that basis, but I suspect the Government will then 30 say that they do not like "deeply held personal conviction".
Some people say that there is a point in including "conscience". In that respect it is possible to suggest —the point has been put to me —that there are some women, rightly or wrongly, who believe that they have what they would call conscientious objections to the kind of sanitation and changing facilities which they think operate in the mines and they do not think that the two sexes should be involved in those things. One may say that that is a deeply held personal conviction and not a conscience. In an attempt to get the Government with me I include both phrases but if it would help to get the Government with me I would take one of them out. I agree with the noble Baroness, Lady Seear, who said that I would put in words to suit. Of course I would, if only to stop you doing what the clause forces you to do.
We therefore come to the Minister. He has given us some new arguments, which are always worth having. It is perfectly true, as he said, that we have moved away from the sort of automatic exemption which leads, of course, to all these problems. We have done that in an attempt to soften his hard heart, but it will not work.
He said that the provision is discriminatory. That is a very funny argument to come from the Government as regards this Bill. It already contains discriminatory provisions. For example, the Oxford women's colleges are allowed out of the Bill and that is discrimination against all the other colleges, apart from Cambridge. But if the Government have a good reason, they leave in the provision. As my noble friend Lady Turner said, the Equal Opportunities Commission said that the Government have not properly taken into account the European Community directive on equal treatment because they are only abolishing part of the discriminatory legislation; namely, that which concerns employment, education and training.
There are other aspects of discrimination about which the Government do nothing. The Government say, "One thing at a time because we cannot get rid of all the discrimination overnight". That is all right. They are not so unqualified in opposing all forms of discrimination except that which we are suggesting tonight. I do not believe that is an argument.
I believe we now have some new information which is most interesting. The government spokesman has drummed up some evidence as to how the benefit offices actually administer and interpret their guidance notes. He said that where they regard a person as clearly inappropriate to go down a mine then that person is not sent down a mine. Once again the trouble is that that is a subjective evaluation. Whether such a decision is appropriate or inappropriate is decided by the benefit offices and not by any objective test.
Further, the Minister says that if one looks at the very small print—
§ Lord Strathclyde
My Lords, I said that if there is a doubt about a claimant's entitlement to unemployment benefit the decision is not made by 31 a member of the benefit office or the Jobcentre staff, but by an independent adjudication officer.
§ Lord McCarthy
My Lords, I know the Minister said that and I shall come to that point in moment. Whatever the officer is called he is interpreting a subjective definition. That is the point we are making. Furthermore, the Minister said that religious and conscientious objection can be taken into account. It is taken into account, but is is not necessarily a ground for saying that the person does not have to work down a mine. That objection is taken into account. Mental stress and severe dread are also taken into account. The trouble with these arguments is that the more persuasive they are and the more the Minister seeks to convince us and we take them on board, the more we cannot understand why the Minister rejects the amendment.
The Government are saying that the amendment is merely declaring and making more precise and known to people how the guidance notes work in practice. Even though the noble Lord, Lord Boyd-Carpenter, does not like religious and conscientious objections, if they are operated and if mental and severe dread are allowed, then for the life of us on this side of the House we cannot see why the Government do not accept this modest amendment.
§ Lord McCarthy
My Lords, it may do so, but I have already argued that there is already much discrimination in the Bill for all kinds of legitimate and positive reasons. I go back to the fact that the more the Government seek to persuade us that they are doing de facto what we ask them to do, we can only assume that they refuse to accept the amendment out of obstinacy. We intend to divide the House.
§ 4.24 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 51; Not-Contents, 118.32
|Ardwick, L.||Galpern, L.|
|Birk, B.||Graham of Edmonton, L. [Teller.]|
|Boston of Faversham, L.||Hayter, L.|
|Bottomley, L.||Henderson of Brompton, L.|
|Bruce of Donington, L.||Houghton of Sowerby, L.|
|Carmichael of Kelvingrove, L.||Irvine of Lairg, L.|
|Irving of Dartford, L.|
|Cledwyn of Penrhos, L.||Jay, L.|
|Cocks of Hartcliffe, L.||Jeger, B.|
|David, B.||John-Mackie, L.|
|Dean of Beswick, L.||Kilbracken, L.|
|Dormand of Easington, L.||Leatherland, L.|
|Ennals, L.||Listowel, E.|
|Ewart-Biggs, B.||Llewelyn-Davies of Hastoe, B.|
|Fisher of Rednal, B.|
|Gallacher, L. [Teller.]||Lovell-Davis, L.|
|McCarthy, L.||Sefton of Garston, L.|
|McIntosh of Haringey, L.||Stallard, L.|
|Mason of Barnsley, L.||Stoddart of Swindon, L.|
|Milner of Leeds, L.||Strabolgi, L.|
|Molloy, L.||Taylor of Blackburn, L.|
|Mulley, L.||Turner of Camden, B.|
|Nicol, B.||Underhill, L.|
|Northfield, L.||Wallace of Coslany, L.|
|Peston, L.||Wedderburn of Charlton, L.|
|Scanlon, L.||Wilson of Rievaulx, L.|
|Ailesbury, M.||Jenkin of Roding, L.|
|Airey of Abingdon, B.||Johnston of Rockport, L.|
|Alexander of Tunis, E.||Kaberry of Adel, L.|
|Allerton, L.||Kimball, L.|
|Ampthill, L.||Kinnaird, L.|
|Annaly, L.||Knollys, V.|
|Arran, E.||Lauderdale, E.|
|Auckland, L.||Lawrence, L.|
|Barber, L.||Layton, L.|
|Beloff, L.||Lindsey and Abingdon, E.|
|Belstead, L.||Lloyd of Hampstead, L.|
|Benson, L.||Long, V.|
|Bessborough, E.||Lyell, L.|
|Blyth, L.||McColl of Dulwich, L.|
|Borthwick, L.||Mackay of Clashfern, L.|
|Boyd-Carpenter, L.||Malmesbury, E.|
|Brabazon of Tara, L.||Margadale, L.|
|Bramall, L.||Marley, L.|
|Broadbridge, L.||Marshall of Leeds, L.|
|Brougham and Vaux, L.||Merrivale, L.|
|Bruce-Gardyne, L.||Monson, L.|
|Butterworth, L.||Montgomery of Alamein, V.|
|Caithness, E.||Mottistone, L.|
|Carnock, L.||Mowbray and Stourton, L.|
|Chalfont, L.||Munster, E.|
|Coleraine, L.||Nelson, E.|
|Constantine of Stanmore, L,||Nugent of Guildford, L.|
|Cottesloe, L.||Onslow, E.|
|Craigavon, V.||Oppenheim-Barnes, B.|
|Crickhowell, L.||Orkney, E.|
|Croham, L.||Pender, L.|
|Cullen of Ashbourne, L.||Pennock, L.|
|Dacre of Glanton, L.||Penrhyn, L.|
|Davidson, V. [Teller.]||Peyton of Yeovil, L.|
|Denham, L. [Teller.]||Reay, L.|
|Dilhorne, V.||Reigate, L.|
|Eden of Winton, L.||Rodney, L.|
|Elibank, L.||St. Davids, V.|
|Ellenborough, L.||Saltoun of Abernethy, Ly.|
|Elles, B.||Sharples, B.|
|Elliott of Morpeth, L.||Slim, V.|
|Erne, E.||Somers, L.|
|Erroll of Hale, L.||Strange, B.|
|Faithfull, B.||Strathclyde, L.|
|Ferrers, E.||Strathmore and Kinghorne, E.|
|Fraser of Kilmorack, L.|
|Gardner of Parkes, L.||Strathspey, L.|
|Gridley, L.||Sudeley, L.|
|Haddington, E.||Thomas of Gwydir, L.|
|Hailsham of Saint Marylebone, L.||Thorneycroft, L.|
|Halsbury, E.||Trefgarne, L.|
|Harmar-Nicholls, L.||Trumpington, B.|
|Havers, L.||Ullswater, V.|
|Henley, L.||Vaux of Harrowden, L.|
|Hesketh, L.||Westbury, L.|
|Hives, L.||Wise, L.|
|Holderness, L.||Wolfson, L.|
|Home of the Hirsel, L.||Wynford, L.|
|Hylton-Foster, B.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.33 p.m.
§ Lord McCarthy moved Amendment No. 7:
page8, line28, at end insert—
("; and at the end of that section there shall be inserted the following subsection—
(2) The cleaning of any dangerous part of any machinery shall be carried out by a competent adult person who
The noble Lord said: My Lords, in Committee I moved Amendment No. 10, which suggested that the abolition of the prohibition on the cleaning of machinery—where it is either moving or dangerous, as in Section 20 of the Factories Act 1961—by women or young people should be modified. This would mean that in future all cleaning of machinery would need to be carried out by a competent adult with sufficient training or under the full supervision of a trained or experienced person. That amendment did not find favour with the Committee. It was argued against by the noble Lord, Lord Strathclyde, who said:
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." [Official Report, 16/10/89; col. 707.]
§ Our amendment attempts to follow that line of thought by specifying, this time quite clearly, that the cleaning should relate to a dangerous part of machinery.
Unfortunately, the noble Lord went on to say at column 708, as the Government so often do, that despite their sympathy they did not accept that a new provision of this kind was necessary because there existed Section 2 of the Health and Safety at Work Act. In addition, the noble Lord said that Section 6 of that Act requires the designers and manufacturers of articles for use at work to ensure that they are safe when being set up, used, cleaned or maintained. Just to confuse us, the noble Lord continued:
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." [Official Report, 16/10/89; col. 708.]
§ We have tried to take all of those remarks into account and have confined this amendment to dangerous parts of machinery. In reply to other comments made by the Minister in Committee, we do not accept that the provisions of the 1974 Act provide a substantive alternative, partly because they give rise to no civil remedies and partly because we no longer believe that the state of the inspectorate makes for effective supervision. Therefore, we say that as long as we have taken into account the general drift of the arguments advanced in Committee and have changed our amendment so that it relates simply to dangerous machinery, it ought to find acceptance with the Government. I beg to move.
§ Lord Harmar-Nicholls
My Lords, this amendment carries the nannying state a little too 34 far. Every machine is a dangerous machine if it is mishandled or if people are careless. Anything which is in the control of a power which makes the wheels turn round is dangerous. This amendment would make it almost impossible for a young seamstress to be taught dressmaking because modern machines can be dangerous. Young girls trained as therapists to do massage use all sorts of machines which, if carelessly dealt with, are dangerous. One could go down the whole list.
The amendment would make it difficult for an employer to encourage young people who come from schools and colleges to be trained. The amendment produces an inhibition against general advancement in certain modern facilities that people enjoy. It is quite unnecessary. At the end of the day we must rely on the common sense of the people in charge of establishments. From experience of businesses where these innocuous machines are used, one knows that the people in charge give the kind of supervision that we all want. However, to legislate in this definite way would be retrograde and nannying in the extreme. I think that we should avoid doing so.
§ Lord Dormand of Easington
My Lords, I wonder whether the noble Lord has misunderstood the amendment. It talks about the cleaning, not the use, of machines. There can be, and often is, a fundamental difference between using a machine and cleaning it. In many cases cleaning the machine means dismantling part or all of it.
§ Lord Harmar-Nicholls
My Lords, I read the amendment very carefully. It was becaue I have personal experience in some of my own businesses that I reacted to the amendment. Sometimes the machines used for massage on people with rheumatism stop. The top has to be taken off in order to get at the slight leak of oil. In that process the cleaning and using are almost conjoined. We must recognise the common sense of normal people who use these machines.
§ Earl Attlee
My Lords, I have a certain amount of sympathy with the noble Lord. However, I would feel happier if the amendment related to any part of any factory machinery. I do not agree with subsection (2)(b). I have knowledge of machinery; I believe that we should certainly not accept the second part of the amendment. If someone has not been trained in the cleaning of machinery and a person supervising has turned away for just a second, the untrained person could do something dangerous. To support that argument, you have only to see the number of skilled machinists who, although they are trained and skilled, still experience bad accidents. Moreover, on certain types of machinery a small accident tends not to lead to a small cut; it may well lead to the loss of a hand or a limb.
§ Lord Strathclyde
My Lords, it was most encouraging to hear that the noble Lord, Lord McCarthy, listened so carefully to what I said in Committee. Indeed, he repeated much of what I said. I should say to him that I also listened carefully to his remarks. The trouble is, however, that I suspect I may have bored the noble Lord and that he then 35 stopped listening to me. I say that because the Government must oppose the amendment for exactly the same reasons as we opposed the previous amendment; namely, on the simple grounds that it is unnecessary. I am most grateful to my noble friend Lord Harmar-Nicholls for pointing out why it is unnecessary.
Section 2(2)(c) of the Health and Safety at Work etc. Act 1974 requires the employer to provide,such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees".Clearly, any employer whose employees are likely to operate dangerous machinery is required by this provision to ensure that, so far as is reasonably practicable, they are adequately trained or supervised. An inspector who found that employees were operating dangerous machinery without such training or supervision would have no difficulty whatever in taking enforcement action using this provision.
So far as concerns the Health and Safety Executive, it is perfectly adequate. Indeed, in one respect it is considerably better than this amendment because it covers all workplaces and not just factories. I should like to remind noble Lords who seem to be under the impression that the Bill is removing necessary protections in this field that all we are doing by way of Clause 9 and Schedule 2 to the Bill is removing a discriminatory prohibition on women cleaning and moving machinery and on women and young persons working between the fixed and traversing parts of self-acting mules.
We are doing so in both cases with the agreement of the Health and Safety Commission. The many other detailed requirements of the Factories Act 1961 and in the numerous regulations under the Act relating to the fencing and operation of dangerous machinery remain unchanged. We have an expert body in this country to advice us and enforce the law on health and safety. I am content to rely upon that body to ensure that the legislation in this area is adequate.
I mentioned in Committee that the Health and Safety Executive was reviewing the adequacy of the legislation in this area in the light of the proposed EC directive on the safe use of work equipment. In my view there is absolutely no reason for Parliament to pre-empt the outcome of that review. I hope, therefore, that this amendment will be withdrawn.
§ Lord McCarthy
My Lords, the noble Lord, Lord Harmar-Nicholls, speaks of the nanny state. So far as I understood him, he said that all machinery is unsafe, although he subsequently said that the cleaning of all machinery is unsafe. Of course, the regulations as they are now do not apply to all machinery; they apply only to moving machinery which is dangerous. If we took the view taken by the noble Lord that the moving of all machinery is unsafe—
§ Lord Harmar-Nicholls
My Lords, I did not say that all machinery was unsafe; I said that all machinery was potentially dangerous.
§ Lord McCarthy
My Lords, very well: if it is dangerous, then it is unsafe. Therefore, the noble Lord is saying that we cannot have any regulations in the matter and that if we try to do so we shall have a nanny state. If the noble Lord really takes that view, he is perhaps in advance of his party. He should not be in support for handing the matter over to the Health and Safety Commission or the Health and Safety Executive; he should be in support of the abolition of the Health and Safety Executive.
I say that because the executive puts an injunction on employers to operate safe and healthy machinery. No doubt the noble Lord would also denounce that as being part of the nanny state. Indeed, he may well go back and abolish all those provisions and ideas put forward by Lord Shaftesbury, because they, presumably, were also part of the nanny state. However, he does not do that; he simply objects to our amendment.
As I understand it, the noble Earl, Lord Attlee, was complaining about the fact that our amendment covered more than factories. It does not cover more than factories, because we are dealing with the Factories Act. Therefore there is no reason for him not to support us in the matter.
The Government say, as they said in Committee, that this provision already exists, that all employees are looked after and that we have our own form of nanny state through the operation of the Health and Safety Commission, We have said many times that, for the reasons we put forward, we do not regard the present operation of the commission as adequate. We believe that there should be additional remedies, especially civil remedies. Therefore, to keep telling us about the 1974 Act is not an effective answer.
Of course the Minister cannot say that our proposal is discriminatory. We suggest that the protection we propose—protection which the Minister agrees with in principle, because he said that no one should clean dangerous factory machinery unless he is competent to do so or is being closely supervised —should apply to both men and women. Therefore it is not discriminatory; it is extremely moderate. However, I am quite sure that the Government will not accept it and I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
Lord Wedderburn of Charlton moved Amendment No. 8:
Page 8, line 37, leave out ("Part I") and insert ("Part IA").
§ The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 9 and Amendments Nos. 29 to 35. All these amendments are, so to speak, a technical apparatus designed to ensure that the purpose of the amendment is achieved: that is, to postpone for at least a year the repeal of the protection of workers in particular industries where they are at present protected against 37 the lifting of loads of a particular weight. We thought that this point was important enough to return to on Report because it seemed to be generally agreed that this area of injuries is very widespread; for example, about one in four of reported industrial injuries relate to back strain and more serious back injuries.
§ Our discussions in Committee revealed a great area of common ground. The amendment accepts by implication that all such regulations will be phased out. The reason for this is that the Health and Safety Commission is hard at work on revising regulations on the lifting of loads—it has been for some 10 years—and that the draft European directive has now come into the picture and, therefore, the two together will produce new regulations some day in the future. I wonder whether the Minister has more to tell us about when that day will be, because it is of great importance to many workers. There is therefore an interim period in which it is accepted on all sides that the old method of protecting against back injury of absolute weight limitation, if I may call it that, is not the best way to do the job in the light of more modern knowledge.
§ The European Commission communication dated 20th March 1987, from which I quoted in Committee, makes it clear that a general limit on manually shifted loads, combined with adequate training in carrying loads to that limit, is one method of protection and that this can be much more sophisticated than absolute weight limits. Therefore the amendment brings us back to the question—as debated in Committee—of what will happen in the interim; that is, in the interim between the coming into effect of this legislation and the regulations and/or directive whenever they become effective. The Government have not so far suggested whether this will be within a year or possibly even two years.
§ Therefore we say, by way of this amendment, that in those industries where that form of protection has been thought to be necessary in the past—with weight limitations which apply, it is true, differentially to men, women and young workers—such protections, inadequate as they are in the light of modern knowledge, should remain in place until better regulations come into force.
I must put one matter to the Minister which, I admit, only became clear to me on reading through the Committee stage proceedings. We have said that on a number of these matters many bodies are against the Government, but of course the most important body is the Health and Safety Commission. When I looked back at the debate in another place I found that the Minister, Mr. Nicholls, had said that the Health and Safety Commission would have preferred to await the proposed comprehensive new manual handling regulations before the repeal of the existing law which the clause would undertake. He continued (in Committee on 9th February 1989 at col. 195):
That is certainly its preference. I dare say that its words were carefully chosen, but clearly that is what it prefers".
In Committee on 16th October the Minister said—I shall quote just a few words but they are not out of context—
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) applied to be revoked".—[Official Report, 16/10/89; col. 711]
That is a serious discrepancy of great importance. The normal understanding has been that given by his honourable friend in another place: that the Health and Safety Commission was not entirely happy with the total repeal of the weight lifting regulations for the interim period until its general, modern and better regulations come into force.
§ On general grounds, it seems odd that the Government should be taking the harsh and curious view that they are taking. The Committee revealed that the Government are not here deregulatory. They do not say, "This is an area where deregulation is needed". It is common ground between us that regulation is needed. They say that the regulations will be better. We agree. We are for their introduction tomorrow; but when they go on to say that the interim should be covered by no regulation, even in the special industries where weight regulation has been thought to be necessary for so many years, that strikes one as strange. It is a kind of interim affliction with deregulation when the Government are almost cured of the disease.
§ The regulations would not necessarily have to remain in the precise form that they have been. My understanding is that under Section 15 of the Health and Safety at Work Act 1974 the Secretary of State could make additional or amending regulations if he thought that some aspect of the older regulations, such as in the jute industry, were better amended. By accepting our amendment the Government can maintain some protection in an area where we all know that there will be better protection, with the ability under the Health and Safety at Work Act 1974 to make such amendments as their experts decide are needed.
§ We feel that the debate in Committee revealed that the Government should have another look at this issue. In the light of what we believe to be the Health and Safety Commission advice and that of other bodies—it is well known that the TUC has asked for further research before all existing regulation on the manual lifting of loads is swept away—we asked the Government whether it is possible to have an interim of reasonable protection rather than an interim of deregulation, when we all know that back strain and manual lifting need protection and will get it from the new regulations when they come. I beg to move.
§ Lord Strathclyde
My Lords, I should like to explain to your Lordships why it is that we want to repeal these provisions and why we feel that there would be no benefit in the minimum one-year delay that would be required by the amendment.
These provisions were all identified in our consultative document Restrictions on Employment of Young People and the Removal of Sex Discrimination in Legislation as containing discriminatory differences in treatment. They set different weight limits for males and females and different weight limits again for young people and adults.
39 As I am sure your Lordships are aware by now, our intention in the Bill is to remove all unequal treatment between the sexes in protective legislation where it cannot be strictly justified on health and safety grounds and to remove all outdated restrictions on young people's employment. Clause 1 will of course render of no effect unlawful discriminatory requirements in pre-1975 legislation.
The consultative document aimed to identify those provisions that were still justifiable and those that were not on the grounds that justifiable discriminatory provisions would need to be specially protected in the Bill so as not to be overriden by Clause 1. Our advice from the Health and Safety Commission in response to the document was that specific limits by age or sex were not consistent with medical advice that there are wide variations in individual capacities and in the demands made by various tasks. The commission's new draft manual handling regulations do not contain weight limits, and nor does the proposed EC directive on handling loads. In addition the Equal Opportunities Commission recommended the early removal of those particular provisions and pointed out that the adoption of maximum weights,was not generally valuable or justifiable".We therefore have strong grounds for either amending or repealing those provisions to remove the differences in treatment both between men and women and young people and adults as soon as possible. If we do not, specific protection against their being overriden by Clause 1 will have to be built into the Bill, and we do not consider that to be justified.
The question is, do we remove the unequal treatment by repealing the provisions altogether or do we equalise up or down? The Health and Safety Commission said that it "would have preferred" to await its new regulations before repeal, but as your Lordships are aware, those are likely to be some time coming and the commission's clear advice was that limits are not consistent with medical advice. On the basis of the wording of the commission's response that was clearly the most important point.
Perhaps I may turn briefly to the case made by the noble Lord, Lord Wedderburn. It is expected that a common position on the proposed EC directive on handling loads will be reached by the end of October. Adoption, following consideration of the directive by the European Parliament, will probably be in the first half of 1990. In view of those rapid developments, and because it would in some cases cause confusion in the workplace to be developing simultaneously two sets of proposals on manual handling, the HSC decided in July this year to put into abeyance further development of its own proposals for regulations pending the outcome of negotiations in Brussels. Therefore there is no discrepancy between myself and Ministers in another place. The HSC has however continued its analysis of the comments made in response to its 1988 consultative document Handling Loads at Work.
The trouble with maximum weight limits is that their adequacy will vary depending on a variety of 40 factors including the lifting capacity of the individual. If we set the limit for women and young people at the same level as for men, that may well be too high for some women and young people, just as it may be too high for some men; but if we bring the limit down to the lowest possible level, that may make many jobs unworkable without reason.
There is also the argument that guidance based solely on maximum weight limits is likely to be misleading and may in fact be dangerous. That is discussed on pages 23 and 24 of the Health and Safety Commission's 1988 consultative document Handling Loads at Work. The problem is that,Such guidance is often restricted to symmetrical, two handed lifts, in front of and close to the body. In reality such lifting tasks are comparatively rare since most will involve lateral movement, rotation or some other asymmetrical requirement. Limits also need to be modified to take account of other factors such as degree of repetition, and the physical characteristics of the lifter".Taking those factors into account we take the view that the most sensible course of action is to repeal these weight limit provisions and we see no need for any delay. There will not of course be the total gap in protection implied by the noble Lord, Lord Wedderburn, because the general protection of Section 2 of the Health and Safety at Work Act and the more specific prohibition on lifting excessive weights will remain in Section 72 of the Factories Act 1961. I realise that, as has been pointed out by the noble Lord, Section 72 may not be ideal. But then, nor by a long chalk are these provisions applying only in jute, woollen and worsted factories and potteries. A great deal of work is being done on providing a better system.
The point was made in Committee that we were being inconsistent because we are not removing weight limits in agriculture. We have not considered or consulted on the limits in agriculture because they do not discriminate against women and young people. We do not therefore have to act now, as we do in the case of these three sets of regulations, because of the effect of the sex discrimination clauses in the Bill. That is the important point.
In my view the only real effect of these amendments would be to delay the removal of differences in treatment that have now been outstripped by current medical opinion. I hope that the amendment will be withdrawn.
§ 5 p.m.
§ Baroness Seear
My Lords, I do not think much of what the noble Lord says about current medical opinion. A good deal of his argument rests on the force of the general provisions and the work of the Health and Safety Executive. That is fine if that body is adequately staffed. Can the Minister say how many establishments there are to each inspector? In the old days—I was in industry for 10 years—I never had one full-blown inspection because there were not enough inspectors to go round. They would come in occasionally to look for one particular point. The Minister talks as though the general requirements are adequately enforced because there are inspectors. That flies in the face of reality with the limited number of inspectors.
41 Perhaps the Minister will say that there is to be a great increase in the number of inspectors. If so then I agree that much of the argument put forward would fall. Without that assurance, it is a fantasy to think that the inspectors would be able to enforce the general provision or any other provision, for that matter, because the inspectors do not exist. Can the Minister give us some idea of what the provision is?
§ Lord Strathclyde
My Lords, I can understand that the noble Baroness is concerned and feels that there are not enough inspectors. I do not have the information before me but I am well aware that there is an increase in the number of inspectors. The targets over the next few years are an increase in the number.
§ Lord McCarthy
My Lords, is the noble Lord saying that there has been a change in government policy towards increasing the number of inspectors? This is a remarkable time to tell us that.
§ Lord Strathclyde
My Lords, I think that I said that I did not have the information before me but it is up to the HSE to decide how many inspectors it has.
I have now found the figures. The HSE expects to meet its publicly announced targets for staff in the factory and agricultural inspectorates by April 1990. I shall demonstrate the figures. The publicly announced figures of the HSE for 1st April 1990 are that the factory inspectorate, currently 619, will grow to 640 and that in the agricultural field, the figure of 167 will grow to 175. Before the noble Baroness rises, I know she will say that that is not enough.
§ Baroness Seear
My Lords, perhaps I may ask for another fact, not an opinion. How many establishments under the factories legislation are to be inspected by the 619 existing inspectors? That is the interesting figure. We can then do a sum and work out how often they will visit any one establishment. I am sure that the advisers in the box have the figure.
§ Lord Strathclyde
My Lords, I shall have to look further to find out how many factories are inspected by those inspectors. However, I believe that that argument misses the point we are trying to get at. It does not prove anything to suggest that inspectors should visit every single factory. Obviously some factories are better than others. Some factories in certain industries need to be inspected more often than those that are not considered dangerous or which have excellent records. The Government have allocated sufficient resources to the HSE to allow it to meet its targets. The HSE's request for resources has been met in full.
§ Lord Wedderburn of Charlton
My Lords, I am sure that the Minister will agree that my amendment has led the House into interesting areas. As regards his reply to me, most of it is common ground because it meets a case which was never put. The case put accepted that absolute weight limitation is not now the best method. Medical evidence on that is strong. However it would be good to have, and we must 42 have, regulations to protect those in work against back injury caused by lifting loads.
The fact that we agree upon that shows the irrelevance of Section 2 of the Health and Safety at Work etc. Act and Section 72 of the Factories Act. If those two sections were good enough; we should have nothing else. However we agree that we must have further legislation. We have to agree because the European Commission has now ensured that all member states have agreed to this, and the Government have signed their word on it. We support the Government on this matter; we must have more inspectors who will do the job properly.
However, we say that there is a tiny area —and were it not for the Minister himself we might call it myopic —where people cannot see the need for provisions in the interim. In that interim many people's backs will be injured at work. There are regulations, especially in these three industries. I must return the point to the Minister because he did not answer the case. I hope that he will add to his answer on another occasion, perhaps at Third Reading. In these industries there are protective limits. It is true that that is not the method of protecting people which we all now wish to achieve.
The Minister says that such ways of protecting people can be misleading. He also said that they could be dangerous. He used that word in a previous debate, I think in Committee; but I do not believe that his honourable friends used it in another place. If there is evidence of these methods being dangerous, then another conclusion follows. If the method of protection is dangerous, what on earth are the Government doing in not repealing that precise type of protection in agriculture? If they know that it is dangerous, they had better get rid of it everywhere.
However, the Government are not getting rid of it in agriculture, they are only getting rid of it here. I understand what the Minister says. There is a little discrimination in agriculture against which the Government are legislating, but these methods of protection have a discriminatory impact. I make two points on that which I put to the Minister in my speech but which he did not answer. First, ad interim, it is possible even to have discrimination between men and women where, in the words of the European directive, the concern for which the regulation was passed on a discriminatory basis is still well founded. I say that a concern about back injury is well founded and we all know it is well founded because the common European position will lead to a new directive. We all desire that protection for men and women alike.
If that were not acceptable then there is a power under the Health and Safety at Work etc. Act to level up in the way suggested by the 1987 document from the Commission and do away with the discrimination anyway. I find it extremely awkward that the Government have all these tools in their hands and a Health and Safety Commission. Its remarkable papers on injury to backs show the fund of advice that exists, but that body itself is not happy with the repeal in the interim.
43 However, the Government stand alone and say, "No, no, these workers must have no protection at all because the protection is defective. We shall wait until the protection is perfect". That is a curious kind of millennialism which is not usually associated with the Government. I suspect that, to use a fashionable concept, the Government are not wholly unassailable on it. I shall withdraw the amendment. However, I ask the Minister to tell his right honourable friend that there is power still to make regulations which can do something in the interim for some of these industries in terms of protection against back injury. With that hope, I have no option but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 9 not moved.]
Baroness Seear moved Amendment No. 10:
Before Clause 10, insert the following new Clause—
§ ("Further education and training.
§ . Any young person who is not in full time education or training, and who is in employment, shall be entitled to time off with pay for one day per week to attend an appropriate further education or training course for the purpose of improving his or her work skills.").
§ The noble Baroness said: My Lords, in moving this amendment, I ask the Government to think very seriously about the purpose behind it, even if they do not like its exact form, before we come to Third Reading. The purpose behind this amendment is one with which I think the Government have great sympathy, in that in some of their other actions they have introduced measures along the lines we are suggesting here.
§ The thinking behind this amendment is not just a matter of relieving the burden on youngsters between the ages of 16 and 18. The amendment is being put forward in the context of the changes that are being brought about in which there will be no restriction on hours of work for 16 to 18 year-olds. As we discussed in Committee, 16 to 18 year-olds will be able to do any variety of shift work and night work. Leaving aside whether or not that is a good thing, the point I wish to make here very strongly is one that I have made often before and which many other noble Lords have made. We are desperately in need of a better trained labour force. Our competitors are putting much more effort into the training of young people coming on to the labour market. They have done so in the past and they are doing so now.
§ The kind of work in which we will be engaged in the future requires a decent background of education, competent skill and, above all, the ability to learn. We have all made this speech again and again. That concept is simply not compatible with saying that youngsters can work all the hours there are, including shift work.
§ The Government themselves have clearly recognised the need for the kind of measure included in this amendment because the YTS required periods of off-the-job training. It was a very valuable introduction to work. However, it was not always carried out as well as it could have been. It can be done in the training establishment of a works; it does not have to be carried out outside in some college. 44 Training is often better when carried out in a good training establishment inside an enterprise which takes training seriously, but it is nevertheless off-the-job training. It had two great advantages. It made up for the deficiencies in youngsters coming out of the education system who were hopelessly inadequately prepared in the basics. A lot of the training comprised teaching numeracy and literacy. Without that there was not a hope of training those youngsters to carry out the jobs they had to do immediately in the enterprise, let alone in the future. So the Government rightly included that concept in the YTS, and it is still there.
§ The difficulty today is that because there are more jobs for youngsters a great many are not going through the YTS but are going straight into employment. Some employers recognise the value of training and take it seriously, but there are a great many who want the short-term immediate results of having the youngster there to do the job. Those employers see training as interfering with that. In a great many enterprises when difficulties arise training is the thing that goes. Employers cut it out. However, it is extremely dangerous to allow that to happen.
§ As regards the changes in the control over working hours, if youngsters are on shift work it will play havoc with attendance at any kind of planned classes. One Thursday, for example, a youngster will be available but the next he will not. Everyone who has studied these matters knows that shift work makes it difficult to continue with any kind of planned education or training, however practical it may be, because the participant is not always present. If a participant is not present and misses a couple of classes, he will get behind, give up and cease attending.
§ I stress that this matter is important from the point of view of the youngsters. However, from the point of view of the economy it is vital that there should be a requirement that youngsters do not go straight into jobs which serve the short-term interest of both the youngster and the employer, but which involve no training. The idea that a youngster will bargain with an employer to get training is pie in the sky. To be honest, a great many of them do not wish to undergo training and have to be encouraged to do it. Many of them do not wish to undergo any kind of formalised training. Nevertheless, they will be a tremendous load for the rest of the economy to carry unless we ensure that they are trained now. The Government know that. If they will not accept the amendment, will they bring something forward on Third Reading which will safeguard this position? I beg to move.
§ 5.15 p.m.
§ Lord McCarthy
My Lords, I think it is time that the noble Baroness set her speech on training to music. It is getting very much like blank verse. Even if it does not rhyme, it is extremely persuasive, although of course the Government say nothing. I wish to vamp a little in the background. I agree with everything the noble Baroness says. This is a training Bill and that is set out in the Long Title. The training 45 part of the Bill sets out a lot of provisions. It dissolves the Training Commission and it sets up employer-led training boards which we shall come to subsequently. It transfers the staff of the Skills Training Agency, and the remarkable thing about it is that, although it dismantles what is left of the tripartite system of training, it puts nothing in its place except the wishes, desires and initiatives sponsored by employers themselves.
The noble Baroness is trying to put a little bit of something in its place, starting from the other end. If I may say so, in some ways she is suggesting a more modest and perhaps a more practical version of the amendment that we sought to move in Committee; that is to say, to start with the individual worker. If there are not to be institutions, levies and pressure, and if we cannot leave this matter simply to employers —that is central to what the noble Baroness is saying —we must do something for individual workers. We must start at the bottom by giving the individual worker some kind of right to paid time off one day a week. If workers are interested enough in their own future, education and training to wish to take time off to improve their work skills, that is surely something which should seriously commend itself to the Government.
I have no doubt that the noble Lord will say that this measure is another burden on business. Everything is a burden on business for the noble Lord. He may say —as he said in Committee when we sought to mitigate the consequences of the provisions for the right to time off—that we already have trade union membership and activity rights, trade union duty rights, and public duty rights in that people can have time off in order to become a JP or to serve on local authorities. It is rather remarkable that the Government permit time off for those activities —I am not suggesting that it should be otherwise —but we do not have any analogous provisions to permit time off for training. Surely in the Government's priority of things, training, education and improvement of skills must be more important than membership and activities of trade unions. There is of course a small provision in relation to training, but it only allows a worker to make arrangements for training for future employment; in other words, it is all built into assumptions about redundancy.
This very modest amendment suggests that we should give those workers who are committed enough to want to further their own education and training in their working time, an appropriate small concession of paid time off one day a week. If the Government really believe that training is the key to our economic recovery, I cannot see why they should reject this amendment.
§ Lord Boyd-Carpenter
My Lords, this is a very well intentioned amendment, but I think the noble Baroness, Lady Seear, perhaps subconsciously or unconsciously indicated some of the difficulties behind it. She said for example that many employers would be unwilling to allow a young worker time off in order to undertake a training course. I think that she put it a little too generally, but no doubt there are some. If that is so—
§ Lord Boyd-Carpenter
My Lords, I wish that the noble Baroness would allow me to finish my sentence. I shall give way in a moment and give her a full opportunity to explain her position. If that is so she would discourage employers from taking on young people who wish to undertake a training course. Now I shall give way to the noble Baroness.
§ Baroness Seear
My Lords, if the requirement existed employers would not be able to discourage them. That is another point. On a previous occasion at Committee stage I asked what percentage of youngsters taken on in that age group who were not on YTS were being released for training. The answer that I was given from the Government Front Bench was 5 per cent. That suggests that it is not just a small number of employers who are not releasing young people for training.
§ Lord Boyd-Carpenter
My Lords, the noble Baroness does not appear to see that in saying that she is giving away a great deal of her case for the amendment. What she has said amounts to this: if an employer is unwilling to provide paid leave every week for training he will not take on, or having taken on will dispense with the services of, young people who want that extra paid day off for training. The effect of her amendment may be the exact opposite of what the noble Baroness intends.
In a certain number of cases —I do not want to generalise—the effect would be that those admirable young people who want to undertake a training course would either not be given a job or would lose it. That is the difficulty with plunging in with legislation of this kind without perhaps fully apprehending how it will work. That is the basic objection to the proposal.
There is another objection to the amendment as it is drafted. What happens in the case of employers who employ young people for three or four days a week? There are quite a number who do so. Does the noble Baroness really say that, although they have two or three days free in which they could undertake the training, they should nonetheless take one of their employer's days, and their employer's pay, as the day on which they undertake training? That is what the effect of the amendment as it stands would be.
Therefore, I very much hope that your Lordships will not accept the amendment, not because its intentions are other than admirable but because its effects could be quite disastrous.
§ Lord Somers
My Lords, I do not often have the courage to differ from the noble Lord, Lord Boyd-Carpenter, because I know that he will always have the last word. However, I must say that in my view this is an excellent amendment. It does away with what I have always felt was one of the chief evils in the employment of the young. Nowadays young people are too apt to go into a job and, regardless of the fact that they know nothing about it, expect that they will at once be paid exactly the same wage as experienced workers. The amendment will give them the chance to make that good.
47 The noble Lord, Lord Boyd-Carpenter, said that if the employer did not want to give the time off the young people would not take the job.
§ Lord Boyd-Carpenter
My Lords, will the noble Lord allow me to intervene? I said exactly the opposite. I said that the employer would not take them on.
§ Lord Somers
That is another point. It may not occur to the young person at first that he needs the extra training. He may only realise it as he learns more about the job. I believe that the idea is excellent and I sincerely hope that your Lordships will accept the amendment.
§ Lord Strathclyde
My Lords, the noble Baroness, Lady Seear, is quite right to say that the Government sympathise with a great deal of what she said. However, I am not sure that everything that I am about to say will be music to the ears of the noble Lord, Lord McCarthy. The amendment has the worthy aim of improving the skills and competence of young employees in the workplace. However, we believe that it is misguided in its approach.
The Government fully recognise the need for all employees, including the young, to have access to appropriate vocational training to improve their work skills. However, giving an enforceable right to paid time off for training to every young employee regardless of his or her employer's ability to meet the obligation will not help achieve that in the most efficient or cost effective way.
One of this Government's many achievements has been to remove as much as possible of the unnecessary burdens which have restricted the labour market. Their removal has contributed greatly to the growth in the new jobs which we have seen in this country since 1983. I remind the House that employment has risen by over 2.5 million since then and that the British economy has created as many new jobs as the rest of the European Community countries combined.
The new clause would impose a number of burdens on employers which could well adversely affect their ability to create new jobs and opportunities. Employers need the freedom to deploy their employees on activities which are most cost effective. The clause would inhibit such deployment. Changing economic conditions inevitably mean changes in the way a business operates. The provisions of the new clause could well restrict the ability of employers to react and would not necessarily add to the quality of training.
No one can deny that this Government have invested in the training of our future workforce. I am sure that the noble Baroness would agree. YTS, which is the Government's main vocational training programme for young people has been a resounding success. Since 1983 well over 2 million young people, including many young employees, have been trained through YTS. At present there are over 400,000 young people in training on YTS and part of each one's training programme includes periods of further education or training off the job.
48 The success of the programme is wholly dependent on the involvement of employers. The Employment Department's Training Agency estimates that employers contributed £200 million towards the cost of YTS training in 1988–9. Employers gain most from having a well trained workforce and it is our belief that they should progressively assume a greater share of the costs of YTS. We said so in our White Paper Employment for the 1990s. But that will only be possible if we continue to allow flexibility of training for young people. The proposals of the new clause would be an obstacle in the way of that flexibility. They would impose an indiscriminate and unnecessary financial burden on employers in relation to the benefit that employers, young people and the country as a whole would obtain.
What is appropriate for one industry or employer does not always meet the needs of others. That is why I believe that it is important for each industry sector to have the flexibility to develop training in a way that is most appropriate to its needs. Experience has shown us that that is the best way in which employers can train their workforce and create additional opportunities. That is why a package of flexible provisions for YTS training providers whose training meets nationally recognised standards already exists.
We should have failed to achieve the best possible training for young people if we had not allowed YTS that flexibility. Of course off-the-job training under YTS may be undertaken on a one day per week basis, and some schemes operate in that way, but we would not wish to insist on that approach.
However, we are not resting on our laurels. In the Government's White Paper Employment for the 1990s we set out our proposals and objectives for training in the coming decade. A key to achieving those objectives will be through training and enterprise councils (TECs) TECs will give leadership to employers. Through their participation and involvement the focus of training will change and the importance of training to business success will be brought home to employers throughout the country. By increasing local involvement TECs will ensure that training provision is more relevant to employers' needs and so improve the skills and enterprise of the total workforce. TECs will need as much flexibility as possible to ensure that they carry out their tasks effectively. The new clause would restrict them in that.
In conclusion, we recognise that the rapidly changing circumstances of the youth labour market require the scope and role of youth training to be kept under continued review. Our White Paper commits us to that. Noble Lords already know of the Government's commitment to raising the level of skills and competencies and to the greater use of vocational qualifications, especially for new entrants to the workforce. But that points to more flexibility to achieve success, not to the introduction of a rigid requirement. Having said that I generally welcome the approach of the noble Baroness. I hope that she will feel able to withdraw the amendment.
§ Baroness Seear
My Lords, if the noble Lord had given me any response to what I said at the very beginning —namely, that if he did not like the form of the amendment, he would meet the points that I had made in some other way at Third Reading —I should have been prepared to withdraw the amendment. But he has not answered any of the points that I raised. He has said nothing about how one squares the relaxation on hours of work and the introduction of shift work and night work for 16 to 18 year-olds with proper training programmes. He said, extremely complacently, how good the Youth Training Scheme is, but those of us who have been close to it know that some of it has been very good and some of it has been anything but very good.
Will the Minister put his hand on his heart and say that, if it had not been a condition of the Youth Training Scheme that there should be offers of job training, that would have been done, especially in view of the fact that youngsters of that age going into employment who are not on youth training are not receiving the training? I find the answer totally unacceptable and I must test the feeling of the House.
§ 5.31 p.m.
§ On Question, Whether the said amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 72; Not-Contents, 99.50
|DIVISION NO. 3|
|Addington, L.||Jeger, B.|
|Ardwick, L.||John-Mackie, L.|
|Attlee, E.||Kilbracken, L.|
|Aylestone, L.||Kinloss, Ly.|
|Birk, B.||Kirkhill, L.|
|Blackstone, B.||Listowel, E.|
|Blease, L.||Llewelyn-Davies of Hastoe, B.|
|Boston of Faversham, L.||Longford, E.|
|Bottomley, L.||Lovell-Davis, L.|
|Broadbridge, L.||McCarthy, L.|
|Bruce of Donington, L.||McIntosh of Haringey, L.|
|Carmichael of Kelvingrove, L.||Mason of Barnsley, L.|
|Milner of Leeds, L.|
|Carter, L.||Moran, L.|
|Cledwyn of Penrhos, L.||Nicol, B.|
|Cocks of Hartcliffe, L.||Northfield, L.|
|Cudlipp, L.||Pitt of Hampstead, L.|
|David, B.||Prys-Davies, L.|
|Dean of Beswick, L.||Rea, L.|
|Dormand of Easington, L.||Ritchie of Dundee, L.|
|Ewart-Biggs, B.||Rochester, L. [Teller.]|
|Falkland, V.||Seear, B.|
|Gallacher, L.||Sefton of Garston, L.|
|Galpern, L.||Somers, L.|
|Graham of Edmonton, L. [Teller.]||Stedman, B.|
|Stoddart of Swindon, L.|
|Grey, E.||Strabolgi, L.|
|Hampton, L.||Taylor of Gryfe, L.|
|Hatch of Lusby, L.||Thurlow, L.|
|Hooson, L.||Tordoff, L.|
|Houghton of Sowerby, L.||Turner of Camden, B.|
|Howie of Troon, L.||Underhill, L.|
|Hughes, L.||Wallace of Coslany, L.|
|Hylton-Foster, B.||Wedderburn of Charlton, L.|
|Irvine of Lairg, L.||Williams of Elvel, L.|
|Irving of Dartford, L.||Winchilsea and Nottingham, E.|
|Alexander of Tunis, E.||Johnston of Rockport, L.|
|Allerton, L.||Joseph, L.|
|Ampthill, L.||Kaberry of Adel, L.|
|Arran, E.||Kimball, L.|
|Ashbourne, L.||Lauderdale, E.|
|Auckland, L.||Layton, L.|
|Belhaven and Stenton, L.||Lindsey and Abingdon, E.|
|Belstead, L.||Long, V.|
|Borthwick, L.||Lucas of Chilworth, L.|
|Boyd-Carpenter, L.||Lyell, L.|
|Brabazon of Tara, L.||McColl of Dulwich, L.|
|Brookes, L.||Malmesbury, E.|
|Brougham and Vaux, L.||Margadale, L.|
|Caithness, E.||Marley, L.|
|Campbell of Alloway, L.||Marshall of Leeds, L.|
|Carnock, L.||Merrivale, L.|
|Clanwilliam, E.||Mersey, V.|
|Coleraine, L.||Montgomery of Alamein, V.|
|Colwyn, L.||Mottistone, L.|
|Constantine of Stanmore, L.||Mowbray and Stourton, L.|
|Cottesloe, L.||Munster, E.|
|Craigavon, V.||Nelson, E.|
|Cullen of Ashbourne, L.||Nugent of Guildford, L.|
|Dacre of Glanton, L.||Onslow, E.|
|Davidson, V. [Teller.]||Oppenheim-Barnes, B.|
|Denham, L. [Teller.]||Orkney, E.|
|Dilhorne, V.||Orr-Ewing, L.|
|Eden of Winton, L.||Pender, L.|
|Elibank, L.||Penrhyn, L.|
|Elles, B.||Reay, L.|
|Elliott of Morpeth, L.||Rodney, L.|
|Faithfull, B.||St. Davids, V.|
|Fanshawe of Richmond, L.||Saltoun of Abernethy, Ly.|
|Ferrers, E.||Sharples, B.|
|Gardner of Parkes, B.||Strathclyde, L.|
|Geddes, L.||Strathmore and Kinghorne, E.|
|Gridley, L.||Sudeley, L.|
|Haddington, E.||Swinfen, L.|
|Hailsham of Saint Marylebone, L.||Terrington, L.|
|Halsbury, E.||Thomas of Gwydir, L.|
|Harmar-Nicholls, L.||Trefgarne, L.|
|Havers, L.||Trumpington, B.|
|Henley, L.||Ullswater, V.|
|Hesketh, L.||Vaux of Harrowden, L.|
|Hives, L.||Westbury, L.|
|Holderness, L.||Wyatt of Weeford, L.|
|Home of the Hirsel, L.||Wynford, L.|
|Hooper, B.||Young of Graffham, L.|
|Jenkin of Roding, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 10 [Removal of restrictions relating to employment of young persons]:
§ 5.40 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 11:
Page 9, line 25, at end insert —
("(3A) The Health and Safety Commission, after consulting the Equal Opportunities Commission, the Commission for Racial Equality and such other persons as it deems appropriate, shall issue a Code of Practice under section 16 of the Health and Safety at Work Etc. Act 1974, to provide practical guidance about the steps which it is necessary or desirable for employers to take in respect of young persons in their employment whose working hours include —
(3B) Particular regard shall be paid to the arrangements for, and availability of, night transport for such workers by —
(3C) A Code issued under this section is admissible in evidence and may be taken ino account by a court or tribunal as if it were a Code to which section 3(8) of the Employment Act 1980 applies.").
§ The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 12.
§ In a sense, this amendment is a last-ditch attempt to have the Government make common cause with us on their own premise concerning the night work which it will now be possible, without the protections of the past, for young workers to undertake and more particularly to be asked (or demanded) to underake by some employers in a situation in which employment prospects are at the lower end of the scale. In Committee the noble Baroness, Lady Seear, suggested that one could look for that situation in the North rather than in the South-East.
§ The view seems to be very widespread that some weapon should be left to dissuade those employers, however much they may be in a minority, who would be what the CBI called unscrupulous employers; those who oblige young people now to work excessive and unsocial hours. But it is not something that the Government would undertake. The CBI made such a point. The British Institute of Management made a similar point in welcoming the enactment of a general provision to replace the existing complex and, as the Government say, outmoded tangle of regulations for night work for young workers.
The Health and Safety Commission's view —I quote from the way in which the Minister put it in Committee —is that:
some restrictions should operate to ensure young people's welfare and opportunities for social development as distinct from health and safety".—[Official Report, 16/10/89; col. 693.]
The amendment makes that point very strongly. Albeit that health and safety may not be an issue in terms of nightwork for young workers —and what passed in Committee showed, as I put it then, that the jury is still out on the precise effects on health and safety —there is another aspect of welfare; namely, as the Health and Safety Commission put it, opportunities for social development. That of course overlaps with our earlier discussion on the amendment of the noble Baroness, Lady Seear. This is a time when young workers need to develop and should still be undertaking education and training opportunities. In Committee the Minister undertook to look further at that point.
§ There is nothing between us on the matter of age. This measure concerns workers from 18 years of age downwards —not to 16 years but possibly to 15 years and 8 months; that is to say, school-leaving age. Although some of the legislation is couched in terms of young people of 16 years of age, it must be remembered that in certain cases with date of birth 52 the young person of whom we are speaking may be under 16.
§ All the bodies that I have cited, all the international conventions and all the areas of expertise suggest that there are problems in terms of welfare, of social development, and indeed sometimes of sheer danger to young workers who work at night. Therefore this amendment suggests that the Health and Safety Commission, after consultation with the Equal Opportunities Commission and the Commission for Racial Equality, should issue a code of practice under the Health and Safety at Work etc. Act, as it can do at the moment. Perhaps the amendment should have repeated the words of that Act —with of course the consent of the Secretary of State for making such codes.
§ I come now to what it is desirable or necessary for employers to do in respect of those young workers whose working hours will be able to be extended through the night —night shifts. Those hours are defined in this amendment as between 10 o'clock at night and 6 o'clock in the morning, which is one of the options from the previous factories legislation, and we have also introduced work on a Sunday. We believe that there may be a number of welfare matters concerned with young people being leaned on to work on Sunday for longer periods than is desirable. However that would be a matter for the commission to consider.
The 1974 Act, upon which the Minister has relied a large number of times, imposes a duty to maintain adequate facilities and arrangements for the employees' working environment. But Section 2(2) (e) of that Act includes an obligation on the employer to provide and maintain:
a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work".
§ In that section, on which the Minister very often relies, the employer is therefore already under an obligation to maintain a working environment in which the facilities and arrangements for welfare are adequate. We believe that the new era of nightwork for young workers makes it necessary to have some special provision, at least for an interim period. Our predictions about what will happen may vary. However, it is clear that there is concern among industry, employing bodies and trade unions.
At one point the Government made an important announcement. I looked at it again and realised that, although it had been made rather shortly in another place, it had not been picked up by any of us, and no doubt that was our fault. It was made with customary vigour by the Minister and more strongly in this Chamber, where it was repeated three times in different ways. At Committee stage the Minister said:
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 employees' hours".—[Official Report, 16/10/89; col. 733.].
I think the Minister will agree that in two of the places at which it was made that announcement was
very much in the context of hours of work of young people, especially at night, and in connection with the transport of young workers to and from work, in particular at the end of a night's shift. Therefore in the code we suggest that there should be very clear advice to employers on that matter as part of general welfare.
§ The fact that the Government accept that there will be good and bad practices is shown by their intention to issue a leaflet. This Government never waste money, I am sure, and they would not waste money on a piece of paper to send round to employers if they did not think that there was a problem. The Government know that there is a problem. With public transport as it is now, there is a problem about a boy or girl of 15 years 9 months of age who leaves a night shift at 2 a.m. in an urban area. We all know that that is so. Indeed, the Minister himself said exactly what I would have said, given the fact that I have a daughter and he does not. He said that if he had a daughter he would not be pleased to see her going home in that situation. Of course everyone knows that that is right.
§ In a sense the code that we suggest is the leaflet made serious. If the problem is serious enough to issue a leaflet on this matter and if we know that there will be good and bad practices with pressure on young peiople to work at night, with inadequate welfare facilities in some workplaces and inadequate transport in others, then it is serious enough to have a code of practice.
§ There are codes of practice on other matters. If there were a code of practice the Government know what the difference would be. First of all it would be taken into account in any prosecutions brought under Section 2 of the Health and Safety at Work etc. Act. To make clear that it could be taken into account in any civil cases we have added a special subsection which gives it the status of a code issued under the 1980 Act. We have done so partly because that was the quickest way of dealing with it. It is subsection (3C) of the amendment. That touches upon the amendment which I am not moving but to which I am speaking.
§ It seems to us that there will be some situations in which there will be dispute when a young worker or workers are told that they must work the night shift next week. If they walk out the issue will arise, since it will be a change in their conditions of employment, as to whether there is a constructive dismissal. In such a situation we say that the code should be taken into account. I do not know whether the Minister would agree that, if there were such a situation of constructive dismissal, it would be right to take into account whether the employer were acting in accordance with the standards of his leaflet. I hope he will at least think that.
§ In order for the tribunal to do that, the legislation would have to have the status of a code. All Members of the Committee joined in applauding the number of employers who provide night transport for staff working late. Of course it happens. But we disagreed with the Government at the Committee stage. We said that there would be some employers who would put pressure on young workers in circumstances 54 where such a welfare facility for transport was inadequate. Such a practice would have to have a tangential legal significance.
§ We do not ask for a regulation. We accept the Government's deregulation of the conditions regarding night work for young persons. However, it appears that everyone, including now the Government, agrees that there will be a problem of bad practice in some places. Young workers will be exploited by some employers. If that is so, then surely the general consensus that has emerged from the Committee stage is that there should be at least a code of practice which will have a suitable status and not merely a leaflet. It is to that aim that the amendment is directed. I beg to move.
§ Lord Rochester
My Lords, in Committee the noble Lord, Lord Strathclyde, said that he was sure that we could return at Report stage to the question as to whether it was reasonable to require employers where necessary to provide transport for young people, in particular girls, at night. In opposing the proposal at that time, he rested his case very largely on the contention that the people concerned could exercise a choice as to whether or not they took a job where transport was not provided. In response, my noble friend Lady Seear said that in some small towns no job market operated between a girl of, say, 16 years and an employer who controlled one of the few employment opportunities in the area. In this Bill the Government are relaxing the conditions for night work. It is up to them therefore to ensure the safety of these young people at night.
The amendment does not go so far as the matters discussed in Committee. It calls only for a code of practice to provide guidance about the steps that it might be desirable for employers to take under such conditions especially regarding night transport. I confess that I do not understand from what the noble Lord, Lord Wedderburn, said why Sunday working has been included. However, if that were the only reason for rejecting the amendment, I am sure that it is a matter that could easily be rectified at Third Reading. The principle is clear. I hope that the Minister will accept it.
§ 5.45 p.m.
§ Lord Boyd-Carpenter
My Lords, the amendment raises a serious and important issue and merits a little discussion by noble Lords. There is no doubt that the changes effected by the Bill that affect young people will raise a number of practical problems for the young people concerned, their employers and the public. There is some attraction for me in the idea of a code of practice to cover this area of activity. Where I part from the movers of the amendment is on the suggestion that the Health and Safety Commission should issue the code of practice. As I believe the noble Lord, Lord Rochester, has indicated, I should have thought that a code of practice would be better if produced by the Government. The Government are responsible for the very considerable changes that we are effecting, most of which —unlike noble Lords opposite —I welcome. However, the Government are responsible for creating a situation which it is difficult to 55 consider without feeling that a code of practice could serve a useful purpose.
Subject to what my noble friend may say, I should have thought that a code of practice issued by these worthy bodies —the Health and Safety Commission, the Equal Opportunities Commission, or the Commission for Racial Equality —may not be wholly satisfactory. It might be better if it were produced by the Government, with the further advantage that if the noble Lords or Members of another place were critical of it, a Minister could be held to account.
I hope that my noble friend will not accept this amendment which operates in rather the wrong way, but that he will not dismiss the idea of a code of practice. That seems to me, as at present advised, to be a rather useful idea in the circumstances.
§ Lord Strathclyde
My Lords, my noble friend Lord Boyd-Carpenter is quite right. This is a most interesting issue and needs to be fully aired and discussed. I totally appreciate therefore the anxieties that have been expressed by noble Lords opposite and by my noble friend. I agree that employers should consider the availability of transport and welfare facilities before they employ young people at night or even on Sundays. In particular they should ensure that the working environment is safe and healthy and that there are adequate arrangements and facilities to ensure young people's welfare.
There is a specific duty on employers to that effect under Section 2(2)(e) of the Health and Safety at Work etc. Act which applies regarding all employees at any time when they are at work. That is quite plain.
However, I cannot support the amendment on an approved code of practice because it is for the Health and Safety Commission to decide whether or not to issue codes of practice under the Health and Safety at Work etc. Act. The commission is responsible for making appropriate arrangements with a view to securing the health, safety and welfare of persons at work and for ensuring that employers and others concerned are adequately advised.
I have no doubt that if representations were made to the commission that a code of practice on the lines proposed was necessary, it would give the matter very careful consideration. Noble Lords may be aware that the proposed EC directive on minimum requirements for the workplace —which we anticipate will be adopted around the end of the year —will cover a number of factors relating to welfare at work including facilities that should be provided in the workplace such as restrooms, washrooms and first aid. The HSE is considering at present how these proposals will be given effect in this country. It is anticipated that there will be a need for new regulations. To that extent a narrow code of practice on welfare facilities for young people as envisaged in this amendment might involve some duplication of effort. However, that would be for the commission to decide.
On the provision for transport, I agree that employers and young people should consider its 56 availability before they come to any arrangement about working at night. But I do not agree that we need a new statutory provision to cover the matter. Good employers will provide transport where necessary but in many circumstances it would not be reasonable to expect transport to be provided, for example, if a young person lives a very long way from the place of work. I am aware that the amendment would require only adequate arrangements in the circumstances. However, the problem for employers will be that they have no idea what that means and what an industrial tribunal will consider that it means.
It is important not to lose sight of two points. First, young people themselves may welcome the opportunity to work at night, in particular in view of the enhanced rates of pay that night work often involves. We are lifting the restrictions on their working at night in order to give them that freedom of choice.
Secondly, young people are perfectly capable of deciding for themselves whether transport facilities are adequate, and, if they are not, of making alternative arrangements with their employers. Young people go out socially late at night and have to make their own transport arrangements in those circumstances. I am sure that noble Lords opposite do not suggest for one moment that there should be some kind of curfew for young people.
I do not accept that there is any need to amend the qualifying period provisions of the Employment Protection (Consolidation) Act 1978 to give young people special treatment as envisaged in Amendment No. 12. A qualifying period is necessary to allow employers time to assess an employee's suitability for the job and for an employee to demonstrate commitment and loyalty before acquiring rights against him. The length of a qualifying period is a matter of judgment. It is our judgment that the present qualifying period strikes the right balance between the interests of employers and employees.
The noble Lord, Lord Wedderburn, pointed out that my department will be producing jointly with the Health and Safety Executive a new advisory leaflet on hours of work. I hope that that covers the point raised by my noble friend Lord Boyd-Carpenter. Both we and the executive believe that this is the most practical approach to the question of guidance. Like the leaflet that was produced when we lifted the restrictions on women's hours, the leaflet will cover matters that it is good practice for employers to consider when changing their employees' hours; matters such as consultation, supervision, the availabiliy of transport and refreshment facilities. These considerations apply as much to adults as they do to young people, as will the advice in the leaflet.
I hope that I have explained the background of why the Government do not accept the amendment. While we sympathise with its intentions, we believe that we have the balance right and that young people will not be adversely affected.
§ 6 p.m.
§ Lord Wedderburn of Charlton
My Lords, I thank the noble Lord for his reply. I thought that we had 57 almost got there, when I was within shouting distance of the noble Lord, Lord Boyd-Carpenter, until I heard that the Government sympathised with our objectives. Then I knew that we would not make it. One cannot be lucky twice.
I was seriously disappointed by the Minister's reply. We had noticed one or two defects in the amendment. I agree with the noble Lord, Lord Rochester, that special questions are raised by Sunday work. They relate more to the issues raised by his noble friend Lady Seear as to five, six or seven-day working and education opportunities. I would say to the noble Lord, Lord Boyd-Carptenter, that we thought long and hard about how to put the point concerning the code of practice. I appreciate that the noble Lord is not fond of consulting the worthy bodies which he named, but we chose the Health and Safety Commission under the Health and Safety at Work Act precisely because under Section 16 of that statute the commission has the normal task, as the Minister suggested, of putting forward and approving codes of conduct in this area. More specifically, we chose it because under subsection (2) of that section it cannot approve a code of practice without the consent of the Secretary of State. So whichever way round one comes to it, the two bodies must work together. That is good sense. The Secretary of State and the Health and Safety Commission will consult on such a code. That is why we feel so disappointed by the noble Lord's reply.
There is one image about which I must take issue with the Minister. He set it out in Committee and he has done so again tonight. We are not talking of the case where the young worker and his employer will sit down and talk sensibly together about the arrangements for night work. That will happen. We are talking about employers with whom, as the CBI has indicated, it is not possible for young workers to sit down and reason. The Minister talked about young workers and not their trade union; they are non-unionised so they are in a weak position.
The employer knows that his position is a strong one. The noble Lord says that young workers will want to go there because of the rates of pay and that they can then decide whether transport facilities are adequate. That is not social reality in some parts of this country. Of course they will go for the rates of pay and they will do rather more night work than is sensible. They will do so in poor conditions and with lousy transport facilities. Somebody will be injured on the way home. We want to do something to offset that state of affairs and so do the Government, it seems, but they insist that it should be done by leaflet.
There is a great deal of literature on leaflet law. It has been augmented by the Government over the years, and by all governments to a certain extent. But why issue leaflets when something can be agreed after consultation with all the bodies concerned? One of the oldest arguments for some basic floor or regulation in the market is that it is in the interests of good employers who will not then be undercut by the outrageously bad. Everyone knows this argument and everyone knows the speech of Sir Winston Churchill in 1909 on the Trade Boards Act. I am 58 sure that the Minister does. He is teasing me when he says he does not. It is a good argument. Good employers will want to come forward and say, "Let's have tough competition but let's not engage in this kind of thing". This kind of thing includes getting hold of young workers in a tight labour market and in the absence of restriction exploiting them. Some people will do that. We cannot get the Government to accept that their leaflet would not be of much use against such employers, would not be adducible in court and would not be usable by inspectors in regard to improvement notices. However, it would be if it were turned into a code. It might be much the same document. All that we are asking for is the status. We are not going to get it. We can see that the Government are adamant on this point. Therefore we wish to register the opinion of the House.
§ Lord Strathclyde
My Lords, before the noble Lords sits down, perhaps I may make one or two points before he decides whether to call a Division. There is a certain misconception that the Government are removing all restrictions on all employers. That is simply not the case. The proposals concern the restrictions on young people's hours of work in industrial undertakings and shops. Other sectors of employment such as offices have never been regulated. There is no evidence that this has led to young people being exploited. The noble Lord does not even try to produce evidence of exploitation.
Provisional figures from the 1988 labour force survey show that 97 per cent. of 16 and 17 year-olds work 49 hours a week or less in both regulated and unregulated sectors, and 90 per cent. or more work 44 hours a week or less. This is well within the usual statutory maximum of 48 hours a week. Secondly, the noble Lord said that unscrupulous employers in a tight labour market would deliberately go out of their way to exploit young people. In the next 10 years there will not be a market for unscrupulous employers. Young people will be in a strong position to protect their rights and interests. That is why we believe that the leaflet is the best approach. As I said at the end of my opening speech, we do not think that this provision will affect young people detrimentally.
§ Lord Wedderburn of Charlton
My Lords, I am glad to have that information. I wish to add to those comments two serious points. The first point is the one that came out of the deep freeze which we have not had before in this House but which was much discussed elsewhere; that is, the hours of work at present for young workers in the regulated and unregulated areas. The figure is 49 hours per week, which is rather above the norm of most national and international limitations, but I shall let that pass.
The Minister says that that applies in both regulated and unregulated employment. Of course in regulated employments there are many exemption orders which the Minister and I have not touched upon tonight. But we all know that those orders go directly to such matters as night transport and so on. However, citing what happens in an unregulated area does not tell us what will happen in a regulated area, when the regulation is taken away.
59 It is clear in the literature and everybody knows that there may be a 40-hour week in an unregulated area. However, what will happen if there is a 45-hour week with no night shifts in a factory and there is a tight situation? The Minister must not misunderstand us. Unscrupulous employers are not necessarily evil but they are maintaining the drive to enterprise by any lawful means at their disposal. For example, there may be an order which must be dealt with and the employer may say that in order to do that everyone must work through the night. That happens. Of course at present we cannot know what will happen in each of those factories and other places of work without legal regulation.
The second point concerns young people being in a strong position. The easiest way to put that is that young people will be in a strong position if they realise that having been deprived of one of the two main ways in which work people can protect their position —namely, legal regulation —their only possible route for discussion with harsh employers is, as the Webbs put it, through a method of collective bargaining; that is, through a trade union. The difference in image between us and the Minister is that we see young people in the labour market in a new situation. But in those sectors where they need protection and where that protection is to be taken away by the Government they will not be protected by merely talking individually to their employers. If the employer is a good employer that may work, but many young people will need to combine.
The Minister has given us an excellent case for trade union recruitment in those areas, because that is the only way in which there will be any protection. He has not convinced us and we wish to test the opinion of the House.
§ 6.13 p.m.
§ On Question, Whether the said amendment (No. 11) shall be agreed to?
§ Their Lordships divided: Contents, 67; Not-Contents, 90.60
|DIVISION NO. 4|
|Addington, L.||Galpern, L.|
|Ardwick, L.||Graham of Edmonton, L. [Teller.]|
|Aylestone, L.||Grey, E.|
|Birk, B.||Hampton, L.|
|Blackstone, B.||Hatch of Lusby, L.|
|Blease, L.||Hayter, L.|
|Boston of Faversham, L.||Houghton of Sowerby, L.|
|Bottomley, L.||Howie of Troon, L.|
|Carmichael of Kelvingrove, L.||Hughes, L.|
|Irving of Dartford, L.|
|Carter, L.||Jay, L.|
|Cledwyn of Penrhos, L.||Jeger, B.|
|Cocks of Hartcliffe, L.||John-Mackie, L.|
|Cudlipp, L.||Kagan, L.|
|David, B.||Kilbracken, L.|
|Dean of Beswick, L.||Kilmarnock, L.|
|Donoughue, L.||Kirkhill, L.|
|Dormand of Easington, L.||Listowel, E.|
|Ennals, L.||Llewelyn-Davies of Hastoe, B.|
|Gallacher, L.||Lovell-Davis, L.|
|McCarthy, L.||Stedman, B.|
|McGregor of Durris, L.||Stoddart of Swindon, L.|
|McIntosh of Haringey, L.||Strabolgi, L.|
|Mason of Barnsley, L.||Taylor of Blackburn, L.|
|Milner of Leeds, L.||Taylor of Gryfe, L.|
|Monson, L.||Tordoff, L. [Teller.]|
|Nicol, B.||Turner of Camden, B.|
|Northfield, L.||Underhill, L.|
|Pitt of Hampstead, L.||Wallace of Coslany, L.|
|Prys-Davies, L.||Wedderburn of Charlton, L.|
|Rea, L.||Williams of Elvel, L.|
|Ritchie of Dundee, L.||Winchilsea and Nottingham, E.|
|Alexander of Tunis, E.||MacLehose of Beoch, L.|
|Allerton, L.||Malmesbury, E.|
|Arran, E.||Margadale, L.|
|Auckland, L.||Marley, L.|
|Belhaven and Stenton, L.||Marshall of Leeds, L.|
|Belstead, L.||Masham of Ilton, B.|
|Boyd-Carpenter, L.||Merrivale, L.|
|Brookes, L.||Mersey, V.|
|Brougham and Vaux, L.||Montgomery of Alamein, V.|
|Caithness, E.||Mottistone, L.|
|Campbell of Alloway, L.||Mountevans, L.|
|Carnock, L.||Munster, E.|
|Coleraine, L.||Nelson, E.|
|Colwyn, L.||Nugent of Guildford, L.|
|Constantine of Stanmore, L.||Onslow, E.|
|Craigavon, V.||Oppenheim-Barnes, B.|
|Dacre of Glanton, L.||Orkney, E.|
|Davidson, V. [Teller.]||Orr-Ewing, L.|
|Denham, L. [Teller.]||Penrhyn, L.|
|Eden of Winton, L.||Reay, L.|
|Elibank, L.||Rees, L.|
|Elles, B.||Renton, L.|
|Elliott of Morpeth, L.||Renwick, L.|
|Faithfull, B.||Rodney, L.|
|Ferrers, E.||St. John of Fawsley, L.|
|Feversham, L.||Saltoun of Abernethy, Ly.|
|Gardner of Parkes, L.||Seebohm, L.|
|Geddes, L.||Sharples, B.|
|Gridley, L.||Strange, B.|
|Halsbury, E.||Strathclyde, L.|
|Henley, L.||Strathmore and Kinghorne, E.|
|Holderness, L.||Sudeley, L.|
|Home of the Hirsel, L.||Swinfen, L.|
|Hooper, B.||Teviot, L.|
|Hylton-Foster, B.||Thomas of Gwydir, L.|
|Johnston of Rockport, L.||Thurlow, L.|
|Joseph, L.||Trefgarne, L.|
|Kaberry of Adel, L.||Trumpington, B.|
|Lauderdale, E.||Ullswater, V.|
|Lawrence, L.||Vaux of Harrowden, L.|
|Lindsey and Abingdon, E.||Wise, L.|
|Long, V.||Wyatt of Weeford, L.|
|Lyell, L.||Wynford, L.|
|McColl of Dulwich, L.||Young of Graffham, L.|
|Mackay of Clashfern, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 12 not moved.]
§ 6.20 p.m.
Lord Rochester moved Amendment No. 13:
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:
- (a) any advertisement or other arrangement made to notify prospective employees, or
- (b) the terms and conditions on which employment is offered, or
- (c) refusing to offer employment.").
§ The noble Lord said: My Lords, less than two weeks ago a Bill was introduced by the noble Baroness, Lady Phillips, on the subject of age discrimination. It received a Third Reading and was passed in your Lordships' House. Unfortunately, there will not be time to test the opinion of another place on the matter in the current parliamentary Session.
§ However, in Committee on this Bill my noble friend Lady Seear introduced an amendment in precisely the same terms as the one I am now moving. It suggests that the time has now come to ensure that attempts to counter unreasonable age discrimination in employment should receive statutory backing. In Committee the noble Lord, Lord Strathclyde, said that he had much sympathy with the intention of the amendment but that there were barriers of both prejudice and lack of knowledge to overcome. He said that the Government believed that the best way to overcome them was not by legislation but by encouraging and persuading employers to amend their personnel policies where necessary.
§ The noble Lord went on to tell the Committee what was already being done in this area by the Employment Service and how employers such as Tesco—to whom I should like to take this opportunity of paying tribute —are already recruiting older workers to fill vacancies. My noble friend did not press her amendment in Committee, as it was then 11 o'clock at night, but she expressed the hope that the Government would think again. The amendment has been retabled to give the Government an opportunity to tell the House whether they have had any further thoughts on the matter.
Of course we would all prefer progress to be made on a voluntary basis, but to judge from recent statistics volunteers are not yet coming forward in sufficient numbers. I recognise that if there are to be statutory sanctions against age discrimination we must decide whether any defences should be made available to employers. In the United States there is an age discrimination in the employment Act which contains a defence permitting the employer to show that age is:
a bona fide occupation qualification reasonably necessary to the normal operation of the particular business",
the differentiation is based on reasonable factors other than age".
§ In the United States public safety has become a key defence, involving such occupations as airline crew, air traffic controllers, bus drivers, police and fire staffs. The courts in the US have consistently ruled that any increase in risk to others resulting from the abandonment of age-related employment criteria should be viewed as an important legal consideration in age discrimination cases.
§ For my part I concede that, where a firm can demonstrate that an effect of having no age limit would be unreasonably to distort the age distribution of its employees or hamper planning for succession, those considerations too might constitute a justified exception to the general rule. It is with such factors in mind that this amendment proposes that in the 62 United Kingdom it should be unlawful to offer employment which may discriminate unreasonably —I stress that word —against anyone on grounds of age alone.
§ No doubt the drafting of the amendment could be improved. However, I suggest that we should now re-examine the principle involved. I believe the time has come to introduce limited legislation against age discrimination in employment on the lines proposed in the amendment, not just for the sake of equity but to avoid the enormous economic waste of not making use of the talents of older people in this country. I beg to move.
§ Baroness Turner of Camden
My Lords, I rise from these Benches to say that we are happy to support this amendment, just as we supported the Private Member's Bill introduced recently by my noble friend Lady Phillips.
Britain, it seems to us, is very much an ageist society. It is hardly possible to read a report in a newspaper of an interview with someone without the age of that person appearing in brackets, whether or not age is relevant to the story. We must accommodate ourselves to the notion that there will be far more older people in the country and that older people have a contribution that they want to make to society. They are still useful to society and want to be used in a productive way.
I am sure that we all have examples from our own experience of discrimination of grounds of age, when an inflexible rule has been applied which has not been of advantage ultimately either to the employer or the employee. I know of instances where women in particular have falsified their age in order to maintain employment when reaching an age at which they would no longer normally be employed. We should not have to countenance such subterfuge. If this kind of amendment were included in statute it would not be necessary.
The noble Lord, Lord Rochester, referred to the experience that is available in the United States where it has proved possible to have legislation involving the utilisation of the experience and ability of older people, with exemptions available if the discrimination is reasonable. The wording of the amendment has been carefully thought out to include "reasonableness" —the reasonable test. For that reason, I hope that the Government will accept the amendment.
§ Lord Monson
My Lords, I support this amendment for perhaps unusual reasons. In principle I have always disliked social engineering legislation of this nature, preferring that aims should be achieved by persuasion rather than coercion. However, if one happens to be one of those people, who at present appear to be in a majority, who approve of banning by law discrimination on the grounds of sex or race, I do not see how it is either logically or morally possible to oppose banning discrimination on the ground of age.
§ Lord Boyd-Carpenter
My Lords, it is interesting to speculate what would be the effect of this amendment if it were to be carried into law. Once 63 again the noble Lord opposite has excellent intentions. There is no doubt that for demographic reasons it will be plainly necessary to endeavour to secure the continuance in work of older people in this country. That continuance is to some extent put at risk by various conditions as to age.
However, it would be interesting to see how this amendment would apply. Would it apply to government service? I do not understand whether the drafting of the amendment covers that. It has always seemed to me a most ridiculous aspect of our whole system that in the foreign service an efficient man in excellent health is made to leave in general when he reaches the age of 60. I can understand a restriction applying to the armed forces where anyone, however senior, may have to be up all night, night after night and sleep in a ditch, indulge in various forms of physical effort and cope with exposure. It has always seemed quite ridiculous to apply those restrictions to the foreign service. I suppose that nowadays an ambassador lives more comfortably and is better looked after than almost anyone else in the community. The foreign service —and to some extent the senior ranks of our home Civil Service —not only waste a good deal of manpower but set thoroughly bad examples to the rest of us.
I do not know whether this amendment will affect that situation. However it brings out the fact that if we want to encourage the continuance in work of older people it is up to Her Majesty's Government to set an example. They could set a very good example as regards the foreign service and the Home Civil Service although not, I believe, as regards the armed forces.
The other fascinating question concerning this amendment is its effect on the Companies Act. Your Lordships may be aware that directors who reach the age of 70 and who wish to be re-elected have to succeed with a special resolution which not only draws attention to their age but which also carries with it the implication that they should not go on very much longer. Will the amendment affect that situation? If non-executive directors of companies remain physically fit they are probably doing an extremely useful job well beyond that age. The restrictions of the Companies Act tend to eliminate them. That is not totally the case because robust companies carry a resolution exempting a valued director from these restrictions.
This is a very important matter. I doubt whether it can be effectively dealt with by legislation which, I believe, will run into all kinds of difficulties as to whether it is unreasonable, for example, to refuse to employ a footballer of 50 years of age or a trapeze artist at 55. It would involve highly complex legal proceedings. I feel quite strongly that it is for the Government to set a good example in their own area and, by so doing, to set a good example to employers.
The expectation of life is steadily rising and people live longer. In parenthesis I may say that it is not exceptional to see announced in the birthdays column of The Times birthdays of people who have reached the age of 100. People are healthier, living 64 longer, and at the same time the squeeze on the younger groups of the population is making the services of older people more essential in economic terms. This is a real issue. The doubts that I express are whether a clause of this kind will serve much useful purpose. I wish to hear from my noble friend the Minister what is the Government's approach. If they wanted to do so, they could set a very effective example.
§ 6.30 p.m.
§ Baroness Gardner of Parkes
My Lords, I am concerned about the amendment. When I first saw it I wondered whether it was an attempt to limit grey power and, if so, what a shame that would be because I am all in favour of using older people. I read the amendment again carefully and considered again a case that I recently heard. I felt that there were great dangers in the amendment. The greatest danger is the point that I brought out previously; namely, that of the vexatious litigant. It may be decided not to employ someone because he is old. That person may be looking for an occupation in life. In such a case that person may do what I described as regards the earlier case. Each time he applies for a job and is not interviewed or chosen he can immediately bring a case to the industrial tribunal stating that he was unreasonably discriminated against on the grounds of age.
Such cases can be brought without any qualifying period or employment being offered. Such a course will result in yet another category where cases can be brought in advance of any real contact with an employer. A large number of grey power people may look on this as a marvellous opportunity for an interesting diversion in life. That may be the disastrous effect.
I believe that natural forces will ensure that older people will be employed. I am pleased that the European Court upheld a woman's right to work on in the health service until the age of 65 whereas before we insisted that women had to retire at the age of 60 while men continued to the age of 65. The case of Pereira was quoted to me recently where age was held to create unreasonable discrimination. Therefore that power already exists. The age of 32 was set as a barrier. It was a case involving racial discrimination. It was found that not many immigrants could have achieved the qualifications required by the age of 32 if they had come to this country. It was a back-door way in which age became quite a factor in a case.
I oppose the amendment. While I am totally in favour of older people being given opportunities, I would hate to set up yet a further industry. I wish to see older people who have spare time and who are unsuitable for employment or cannot obtain it because a younger person is chosen, using their time in the way which I believe so many will in the future. For example, there is the retired senior volunteer programme to help others. Such activity would be much better for older people than for them to turn into vexatious litigants on the basis of age discrimination. I oppose the amendment.
§ Lord Strathclyde
My Lords, again we have had an interesting debate on exactly the same amendment as we discussed in Committee. Perhaps we shall see it again at Third Reading. It is a very important issue. I sympathise with the intention behind this new clause. Age discrimination is unfair to individuals. It also hurts businesses and the economy. We cannot afford to waste the talents of older workers, particularly now that the number of young entrants to the labour force is steeply declining.
The noble Lord, Lord Rochester, and the noble Baroness, Lady Turner, mentioned the situation in the USA. We understand that a number of recent cases have been brought successfully by employees claiming discrimination. We do not know whether these cases were brought under state or federal law. Apparently, these cases have led to employers changing their procedures to prevent further discrimination. A recent British Institute of Management report found that last year 20,000 charges of age discrimination in America resulted in only 116 lawsuits and most of those were won by the employers.
My noble friend Lord Boyd-Carpenter mentioned at some length the role of the Government and the Civil Service. I believe that he will be very pleased to know that the Civil Service record in recent years has been an excellent one and that 90 per cent. of Civil Service recruits are not subject to age limits. My noble friend also mentioned retirement ages and particularly the role of ambassadors. This amendment is concerned only with the offer of employment and has nothing to do with retirement which is an entirely different issue.
§ Lord Boyd-Carpenter
My Lords, of course my noble friend is right in what he says. Her Majesty's Government offers employment to young men to join the diplomatic service with the condition that the employee will be forced to retire at the age of 60. The Government cannot slide out of the situation quite as easily as that.
§ Lord Strathclyde
My Lords, I am sure that the Government will read carefully what the noble Lord has said and they may make some changes in the future. The issue is about means and not ends. In the case of race and gender discrimination, Parliament decided to deal with discrimination through legislation. I do not believe that this is appropriate in the case of age. There are important differences.
The noble Baroness, Lady Turner, said that the United Kingdom is an ageing society. I am not sure that that is entirely correct. As regards employment, in general it is older people who determine the employment policy of companies. If it is true that there is discrimination, it is they who are ultimately responsible for age discrimination. Men discriminate against women; white people discriminate against black people, and too often deep-seated personal prejudice can be involved. This does not seem to be the case with age discrimination which makes an approach based on persuasion and appeal to self-interest more likely to succeed. Moreover, ageing can be more relevant to job performance than race or gender. This does not make 66 it impossible to legislate but, if we do so, it greatly increases the risk of rigidities and anomalies being created.
The Government are making a substantial investment in helping older people to get jobs. The full range of our employment and training programmes is open to people in their fifties, and many programmes such as jobclulbs and the enterprise allowances scheme are open to people up to the age of 64.
However, even more than any government action, labour market realities will compel employers to make better use of older workers. Companies like Tesco, B & Q, British Rail and British Telecom are already taking active steps to do so. Just a week ago, my right honourable friend the Secretary of State for Employment opened a store in Macclesfield where all but one of the 60 employees are aged over 50. Where these employers have led others will follow, compelled by the logic of the decline in numbers of young people.
The Government are committed to hammering home to employers the message that their practices must change. Over the past year Ministers have publicised the facts of demographic change and the implications for age discrimination in a number of speeches, articles and interviews. We have recently instructed Jobcentres to challenge all upper age limits on vacancies notified to them.
The Government have sought to create a climate in which there is no longer the automatic expectation that people will retire at a fixed age. The removal of earnings rule on pensions, announced earlier this year by the Chancellor, will powerfully assist in this. Employers will increasingly recognise that it will be in their interests to introduce greater flexibility into their own retirement policies in order to retain the valuable talents of those who are keen to stay on at work.
The Government are now taking a further major initiative. My right honourable friend the Secretary of State announced last week that there would be a new campaign, based on the Employment Department/National Economic Development Office publication Defusing the Demographic Time Bomb, in order to bring home to employers messages about demographic change. Action will be pursued through national and sectoral organisations, through professional personnel organisations and locally through seminars and workshops directed at smaller and medium-sized companies. The importance of making full use of older workers will be one of the major themes. The Institute of Personnel Management has already given considerable prominence to this at its conference in Harrogate last week.
It is in the employers' own interest not to discriminate unfairly on grounds of age. Demographic change is making fairness not only a duty but a necessity. The Government are taking vigorous action to get that message across. That action will be much more effective than any anti-discrimination legislation.
Therefore I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Rochester
My Lords, I should like to thank all noble Lords who have taken part in this short debate: the noble Baroness, Lady Turner, and particularly the noble Lord, Lord Monson, from the Cross-Benches, and the noble Lord, Lord Boyd-Carpenter. The debate has been an interesting one. I am always a little troubled when I hear that the noble Lord, Lord Boyd-Carpenter, admires the good intentions of my noble friends and myself and fear that something pretty damning may follow. On this occasion, if I may respectfully say so, the noble Lord treated the matter in a very balanced way, seeing the pros and cons of the argument.
The amendment is framed to cover the Civil Service, not in regard to the retention of people in employment, as the noble Lord seemed to be saying, but as to their recruitment. The noble Baroness, Lady Gardner of Parkes, raised the fact that there might be a difficulty about vexatious applicants. It seems to me that that point could easily be exaggerated, but I recognise that it is the kind of thing that any legislation should guard against.
The Minister seemed to be reproaching me for again putting down an amendment in the same form as the amendment which had appeared in Committee. I am glad to see that he shakes his head. I explained at the outset that the intention was to give the Government the opportunity to let the House know of any further thoughts that they had on the matter. I was interested to hear that the National Economic Development Office is shortly to issue a publication dealing with this matter.
§ Lord Strathclyde
My Lords, it was published last week and I shall make sure that the noble Lord gets a copy.
§ Lord Rochester
My Lords, if it could be placed in the Library for the benefit of other noble Lords, that would be great.
Once again the noble Lord has advised us that this is a matter which is better dealt with by persuasion rather than by legislation. The noble Lord may be right. I can only say that I fancy that the time will come when labour market conditions are such that the Government will have to do more about this matter.
I do not intend to press the matter further tonight. I hope that the fact that the matter has again been discussed in a Bill which is so largely concerned with discrimination of one kind or another will have helped to bring it more clearly to public attention. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Exemption of Sikhs from requirement to wear safety helmets on construction sites]:
Lord McCarthy moved Amendment No. 14:
Leave out Clause 11.
§ The noble Lord said: My Lords, in moving this amendment, I should like to make two preliminary statements. First, we do not intend to divide the House on this amendment. Our sole objective in 68 moving it is to seek to clarify the arguments and the principles which the Government put forward when they introduced their own new clause in Committee. Secondly, I apologise to the House that I have to go through the arguments that were advanced in Committee in some little detail. Unless that is done, it is not possible to make the points that we should like to make and to suggest to the Government why we are very dissatisfied with the clause.
§ Clause 11 sets aside the statutory requirements regarding the wearing of safety helmets by Sikhs on construction sites. I say that it sets aside those statutory requirements, but there are no statutory requirements at the moment. We are being asked to legislate in advance. I am not enough of an expert to know whether that situation is entirely unique; but it is very exceptional. There are draft regulations making the wearing of safety helmets compulsory, but they are not before the House. I do not know when they will be before the House. Most of us have not seen them. They may be changed. However, in advance of having sight of those regulations, we are being asked to amend them and to set them aside concerning Sikhs.
§ Secondly, there is a part of the clause which sets aside what one might call "consequential employer and other liabilities" which would come as a consequence of an injury received because the Sikhs on the construction sites are being exempted. Those are the two measures which will be implemented as a result of this clause. Many other provisions will come into being by virtue of the following clause for which we have tabled an amendment. However, we shall come to that proposal in due course of time.
I should first like to remind the House about the short defence which we were given in respect of this clause. Noble Lords will remember that we complained when this proposed new clause was put forward. The Leader of the Opposition complained to the Leader of the House that this was one of the complicated amendments which were delivered to the Printed Paper Office some six days before the Committee stage. I think that our complaints have considerable force when we consider the 36 lines of explanation (reported in Hansard on 16th October) given by the noble Lord to explain the introduction of the clause. I should like to quote the significant elements of what was said. He said:
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 new regulations was not an easy one to take
of course we agree with that—
We are firmly committed to improving safety standards in construction and we are convinced that the regulaions will be a significant step forward. 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". —[0ffcial Report, 16/10/89; col. 738.]
That is the sum total of the arguments put forward in Committee.
§ Of course it is true to say that there was considerable discussion and debate in Committee. Many Members were not at all comfortable with the proposal as it stood. Some said that what was proposed was in itself an act of discrimination in favour of Sikhs. The Minister has been telling us this evening that our amendments cannot be accepted because they represent discrimination. Well this exemption is an act of discrimination.
§ It was also said —and it is difficult to gainsay this —that such a precedent could be the basis for further exemptions from the safety regulations. It was also said that in any case the exemption from general laws and regulations on religious grounds was itself a dangerous precedent. I do not suggest that all contributors to the discussion in Committee agreed with those views. Indeed, there were those who said that the Government were justified in what they did. They said that we had previously accepted this kind of exemption as regards Sikhs, for example, in the case of the wearing of crash helmets and that this had seemed to work quite well. There were others who said that we must do all we can to respect religious convictions of a deeply felt kind coming from a significant minority group.
§ I suppose that at this time one can only state one's own position and ask the Government to clarify theirs. I accept that they have acted sincerely in response to what they believe to be a genuine and deeply felt demand. However, I am more convinced now than I was in Committee that the Government have acted unnecessarily precipitously without giving the House sufficient time or evidence to consider the matter and that, curiously enough, they have acted in advance of the legislation and the regulations.
§ My position, and I think that of many of my noble friends, is that one should ultimately take up a utilitarian criteria. It is on the basis of utilitarian principles that I question the need for this exemption from the regulation. As I said in Committee, I believe that we should allow people in religious groups who feel as deeply as Sikhs do in this matter the freedom to do what they clearly wish to do unless we can demonstrate that they are significantly damaging people other than themselves.
§ In my view the issue should turn basically on whether other workers are being damaged, on whether the employer is being put at risk and on whether there is an unnecessary and significant increase in the likelihood of accidents —even perhaps fatal accidents. It is on those criteria that we say to the Government tonight, in the best spirit that we can muster and in no sense of party advantage or wish to embarrass them, that the case is unproven and therefore it is not necessary to go forward with it in this form at this stage. There is no reason that we can see why the exemption cannot be withdrawn and thought about again.
§ As regards the questions raised by those on this side of the House, the Government gave us much information. The Minister said that he was opposed to general exemptions in this industry but that the industry was special. The reason he gave was that there were 40,000 Sikhs in the industry. We do not regard that as a sufficient enough reason.70
§ The Minister also said in regard to the question of liability and legal protection that protection would remain for certain categories. However, I suggest to him that the answer he gave in Committee (at col. 744) —which I do not intend to read out at present —did not in fact state or suggest that there was total protection. There would be certain circumstances in which certain third parties would receive injuries which they would not have received if the Sikh in question had been protected in the normal way and the compensation and the damages which would be received in those circumstances would be affected by whether a safety hemet was being worn.
§ The noble Lord, Lord Wedderburn of Charlton, asked whether the Government could guarantee that as a result of the exemption of the 40,000 Sikhs there would be no increase in the total number of accidents. Again I shall not quote what the Minister said at col. 745 of Hansard. However, I think that I represent him accurately when I say that he did not give a guarantee. On the contrary, if one reads what he said, the suggestion is that there may well be an increase in accidents —perhaps not a large increase —compared with the number that would occur if the compulsory regulation was universal.
§ Indeed, it is because the Government are widely convinced of the need for the regulation that, although they do not like compulsion and like to leave matters to employers, they are forcing employers to make people on construction sites wear helmets. That is not a normal course of action for this Government. In other words, we believe that the clause would cost lives. It is not clear that the injury compensation situation is satisfactory. Therefore we must ask the Government a number of questions, and that is what I wish to do in conclusion this evening.
§ First, thinking in terms of what the Minister said in Committee at col. 745 of Hansard, I ask whether it is possible for the Government to give us any figures on the likely accident consequences of these exemptions. After all, he said that there are a thousand accidents a year resulting from falling objects on construction sites and that it is because of those accidents that the regulations are being introduced. But what are the likely consequences of introducing 40,000 exemptions?
§ Secondly, what about the third parties who we believe are affected by the imperfect damage cover? One way to put that point is to say that the Government have at last created a no-fault clause in the sense that Sikhs cannot be asked for compensation and the employer in certain circumstances, unless he is vicariously liable, cannot be asked for compensation. If there is a no-fault clause, should there not also be a no-fault compensation?
§ Surely the Government are saying that there are circumstances where one receives less damages because a worker is not wearing a hat, and the law allows that, than one would if the worker were wearing a hat and the law does not allow it. The Minister has said that there would be no claim against a Sikh even if the accident would not have 71 happened if he had been wearing a helmet. We do not disagree with that. We see the argument. Here is an area where compensation and damages might occur, but they will not.
§ The Minister says that the claim against the employer arises only if he is vicariously liable: if the Sikh's injury arises from the employer's negligence. Let us suppose that it is decided that the employer is not liable in the sense that he has not been negligent; but, nevertheless, the individual is damaged as a result of the absence of a helmet. What is the position? Once again, we do not say that the Government should make those employees liable in those circumstances. We say that there should be a social security umbrella. No doubt the Government will say that that is in the Social Security Bill. That is what they often say. We say that the Government should agree that, if there are circumstances when additional liability will lie as a result of those exemptions, it is for the Government at the same time to provide legislation to take up that liability, to set aside that liability and to provide an umbrella.
My last point relates to the regulations. We understand that, when the draft regulations come before the House, if they come before the House in their present form, they will include a facility for the Health and Safety Executive to grant an exemption certificate; in other words, if there were no such clause as this before the House, it would still be possible for an employer to apply for an exemption certificate because he employs Sikhs. As I understand it, the draft regulations go on to say, however, that such certificates,
shall not be granted unless the Executive is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced because of it".
§ My final questions are: why will that not do? Why will that not cover it? Why is it not possible to say that, so long as an employer can demonstrate that the workers in his employ will not be prejudiced because of the absence of helmets —the employer can apply to the executive for an exemption certificate to that effect —that is sufficient?
§ For all those reasons, we are not satisfied with the clause at it stands. We beg the Government to withdraw it now; to reconsider the position; and to come with their further considered position when the regulations come before the House.
§ 7 p.m.
§ Lord Auckland
My Lords, I intervene in the debate on the amendment with some diffidence because the House will have listened to the noble Lord, Lord McCarthy, with his considerable experience of these matters, with great interest. I declare two interests; first, as an honorary vice-president of the Royal Society for the Prevention of Accidents; and, secondly, as a non-executive director of a small civil engineering and construction company. I should point out to the House that the views I express are entirely personal.
I have been on construction sites as a non-executive director of that company and on various visits to building sites in this country and 72 overseas. It is my belief that safety helmets should be worn at all times on building sites. I must confess that I do not have the noble Lord's knowledge of the legal ramifications. Perhaps I may at once say that I have the greatest admiration for the Sikh community and that any remarks I make which are critical of the amendment do not reflect on that community.
The noble Lord referred to the regulations. I hope that, if it has not already been done, my noble friend the Minister will introduce regulations to ensure that everyone on a building site, irrespective of race or creed, will wear safety helmets, because there are all too many accidents on those sites. For those reasons, I hope that the amendment will be resisted. On the other hand, I hope that my noble friend will make it clear that whoever goes on to a building site, whether it is someone who is employed on it, or someone who is visiting it, will wear those helmets because dreadful accidents can occur. I believe that mandatory legislation should come as soon as possible.
§ Lord Stoddart of Swindon
My Lords, I listened carefuly to my noble friend and to the case that he made for the amendment. I sincerely hope that the Minister also listened carefully. I hope that he will take into account the argument used by my noble friend, who is something of an expert on these matters.
The noble Lord heard the arguments which I adduced in Committee. Although I do not intend to reiterate them all, I want to emphasise that, if we discriminate in favour of a group or sect, we discriminate against other people. There is a great danger in this country at present that the vast majority of people feel discriminated against in some respects. I could instance many occasions when people might feel they are discriminated against. Only recently, a person in this country incited other persons to murder someone else. He was a Moslem. Nothing has happned to that man. He is still at large and, apparently, still at liberty to incite his fellow citizens to murder a fellow citizen.
If you or I did that, if we went out in public and incited other people to murder one of our fellow citizens, we should be gaoled or locked up in a mental institution, and quite rightly. There is a great danger that when people see legislation such as this, they may well feel that they are hard done by. It is even worse than I thought it was in Committee, because I now understand from my noble friend that we are amending regulations which we have not yet seen, which have not yet been before Parliament and which, when they come before Parliament, will not be amendable. That is so, is it not? When the regulations come before us, if they ever do, they will not be amendable. The Minister wishes to intervene?
§ Lord Strathclyde
My Lords, the regulations will be health and safety at work regulations, which normally go through on the negative rather than the affirmative procedure.
§ Lord Stoddart of Swindon
My Lords, I am obliged to the Minister for confirming what I have just said. It is most odd. I believe that when employers and 73 employees understand what is being done, they will be most put out. I do not intend to labour the point much further, except to ask for clarification on exactly what is a construction site. I raised this matter at Committee stage, but received no satisfactory answer.
Clause 11(7) of the Bill states on page 11:
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".
Exactly what does that mean? This is a serious issue. There are sites where works will be carried out which will be of an operational nature rather than a constructional nature, yet they will be building works. I instanced one case at Committee stage when I mentioned the boiler rooms of a power station. Perhaps I may give another example: Didcot power station has a 650-foot smoke stack. It has to be maintained, pointed or perhaps other work will have to be carried out 650 feet up. Spanners may drop; bolts may drop; cement or bricks may drop. Is that a construction site or an operational site? It is the day-to-day work of the power station to maintain the stack for operational purposes. Are we to have the situation where Sikhs who wear turbans on certain sites will be exempted from wearing steel safety helmets but on another occasion, doing similar work, they may not be exempted?
§ These questions need to be answered. This is a serious matter involving the fundamental freedoms of our citizens a well as many other issues. I hope that the noble Lord and the Government will listen carefully to what has been said and particularly to the points so admirably raised by my noble friend. There is still time to get the matter right and I hope that the Government and the noble Lord will take it very seriously indeed.
§ Lord Johnston of Rockport
My Lords, I shall be very brief. I am very happy indeed that the noble Lord, Lord McCarthy, raised the question again and gave the assurance that he would not divide the House. I too am unhappy about this clause making exceptions for one section of the community: it worries me.
For example, what is the situation concerning insurance? Who will deal with that? If an insurance company refuses to insure a Sikh, is he discriminated against or what happens? I do not understand that side of it at all. It is quite wrong that we should allow a section of our community in Great Britain to go without the necessary safety measures which apply to all our own citizens. If her Majesty the Queen goes to a construction site or an engineering site or a similar place she wears a steel helmet. Why can Sikhs not wear bigger helmets to cope with all the hair and the binding around it? I am not being frivolous, I think such people should be made to wear something like this. I hope that the Minister will take the matter back and consider it carefully. It is an unhappy situation.
§ 7.15 p.m.
§ Lord Glenarthur
My Lords, I have listened with care to the remarks of my noble friend and others who have spoken on the subject. I recognise that this is the kind of issue which creates a great deal of division. I hope that the noble Lord, Lord McCarthy, will recognise that other matters affect people of other religions which are to some extent acknowledged in the way that we allow them—for example, the Moslems—to carry out certain activities such as the slaughter of animals. Perhaps we might not all agree with those practices.
As regards Sikhs, my noble friend says that it might be possible to fit a helmet over their turbans. I do not see any real difference between what he described in the case of Moslems and the slaughter of animals which we ourselves do not recommend. The reason I say that is because these involve a sincerely held religious view.
Of course there is a risk. Any Sikh who goes on to a building site and to whom the definition under subsection (7) applies will realise that if something lands on his head it will not do him any good at all. He is bound to recognise that. Nevertheless his sincerely held views are such as to make it worth his while to adhere to his religion as opposed to going the other way and saying, "I shall disregard my religion and wear a helmet on my head".
I noted the remarks of my noble friend Lord Auckland about the wisdom of wearing a safety helmet at all times. Of course that makes sense to me and to many of us. But that should not necessarily increase the level of risk, for the simple reason that to the best of my knowledge Sikhs do not at present wear helmets when they work on construction sites. Nor am I quite sure that the negative discrimination point which was made by the noble Lord, Lord Stoddart of Swindon, is entirely relevant in this case. One could argue that in relation to almost anything. Here we are talking about a specific class of citizen who holds a particular religious belief to which he sincerely adheres. He is prepared to take the risk of being struck by a piece of construction machinery or whatever it may be.
I do not think that it could be said that subsections (4) and (5) make the organisation or person who might be liable for the injury responsible in any way for the damage that might ensue. I do not suppose for a second that that goes against the grain of the point made by the noble Lord, Lord McCarthy. There is a let-out in subsections (4) and (5) for the company or individual concerned which makes the matter perfectly safe. I hope that the noble Lord will not pursue it.
§ Lord Stoddart of Swindon
My Lords, before the noble Lord sits down, I understood that the whole argument arises out of the fact that at present, unless it is a condition of service, no employee is forced by law to wear a safety helmet. That is what the whole matter is about. When the provision becomes law, a specific group of people—namely, the Sikhs—will be exempted from it.
§ Lord Glenarthur
My Lords, with the leave of the House, that may be the case. So far as I am aware, there is no compulsion on anybody, other than through the employer, to wear a form of helmet. As concerns Sikhs, I genuinely believe that there are special circumstances which need to be addressed. That is precisely what the Bill does.
§ Lord Strathclyde
My Lords, the noble Lord, Lord McCarthy, started his remarks by chastising me for explaining in Committee what the clauses did in only 36 lines. I am not sure what point he was trying to make—whether I had spoken for too long or too short a time or whether I had not fully explained what was being done. I am happy to come back at this stage and explain exactly what the Government propose.
I say again that the decision was not taken in the least bit lightly. I appreciate that Clauses 11 and 12 raise important points of principle. I hope that I shall be able to reassure noble Lords that the Government have given a great deal of consideration to the concern expressed both in this House and in response to the consultation on the proposed regulations to require construction workers to wear head protection. On the question of timing, the reason why we are concerned that the exemption should be made in the Bill is that we have committed ourselves to making the regulations as soon as possible. They are a vital part of our strategy to make the construction industry safer and they are wanted by all sides of the industry. Clearly the exemption must be in place when the regulations take effect in order to be of any value. The Bill is the most suitable vehicle for that. A commitment has been made in a recent construction supply debate in another place that the new construction head protection regulations will be made by the end of the year, if possible. As I have said, the exemption must be in place when the regulations take effect to be of any value.
§ Lord McCarthy
My Lords, the noble Lord says that the exemption must be in place before the regulations come before the House. If I have misunderstood I hope that he will tell me; but if I have understood the position correctly, when the regulations come before the House they will contain an exemption or the provision for an exemption order. Why cannot the Government build on that? If they want something more than that, why cannot they put that in the regulations? Why do we have to have this measure now?
§ Lord Strathclyde
My Lords, the regulations will deal with health and safety at work considerations. This is not a health and safety consideration; it is something entirely different. It deals with a religious issue and therefore it needs primary legislation.
The noble Lord, Lord Stoddart of Swindon, complained that we could not amend the regulations. We shall not need to amend the regulations. We are having this discussion on the amendment on primary legislation. I am sure that the noble Lord would be far happier amending this legislation than amending any regulation.
76 As I said in Committee, the decision to exempt Sikhs from the regulations was not an easy one. There are strong arguments both for and against treating Sikhs involved in construction as a special case. However, in our view the arguments in favour of an exemption clearly outweigh those against.
I wish to address the question of discrimination in favour of one particular religion and section of the community. I accept that any exemption for a particular group could be said to discriminate in favour of that group, in this case in favour of Sikhs on religious grounds. That could be seen as indirect discrimination on racial grounds in favour of the Sikh community. However, equally, a statutory requirement to wear a safety helmet might indirectly discriminate against a Sikh community, orthodox members of which need to wear a turban on their heads.
We have had to make a difficult judgment about which of these alternatives would have the worst consequences, taking into account both our commitment to equality of opportunity and to health and safety at work. One of the points raised has been the possible resentment of non-Sikhs. However, is it worse for a non-Sikh who is obliged by law to wear a safety helmet to see someone else enjoying an exemption on religious grounds, or for an orthodox Sikh who feels unable to comply with the requirement to wear a safety helmet to be liable to lose his job and perhaps his livelihood because he cannot as a matter of religious conviction comply with the law? It is estimated—
§ Lord Stoddart of Swindon
My Lords, I am most obliged to the noble Lord for giving way, but can he say whether in the regulations there will be an exemption from wearing safety helmets on health grounds? If there is no exemption, will those employees not be discriminated against in the matter of employment?
§ Lord Strathclyde
My Lords, I do not see the comparison between people who are in some way unhealthy and Sikhs. However, I have yet to see the regulations and no doubt we shall have to wait and see whether there will be further exemptions. But I do not believe that there will be any. We are talking about Sikhs in a religious connection, which has nothing to do with health.
§ Lord Wedderburn of Charlton
My Lords, does not the noble Lord accept that we are talking about a large number of persons or a number of persons who are mutually interdependent, especially on such sites, for their safety? Therefore, the consequences of an injury or an accident to one who is a Sikh and not wearing a helmet may be, for example, that he falls awkwardly or lets go of a rope which he might not have done had he worn a helmet. That incident might well affect other workers who would then be injured. As my noble friend said, it is the consequence of the injuries to other workers rather than any question of discrimination on religious grounds which is surely the focus of this debate.
§ Lord Strathclyde
My Lords, there is no evidence to suggest that there will be any more accidents because some people are not wearing safety helmets. At the moment it is not compulsory to wear hard hats. Some employees in the construction industry already do so, but some do not. The point I should make to the noble Lord, Lord Stoddart, as to why we are making the provision compulsory is that the industry generally believes that it would be safer if everyone wore hard hats. All we are doing is exempting Sikhs on the grounds that I am trying to explain.
§ Lord Strathclyde
The noble Lord, Lord McCarthy, complained that I had spoken for only 36 lines. Now I am trying to speak at some length, but I keep on being interrupted.
§ Lord McCarthy
My Lords, I apologise for interrupting again, but the noble Lord was kind enough to write to my noble friend Lady Turner on 24th October. I have not read this letter out, but I must do so now. It concerns what the Minister has just said. As I understood it, he has just said that there is no evidence to suggest there are likely to be any more accidents or damages as a result of the exemption. In his letter to my noble friend the Minister stated:You asked about the possible dangers to other workers. Certainly we did consider the fact that the non-wearing of a helmet by a Sikh could in theory endanger those workers alongside him. As you say, a Sikh could drop something on another worker as a result of being injured himself. However, in practice the chances of a third party being injured in these circumstances are fortunately very remote".The term "very remote" is not the same as no chance at all.
§ Lord Strathclyde
My Lords, I think that the chance of someone causing an accident and injuring a third party purely because he is not wearing a hat is very remote. The noble Lord says that I claimed there would not be an increase in accidents because of this exemption. The two claims are very close indeed. I think we are getting away from the central argument, which is one of principle. It concerns whether a group should be exempted on religious grounds from certain regulations. That principle was already broken in 1976 when the party of the noble Lord was in power as regards the wearing of helmets on motorbikes. Here we are in 1989 considering a similar exemption on construction sites.
As I said in Committee, it is estimated that there are up to 40,000 Sikhs working in the construction industry who could be dismissed if they felt unable to comply with the requirements of the new regulations. This could cause damage to those construction firms which employ Sikh workers and craftsmen and to the industry as a whole in loss of talent. The effect on the Sikh communities themselves, particularly in the West Midlands, would be a severe economic blow and cause unnecessary damage to their perceptions of British society and its laws.
It is said that an exemption, misunderstood as a special privilege, might be resented by fellow workers 78 at first. However, I wonder whether there is any general resentment about the exemption of Sikhs under the law on motor cycle crash helmets. Is it not more important in the longer term for our diverse society and its harmony and cohesion that we should show that we mean what we say when we speak of toleration and respect for the religions of others where—and this is an important proviso —our own core values and commitment to human rights are not at stake?
The point has been made that the fact that a Sikh is not wearing a helmet could endanger the safety of others on site. A Sikh could, for example, sustain an injury which caused him to drop something on someone else. We discussed this a moment ago. That is possible in theory, but in practice it is extremely rare. Moreover, how would the Sikh have suffered his accident in the first place? It is almost inconceivable that the accident would be solely attributable to the fact that the Sikh was not wearing a helmet. It is much more likely that it would be due to the fact that there was an unsafe system of work in the first place or that somebody acted negligently, causing injury to the Sikh. The fact that people on site may or may not be wearing helmets in no way relieves employers of their responsibility in that area, and we must be careful not to give the impression that it does.
§ 7.30 p.m.
§ Lord Wedderburn of Charlton
My Lords, I apologise for intervening, but this is a very important matter. The Minister has just touched upon another important, practical point. I am grateful to him for giving way. He posited the case in which the system of work was unsafe so that the employer started from a position of liability. That is common law. What is the position if the damage which occurred was more extensive than it would have been if the Sikh who was exempted under the clause had been wearing a hat? It was an unsafe system of work; he might have partially recovered but, because he was struck more heavily by an object than would otherwise be the case he could not recover and as a result injuries were caused to other workers. I must ask the Mnister to take the matter very seriously.
The Law Reports are full of cases in which a lot of people are injured in particular circumstances. If there is a system of work which is unsafe, does Clause 11 mean that, where the damage is more extensive, affecting a chain of people, than it would have been had the Sikh not been without a hat, the ordinary worker would receive full damages? Or would he receive only a proportion of the damages, given the exemption in the clause? I have studied the clause and I do not know the answer. Does it affect the measure of damages as well as the liability?
§ Lord Strathclyde
No, my Lords. If an injury occurs involving a Sikh who is not wearing a helmet —and we are talking of proximate cause —the third party's claim will not be dependent in any way on whether the Sikh's injury would have been prevented or lessened by a safety helmet. I hope that that clears that point.
79 On the question of how far we should bend our laws to take account of non-Christian religions and on the question of integration, the Government have made it clear that integration is our aim, in the real sense of participation in the economy and life of this country. It is not an aim of assimilation. We have emphasised that it does not imply for those of different cultures and religions any forfeiting of their faith. Tolerance and respect for religion, as for free expression, are a part of our heritage.
The noble Lord, Lord McCarthy, asked a number of questions. I have answered some of them. If there is anything that I have missed I shall write to him, but I believe that I have covered the majority of the points that he raised.
I see no issue of core values. We are following a clear and unobjectionable precedent and are right to provide an exemption. In this case we are not yielding to religious bigotry, but giving expression to our own values of tolerance and respect for religion. The noble Lord has said that he will not divide the House, and I hope that he will abide by that. However, I hope that he will understand very clearly why the Government have made the decision. A great deal of thought has gone into it. We are certain that our proposals are the right ones.
§ Lord McCarthy
My Lords, I recognise that it would be extremely difficult for the Minister to withdraw the clause today. Therefore, in a sense I am talking not to him but to those who are ultimately responsible for the Bill. I ask them seriously to reconsider their position. At this time of night I do not want to go through the contributions made by other speakers other than the Minister. I would argue that in general terms they all supported our position, except in the case of the noble Lord, Lord Glenarthur, who was worried about certain aspects but generally came down in favour of the clause.
I should like to revert, very briefly, to the four questions that I asked the Minister. I asked him whether he could say that as a result of the exemption there would be no increase in accidents. I suggest that when he looks at Hansard he will find that he said something different from the something that he wrote to my noble friend. He will see in Hansard that he said that there would be no increase; he wrote to my noble friend that there will be little increase. We have given reasons why we think that there will be a rise in the number of accidents, or at least that the number of accidents will not be reduced in the way that it would have been if the regulations were universal.
The Minister knows as well as I do that that is why the building employers' association has come out against it. That is why the unions are against it. That is why the Health and Safety Commission is very concerned and does not like it, although it has said that it is a matter for the Government. They are all very worried about the possible effects of the exemption on accident trends. Therefore the answer which the Minister gave to my first question is not good enough.
The second question that I asked was why the Government could not provide a form of social 80 security umbrella. The Minister gave the answer in reply to an intervention by my noble friend Lord Wedderburn of Charlton. I am sure that I got it right but again Hansard will show his answer. I ask the Government to read Hansard very carefully tomorrow to see whether they agree with what the Minister said. As I understand it, he said that if there is vicarious liability, or the employer can be shown to be negligent, the employer is fully liable. I suggest that that is unfair to employers. That is not something that I normally say about this Government. It is unfair that the employer should be liable when, as a result of Government legislation, he cannot provide the protection that he would like to provide on behalf of the worker and himself. If that is the case I suggest that that is why the CBI is against it.
The Minister also seemed to suggest that if a court decided that an employer was in no way negligent he would not be liable and the third party would have no protection. The worker alongside the worker who did not wear a helmet would receive no protection. I suggest that that is why the TUC does not like it. Nobody likes it —because what the noble Lord said about damages is not satisfactory.
The third question I asked was why the Government did not develop the exemption order which is contained in the regulations. The most remarkable thing that the Minister said to me this evening —and again, I may have got it wrong and we shall have to look at Hansard —was that he had not seen the regulations. Therefore he cannot tell me whether it would be possible to build on the exemptions because he does not know what the regulations say. I suggest that it is implausible to say that it is necessary to come to this House with primary legislation because it is a matter concerning race relations whereas there can be general exemptions based on exemption orders in the regulations themselves. I do not believe that that is true. The Minister may have that in his brief, but I do not accept that that is the case. I ask the Government to think about the matter. Do they really want to say that. Does the Minister want to intervene?
§ Lord Strathclyde
Yes, my Lords. I do not know whether the noble Lord misunderstood me or not. The exemptions provided for in regulations would not cover Sikhs because they can be given only if they are consistent with health and safety provisions. We are not talking solely about health and safety provisions. The Sikh will be less safe to a certain extent wearing a turban than a helmet. We have never suggested otherwise. That is why the matter has not been brought in under regulations and that is why we are discussing it now.
§ Lord McCarthy
My Lords, I have two answers to that. The first point is that the cat is out of the bag: the Government have accepted that it is unsafe —all right, less safe —and would not be covered by an exemption order which would be safe.
The second point is that that does not really answer my point. My point was that the provision does not have to be rushed through today. The exemption 81 order could be changed. I fully accept, since I have seen the exemption order, that in its present form the exemption order would not do the job. The exemption order is based on what is safe, and this is unsafe —or less safe. But there is no reason why the Government should not widen that exemption to include the kind of provision that they have included in the clause, if that is what they want to do. The difference would be that we would then have time to discuss and consider the matter. We would not have to rush through the issue in an unjustified manner at this time of night. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Earl of Strathmore and Kinghorne
My Lords, I beg to move that further consideration on Report be now adjourned until 8.40 p.m.
§ Move accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.40 to 8.40 p.m.]
§ Clause 12 [Protection of Sikhs from racial discrimination in connection with wearing of safety helmets]:
Lord McCarthy moved Amendment No. 15:
Leave out Clause 12.
§ The noble Lord said: My Lords, this is a very mild amendment and, once again, we have no desire to press the issue to a Division. We simply ask for an explanation.
§ One might argue that it was our fault that, when the amendment was first moved, it was not debated at all. The Minister explained what happened and the reason why the Government were moving what became Clause 12, but he neglected to explain why we had what became Clause 12 and we neglected to ask him. So the whole of the debate that took place in Committee and the whole of the debate that took place before dinner today did not deal with the reasons for Clause 12.
§ Clause 12 appears to be necessary to protect Sikhs from racial discrimination in connection with the wearing of safety helmets; yet it appears in some sense to protect employers rather than Sikhs. We are simply asking the Minister to tell us the purpose of the clause. What is it here for, and what does it do? I beg to move.
§ Lord Strathclyde
My Lords, it is obviously a great pleasure to have the opportunity of explaining what Clause 12 does. The purpose of the clause is to clarify the effect of the exemption contained in Clause 11 on the application of the Race Relations Act 1976.
§ Given the protection from liability contained in Clause 11, employers should have no difficulty in applying the exemption allowing turban-wearing Sikhs not to wear safety helmets on construction sites. However, there may be a small minority who, irrespective of the exemption, would claim that the 82 non-wearing of a helmet justified their refusing to employ Sikhs. They might cite health and safety considerations or relations with other workers as reasons for refusal.
§ The Government feel that to refuse to employ Sikhs on such grounds because they would not wear safety helmets is unjustifiable. The employer no doubt would argue that the condition is justifiable, as he is applying it to all his employees equally. However, the proportion of Sikhs who could comply with the requirement would be smaller than the proportion of non-Sikhs, and it is the Government's view that the employer should not be able to defend a claim of indirect racial discrimination under the 1976 Act by arguing that the requirement is justifiable.
§ Subsection (2) of the clause provides that any special treatment afforded to Sikhs in relation to the exemption in Clause 11 cannot be regarded as racial discrimination against others falling within the terms of Section 1 of the Race Relations Act.
§ As I have already said in our debate on Clause 11, the Government acknowledge that any decision to include or exempt one group as opposed to another from a requirement is in itself an act of discrimination. That point was very much in the forefront of the Government's thinking when deciding whether or not to exempt Sikhs from wearing helmets on construction sites. However, as I said when your Lordships considered the matter in Committee, the hardship that the requirement would impose on the Sikh community, plus the wider issues of religious freedom and relations with that community, led us to proceed with an exemption.
§ Having made that decision, it is only right that we do all that we can to ensure not only that it applies only to the specific areas concerned —we have done that by restricting the exemption solely to the construction industry —but also that the exemption will work in those areas. It is for that reason that Subsection (2) of the clause has been included. Subsection (3) of the clause is concerned with making the interpretation and extent of the clause consistent with that of Clause 11.
§ Noble Lords will therefore see from what I have said that Clause 12 is necessary to clarify the position under the Race Relations Act with regard to the application of the exemption contained in Clause 11 freeing turban-wearing Sikhs from any requirement to wear a safety helmet on a construction site. I hope that that explains the matter sufficiently.
§ 8.45 p.m.
§ Lord Stoddart of Swindon
My Lords, I am sure that we are all obliged to the noble Lord for that explanation. However, perhaps he would go a little further and say what would be the position of an employer who did not go as far as dismissing a Sikh because he refused to wear a safety helmet, but who, for example, said to a Sikh who refused to wear a safety helmet when he was working with other people that he may not work on that project and in that situation. That is a very important clarification which is needed from the employers' point of view. That would be stopping short of dismissal, but would 83 it be discriminating against the Sikh because he was not allowed to work in that position as his employer believed that it would be dangerous not only to the Sikh himself but also to others working with him? That point needs to be clarified because it is a serious and important point about which I and employers are concerned.
It is interesting to note that the noble Lord has also said that there must be protection for the Sikhs, although he appreciates that, in giving protection to the Sikhs, the Government are discriminating against non-Sikhs. I believe that he has put it on record that the clause is discriminatory —in my view very discriminatory —on religious grounds.
I listened carefully to what the noble Lord said in the previous debate, but I should like to ask him one question: since when have we legislated in this country on the basis of whether it is a Christian, Moslem, Hindu, Sikh or Confucius law? I thought that we regulated and governed this country on the basis of good law.
§ Lord Campbell of Alloway
My Lords, the noble Lord has a very good but difficult point save that, according to the religious tenets of the Sikhs, one cannot wear a safety helmet over a turban. But is it right to look upon that as a question of discrimination? With respect, that is the only point upon which I join issue with the noble Lord.
We must look at the position of a responsible employer. On a construction site there will obviously be some operations of extreme danger and others of virtually no danger at all. A good, humanitarian, reasonable employer would take the Sikh off those very dangerous operations. Let us forget about discrimination a little; I think we hear too much about it. The only way to deal with that matter in humanity is to leave it to the employer to try and do the best he can. I see that the noble Lord takes my point. I am grateful to him.
§ Lord Stoddart of Swindon
My Lords, before the noble Lord sits down, perhaps I may say that that is precisely why I am asking for clarification. I should like to know whether an employer who does exactly as the noble Lord wishes him to do will be guilty of discrimination? Perhaps we can hear the answer to that question.
§ Lord McCarthy
My Lords, I am very pleased to allow the Minister leave of the House in order to answer the questions. As I said at the beginning, we are asking him only to explain the reasons for the clause and the Government's thinking on it. I want to know why it was put down and what the clause effects and changes. As I listened to him I did not agree when he said that it is only there to clarify and to make evident what might not otherwise be evident. It seems to me that it is there to extend certain categories of protection which might not otherwise be there. That is why it says "Protection of Sikhs from racial discrimination in connection with wearing of safety helmets". It cannot be simply clarification of race relations law because it would not be required. Anyone who went to law would find 84 out what the law was. This is not just a clarification but in effect it significantly changes the law. It is necessary because of the consequences which follow from Clause 11.
I am not trying to score points. I am trying to understand. It seems to me that in his answers the noble Lord now accepts not only that these two clauses taken together and in particular Clause 11 add to the likelihood of dangers, accidents and liabilities —I think that he accepted that reluctantly before dinner —but that in particular it creates an additional liability for the employer which has to be set aside by the provisions of Clause 12. So this is a significant additional piece of legislation and we are pleased to have that made clear to us.
I hope that the Minister will answer all the points raised by the noble Lord, Lord Stoddart, and to some extent also the noble Lord, Lord Campbell, since he too asked some questions. I should like to ask the Minister one further question. As I see it, the Minister has accepted that despite the protection of Clause 12 there is a sense in which greater liability arises because Sikhs will not wear helmets or have been told that they do not have to wear helmets. Suppose an insurance company comes along and says to an employer, "You are employing Sikhs. That raises the possibility of accidents and liability so we shall raise the insurance premiums in those circumstances". I ask the Minister: is that lawful? Is that allowable? Or should we have to have some subsequent legislation which makes that not allowable or even protects it? I do not know. That is simply my question. There are many other questions which the noble Lord has been asked to answer, and I hope that he will do so.
§ Lord Strathclyde
My Lords, with the leave of the House, perhaps I may reply to the noble Lord, Lord Stoddart. I think it would be unwise at this stage to go over much of the old ground that we discussed for 50 minutes in the debate on Clause 11. We recognise that each different religious group has particular practices or issues which are uniquely important to it. For the most part there is no actual conflict between these and our own laws and practices. Whether they are Christian, Jewish, Sikh, Moslem or any other, religious and traditional practices lie largely in the private domain of their own lives or in the area of negotiation with the various authorities.
We have made it quite clear that our aim is integration in the sense of real participation in the economy and life of this country. This is not an aim of assimilation. We have emphasised that it does not imply for those of different cultures or religions any forfeiting of their faith. Tolerance and respect for religion as for free expression are a part of our own heritage and that is important.
The noble Lord, Lord Stoddart, asked a specific question. He put forward an example and asked whether a certain practice would be discriminatory. That would depend entirely on whether the Sikh suffered any detriment. Detriment is clearly defined within the meaning of the Race Relations Act and therein lies his answer.
§ Lord Stoddart of Swindon
My Lords, detriment is very hard to define. For example, suppose the job involved overtime and the man had lost overtime because he would not wear a safety helmet. Is that the kind of detriment about which we are talking?
§ Lord Strathclyde
My Lords, I have not the faintest idea. That will depend on who would decide. Ultimately, I suppose it would be the courts which would decide whether or not there was a detriment. The noble Lord has brought up that hypothetical situation. We should have to see what the effect of that would be. The noble Lord, Lord McCarthy, accused me of not having clarified the point —or of saying that the use of the word "clarify" meant something else. It does not. Clause 12 makes clear the effect of Clause 11. In that sense it clarifies.
The noble Lord went on to give the example of an insurance company asking for potentially higher insurance premiums from a construction company which employed Sikhs. He said that that would be because there was a higher accident rate. But he brought no evidence to prove that there would be a higher accident rate. There is no point in raising insurance premiums if there is not to be a higher accident rate.
§ Lord McCarthy
My Lords, the noble Lord has misrepresented me. But let us give him his case. Let us suppose that there is no increase in the accident rate but that the insurance company takes a very cautious view and thinks that there might be such an increase. They might or might not be right. They may be absolutely wrong. Insurance companies are not always entirely rational but they are cautious and careful people. Let us suppose therefore that it raises the premiums. I am asking a question of law. Is that lawful or not? I am not asking whether it is justified or right. I am asking whether they are entitled to do it.
§ Lord Campbell of Alloway
My Lords, perhaps I may intervene at this point. The answer is assuredly at the moment yes; but if one is to carry the argument to its finest end, one will legislate against every conceivable possibility that exists. At the moment the answer is yes. If it became an abuse on a vast scale any government—and assuredly the government which I support—would do something about it. But it has not.
§ Lord Strathclyde
My Lords, I think that my noble friend Lord Campbell of Alloway has explained the situation extremely well.
§ Lord McCarthy
My Lords, I am afraid that we do not accept that reply. The noble Lord says that his noble friend Lord Campbell has explained the situation. He has not. He has stated his opinion. With great respect, that is his opinion. I could take a contrary one. That is not the issue between us. It is this: what do the Government say? That is the issue. I may think it is lawful and the noble Lord, Lord Campbell, may think it is lawful; but what do the Government say? I do not believe the Minister has answered some of my other questions. I shall not press this amendment to a Division. However, 86 will he tell me finally whether he agrees with me or with the noble Lord, Lord Campbell, and give his reasons?
§ Lord Strathclyde
My Lords, with the leave of the House, I do not agree with the noble Lord, Lord McCarthy. He gave the example of an insurance company charging more money because a construction company employed Sikhs; if the insurance company were to increase the premiums, he asks whether that would be judged as discriminatory. That may well be; but the fact is that it has not happened, it is most unlikely that it ever would happen and whether it is an insurance company or a supply company or any other kind of company, discrimination is discrimination. That is quite clear.
§ Lord Taylor of Gryfe
My Lords, I should like to refer to the standing orders of this House on the question of how often a noble Lord may speak at Report stage. It says something to the effect that except for the mover of the amendment, a Peer may speak only once. I wonder whether we are observing the standing orders.
§ Amendment, by leave, withdrawn.
§ 9 p.m.
§ Clause 13 [Provision of particulars of disciplinary procedures]:
Lord Wedderburn of Charlton moved Amendment No. 16:
Page 12, leave out lines 31 and 32 and insert ("if the relevant number of employees was less than twenty throughout the period of thirteen weeks specified in section 1 following the date on which the employee's employment began.").
The noble Lord said: My Lords, I speak also to Amendment No. 17. We are now concerned with Clause 13 on the written statements of terms of employment. The Committee stage concentrates briefs wonderfully. Perhaps I may start with common ground with the Minister by reading his account of the clause as the Government wish it. At col. 771 of the Official Report on 16th October, he stated:
I cannot deny what the noble Lord … said; namely, that the Government 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
—I interpolate the words "above 20" —
will be entitled to receive a note of any disciplinary rules in the normal way".
§ At Committee stage, we asked the Government whether the fragility of the small British enterprise was so great that it had to be saved from ruin by exempting those in charge of it from writing down the disciplinary rules although they still had to write down the name of the manager to whom grievances must be taken. It is a most bizarre analysis of the organisation of a firm which is inherent in this clause.87
§ We suggested at Committee stage—and when we read the report we believe that we were right—that not only is it bizarre but it works in a way that is also rather arbitrary. The passage by the Minister indicated very clearly why. One employee who is engaged on the Monday has a right to the name plus the procedures; the employee who is engaged on the Tuesday when the workforce —not merely the workforce of the employer but the workforce of the employer plus any associated employer—has become 20 is entitled to a piece of paper with a few more words on it describing the disciplinary procedures.
§ However, this is Report stage and we pursue the point about the provision's arbitrary character in these two amendments. Our previous amendment proposed that, once the firm went above the 20 mark with regard to employees, everyone should be in the same position and entitled to the same written particulars. That seemed to us sensible. We thought that employers would like it better because it made life certain and clear. It was not acceptable. We now propose in the amendment what we suggest is second best but better than the provisions in the Bill; namely, that the matter should not be a question of what happens between the Monday and the Wednesday but that a period of stability should be imposed whereby the rights of the employees in this respect on which the Government insist are tested. The period that we have suggested is 13 weeks, that being the period during which the written particulars have to be produced by the employer. We do not believe that it is perfect but that it is better than the Bill as it stands. That is the function of Report stage.
§ We very much hope that the Government will introduce some more stability into the clause, which at the moment is a legal see-saw for firms on the margins of a workforce of 20 or less. I beg to move.
§ Lord Strathclyde
My Lords, the noble Lord, Lord Wedderburn, repeated more of what I said in Committee. Obviously that logic is unassailable. That is what I said and that is what I meant.
Let me remind the House that our purpose in introducing this 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 first amendment allows that the exemption for small firms to provide a note on disciplinary rules would apply only if, throughout the first 13 weeks of an employee's employment, the firm had less than 20 employees. It is clear that this amendment is designed to overcome some earlier objections to our proposal which noble Lords raised during the Committee stage. I am pleased to see that the noble Lord, Lord Wedderburn, has come some way towards meeting the fundamental principle of our proposal—to reduce the administrative burdens on small firms—with this amendment. The amendment addresses the issue of those firms which fluctuate in size and I admit, as I did at the 88 Committee stage, that in an expanding firm some employees may have different statutory entitlements. But this amendment will not change that situation. Under these proposed arrangements some employees within the same firm would have the full note while others would receive the shortened version. The information which the employee receives would depend on the size of the workforce during the first 13 weeks of his or her employment. I fail to see how these arrangements will provide the uniformity that the Opposition say they are seeking or how they will ease the administrative burden on expanding employers.
For our part, we have sought in the Bill to make the requirements for small firms simple and straightforward. The first 19 employees will receive the name of a person to go to with a grievance. The twentieth and subsequent employees will receive the full note including any disciplinary rules which apply. I do not accept that this is an unworkable arrangement. The noble Lord will know that there is no statutory requirement for any firm to have disciplinary rules. This clause applies to those who do.
The second amendment would affect the position of employees who have a written contract of employment. As the legislation currently stands there is no requirement for them to receive a written statement of terms and conditions, subject to a number of conditions, including that they are given a note on disciplinary rules. The Bill therefore provides that, where the number of employees is less than 20 on the date on which the employee's employment began, the employer need provide only a note specifying a person to go to with a grievance. This amendment would have the same effect as the earlier amendment. Provided that the firm had less than 20 employees during the first 13 weeks of an employee's employment, that employee would be entitled to the short note. But, if a firm expands to 20 and beyond during the period in question, that employee would be entitled to receive the full note.
Like the earlier amendment, this amendment is designed to overcome some earlier objections to our proposal raised by noble Lords during the Committee stage. I accept, and I have said so during earlier debates, that the Government's amendment could produce the effect that in an expanding firm some employees had different statutory entitlements. This amendment, and the earlier one, will not alter that situation in any way, however. Under these arrangements some employees within the same firm would have the full note while others would receive the shortened version.
Under the Government's proposals the employer's obligations relate clearly to the number of employees on the date when a particular employee was taken on —and the employee's entitlement is clearly established on that date. Of course some employers may choose to provide to all their employees on an entirely voluntary basis a note on disciplinary rules. That is a matter for their discretion. In our view, the amendment will make the legislation more complex for small firms. I hope that the noble Lord will feel able to withdraw it.
§ Lord Wedderburn of Charlton
My Lords, I thank the noble Lord for that reply. When he says that I have come some way towards him, he is being unduly optimistic. The Bill has come some way towards him because he is in charge of it, and except for rather strange affairs late at night he normally has a large majority to see that it goes through. It is a bad Bill. The noble Lord plays down and has throughout the proceedings the importance of procedural arrangements in themselves. In Polkey v. Dayton a year ago the Judicial Committee of your Lordships' House, with the noble and learned Lord, Lord Bridge, delivering the judgment, insisted on the importance in industrial relations law and practice of good disciplinary and dismissal procedures. With respect, it was right, and the Government are wrong in not taking account of that. It does not really matter how many people there are. It is essential to have stable and sensible procedures in the firm.
It will be more difficult for the small employer to remember the rules under the terms of the Bill than even under our present amendments and certainly under our previous amendments. For example, in a firm of between 10 and 30 employees a dispute breaks out. One employee says, "I am entitled to the procedural rules but I didn't get them". The employer replies, "Oh no you're not, you were hired on 1st July when we had only 19 employees". "Not a bit of it", says the employee, "I was hired on 3rd July when we were 21". How much work will be involved in trying to remember who is entitled to what? It is absurd. In any case, the man is entitled to the name of the person to whom he must make the complaint.
There has never been a more curious and quite useless clause. It will place extra burdens on small firms. People will have to remember who is entitled to what. I suspect the answer will be that sensible employers will give the procedures to all their employees irrespective of the numbers. This is another little balloon in the Government's "burdens on business" theme. This one has, in the debates upon it, gone pop. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 17 not moved.]
§ Clause 14 [Trade union duties for which time off must be allowed by employer]:
§ Baroness Turner of Camden moved Amendment No. 18:
Page 13, line 17, leave out from beginning to ("; and ") in line 28 and insert —
(" (a) such duties as are necessary to represent the members of the union employed in the employer's establishments for whom he has been given responsibility by the trade union;").
The noble Baroness said: My Lords, Clause 14 deals with time off with pay for individuals undertaking trade union duties. Our amendment seeks to provide this time off where the individuals are undertaking,
such duties as are necessary to represent the members of the union employed in the employer's establishments for whom he has been given responsibility by the trade union".
In Committee we sought to amend this clause in a number of ways. We sought to include reference to the ACAS code of practice as containing the duties for which trade union representatives should be entitled to claim time off. The amendment did not commend itself to the Committee. However, the clause as it stands, unamended, is unnecessarily restrictive. We have therefore produced at Report stage this other form of wording.
§ It is surely in the employer's interests to deal with union representatives who know what they are about. All kinds of avoidable problems can arise unless that is so. The representative must be properly trained to start off with and then he must be aware of the procedures and how they are to be used. My noble friend Lord Wedderburn has just referred to the importance of procedures in good industrial relations. It may very well be necessary for such representatives to have time off to attend training courses or conferences organised by their union to ensure that this information is available to them. The representative must have the trust of the workforce. This means that he or she must be properly informed and briefed on the issues that are likely to come before the workforce and on which members are likely to require representation.
§ In Committee I gave an example of the need for time off to attend a course on pensions. At the time the firm in question did not recognise the union as negotiators for the pension scheme. On appeal it was decided that the individual was entitled to attend the course on pensions because it was necessary to enable her to represent the members in the company. It is necessary therefore from a good industrial relations standpoint to have a broader and more flexible clause.
§ For those reasons, I hope that the Government will not oppose this amendment unless they are against collective representation altogether. Although we on these Benches sometimes believe that that is the situation, the Government, through the Minister, have not yet said that that is so. I hope that this amendment will commend itself to the Minister this time. I beg to move.
§ 9.15 p.m.
§ Lord Rochester
My Lords, in Committee I recall that the stated purpose of the present statutory provisions on this subject was to aid and improve the conduct of industrial relations. I did not see how the Government's proposals in Clause 14 could be justified within that purpose.
One of the arguments adduced against the amendment moved in Committee was that an employer who did not recognise a particular union should not be obliged to pay an employee for time spent in working for the union in another company. As I see it, this amendment acknowledges the force of that argument in proposing that a trade union official should be given paid time off by his employer only in respect of duties undertaken to represent members of the union working in the establishments of that employer.
This is a much more modest proposal than that discussed in Committee. Therefore, I hope that, 91 rather than run the risk of antagonising trade unions further and opening up new areas of potential conflict, the Government will accept the amendment.
§ Lord Strathclyde
My Lords, I was rather surprised to see this amendment. Most other Opposition amendments this evening have seemed to come some way towards the Government's approach or even to return to the status quo. But this amendment seeks to give the employer even less rights in respect of his obligation to provide paid time off to trade union officials. It rides roughshod over the single and abiding concern that the Government have returned to again and again; namely, that there can be no justification for an employer being required to pay for time off for trade union officials to carry out duties which are concerned with matters in relation to which the employer does not recognise the union. Under this amendment that unacceptable state of affairs would continue to obtain and therefore the Government cannot accept it.
However, as I have said, this amendment would place even less of a limitation on the right to time off than that which exists under Section 27 as it stands. The noble Baroness who moved the amendment would not even require that the duty for which time off is sought need be one which is concerned with industrial relations with the employer who is to pay but merely a duty that is necessary to represent the members of the trade union at the employer's establishment.
We do not dispute that trade union officials can perform very useful functions on behalf of their members. However, what we are talking about here is the employer's obligation to provide paid time off. The purpose of a recognition agreement is that the employer and the employee agree those matters over which the employer and the union are going to negotiate and those functions which, while they are not going to be the subject of negotiations, are functions that the employer and the union have agreed may be performed. It would be quite inappropriate for the employer's obligation to provide for time off to extend to duties which are outwith that agreement.
However, if a union official exceptionally wishes time off to represent the members of his union in respect of matters for which he is not recognised or in respect of functions that the union and the employer have not agreed may be performed by the union, he has a clear course of action: he goes to his employer and makes his case. If the employer feels that it would be in the mutual interest of his employees and his organisation he may well give the official time off. However, I repeat, it is absolutely not a circumstance where there should be a statutory obligation on the employer to provide paid time off.
This amendment would open the door to wholesale abuse of the right to paid time off for trade union officials and would increase rather than diminish the burden placed on businesses. I am not sure that that was the intention of the noble Baroness in moving this amendment, which I hope she will withdraw.
§ Baroness Turner of Camden
My Lords, I am not entirely surprised at the Minister's response but I cannot see that the amendment, if put into legislation, would lead to wholesale abuse. It states quite clearly:such duties as are necessary"—and I emphasise the words "as are necessary"to represent the members of the union employed in the employer's establishments".Quite clearly, that is a responsibility connected with industrial relations because it is concerned with employment in the employer's establishments. The individual concerned would have been given responsibility by the trade union to undertake those duties.
I cannot see why the Government say that the enactment of this amendment would lead to wholesale abuse. However, I do not intend to press the issue at this time of the evening and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Wedderburn of Charlton moved Amendment No. 19:
Page 13, line 30, at end insert ("; and
(c) in paragraphs (a) and (b) above the word "employer" includes the employer and any employer who is an associated employer of that employer.").
§ The noble Lord said: My Lords, I think I am right in saying that this amendment raises a matter relating to a change in Section 27 of the Employment Protection (Consolidation) Act 1978 which is made by the Bill, if the Government have their way, and which has not been explained by the Government in either House. I raised the matter in Committee and told the Minister that if he did not explain it then we would again raise it on Report.
The matter arises in this way. In broad terms the right to time off as a union official —in effect, as a shop steward —arises only where the employer has recognised the union concerned. The definition of recognition is in Section 32 of the 1978 Act, and I quote the essential words:
'recognised' means recognised by an employer, or two or more associated employers, to any extent for the purposes of collective bargaining".
It is clear, therefore, that the two associated employers could at the very least recognise the same union in different extents but it would count as a recognised union in both under the section. That definition is left intact by the Government and I think I am right in saying that it is not changed by the Bill.
The Government's change is in terms of the substance of the right to time off which was debated yet again on the previous amendment. Under the section as it stands a shop steward's right to time off—and I quote the essential words of Section 27—is:
for the purpose of enabling him … to carry out those duties of his as such an official which are concerned with industrial relations between his employer and any associated employer, and their employees".
The words which the Government wish to insert into the section speak of duties which are concerned
with negotiations with the employer and —I now go to the end of the paragraph (a) (i)—
in relation to which the trade union is recognised by the employer".
It appears that the Government are changing the ambit of the right in respect of time off to a significant degree. The omission of the associated employer is of course of great importance in the Goverment's change.
§ The associated employer is not as far off as the words colloquially sound. The definition of an associated employer goes as far as companies which are under the same control or where one controls the other; in other words, the group of companies. If the associated employer is not included within the substance of the right, having been included at any rate to a degree in the definition of the word "recognition", of course the employer is doubly in control and can stop time off as a right to any extent that he wishes, even beyond the matters discussed in Committee to which I refer but do not repeat. Therefore, if we have the Government's wording, with one company employing members of a union in six different plants, the six shop stewards will fall under parallel rights to time off, even under the Government's understanding, so long as the employer does not withdraw from recognition altogether, which he can legally do at any time.
§ If in fact the six plants are changed into one holding company and five subsidiary companies, each owning and operating one of the plants, for reasons not directly concerned with time off, each of those separate employers, as they now are in law, may well limit recognition in different ways. It is very difficult to see the justification for that where the industrial relations problems remain the same, where the employer is in terms of economic reality the same (the one economic unit), where the workforce is the same, where relations between management and the union do not alter but where the incidence of five separate legal personalities through the subsidiaries may give rise almost by chance to rather different edges to the limitations or frontiers of what is actually recognised for bargaining at the particular plant involved. As a consequence it will be much more difficult for those trade union officials to find any common pattern of rights to time off in that situation. Faced with a hostile management it will be even easier than we have shown previously for management to prevent common meetings between officials who have every reason —and at the moment every right —to have paid time off to discuss the problems of industrial relations in those plants.
§ I am sure that the Minister will say that the good and sensible employer may well arrange for time off as before. I wish to make a point as regards the Minister's answer that he has given again and again. I hope he will stop giving it because it is irrelevant. It is quite irrelevant whether nice people will do even better than what is provided by the law. The fact that 90 per cent. of employers or union members are very nice chaps and will have a drink and get over a problem by agreement is irrelevant to legislation. It is always the bad legislator who says "The problem will not arise because people will do even better".94
§ It is to the percentage of cases in which standards are not upheld that the law primarily addresses itself. The law is not concerned with the normal case and, for the most part, certainly not cases concerning industrial relations. The associated employer point is important. It could be a factor through which relationships are inflamed when they need not be. Trade union officials are well aware of the differences that arise in respect of new companies being formed within a group. They are also well aware that in this area of the law that fact has never made any difference to the description of the right to time off. I cannot believe that the Government really intended to change that because there does not seem to be any good reason to do so. I beg to move.
§ Lord Strathclyde
My Lords, this amendment presupposes that the omission of the notion of an associated employer from the wording of Clause 14 would, if it were to be enacted, restrict the right to paid time off to carry out trade union duties in respect of employers which are associated employers of the trade union official's employer. The clause will certainly restrict the right in respect of associated employers as it restricts the right in the case of the principal employer. The degree of the restriction depends however on one's interpretation of the rather opaque wording of Section 27 as it is at present; a subject to which I shall return in a moment.
In fact the issue at stake here is again the one that underlies all that the Government have said about this clause; namely, that we are determined to tie the right to paid time off for trade anion duties to the scope of the recognition agreement between the employer and the trade union. While a recognition agreement could be concluded by two or more associated employers —and this is reflected in the definition of "recognised" in Section 32 of the Act —this has not been the definition of recognition that has been used in Section 27(1) or indeed Section 28(2) of the 1978 Act.
Both speak of recognition by an employer and of an independent union recognised by him, that is, that employer. Therefore we are addressing in Clause 14 —as indeed the legislation has always been addressing —a recognition agreement between a single employer and a trade union. Of course if the recognition agreement were concluded by two or more associated employers it would not mean that Section 27 would not apply. It would mean that the section would relate to that recognition agreement to the extent that it applied to each individual employer and the union.
The noble Lord, Lord Wedderburn, referred during the Committee stage to the fact that the term "associated employers" is within the definition of recognition in Section 32 of the Act and he said that it would be very odd indeed if it were left in the form in which it is now. I quite agree with the noble Lord. As I have just indicated, the definition in Section 32 is redundant. It has been so since at least 1978. It is for that reason that the Government brought forward an amendment in another place proposing the wording which is to be found in paragraph 19 of Schedule 6 to the Bill.
95 Be that as it may, the current legislation does however provide a right to time off for duties concerned with industrial relations between the official's employer and any associated employer and his employees. The current legislation is not clear as to whether time off would be required to be given if the duties were concerned with industrial relations just with the associated employer. The word "and" and not the word "or" is used. However, if it gives such a right it is an inappropriate one. An employer should be under no obligation to provide paid time off so that a trade union official can carry out duties concerning another employer —duties which do not concern the employer who is providing the paid time off.
If the requirement is currently limited to industrial relations which concern both the official's employer and the associated employer, Clause 14 must change nothing in this respect except to ensure that the official does not have a right to time off for duties in relation to matters for which the union is not recognised by his own employer and to ensure that the time off is for duties proximate to negotiations with his own employer.
The effect of Amendment No. 19 would be that an employer could be required to grant paid time off to a trade union official for duties which did not concern that employer but solely related to an associated employer. This would be an unjustifiable burden. When the noble Lord has time to consider what I have said, I hope he will agree that that is the correct position.
§ 9.30 p.m.
§ Lord Wedderburn of Charlton
My Lords, one part of the Minister's explanation is unacceptable to me, and that is that there is anything opaque about the law as it has been until now. Section 32 of the 1978 Act states that its definitions are for the purpose of Sections 27 and 28 of the Act. That is the definition and it includes associated employers.
The Minister has referred us to the fact that the Government are also going to change the definition in Schedule 6. Therefore all he has done is to maintain the consistency of unfortunate policy by changing Section 32 as well as Section 27. What he has not done is to tell us why the rights of shop stewards in six plants to time off should change when there are six companies controlling them independently in the same group with the same directors, the same registered office, the same shareholders, the same debenture holders and the same economic unity, compared with the situation when there is only one company.
I apprehend that I gave the Government's drafting too few marks: it is full marks. Why it should be done and what contribution it will make to industrial relations are very hard matters to follow. However, we have the explanation fully on paper and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.96
§ Clause 15, [Period of employment necessary to qualify for statement of reasons for dismissal]:
Lord Wedderburn of Charlton moved Amendment No. 20:
Page 13, line 34, leave out (" "for six months" there shall be substituted "not less than two years." ") and insert (`there shall be inserted at the beginning of the subsection "where the termination is unfair or otherwise unlawful," and there shall be inserted at the end of the subsection "but where the termination of the contract of employment was lawful, an employee shall not enjoy that entitlement unless the period of continuous employment ending with that date has been, or will have been, not less than two years." ").
§ The noble Lord said: My Lords, this is another small matter where the Government ought to think again. If the Minister could give us the idea that he will have a think about some of these things, we on this side would all be a little happier. However, I do not think that his object is to make us happy, so I will proceed.
§ Where a worker is dismissed from his job, we say that he is entitled to reasons. As a matter of fact it is our belief, rather informally, that that presumption should apply to all workers. However, it may be that there should be some period of qualification.
§ This amendment is a much weaker amendment. I hope that the Minister will not say that the fact that this is a weaker amendment than the amendments that we moved in Committee shows that we are moving towards him. It is a mark of our desperation about his ever listening to us at all. (We know that he does of course, and I am only joking.) This is a very weak amendment and goes much less far than what was said in Committee.
§ I should like to pursue the point about why people are entitled to reasons. If you are sacked, there are all sorts of consequences for you in life, not just the thought of going to an industrial tribunal. Most people do not think of going to an industrial tribunal. Sometimes their character is involved; sometimes there is tittle-tattle about why; sometimes they will apply for social security benefit.
The noble Lord, Lord Strathclyde, said in Committee that this is what happens when someone goes to claim unemployment benefit:
When a person first makes a claim for unemployment benefit a standard inquiry form is sent to the last employer seeking reasons why the claimant left his employment. Claimants are allowed to comment on those statements given by their former employer. A case will be referred to adjudication only where the employer has given written confirmation of the reasons for dismissal. —[Official Report, 17/10/89; cols. 828–9.]
That certainly confirms our impression of what not infrequently happens.
§ Of course the Government must take the matter seriously because they increased the maximum period of discretionary disqualification for misconduct from unemployment benefit from six weeks and 13 weeks to six months. Therefore one is talking about a possible six-month disqualification from unemployment benefit. Indeed, here we have a case where the employer will give the reasons to the officer at the social security office; and at that point, and only then, in many cases, as the Minister described, will the employer who has been sacked have a chance to comment upon the matter let alone answer any charge.97
§ We do not think that that situation is right. We put forward amendments in Committee whereby we tried to lessen the period of disqualification to a much lower level. That was not acceptable to the Committee. The amendment we now put forward —which, I apprehend, may not be perfectly drafted —tries to make a rather different distinction; namely that where someone's dismissal is lawful and if the Government must have their way regarding the long period of disqualification, then so be it. But, where a person's dismissal is unlawful, be it through lack of adequate due notice or be it an unfair dismissal, then surely there must be at some stage a right to know the reasons therefor.
§ I appreciate that this matter may need further attention; but there is plenty of time between now and Third Reading. I am sure that the Government would never wish to rush through the stages of a Bill in such a way that they could not draft matters properly before Thursday. It is not impossible to do so. It is a distinction which we think is a workable one, even though it is a weaker version of what we previously proposed.
§ We submit that those unlawfully dismissed should always have the right to know the reasons. Of course, this can work by way of presumption. In some cases it would be quite clear. For example, in a summary dismissal where a worker is entitled to notice, quite clearly the right to know the reasons would emerge. Where the dismissal is clearly unlawful, that would be so. But, where the dismissal is clearly lawful with notice and for no reason which can be challenged, the Government say that the employee should not have the right to know the reasons for another two years. So be it, we must give way on that issue.
§ There are many different reasons for which people ought to have this right. I do not know how many Members of this House have been dismissed without knowing the reasons. Indeed, it would be most interesting to know just how many noble Lords who vote in the Lobbies have been dismissed without a reason. Morever —and this is the important question —how many of them would feel it justified that they were not told the reason? I do not believe that many people would feel that that was justified.
§ The Minister may say that we have been driven into a corner in the matter and that this amendment is not the right way to solve the problem. We tried a better way in Committee. However, this proposal is put forward to the Minister in order to ask him to think again on the basis of his own description of the social security aspect of the matter. He mentioned other descriptions of the importance of workers' rights when they are dismissed. We do not disagree. In other words, this is a despairing cry to the Minister: will he not do something in the Bill which would, if not improve the legislation, at least maintain the position for those who are entitled to know the reasons for their dismissal and thereby not make the position intolerably worse as the Bill does at present? I beg to move.
§ The Deputy Speaker (Lord Ampthill)
My Lords, I should remind the House that the word "for" has been omitted from the first line of the amendment 98 as it appears on the Marshalled List. It should read, "for six months".
§ Lord Campbell of Alloway
My Lords, I shall be brief. I have listened, as always, with attention and respect to what has been said by the noble Lord, but I cannot understand any of it. If an employee is unlawfully dismissed, he has his rights at common law so to complain. We are not concerned with that. We are concerned with the statutory regime, and within that regime the Government's proposals seem to be entirely fair and reasonable, holding the balance between an employer and the employed. It is understood that the noble Lord looks at that matter from the point of view of the employed only, and wishes to extend the area of statutory protection; but that is not holding the balance.
§ Baroness Gardner of Parkes
My Lords, I have a certain sympathy, not with the wording of the amendment, which looks rather unworkable, but with the principle behind it. It is serious that people can now lose their social security benefit for six months. In the past, if at the end of that period one's case was justified, one received the benefit retrospectively. I understand that one does not receive it at all now. That can create hardship.
I find the amendment unworkable because it seems to say that if the dismissal is unlawful, one is entitled to have the benefit; but if it is lawful, one does not receive it for two years. Who will decide whether it is lawful or unlawful if one does not have the reasons to consider? Anyone who takes a case to a tribunal receives the reasons at that stage because they are always stated on the originating application or the defendant's reply to it. The only way to determine the matter is to take the case to a tribunal because one then receives the reasons if one is determined to have them.
In Committee I made the point that I do not see any cast-iron reason why the period should be two years. My noble friend the Minister might consider whether it could be one year, which would be a compromise. I do not see a valid reason for setting the two years in stone. I believe that it is only administrative tidiness. The wording of the amendment would create more problems.
§ Lord Strathclyde
My Lords, I am afraid that the Government cannot support the amendment. I try hard to make the noble Lord, Lord Wedderburn, happy; but I seem to fail more often than not. I am pleased to note that the Opposition are prepared to go some way (although the noble Lord, Lord Wedderburn, asked me not to say that) and that there seems to be a willingness to look at both sides of the argument.
The purpose of the written statement provision is to help someone to decide whether they have a case for making such a complaint: it makes no sense for a person to have the right to a written statement giving them the reasons for their dismissal if they cannot then pursue their complaint of unfair dismissal to an industrial tribunal. The noble Lord said that a written statement might avoid tittle-tattle. I do not believe that that would be so.
99 I should perhaps make it clear in view of the apparent confusion that existed in Committee that the written statement of reasons for dismissal is just that. It is not connected with the procedure of oral and written warnings that ACAS recommended should normally take place before an employee is dismissed.
Introducing two qualifying periods according to the circumstances in which the employee was dismissed would make the legislation more complicated and also mean that the qualifying period for that right and the right not to be unfairly dismissed would not be wholly aligned.
Further, I have to say that the amendment, as drafted —the noble Lord admitted that the drafting was not perfect, —would produce strange and even absurd results. First, it is clear that where an employee had more than six months' but fewer than two years' continuous employment, the tribunal would have to decide that he had been neither unfairly nor unlawfully dismissed before it could decide whether he was entitled to a written statement of reasons for dismissal.
However important the right to a written statement may be, it is obviously a relatively far less important right than the right not to be unfairly dismissed, or an employee's common law right in respect of wrongful dismissal. Yet the amendment would apparantly force tribunals to go through the complicated and often difficult process of determining the issues of unfair and wrongful dismissal merely to determine whether an employee was entitled to a written statement. That cannot be sensible.
Secondly, in determining the issues of unfair and wrongful dismissal the tribunal would inevitably have to consider the reasons for dismissal and declare what those reasons were. That declaration would make it entirely unnecessary for the employee to obtain a written statement of reasons and yet the whole legal procedure would have taken place for the sole purpose of deciding whether he was entitled to such a statement. I think it would be difficult to imagine a scheme which would be more obviously wasteful of public resources or more of an unnecessary burden on business.
Finally, the noble Lord, Lord Wedderburn, will know that industrial tribunals have no jurisdiction to hear claims that a dismissal was wrongful at common law. As I have already said, this amendment would apparently require tribunals to decide the issue of wrongful dismissal. That is quite inappropriate in the context of the right to a written statement; moreover it would create a potential clash of jurisdictions in this area between tribunals and the ordinary courts which would be most undesirable. For all those reasons I urge the noble Lord, Lord Wedderburn, to think again.
§ 9.45 p.m.
§ Lord Wedderburn of Charlton
My Lords, I thank the Minister. His most important words were the last few sentences. The division he is drawing between the industrial tribunals and what we may 100 call the common law courts, the county courts and the High Court, makes one think that perhaps the Government will not go ahead with the transfer of jurisdiction on which they have produced a paper in connection with industrial tribunals. I do not know whether that was an indication by the Minister that the Government will not now introduce an order to transfer to the industrial tribunals the common law claims under Section 133 of the 1978 Act. No doubt the Minister will ponder the point. The division is not so hard and fast, if that jurisdiction is to be transferred to the tribunals. The same goes for the point of the noble Lord, Lord Campbell.
I wish to say only one word more. The efforts of the noble Lord to make me happy fill me with a sense of nostalgic déjà vu. For a decade he and his predecessors have tried to make me and my noble friends happy on these matters. They have not got very far.
Of course I said that the amendment was worded in a rather strange way. We did not do it but it would perhaps have been better if the amendment had distinguished between dismissals, with and without notice. We felt unable to do that in view of the debates which noble Lords had in Committee. I appreciate the point made by the noble Baroness, Lady Gardner, that with notice and without notice would be better.
In tonight's debate on Report there is a much greater sense of the ambit of importance of the written reason for dismissal. If I may say so, the Government, weakly in the Minister's statement, tried yet again to link the written reason for dismissal only with the unfair dismissal tribunal's jurisdiction. We all know that that equivalence is faulty. The Minister took rather lightly the notion of workers who, as I said, find tittle-tattle or rumours or stories about them emanating from their dismissal. Does he not know that this happens every week? Workers —working people —are prouder of their character than some other people because they have nothing else to defend. If they do not know why they are dismissed, they may find it more difficult to get another job.
I did not read it but perhaps the Minister will look at the Law Society's response to the Government's Bill and papers. He will find a clear statement by that society of how difficult it is for their clients when they are not given reasons for their dismissal. I do not feel that he has attended to this point at all; he has just produced some formula: unfair dismissal equals written statement. Two years for one equals two years for the other. That is the end of it. What does it matter if people are dismissed and do not know why and then cannot get another job or unemployment benefit for misconduct? Does all that matter? No, of course not, that is the end of the matter. The Government are putting through a Bill which in moral terms is at a pretty low level. I must be frank. However, all I can do is to beg leave to withdraw the amendment.
§ Lord Strathclyde
My Lords, before the noble Lord sits down and with the leave of the House, until that last sentence of the noble Lord, Lord Wedderburn, 101 I should have been quite happy to leave the matter like that. However, it is monstrous to say that the Government do not care whether or not somebody gets unemployment benefit. The employment service tries extremely hard to make sure that people receive their unemployment benefit when it is justified. That is why there are quite clear procedures to decide whether or not somebody is entitled to it. For the noble Lord to say that it is just the written statement and that if everybody had a written statement there would be no problem is nonsense.
§ Lord Wedderburn of Charlton
My Lords, the Minister goes from the procedural to the substantive. I was not arguing the substantive case about the Government's change of rules, although I pointed out that the misconduct —
§ Lord Wedderburn of Charlton
My Lords, I understood the Minister was asking me a question before I had sat down. Is that not correct? If the Minister does not wish me to have the right to reply, I shall not do so.
§ Lord Wedderburn of Charlton
My Lords, I am not sure whether I have the right to continue. However, I have two points to make. The Minister misunderstands in the sense that I am not attacking the Government's policy on social security rules, although I could. I did not say that everything would be all right if everyone had a statement of reasons. I hope that what I said was that where someone is dismissed there can be an accusation of misconduct. I adopt precisely the Minister's description as stated in Committee. Where an accusation of misconduct is levied, that is precisely one example of where the worker who is dismissed is entitled to know the reason for his dismissal. I repeat that it is morally wrong that the first time he or she knows the reason for the dismissal and sees it on paper is when it is produced by a social security officer. That is not right, but we must leave the matter there. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker
My Lords, I should remind the House that if Amendment No. 21 is agreed to, I shall be unable to call Amendment No. 22. I now call Amendment No. 21.
§ Clause 20 [Pre-hearing review of proceedings before industrial tribunal]:
§ Lord Wedderburn of Charlton moved Amendment No. 21:
Page 16, leave out lines 32 to 48 and insert —
("(a) for authorising the tribunal, or with the agreement of the tribunal a person, carrying out the pre-hearing review under the regulations to inquire, in circumstances specified in the regulations, whether further steps in the proceedings by a party are likely to be frivolous, vexatious or unreasonable, and, if this is the case, to inquire into the
likelihood of that party being able to meet such order for costs as might be made in the proceedings and to warn that party of the likelihood of such an order being made, but such regulations shall not include 2.uthority to impose any monetary payment or other security for costs by reason of the pre-hearing review;
(b) to ensure that, where such a warning is given, no member of the tribunal conducting or concerned with the pre-hearing review shall be a member of the tribunal at the hearing.").
§ The noble Lord, said: My Lords, the noble Lord, Lord Rochester, need be in no fear about the latter matter. However, this is a matter that I wish to propose with some care. Our amendment would make one main demand as a change in the clause. However, before I come to that I wish to put three preliminary points to the Minister. Those points are in the amendment, but it would be useful if he commented on them.
§ First, the amendment provides that where the industrial tribunal, or a chairman, has taken a preliminary view of a claimant's case such that it is unreasonable, the tribunal which hears the full hearing later must be differently constituted. That is the rule now under rule 6(4) on pre-hearing assessments. There is good reason for it. It is mentioned in the report of the organisation Justice in 1987. I wish to refer to that report on the way through this argument. Has that measure been omitted by mistake or is there some good reason for departing from the normal principle?
§ Secondly, our amendment gives the jurisdiction on the preliminary hearing, as the Government would have it called, to the tribunal unless the tribunal agrees to the chairman hearing it alone. We believe that this is right. Previous debates have convinced us that this issue should be put forward now because neither another place nor this House validates in itself an argument which allows the chairman to sit all the time by himself or herself. I could go further on this point, but I shall not do so.
Thirdly, there are different formulae involved as regards the ambit of the clause itself as it stands in the Bill. Sometimes the Minister here and sometimes Ministers in another place refer to the pre-hearing review, as it will be called, operating as regards deciding to impose a deposit where the case is one which is vexatious, frivolous or unreasonable or is being conducted unreasonably. Thai is the formula for costs in the tribunal. Sometimes Ministers have added, and the Minister himself added (at col. 853 of Hansard for 17th October):
where a case appears at the pre-hearing stage to have little prospect of success",
a deposit may be ordered. That is a quite different kettle of fish —not frivolous, not vexatious, not unreasonably conducted but having little prospect of success. We should like to know whether the area that we are discussing is that wide.
I turn now to the main point of the amendment. In Committee the Minister (at col. 853 of Hansard) made a most important statement which for me clarified the nature of the clause, and I am most grateful to him for that: He said
it is our intention that a deposit will only be forfeited if the person required to pay it loses the case and has an order for costs made against him. In other words, he will only forfeit the deposit
where the tribunal carrying out the full hearing considers that the case was indeed frivolous, vexatious or otherwise unreasonable".
That is the narrow formulation.
In such cases the deposit will be paid to the other party in part setttlement of the costs".
It may have been our fault and the fault of everyone in the other place, but in my submission that sentence is the key to the clause. It shows that much of what we discussed earlier is irrelevant to the clause. Perhaps I may explain.
§ What was irrelevant was the debate about vexatious litigants. Vexatious litigants are one problem and security for costs is another. On analysis the clause turns out to be about security for costs.
I shall not go over the ground that was traversed in Committee, but the noble Baroness, Lady Gardner of Parkes, raised the question of the power of a tribunal to deal with vexatious litigants and the like. None of us gave her a completely correct answer. Under rule 12(2) of the rules of tribunals, the tribunal may if it thinks fit:
(e) subject to the Proviso below, at any stage of the proceedings order to be struck out or amended any originating application or notice of appearance or anything in such application or notice of appearance on the ground that it is vexatious".
The proviso is that the tribunal shall send notice to the party against whom it is proposed that any such order shall be made giving opportunity to show cause why the order should not be made. That is a rule of natural justice.
§ That does not carry one all the way. Nevertheless the power exists. I was interested to find in the Justice report that there were comments upon it and a note that the power is used sparingly, but it exists rather more than some tribunals apprehend.
§ There is a great deal more to that discussion. There is a great deal more to be said about tribunal procedures, vexatious litigants and so on. I claim that they are very, very few in number but very, very few can do a great deal of damage and waste a great deal of time. However, that is not the problem at which the clause is aimed. It has nothing whatever to do with vexatious litigants. The Minister has said so.
§ He has told us that what is proposed in Clause 20 is much wider. It may concern the vexatious litigant but he is a minute speck in the wall to be built by Clause 20. Its nature was made clear by the Minister's statements, from which I have quoted the central point.
§ The new power is to be a power in the chairman of the tribunal —it is clear from the formulation of Clause 20 that it is normally to be the chairman —to make an award or an order not exceeding £150 against someone which will be passed on to the other party if he is made liable for costs. As the rules stand —and I ask the Minister for an assurance that the rules on cost are not to be changed —costs can only be awarded where the applicant has conducted his case frivolously, vexatiously or unreasonably.
§ That is security for costs. That is what security of costs is all about. In the absence of any guidance from the noble and learned Lord the Lord Chancellor —I mean no disrespect to the noble Lord who is in his 104 place —I believe that in Scotland it is called caution for expenses. I have done a certain amount of work to try to discover the Scottish jurisdiction. It is relevant because those new rules for the tribunals will presumably apply to the English and the Scottish tribunals and to the English and Scottish EAT.
§ A most serious question therefore arises: what is the relationship between the new rules on security for costs in the tribunals in England and the High Court and in Scotland and the Court of Session? Inquiry produces some very strange answers. If one looks at the High Court in England, one finds that security for costs is normally very restricted and applies only against plaintiffs who reside abroad or mistake their address or who are nominal plaintiffs suing for others where there is no good reason. In one case the Scottish equivalent is called the case of the cat's paw which appears for other people. The Court of Session appears to have similar but by no means identical rules so far as I can apprehend. In England the Court of Appeal may make an order for security for costs against a vexatious litigant, but only on appeal under Order No. 59.
There is a great deal of literature on the matter. I merely quote the late Lord Fraser when he said in one of the Scottish cases that we must always be careful not to extend security for costs or caution for expenses. In 1983 he said:
It would clearly be wrong that a litigant with a statable case should in effect be excluded from the court by an order for caution with which he could not comply, unless in very exceptional circumstances".
§ What is the justification, therefore, for applying to tribunals of justice in respect of which there is no legal aid for the litigant, as there is in the High Court and the Court of Session, rules on security for costs which are stricter than those in the court of superior jurisdiction and even stricter than those in respect of the Court of Appeal, although the court there has a wide discretion?
§ The Government have certainly not explained the true nature of the proposal, except in that one sentence of the Minister. I asked them in Committee whether they intended to introduce similar rules in relation to the High Court. I am sure that I can now ask the question more confidently: is security for costs in other courts and tribunals to be looked at? If not, why are those litigants picked out for that peculiar form of security for costs? As the late Lord Fraser said, it is always the impecunious who are at risk from strict rules on security for costs. If we look at some tribunals in other countries, we see that security for costs is a well known way of keeping the poor out. It was only in 1969 that we in England repealed a possible jurisdiction in the county courts to demand security for costs solely on the grounds that the person was of impecunious means. We abolished that because everyone felt that it had had its day and was unfair.
§ One might well say that the rule will apply to the rich and poor alike, as do so many freedoms, but a large percentage of the people about whom we are talking here are unemployed and poor; yet it is to them that that strict rule on security for costs can be applied on the word of the chairman. Once again, 105 all kinds of bodies which were quoted in Committee have said that the proposal will not do. I merely refer to one sentence of the Law Society. Its response to this proposal was that it was of the opinion that the introduction of such a procedure would be undesirable as it might have the effect of discouraging impecunious applicants from approaching a tribunal at all. That statement is based on the knowledge of people who had considerable experience of tribunal work.
§ One can now grasp the true nature of the clause. It does not mean that there ought not to be a debate about a more efficient method of dealing with the very narrow but troublesome area of the vexatious litigant —not at all. This clause is not about that. It 106 means that this clause has never been justified as a special rule concerning security for costs because, except for that one sentence in the brief which the noble Lord was kind enough to read out (and which I tracked down elsewhere and should have spotted before), it has been so debated in that way. But it should have been debated.
§ Let it be debated in that way. We believe that this special rule against the impecunious in respect of security for costs should not appear in this Bill. If there is a problem about the efficiency of tribunals, vexatious litigation and so on, let it be discussed. But this particular, rather mean proposal is not one that we think should be activated by a security for costs provision. I beg to move.107
§ Lord Campbell of Alloway
My Lords, I shall be very brief. The noble Lord has assailed us at this very late hour with an academic lecture about security of costs in England and Scotland and the High Court which has absolutely nothing to do with the point that we are discussing. It is quite wrong to say that this is an abuse of our time because "abuse" would not be the right word. The noble Lord would never wish wilfully to abuse time.
I sit on these Back Benches and wonder why on earth we submit to an academic lecture on a subject about which I happen to know a little but which is totally irrelevant to the matter in hand. What is relevant to the matter in hand is the position as regards this tribunal, which operates under a statutory jurisdiction, where there is little prospect of success that a deposit would be paid. How on earth that concept can be equated with the esoteric learning on both sides of the Border, especially at this hour of night, on security of costs totally defeats me.
§ Baroness Gardner of Parkes
My Lords, I could not allow this matter to pass without speaking as I raised the issue of vexatious litigants at Committee stage. I agree with the noble Lord, Lord Wedderburn, that cases are rare. Certainly in the 15 years during which I have sat on these tribunals I only found one applicant who had brought 60 to 70 cases. However, the noble Lord, Lord Meston, mentioned during our last discussion that he also had come across a number of cases, mostly under the Race Relations Act. People had brought such cases at a very early stage, when they were simply job applications. They were not even cases in which they had been interviewed for the jobs concerned. It involved a great waste of public time and money. Indeed one of the tribunal decisions in a previous hearing of the case to which I referred said that cases of this type did much to discredit the discrimination legislation by abusing the system. So the vexatious litigant is one category; but there are others.
The noble Lord referred to cases with little prospect of success. That is a phrase currently used in an industrial tribunal. Recently I sat on a pre-assessment hearing (which is now to be called a pre-hearing review) where it was stated that the case had little chance of success and to progress further with it would be considered unreasonable. Therefore a costs warning was given. From what the noble Lord was saying, he found it surprising. The phrase "little prospect of success" is currently used. It is not a new suggestion.
He raised the matter of the £150 deposit. I have had cases where we would ask for that from the employer. I have had cases where the employer has considered it beneath his dignity to bother to reply to the matter and has treated it in a most unfair way. We would have asked for a deposit from him. It would have done much good because it would have made him take the issue more seriously at an earlier stage and would therefore have been fairer to the applicant.
108 The Minister made the point last time that the deposit is up to 150; a much smaller sum could be demanded. Surely it would be the equivalent of a means inquiry in court, where one asks people what they are able to pay. Any fine fixed in a magistrates' court is related to the income and position of the person. I do not think that £150 would be asked automatically from any party. The amount may be up to £150. When the noble Lord mentioned that it would be in part settlement of the costs —I realise that he was quoting the Minister —I presume that it would be only in cases where the costs awarded were in excess of £150. If the costs awarded were only £50 there would be a refund of £100. I do not think that there is any argument on such a point.
The noble Lord stated that under Rule I 2(2)(e) the tribunal may order proceedings to be struck out at any stage. I agree. However, I was informed by the tribunal that it can happen only if the defendant applies for it to be struck out. One has to send written notice to the party stating that it is intended that the case shall be struck out. That could take as long as the hearing of the case. It would again mean days of delay. If on day one of the case one sends the applicant a notice that the case will be struck out, he then has a right of appeal.
There is a right of appeal even on the matter of the deposit. I ask my noble friend to confirm that. If one is asked to produce the deposit and one cannot do so, I am sure that the free representation unit, which represents many clients in the industrial tribunal, would take the case to the employment appeal tribunal on the ground that it would be a real injustice to have to produce the deposit.
I believe that these issues are not such a worry. With regard to what is currently called the pre-assessment hearing, in the tribunal on which I sit, the decision of the chairman on the pre-hearing is sealed in an envelope which is opened at the tribunal after the conclusion of the hearing of the case. The envelope is opened in the presence of the applicant. That is the only moment at which the tribunal hearing the case knows whether or not any costs warning has been given. The content of the envelope might state that no costs warning has been given. I have been present when the chairman has opened such an envelope and a contentious litigant has said that he did not believe that the envelope had not been opened before. He may say, "Surely I saw you shuffling a second piece of paper there with it". Such comments have been thrown up quite unjustly. However, the present procedure is that whichever tribunal hears the first stage of the pre-hearing, none of those people sit at the second stage. I believe that it is the Government's intention to continue that process. If so, paragraph (b) of the amendment is unnecessary because it would be a continuation of the existing process.
A point that will be raised on the next amendment was discussed last time. It concerns interest payments. I know that many people believed that the matter would be concluded so quickly that the matter of interest payments would not become a sufficient problem —that there would not be enough time to attract an interest payment. The Government should 109 look at this point. I have sat on a number of cases which it was originally believed would take one day but which instead have taken many more days. To reconvene the bench with the same three people who were hearing the case —the two lay members may be involved in other things in their lives —is not easy. Sometimes there is a considerable delay between the earlier days and the later days of a hearing. A time limit should be attached beyond which the Government should pay interest, perhaps not right from the beginning but after a certain time.
I have sat on many cases when costs have been awarded. This has always been done unanimously. We have never had a disagreement among the members of a tribunal. However, awarding costs in no way guarantees that the person will get them. In many cases the party who wins the costs considers that so much further civil legal action is required to recover the money that he often does not pursue it. Some applicants rely on the fact that the case will not be followed up and the money will not be claimed. That is another reason why the deposit would be a good thing. It would mean that that amount of money would at least be there.
In one case in which I was involved, a wife was forced by her husband to bring a case. She was completely dominated by him. He was not a pleasant individual. The wife felt so threatened by giving evidence in front of her husband that we believed that whichever way the case went she would have a terrible time at home afterwards. We asked for the case to be heard in the absence of her husband. He was persuaded to leave the room. She then gave her evidence much more confidently. In that case where the applicant did not wish to bring the case the husband would have been deterred if there had been a deposit. There had been a pre-assessment hearing and costs were awarded at the end of the case.
I have quoted one or two cases. The fact that the appeal procedure is available even in terms of the deposit means that the person has recourse to a further stage if he cannot manage to pay. I support the original view and I oppose the amendment.
§ 10.15 p.m.
§ Lord Rochester
My Lords, I have put my name to the amendment but in supporting it I shall be even briefer than the noble Lord, Lord Campbell of Alloway. I shall resist the temptation to follow the noble Baroness, Lady Gardner of Parkes, in what she said about payment of interest on deposits. As she herself began to acknowledge, that is better dealt with in the next amendment. In Committee I moved an amendment to leave out subsections (2) and (3) of this clause. I submitted that the way to eliminate the considerable amounts of time and money which could be spent in dealing with frivolous and vexatious cases at tribunal hearings was not to authorise orders requiring payment of a deposit but to improve the effectiveness of pre-hearing reviews. That is just what this amendment seeks to do. For that reason I shall support it.
§ Lord Strathclyde
My Lords, I thank my noble friend Lady Gardner of Parkes for giving us all those 110 useful and interesting examples. They demonstrate some of the problems that exist with the present system. My noble friend Lord Campbell of Alloway referred to some of the matters that arose in Committee. The noble Lord, Lord Wedderburn, asked one or two questions which I should perhaps answer.
First, as the noble Lord explained, paragraph (b) of this amendment is designed to ensure that those involved in a pre-hearing review are not involved in any subsequent hearing. I assure the noble Lord that we fully support this priniciple and it is our firm intention to include such a provision in the drafting of the regulations. So I hope it can be accepted that a provision does not need to be included in the Bill.
Secondly, the Opposition seek to prevent a tribunal chairman who is carrying out a pre-hearing review from taking any action on an ill-founded case without the agreement of the full tribunal. Let me remind the House that the purpose of this clause is to make the tribunal procedure even more streamlined than it is already, by tackling the small number of ill-founded cases so we can concentrate resources on the far greater number which are genuine.
I am not entirely sure I understand how the Opposition think this amendment would work in practice, but so far as I can tell they have accepted that the tribunal chairman will be able to carry out a pre-hearing review alone. They therefore envisage somehow then restricting his ability to take any action over ill-founded cases —even issuing a costs warning —without the agreement of a full tribunal. That would mean in effect retaining the status quo whereby the full tribunal needs to be involved in every case. It would therefore largely frustrate the Government's intention of enabling tribunal chairmen to deal, sitting alone, with the kinds of issues which do not require the practical expertise of lay members.
I must emphasise that the Government recognise the need, in particularly complex or contentious cases, for the pre-hearing review to be conducted by a full tribunal and the drafting of this clause allows for that. But to let a tribunal chairman carry out the pre-hearing review alone and then not let him take any decisions about it without bringing in the whole tribunal is an administrative nonsense.
The noble Lord's third point was on the question of no reasonable prospect of success. The noble Lord said that I had used that explanation on other occasions and that it had been used in the other place. It comes from the present industrial tribunal regulations under the pre-hearing assessment procedure. The test is whether a case has no reasonable prospect of success. It is the Government's intention that the chairman of the tribunal conducting the pre-hearing review should be able to order the payment of a deposit where a case or defence has no reasonable prospect of success.
The noble Lord also asked whether there are plans to look at the issue of security for costs in the ordinary courts. That is beside the point because in industrial tribunals there are no costs except in the 111 unusual case where, for example, a party has acted frivolously. In fact, as my noble friend Lord Campbell said there is no connection between the High Court and industrial tribunals as regards this matter.
I must emphasise that the deposit will only be forfeited if the person paying it loses the case and has an order for costs made against him. That means that the only cases where the deposit will be forfeited will be where the tribunal carrying out the full hearing considers that the case was frivolous, vexatious or otherwise unreasonable. In those cases the deposit will be paid to the other party in part settlement of the costs. In all other circumstances —and I emphasise that —the deposit will be returned at the end of the case.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to other noble Lords who have taken part in the debate on our amendment. Perhaps I may say to the noble Baroness, Lady Gardner of Parkes, that in terms of analysis —if I may dare use such an esoteric or academic term —there does not seem to be a great deal between us. The problem exists of the vexatious litigant in the industrial tribunal. My estimate of the number of such litigants would be smaller than that of the noble Baroness. With the greatest respect, one is always terribly impressed by the particular case which is an extreme illustration. This clause is scarcely likely to deal with that problem. I also apprehend that the phrase, "little prospect of success" is well known throughout the pre-hearing jurisdiction. The reason I wanted a clearer statement from the Minister as to its place in the scheme of things is that I wished to know whether the regulations were going to tell the chairman —as it seems they must, though I shall come back to that later —that the deposit was to be ordered where the action appeared to be vexatious, frivolous or unreasonably conducted, or whether the deposit could be ordered (up to the maximum, of course) where there was little chance or appeared little prospect of success.
As I understood him, the Minister clarified that for us this evening in his answer to my third question. The chairman is going to be able to demand a deposit in the wider range where he thinks there is little prospect of success. But at the end of the day it is going to be used —that is, it will not be refunded —only where costs are awarded and that is within the narrower range of a case which is vexatious, frivolous or unreasonably conducted.
I hope the Minister will not misunderstand me when I say that I looked at his speeches and I went back to the other place to try to understand the position. I think this is the first time that we have had an explanation of such clarity this evening; that the jurisdiction of the tribunal to make the new demand is over the wide area in the case that has little prospect of success.
The eventual outcome of the payment depends on the narrower area where the case is vexatious, frivolous or unreasonably conducted and where costs are awarded. The first thing to say about that is that 112 there is absolutely no justification for having the chairman sitting on his own.
§ Lord Wedderburn of Charlton
My Lords, the Minister makes up his mind too quickly. I ask him to think again. If the wide area is assessing the chance of success, that is not a legal chairman's point alone. The lay members of the tribunals will not feel happy about the Minister saying that these questions do not suit —I hope I quote his words near enough —the practical experience of the lay members. The lay members have much to contribute on the tribunals. With modest experience, and talking to those with far more experience, I say with respect to the noble Lord, Lord Campbell, that it is a well-known fact that on many tribunals the legal chairman and the lay members often get very mixed up in the work of the tribunal and everyone has something to contribute. Therefore, if the case for the chairman sitting alone is simply that the lay members have nothing to contribute, then the Government should think again if the first criterion is to be a reasonable prospect of success.
I must make one final comment because this is the last occasion on which we shall deal with this important matter. I say to the noble Lord, Lord Campbell, that I am not in the least troubled about finding out the truth at any hour of the night. If one stumbles across it in the dim dark of the night it is better than never having been there at all. I quoted many publications and the reports by Justice, which is a committee of very experienced people. I again assert that the correct analysis of what the Government have put before us —I apologise for not having seen it before —is in the nature of security for costs.
What is security for costs? The noble and learned Lord the Lord Chancellor is here and he will correct me if I am wholly wrong in thinking that it is caution for expenses, or near enough. It is an order whereby a party is required to make some monetary payment, a transfer of property, or an undertaking in respect of the costs which may fall against him at the end of the day, in its broadest understanding. I say again that the Government have put forward a plan for security for costs. It is a plan which will do little for the problem of the vexatious litigant which was raised by the noble Baroness. On the basis of what we have heard —we have heard of the regulations to come and there may be more because governments always bring more —there is nothing in the clause to help the noble Baroness with the vexatious litigant, except I suppose where he cannot find a way round depositing something which the chairman thinks he ought to deposit; and he is the chap who is likely to be able to find a way of doing it.
The people who will be put off will be those about whom the Law Society committee wrote. They will be the people who have to pay 100 deposit. They may be unemployed. They are the people who believe honestly that they have been unreasonably dismissed. They will have no legal aid. Thank 113 heavens for the hard-worked citizens' advice bureaux because many claimants will be utterly lost without them. These people will be asked whether they have any written reasons for their dismissal. They will reply that they have not. They will say "We were not given written reasons. We have not been there two years so we cannot have them. We do not know why we were dismissed but it was unfair."
Such persons are lost and it is from them that the Government ask for £100. The Government still have time to think about this matter and not merely on the basis of this Bill. All that we can do now is trust that those who run and often wisely administer the tribunals can introduce into the regulations better practical, sensible and just measures than this clause suggests are forthcoming. It is with great regret that I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ 10.30 p.m.
Lord Rochester moved Amendment No. 22:
Page 16, line 45, at end insert ("In such circumstances the deposit shall be refunded or paid over with interest.").
§ The noble Lord said: My Lords, having sought unsuccessfully to persuade the Government that the way in which to deal with frivolous and vexatious cases at tribunal hearings is to improve the effectiveness of pre-hearing reviews, we are left with the requirement that parties wishing to participate in proceedings should pay a deposit of up to 150. At an earlier stage reasons were given why that was not the right way in which to tackle the problem. The House will be glad to learn that I do not intend to weary it by rehearsing those reasons once more.
§ However, at the end of the discussion on this subject in Committee, I asked the noble Lord, Lord Strathclyde, whether it was the Government's intention, in appropriate cases where deposits were returned to claimants, that interest should be paid on the deposits, bearing in mind the high rates of interest that now obtain. The noble Baroness, Lady Gardner of Parkes, has just reminded us of the length of time that can elapse in these cases. The noble Lord then gave what to me was an unconvincing answer. He said that if someone was willing to put down a deposit of —150 in the first place he would not mind forfeiting what would be only a relatively small amount of interest over a few months.
§ On reflection I hope that the Minister will agree that however small the amount involved, to an impecunious applicant it may be a matter of considerable concern. A principle is involved here. If the amount is small it follows that it would cost little to accept the principle. The amendment gives the Government the chance to do just that and I very much hope that the Minister will take it.
§ Lord McCarthy
My Lords, this must be the most modest amendment that has ever been moved even in this series of extraordinarily modest amendments to this most extreme Bill. It is the last amendment that we move as regards this clause. We tried two amendments in Committee and we tried another on 114 Report. The Government have been quite adamant. The noble Lord, Lord Rochester, is no longer seeking significantly to change the thrust of the clause; that idea has been given up. The chairman of the tribunal can have his pre-hearing review. There will be a deposit of up to £150. The clause remains substantially as it is.
It is being said that if we go through to the end the individual worker will get his deposit back because it turns out that he need not have put it up —the claim was not frivolous or vexatious, but perfectly reasonable. He won and he has not had costs awarded against him. If he gets the deposit back he should not suffer in the process. As the noble Lord, Lord Rochester, says, the only argument put forward by the Minister against a similar amendment which was moved in Committee was that he or she who can afford £150 and is fortunate enough to get it back should not complain.
I should like to anticipate another argument that the Minister might make this evening. He may say that the situation will not arise, or he may say that the whole process of the tribunal works so quickly that the interest would not be worth collecting. There are examples of people who get involved in the industrial tribunal process and it take:3 a long time for them to get a settlement. It depends on whether there is an appeal; whether they are facing an employer who, even when there is a case against him, is extremely reluctant to pay; whether the employer has to be proceeded against to make him pay, and whether the litigant has to go back to the tribunal again and again. There are quite a few examples where this process has taken several years.
The noble Baroness, Lady Turner, has told me of a concrete example that she knows of from her direct experience. It involved a member of her union. It took three years because it was ordered that the individual should be reinstated. If reinstatement is ordered, almost all employers in British industry, when they get over the surprise of such a thing being done, refuse to do it. Therefore one has to go back to the tribunal and get a sum of money awarded. The employer in this case refused to pay this sum of money. In the end, £4,000 was paid after a period of three years. If a rate of interest of something significantly less than 10 per cent. —8 per cent. or so —had been applied over a period of three years, there would have been another £1,000 to pay. I feel that that would have been quite reasonable.
We are talking about exceptional cases, a small number of cases, but cases in which a significant wrong is done because it takes a long time to pay and it turns out to be the case that there was no justification for the individual being asked to make a deposit in the first place. Surely the Government will accept that in those circumstances some interest should be paid.
At Second Reading we asked the noble Lord, Lord Skelmersdale, about this question. We were told that it was under consideration in the sense that the Government were considering the general policy of changing the position so that there would be interest on compensation payments ordered by industrial tribunals if they were delayed. We were told that 115 the situation was being considered in general. The Minister may say that this matter will be settled when a general settlement is made on the issue. If that is the case, we should be pleased to hear it. If not, we should like to know why this very reasonable amendment is not to be accepted by the Government.
§ Lord Campbell of Alloway
My Lords, if the deposit is held for over 12 months, why should interest not be paid? I am not talking about de minimis; I am not talking about £7.10 or whatever; but, if the deposit is held for over 12 months, why should interest not be payable? I wonder whether the Minister would be prepared to consider a period over 12 months.
§ Lord Strathclyde
My Lords, whenever the noble Lord, Lord McCarthy, prefaces his remarks by saying that this is a most modest amendment, I feel the urge to look very closely at the amendment again to make sure that there is not a hidden agenda. I am sorry that the noble Lord, Lord Rochester, was unconvinced by my answers at Committee stage. I hope that I shall be able to help him further tonight.
This amendment provides that when the deposit is refunded or paid over at the end of the tribunal hearing, that sum will attract interest. It may be helpful if I explain some of the provisions of the clause. The tribunal chairman will have discretion to set the deposit at a level which he believes to be appropriate for that particular case. That means, as my noble friend Lady Gardner of Parkes said, that it could be £5 or £150. However, £150 is the maximum. When a small figure is involved, I think that it would be nonsensical to add an element of interest.
Further, the majority of cases are heard within 12 weeks of the date on which the original application was received. Substantial sums of interest will not accrue in such a short space of time. Indeed, taking the current rate of interest of 15 per cent. (as in the Judgments Act 1838) it would mean a maximum interest of just over £5 which is hardly the cost of the noble Lord's dinner this evening. I know that this does not cover the point made by my noble friend Lord Campbell of Alloway about a tribunal continuing for over 12 months. That is perhaps a matter at which we can look again. However, we are really talking about sums of £7 or £8; we are not talking about large sums of money.
I know that perhaps £5 is a lot of money to some people, but I hope that the chairman of the tribunal will take that factor into account when setting the limit which should apply. In my view this amendment would create more problems than it would solve. I am sorry to say that I do not feel that the Government can accept what is proposed.
Perhaps I may just make one point to the noble Lord, Lord McCarthy. He mentioned a case which lasted for three years. He said that if interest had been payable on the amount outstanding it would have been a very considerable figure. But, surely the point is that a case which lasts for that period of time will not be a vexatious one. It will not attract 116 the kinds of problems about which we are talking. That factor must be seen in the context of what we are debating.
§ Lord McCarthy
My Lords, I do not know how the noble Lord can say that. Whether the case was vexatious, or whether it was said to be vexatious or frivolous, the fact is that it took three years to obtain the money. In other words, the money was received three years after the tribunal decided the case in favour of the complainant.
In such a case under this procedure the trouble could have been started by a tribunal chairman saying in a pre-hearing assessment that it was a vexatious, unnecessary and frivolous claim. The individual would have had to put forward the deposit because otherwise the matter would not have proceeded further. Then, although the case was decided in that person's favour, it subsequently took three years to obtain the money. Therefore there is no connection between whether the case is vexatious, or thought to be vexatious, and how long it will take.
§ Lord Rochester
My Lords, I am grateful to the noble Lords, Lord McCarthy and Lord Campbell of Alloway, for their support. As the noble Lord, Lord McCarthy, said, there may not be many such cases, but there will be a small number which take a significantly long time to resolve.
I was most grateful to the noble Lord, Lord Campbell of Alloway, for his suggestion that, as regards those cases which occasionally take as long as, or more than, 12 months to settle, the Minister may agree to look again into the matter. I drew one crumb of comfort from the Minister's reply. I understood him to say —but, perhaps he would care to confirm this —that the Government would be willing to look at this point. Do I understand correctly that that means they may be prepared to bring forward an amendment on Third Reading to that effect?
§ Lord Strathclyde
My Lords, no; I doubt very much that we shall do so. This is a matter about which the Government are prepared to think between now and Third Reading. However, I make no commitment to bring forward an amendment.
§ Lord Rochester
My Lords, I do not see much point in the Government thinking about the matter if they have no intention of doing anything in this regard. It seemed to me that the Minister relied very much on the kind of defence which he put forward on the last occasion; namely, that the amounts of money involved are small and therefore it would not really cost a person very much to forfeit such a sum.
I started my remarks by saying that it seemed to me that a principle was involved here. I retain that view. I am disappointed by the Government's attitude. It seems to me to be, and I hesitate to use this word although it is what it amounts to, a mean one. There is nothing more that I can do about it now. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.117
§ Clause 23 [Consultation in connection with industrial training orders]:
§ 10.45 p.m.
Baroness Turner of Camden moved Amendment No. 23:
Page 17, line 40, leave out ("("if any")") and insert ("including bodies representative of employee interests").
§ The noble Baroness said: My Lords, with this amendment we come to the different subject of industrial training. The amendment has to do with industrial training boards. This is another attempt to ensure that there is consultation with representatives of the workforce. As we said in Committee, it is most unlikely that a good training programme will get off the ground unless the workforce is at least not hostile to it. The Government have turned away from the tripartite system which has operated hitherto. For some reason they lay at the door of the tripartite system some of the failures of the past. That is not warranted.
§ Most people professionally concerned with training speak favourably of union involvement. That is true of the most successful of the ITBs (the CITB and the EITB). The schemes which unions have opposed have often been those which did not appear to offer quality training. Unions were concerned that young people in particular would be exposed to unscrupulous employee exploitation and would not receive proper training. In many instances those fears appear to have been well-founded. The amendment however does not even refer to unions but merely to bodies representative of employee interests. If employers are to be represented, if those concerned with training are to be represented, as they should be, what about the consumers, in this case the employees and potential employees? I beg to move.
§ Lord Rochester
My Lords, I have some experience of training in a large industrial organisation. In supporting the amendment I should like to say that in my experience training cannot be carried out satisfactorily in a company unless it has the support of employees and their representatives. The amendment is modest. It does not, as the noble Baroness, Lady Turner, has just reminded us, ask for any powers to be given to bodies representative of employee interests but only that they should be consulted. The bodies concerned need not be trade unions; they could well be works councils or committees. That proposal I welcome. The essential point is that if training is to be effective it must have the consent and co-operation of the people to be trained or it will fail in its purpose. I gladly support the amendment.
§ Lord Strathclyde
My Lords, this proposal is on the face of it a minor one and it would still appear to leave considerable discretion with the Secretary of State as to who, apart from employers, he chooses to consult before making an industrial training order. However, I do not feel that we need to accept it.
Noble Lords opposite may well see this as another example of what the noble Baroness, Lady Seear, described as my "doctrinaire refusal" to understand 118 the value of the support of working people and their representatives in developing training. I assure the House that that is not so. The changes that we have made to the Bill in Committee should be seen for what they are: pro employer and emphatically not anti trade union. Only by making employers feel responsible for and committed to providing adequate training arangements can we achieve the improvements that all sides of the House agree are needed.
I totally agree with the noble Lord, Lord Rochester, when he says that we cannot train people who do not want to be trained. The agreement of the trainees —if I can use that word — is necessary for it to be successful. That does not mean that we have to go as far as the amendment.
Our reservations about the amendment are that it seeks to restrict the flexibility of the Secretary of State to consult as he sees appropriate. It does that by removing the possibility of him deciding that there are no appropriate organisations to be consulted in particular cases other than employer organisations. There is some ambiguity it seems to me as to precisely what would be the effect of the amendment. If it is intended to require that consultation be undertaken with organisations representative of employees and others even when this is not appropriate then it is not acceptable to us.
If, on the other hand, it is intended to permit consultation with employee organisations and others, then it does nothing in practice to give greater rights to employee organisations than are already provided in the clause as it stands. The Secretary of State will be free under the existing provisions to consult any organisations in addition to those representing employers that he sees fit. I am sure that this will include employee organisations in appropriate cases as indeed it will include education and training bodies.
Perhaps I should say at this stage, when we are dealing with a new set of amendments on the individual training boards, that I do not think there is very much between noble Lords opposite and the Government. We all perceive the need for greater training and we all see that developments over the next few years will require that. I hope that we shall not become bogged down in discussion as to whether or not trade unions can do that better than employers. The Government's position has been made quite plain in debates in the House and at Committee stage. In the light of what I have said, I hope that the noble Baroness will be able to withdraw the amendment.
§ Baroness Turner of Camden
My Lords, I am altogether surprised at the response from the Minister to this amendment. I cannot follow his line of argument. He seems to accept that it is necessary for an employer to take his workforce with him if he is serious about training. Yet at the same time the Minister is not willing to have written onto the face of the Bill an obligation on the part of the Minister to consult representative organisations.
119 I have made a note of what I think is almost a minor concession when the Minister said that he was sure that the Secretary of State would include employee organisations in appropriate cases. I am very glad that that at least will be on the record. I do not think we can get bogged down any further this evening in discussion about representatives from employee organisations because we have been over that ground substantially in Committee. With some regret, I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 24 [Transfer of assets or staff of industrial training boards]:
Baroness Turner of Camden moved Amendment No. 24:
Page 18, line 15, at end insert ("except that no transfer of assets nor of staff concerned with the provision by a training Board of services (for women, disabled people, minorities requiring special provision) may be made to any person unless the Secretary of State is satisfied that the said person will maintain those services provided by the training Board.").
§ The noble Baroness said: My Lords, this is a fairly substantial amendment on the whole issue of industrial training. Its object is to try to ensure that the special projects embarked upon by the EITB in particular will continue when it ceases to have a statutory role. The board has undertaken a number of special projects. That for women is of particular importance. As I have said before, and as I said in Committee, these projects enable women to train for skills in an area not traditionally very welcoming to women. I have met women on the EITB courses and they are very enthusiastic. It would be a great pity if those initiatives were to be lost.
§ However, that is not all. Other training activities could be at risk. There is no guarantee that a successor organisation funded on a voluntary basis by employers would do all that is necessary to build upon what has already been achieved. It is crucial that the successor organisation should be able, for example, to build upon the EITB's national system of training standards. There is a need to improve the quality of industrial management at all levels. That is widely recognised. The EITB has placed particular emphasis on management training and has developed a number of training programmes which have been welcomed by industry.
§ Furthermore, as the amendment says, projects for disabled people and minorities need to be developed. Again, there is no guarantee that the successor bodies will do this. The Government's emphasis has been on voluntary action by employers. It is apparently the Government's view that employers will see to it that it is in their interests to train and therefore they will participate on a voluntary basis. We have said on this side of the House that we have grave doubts about this because it has not happened in the past. Many firms poach trained staff from firms that undertake training. That is recognised as a destructive feature of the engineering employment market.
§ A new mechanism must place pressure on non-training firms to contribute, through training, 120 to their own efficiency and the wider interests of the industry as a whole. It is my understanding that the EITB has made some proposals to the Government about future projects and successor arrangements generally. Those proposals were made as long ago as June. Can the Minister tell the House whether the Government are yet in a position to respond?
§ Finally, I wish to say a few words about the European Social Fund. Under the system which has existed until now, public money, or at least public money in the sense of the European Social Fund rules, has been available from the fund because the EITB and the CITB have had a statutory basis and because they have been able to raise money by way of a levy.
§ It is my understanding that in the engineering industry in the past 10 years some £60 million has been made available through the European Social Fund and much of it has been directed, as I understand it, to some of the special projects which I have already mentioned. It would be a great pity if the loss of a statutory role also meant the loss of this valuable extra money. If this money is not available, how do the Government intend to make up these funds? It seems a pity that because of the Government's insistence upon an entirely voluntary employer-led system, as compared with the one we already have, we should lose money which hitherto has been available from the European Social Fund. I beg to move.
§ Lord Strathclyde
My Lords, the Government's policy on the development of industry based training bodies was set out clearly in last year's White Paper Employment for the 1990s. We wish to see voluntary employer based organisations across all sectors of employment which command the commitment of senior management in particular sectors and are thus able to exert influence on the sector. Their task is to define, monitor and review skill requirements of their sector, to take the lead in establishing standards for key occupations in the sector and to ensure that arrangements exist for assessing and accrediting learning achievements. These are minimum objectives and there will, of course, be others that are appropriate for particular sectors.
The noble Baroness, Lady Turner of Camden, said that employers have conspicuously failed to provide training in the past. The reason for that is that they have never had the opportunity that we are offering them of this tremendous chance to take over the training role.
In looking at proposals from bodies wishing to take over the assets of ITBs, the Secretary of State will want to be satisfied that these various criteria have the best possible chance of being achieved as quickly and effectively as possible. Beyond this, however, each sector is different and has different problems and priorities as our White Paper acknowledged. For that reason we do not wish to dictate to the voluntary successor body to a statutory industrial training board that it must take on particular services currently being run by that board.
If particular services are needed by the industry, then clearly the successor body would be wise to 121 maintain them. Looking at future demographic trends, as noble Lords may be aware from the study published last week that I have already mentioned, industry would be well advised to look to all possible alternative sources of skilled labour as the supply of young people dries up over the next few years. Also, given our concern to achieve equality of opportunity, we hope we can persuade industry to do all it can to promote equality of opportunity for all groups with particular disadvantages in the employment market. But that is not the same as imposing an obligation to maintain this or that service just because it is currently provided by the ITB. We believe it is for industry and not the Secretary of State to decide what is in its own best interests as regards industrial training.
I agree with the noble Baroness that the EITB has set up some very valuable services. However, we must return to the point that, ultimately, if these courses show their worth they will be retained, and if they do not it is up to the new ITBs to decide on their future. The noble Baroness also mentioned the problem concerning the European Social Fund. We are well aware that there is a problem here, and naturally we are discussing the situation with the European Commission with a view to clarifying the position. The situation is still slightly murky and we are keeping a close eye on what is going on.
I hope that in the light of what I have said the noble Baroness understands the main thrust of the Government's proposals and will agree to withdraw her amendment.
§ 11 p.m.
§ Baroness Turner of Camden
My Lords, that was a most disappointing reply. The Minister said that employers have not had the opportunity to offer training in the past. On this side of the House we have repeatedly said that employers have had opportunities in preceding years and have not done what ought to be done.
One of the problems which industry has had to face, which has not been argued against by the Minister, is that employers who do not train tend to poach the staff of employers who do. That was why it was felt necessary years ago —not under a Labour Administration but under a previous Conservative Administration —to have an Industrial Training Act and to set up statutory bodies to ensure that some kind of national programme was followed. Although it has been held to be a failure because not enough training has been done, one wonders what on earth the situation would have been if those bodies had not existed. If there had been no EITB there would certainly have been no projects for women of the kind to which I have referred. The employers did not run those by themselves on a national basis. As has been acknowledged, the EITB has done excellent work in that area.
As for the Minister's comments about the European Social Fund, are the Government really willing, by abandoning a statutory role for those bodies, to lose money which might otherwise be devoted to training in this country? Sixty million pounds is a lot of money. That is what the engineering industry has received from the European 122 Social Fund. It has enabled it to run courses and projects which, by common accord, are extremely progressive and well worth undertaking.
The Minister has still not answered my question about the EITB proposals made to him way back in June and to which I understand there has still been no response. Perhaps he could, with the leave of the House, answer that question before I withdraw the amendment.
§ Lord Strathclyde
My Lords, with the leave of the House, perhaps I may say that, as the noble Baroness knows, the matter is under discussion and review. We hope that there will be an announcement shortly.
§ Baroness Turner of Camden
My Lords, I note that response. I beg leave to withdraw the amendment as I do not intend to press the matter at this hour of the night.
§ Amendment, by leave, withdrawn.
§ Baroness Turner of Camden moved Amendment No. 25:
Page 18, line 47, at end insert—
("( ) Any liability in respect of pensions, superannuation allowances or gratuities which, but for the passing of this Act, would have arisen or existed on or after that date as a liability of the industrial training board to the staff of that board, shall instead be a liability of the successor body.").
§ The noble Baroness said: My Lords, the amendment is intended to give protection to the pension expectations of present members of staff of industrial training boards. As I understand it, the Transfer of Undertakings (Protection of Employment) Regulations of 1981 will give employees some protection so far as concerns their contracts, but those regulations specifically exclude pension rights. The matter is therefore of some concern to industrial training board staff. I am told that a high proportion of staff in the boards are over the age of 50, so clearly they will be concerned about pension rights.
§ The wording of the amendment is very similar to that in Clause 22(3) of the Bill, which refers to the chairman of the Training Commission. We do not see why there should not be a commitment to the staff of the board and therefore we expect that the Government will accept this very modest, simple and straightforward amendment. I beg to move.
§ Lord Strathclyde
My Lords, we oppose the amendment, not because we do not believe that the rights of industrial training board staff involved in transfers should be protected. Quite the contrary. That is why we have created the specific stipulations that the Transfer of Undertakings (Protection of Employment) Regulations should be extended to include industrial training board staff.
Those regulations already cover employee rights other than occupational pensions rights. The pensions of industrial training board staff are currently covered by the ITB Combined Pension Fund. The fund's trustees are more than willing to continue to manage the pensions of the staff of successor bodies to industrial training boards. However, the provisions in Clause 24 on ITB staff 123 will apply to all transfers of ITB activities not just in the context of the transfer of ITB assets to successor bodies under the terms of Clause 24. We do not think it right to bind a new owner to the previous pension arrangements of the ITB regardless of the circumstances.
Similarly, we do not believe that the successor bodies should be compelled to maintain current pension arrangements against their will. They should have the same flexibility to vary these as has any other new owner of an undertaking. We believe that the successor bodies to ITBs should be placed in no better and no worse a position than others in that respect. By the same token, the staff of ITBs should enjoy the same rights as other employees involved in a transfer.
I appreciate the importance that staff attach to their pension entitlements. If the successor bodies are to retain the services of the staff of ITBs currently employed, I have no doubt that they will want to offer terms and conditions of employment that are attractive to those staff as far as concerns pensions and to reach agreement with staff on any variation. But that should be a matter for them to agree, not for this Bill.
I therefore hope that the noble Baroness will be able to withdraw the amendment.
§ Baroness Turner of Camden
My Lords, I shall withdraw the amendment not because I accept what the Minister has to say but simply because of the lateness of the hour and because it does not seem appropriate to divide the House at this time. Quite frankly, I do not regard the response as at all satisfactory. I do not see why it is impossible to give the sort of guarantees in relation to pensions for which we have asked in this modest amendment. After all, the individuals concerned have been covered by their present pension schemes and have not expected that there would be a change in their circumstances in quite that way. They have not been responsible for the change in their circumstances. It has been brought about by government policy and by a separate piece of legislation.
For all those reasons I find it quite unsatisfactory that the successor bodies should not be committed to assume the responsibilities and liabilities that have hitherto been carried by the pension schemes of the boards. However, as I said earlier, in view of the lateness of the hour, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 25 [Constitution of industrial training boards]:
§ Lord Rochester moved Amendment No. 26:
Page 19, line 43, at end insert
("Before making any such appointment the Secretary of State shall consult with those organisations which appear to him to be experienced in training for employment.").
The noble Lord said: My Lords, this amendment is concerned with the constitution of training boards where they are to remain in being under the Government's new proposals. It is entirely in keeping
with the Government's view that the boards, like training and enterprise councils, should be employer-led. We understand that Clause 25 is concerned mainly with the appointment of employer representatives. Paragraph 3(1)(c) states that an industrial training board shall consist of:
such other persons (if any) whom it appears to the Secretary of State to be appropriate to appoint in addition to those appointed by virtue of paragraph (b) above".
§ In Committee I asked the noble Lord, Lord Strathclyde, whether he could assure us that under that paragraph people who are professional trainers would be considered as possible members of the boards. In reply the Minister said that the Government were generally looking at that proposal in a positive way.
§ The purpose of the amendment is to persuade the Minister to go just a little further by agreeing that, before appointing to boards people other than employers, the Secretary of State should consult —merely consult —those organisations which appear to him to have practical experience of training. I feel keenly that those boards need to have access to experienced, professional advice in that way. I hope that the Minister will agree. I beg to move.
§ Lord McCarthy
My Lords, the Minister does not like it when we say that these are modest amendments. We had better say that they are minimal amendments. This is a very minimal amendment. As the noble Lord, Lord Rochester, said, it deals with industrial training boards. It is not asked that the Government should put on anybody who is experienced in training for employment but that before making any appointments the Minister should consult with organisations which appear to him to be experienced in training for employment. So he could implement the amendment and there would still not be anybody who in fact was experienced in training for employment.
I do not know whether I or the noble Lord, Lord Rochester, is right. But as I read the clause, paragraph 3(1)(b) does not give us any help because that paragraph is qualified by paragraph 3(2); neither does paragraph 3(1)(a), where the chairman or deputies must have industrial or commercial experience. They may have some experience in training as well but they are not primarily trainers. Paragraph 3(1)(b) says:such number of persons appointed after the appropriate consultation".But paragraph 3(2) states that they shall be engaged in the management of the activities of the employer. On the other hand, there is paragraph 3(1)(c) which says:such other persons (if any) whom it appears to the Secretary of State to be appropriate to appoint in addition to those appointed by virtue of paragraph (b) above".So as I read it, it is possible that the Secretary of State could decide to put one or two other such persons on the training boards if he thought it appropriate. We suggest that one of the criteria of appropriateness might be that such names are put 125 before him by organisations which are experienced in training for employment.
That is a minimal amendment. The case for it is the case that we have made in what one might call a wearisome way all through the Committee and Report stages; namely, that we are not in a situation which will get us very far if we make employers the dominant influence in industrial training boards. One needs industrial training boards because employers do not train enough people.
There are some people in the world whose main experience and interest lies in professional training. They know a great deal about it. They know that there are deficiences in the level and volume of British training and in particular groups that are undertrained. In the past on the whole most people who had any experience of ITBs would have said that those people have been extremely valuable as an influence on the training boards. They have brought to them expertise and congenitally have been expanders. They have been the people who tried to get the training boards to expand their provisions. If they are not to be on training boards, the boards will be even more useless than we fear they may be now.
§ Lord Strathclyde
My Lords, I recognise the concern of noble Lords opposite that those with a professional interest in the training field should be as involved as possible in the selection and indeed membership of industrial training boards. I share their concern, as I indicated in reply to the noble Lord, Lord Rochester, during discussion of the Bill in Committee. However, I have to say that this amendment is not the way to achieve that aim.
The noble Lord, Lord McCarthy, pointed out that there might be a little ambiguity in the drafting. I shall not go into that matter at the moment. It remains the Government's view in principle that it is employers who have the primary interest in industry-based training arrangements. Beyond employers there are several other groups —educators, trainers, employees —who are also concerned. We wish to give the Secretary of State the freedom necessary to appoint the most appropriate indviduals and to be able to consult as he sees fit before making such appointments.
I can assure the noble Lord that where it is considered right to consult or appoint representatives of professional trainers the Secretary of State will do exactly that. But we believe flexibility, depending on circumstances rather than obligation, is the best way forward.
Perhaps I can say to the noble Lord that while he believes that training can best be done by trade unions, the noble Lord, Lord Rochester, believes that there needs to be an involvement of professional trainers. I do not disagree with either of them. I say that the main direction must be in the hands of employers because they are the people best capable of telling what training is required for the future. It is no good the noble Lord, Lord McCarthy, telling us that that is not the case and that they have never done it properly before. They will do it. We have laid the framework for that and they have never had 126 it before. That is why I hope that the noble Lord, Lord Rochester, will feel able to withdraw his amendment.
§ Lord Rochester
My Lords, I shall withdraw the amendment but not because I am satisfied. On the last point that the Minister has made, yes, I am concerned with the position of professional trainers. Equally, I am concerned not necessarily with the interests of trade unions—although it seems to me that they have done a good job in a number of cases before these industrial training boards —but certainly with the interests of employees and their representatives.
The noble Lord, Lord McCarthy, was exactly right in saying that the amendment was concerned with paragraph 3(1)(c). It asks only that there should be consultation with organisations representing professional trainers. But I did indeed have in mind that this might lead to such experts being included as members of industrial training boards.
The Minister has given some indication that in appropriate cases the representatives of such professional trainers will be consulted. Quite clearly, he and the Government have not the slightest intention of seeing any such view incorporated into the Bill. I can only hope that the statement that the Minister made will be realised in practice when the time comes. Meanwhile, I have no alternative but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.15 p.m.
§ Lord McCarthy moved Amendment No. 27:
Page 19, line 43, at end insert —
("( ) The Secretary of State shall ensure that appointments to the Board adequately represent all interests concerned, including those of employers and employees in the industry.").
The noble Lord said: My Lords, if there were any logic or consistency in the Government's position, in the light of what he said on the last amendment, the Minister should be forced to accept this amendment, because it proposes a joint solution. It provides that:
The Secretary of State shall ensure that appointments to the Board adequately represent all interests concerned, including those of employers and employees in the industry".
§ It is corporatism, according to the noble Lord, Lord Wedderburn of Charlton. I am afraid it is. I prefer to say that it is representative democracy. Instead of representing employers, or sections of the employee population that the Government consider are acceptable, we believe that the industrial training board should be genuinely representative.
§ The noble Lord said —I do not know where he obtains the information —that I believe that training is best done by trade unions. This is not the time of night to cite one's bibliography, but anything that I have written on training has been published by the Manpower Services Commission. One does not have items published by the MSC if one considers that matters are best undertaken by trade unions. Training is best done jointly. If one has institutions to facilitate training, they should be joint institutions. That is what the amendment provides.127
§ One may say that it is not a minimal or modest amendment; it is a somewhat more radical amendment. However, we got nowhere when we put forward modest, minimal amendments, so let us try a more radical approach. But it is not so very radical, because the provisions in the Bill still leave the employer in the dominant position.
§ Under paragraph 3(1)(a) and (b) the bulk of people who come forward will have to have industrial and commercial experience. They can be directors or managers. They do not have to be trainers. However, in general terms there is a suggestion that the Secretary of State should ensure that on balance the appointments to the board adequately represent all interests —not equally, but adequately—including those of employers and employees in the industry.
§ I should have thought that that aim was modest and reasonable enough. But I have very little belief that that is what the Minister will say. I beg to move.
§ Lord Strathclyde
My Lords, it is extraordinary that I should need to rise when the noble Lord thinks that he already knows what I am going to say.
The amendment would very probably frustrate the changes that we believe are necessary to our present system of sector based training, changes made in the amendment to the Industrial Training Act that have been agreed to in Committee. It would require the Secretary of State to ensure that the membership of a board "adequately" —which is not defined—represents "all" interests concerned. This seems to us to be a charter, first, for endless wrangling as to whether the members chosen do in fact represent all interests "adequately". Perhaps I may take one example. The most recent annual report of the CITB includes 32 different "main activities" of employers within its scope. Are all of these to be represented on a future board as a result of this amendment? Are employer representatives from all of these different sectors also to be given places? If so then a board of more than 65 members is necessary if the majority of employer members required by Clause 25 is to be preserved. There may well be more sub-sectors not included in the CITB list which could claim that they are not adequately represented, and this is to say nothing of the representatives of professional trainers about whom the noble Lord, Lord Rochester, is rightly concerned. Is this a recipe for greater effectiveness in industrial training? I do not believe it is. We expect any future boards to be smaller rather than larger than at present to make them more effective and more efficient.
My second objection to this amendment is that its objective is inconsistent with the creation of employer-led boards, a change which we judge vital to achieving greater employer commitment. It might allow the argument that the interests of employees could only be "adequately" represented by having parity with the employer members, which would conflict with the intention of the clause.
The amendment to the Industrial Training Act already made by Clause 25 of the Bill will require the Secretary of State to appoint such persons if any apart from employers who appear to him to be 128 appropriate. As I said in Committee, if they are to succeed, boards will have to command the support of all those with an interest in training in a particular sector. But the Secretary of State should be able to judge what is appropriate in particular cases.
I am sure that I have not convinced the noble Lord. Indeed, I am sure that he predicted everything that I said. What I have said represents what is true in industrial training. I hope that he will be able to withdraw the amendment.
§ Lord McCarthy
My Lords, if the noble Lord had any facts, he might convince us. He said that this amendment would frustrate the objectives of the new training boards. Is he saying that the objectives of the new training boards will be frustrated if they become representative? He said that an amendment which says that they ought adequately to represent both sides of industry would frustrate their objectives. Do their objectives depend on their being unrepresentative? They are by their essential nature, and must remain, unrepresentative institutions; and, presumably, the more unrepresentative they are, the better. That is what the Government say. The noble Lord says that the EITB—he is nothing if not contradictory—is representative. The only trouble with the EITB is that, although it is representative, if it had to be representative statutorily it would fall apart through endless division. That is what he asks us to believe. It is absolute nonsense. However, he will not listen to us, so we shall withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 30 [Short title, commencement and extent]:
§ [Amendments Nos. 28 and 29 not moved.]
§ Schedule 2 [Revocation etc. of subordinate legislation requiring different treatment of certain employees]:
§ [Amendments Nos. 30 to 35 not moved.]
§ Schedule 5 [Dissolution of Training Commission: supplementary provisions]:
Lord Strathclyde moved Amendment No. 36:
Page 35, line 6, leave out ("paragraph 1(3) of Schedule 4 to") and insert ("section 23 or).
§ The noble Lord said: My Lords, this is a purely technical amendment. I beg to move.
§ On Question, amendment agreed to.