House of Commons Hansard Debates for 9 May 1994

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to support the agreement reached on the package of state aid cases discussed at the Industry Council on 17th December 1993 ; notes with approval the undertakings secured at the Council regarding the stringent monitoring of approved aids, which will help to ensure that they are not used to disadvantage unaided competitors, the commitment to the strict application of ECSC state aid rules to end subsidisation, the recognition that there will be no further aid to these companies if viability is not achieved, and the early privatisation of most of the companies involved ; and endorses this agreement as a useful step towards ending the distortion of state subsidies in the steel industry.

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Equal Pay and Equal Treatment

Mr. Deputy Speaker (Mr. Michael Morris) : Madam Speaker has selected the amendment in the name of the Leader of the Opposition. 8.45 pm

The Minister of State, Department of Employment (Mr. Michael Forsyth) : I beg to move,

That this House takes note of European Community Document No. 6703/88 and the Supplementary Explanatory Memorandum submitted by the Employment Department on 21st October 1993, relating to the burden of proof in the area of equal pay and equal treatment for women and men ; endorses the Government's view that the draft Directive breaches the principle of subsidiarity and would have a disproportionate impact in the United Kingdom ; shares the Government's view that the proposed Directive is wrong in principle and unnecessary for the proper determination of cases ; agrees with the Government that the United Kingdom's arrangements for deciding complaints of sex discrimination and equal pay are fair to both parties, and take proper account of the problems of evidence and the need to reach fair decisions with due regard to the interests of both parties ; and supports the Government's view that the draft Directive should not be adopted.

I find it simply incomprehensible that the Community is now considering yet again the directive on the burden of proof. The directive was laid to rest as unworkable and unacceptable as long ago as 1988. It lay dead for five years until the Belgian presidency resurrected it last July as one of three Lazarus directives that it wanted to bring to life. Now, when it looks like being consigned to the tomb once more, the Burke and Hare tendency on the Opposition Benches wants to prevent a decent burial by trying to breath new life into the body.

The simple fact is that the directive has nothing whatsoever to do with the real priorities facing the 12 member states. Unemployment is now at record levels across the Community, and in all countries except the UK the figures for unemployment among women are higher than those for men.

Whenever we consider the social agenda in the Community, we must put questions of unemployment at the top of the list. Europe needs to stop adding to the regulations for people in employment and to start helping the people who are without employment of any kind. What we want is action which supports, not hinders, the efforts of member states to return to sustainable economic growth and provide real employment opportunities for men and women alike.

Despite the resurrection of measures such as the directive, things are beginning to change in Europe. The debates about growth and competitiveness in the Community stemming from the Commission's white paper last year show that the distinctive UK message is beginning to hit home. All member states recognise that Europe's labour markets are simply not delivering the jobs we need. That is good ; Britain has long been saying that.

Member states are recognising that labour costs are too high and damage the growth in jobs. That is good, too--again, a British message. Member states are recognising that employers must be given the flexibility to compete with the rest of the world. Britain has always said that a policy of Fortress Europe would spell disaster for our prospects.

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All proposals from the Community therefore need to be measured against three fundamental principles if they are to meet the needs of a changing Europe. The directive fails against all three.

Mr. Geoffrey Hoon (Ashfield) : If everything the Minister says is true, why do the other 11 member states all support the directive ?

Mr. Forsyth : I am surprised at the hon. Gentleman : he usually takes care to read these texts. If he reads the text of the directive, he will find that other member states have managed to opt out of the provisions. There are exemptions covering those countries because of their differing legal systems. So they are quite happy to support a measure that lumbers Britain with the problem. Unfortunately, Opposition Members do not fight for Britain, do not speak for Britain and will sign up for anything.

Mr. Bernard Jenkin (Colchester, North) : Is not Britain pursuing its historic role of vetoing a measure that is unpopular in other member states, which pretend to be in favour of it knowing that we shall do so ?

Mr. Forsyth : No, that is not so. My hon. Friend will know that we have used our veto, which Opposition Members would throw away, and the Eleven will proceed with the directive as Eleven. If Opposition Members had had their way, we would have signed up for the social chapter and would not now be in a position to resist this ridiculous measure, which fails all three tests.

All action taken by the Community should not damage but promote Europe's competitiveness ; the directive is a distraction from that. Community social policy needs to recognise Europe's diversity--the very different traditions, institutions and practises of 12 very different member states. The directive ignores our differences by trying to move to a single statutory model.

Community policy needs to be consistent with subsidiarity. Nothing shows that this issue requires action at Community level. No evidence has been produced to show that differences in the way in which legal systems operate affect Community obligations. On the contrary, Heads of Government have made it clear that the legal systems of member states should not be called into question.

What is all too predictable, however, is that the Opposition are now giving the directive their support. Here we go again. Labour would sign anything, whatever its cost or whatever damage it would do. Let us think what we would have been saddled with in recent years if the Opposition had had their way : a working time directive, which would have banned work on Sundays.

Mr. John Prescott (Kingston upon Hull, East) : Yes.

Mr. Forsyth : The hon. Member says yes, but that directive would have banned work on Sundays and robbed 2.5 million people of the chance to earn overtime pay.

A young workers' directive would have threatened the long United Kingdom tradition of allowing children to earn pocket money by delivering newspapers or by doing a Saturday job.

Mr. Prescott : What would the working time have done for the doctors ?

Mr. Forsyth : The hon. Gentleman, who, as a Front-Bench spokesman, should know better, says, "What

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would the working time have done for the doctors ?" If he had read the text of the directive, he would be aware that there is a specific exemption.

Mr. Prescott : The Government are the employer.

Mr. Forsyth : The hon. Gentleman says that we are the employer. It is a matter for the House and the Government to decide ; it is not for others outside the House to dictate working time or conditions in our country. That is the difference between the Government and the Opposition.

If the Opposition had had their way, a part-time work directive would have priced many part-time jobs out of the reach of employers. A European works council directive would have given the unions the whip hand in 330 major UK -based multinational companies. United Kingdom employers and employees alike can be grateful that they have a Government who fight for their interests and do not surrender them at the first call from Brussels. That is what would have happened if the United Kingdom had accepted the social chapter at Maastricht and my right hon. Friend the Prime Minister had not been successful in securing an opt-out, which Opposition Members would throw away. Equal opportunity measures such as this directive would have been subject to qualified majority voting, despite the fact that the directive is aimed almost exclusively at the British system. A British Government would have been unable to protect themselves from this directive being imposed over their head. We used the British veto against the directive once before in 1988 and we can do so again to protect vital national interests. The Opposition would cast that veto aside.

Dr. Robert Spink (Castle Point) : Will my hon. Friend confirm that Britain attracts almost half the total inward investment in the European Community, the other half being shared among the other 11 members of the Union ? Does he think that the directive would almost certainly damage our ability to attract that investment and would therefore damage jobs in this country ?

Mr. Forsyth : I agree with my hon. Friend that Britain is as successful as all the other member states put together in attracting inward investment, which is vital for jobs. The man to whom we should look for the explanation is that well-known socialist, Jacques Delors, who said that, because the Prime Minister had secured the opt-out from the social chapter, Britain would become a paradise for inward investment. He was right--not even Jacques Delors is wrong about everything--and my hon. Friend is right to point out that we have benefited from the success of our policies.

The directive is completely irrelevant in addressing the fundamental issues facing the Community. The Commission says that it is necessary because women are at a disadvantage in bringing sex discrimination claims. It says that women cannot prove their case because employers have all the evidence and that tribunals are reluctant to draw inferences from the facts : bunkum and balderdash, I say to that.

If the Commission had taken the trouble, which it did not, to inquire about the United Kingdom system, it might have thought twice before proposing this silly measure. It did not do so. Instead, it wants to put British employers in

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the dock, condemned guilty of sex discrimination unless they can prove themselves innocent. That is what the text of the directive means.

Mr. Alex Carlile (Montgomery) : For those of us who are trying to look at the issues in this matter, will the Minister explain, so that we can understand what the Government are saying, the difference between the directive and decisions such as Chattopadhyay v . Headmaster of Holloway school, which I am sure he will have considered ? How does the directive differ from the state of the law as it is now ?

Mr. Forsyth : What the country needs to know--[ Hon. Members :-- "Answer."] I shall answer--is that the hon. and learned Gentleman and his friends in the Liberal party would sign away the veto and the House would have no say in whether the proposals applied to this country. The answer to his question--the hon. and learned Gentleman is a lawyer and should know it--is that there is all the difference in the world between the impact of a judgment in the courts and a directive such as this, which would apply the universal principle of reversing the burden of proof.

Mr. Prescott : What case law ?

Mr. Forsyth : The hon. Gentleman should focus on what the directive says. I can understand the Liberals supporting it, but I am surprised that Labour supports a measure that reaches this level of absurdity. The Opposition amendment seeks to set aside the centuries-old principle that is central to our system of justice. No evidence has been presented to show that there is a problem. Lord Slynn of Hadley has made it clear on behalf of himself and the all-party sub-committee in the other place that the Government's opposition to the directive's central purpose remains valid. Unfortunately, but unsurprisingly, the hon. Member for Kingston upon Hull, East (Mr. Prescott) and his hon. Friends appear less clear-headed. They have become deeply infected by the Commission's enthusiasm for this measure. The amendment supports

Mr. Alex Carlile : Will the Minister give way on that point ?

Mr. Forsyth : In a moment, if the hon. and learned Gentleman can contain himself ; if he persists, I shall not give way.

Mr. Oliver Heald (Hertfordshire, North) : Will my hon. Friend give way ?

Mr. Forsyth : I will happily give way to my hon. Friend after I have given way to the hon. and learned Member for Montgomery (Mr. Carlile) and when I have completed the point that I want to put to the Opposition. Opposition Members do not want to hear it spelt out. They are taking an astonishing position which suggests a complete lack of appreciation of the strength of the United Kingdom's system for dealing with complaints about sex discrimination and equal pay.The UK has a strong and comprehensive framework of law which goes far beyond what other member states provide. There is no need for the directive or for us to abandon the principle of innocent until proved guilty.

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Mr. Alex Carlile : The hon. Gentleman appears to turn our understanding of the law on its head. What is the difference in effect on the Government between decisions by the employment appeals tribunal, which is a superior court of record, and the directive, if its provisions were brought into force, and decisions of the courts of the European Community ?

Mr. Forsyth : The hon. and learned Gentleman knows that, if the House agreed to such a directive and produced legislation, the burden of proof in every sex discrimination case would be reversed. It would be universal. The hon. and learned Gentleman is right to say that there are limited occasions on which the reversal of the burden of proof will apply, but, as he knows, the directive is about applying it universally. It is wrong for him to seek to fudge that. If he had his way, the House would have no say on this and many other matters, because he would have sold out our veto and the sovereignty of this place.

Mr. Heald : Does my hon. Friend agree that, although there were references in Chattopadhyay to where inferences could be drawn, in case after case since Chattopadhyay the courts and the employment appeals tribunal have stressed that in British law the burden of proof does not shift.The hon. and learned Member for Montgomery (Mr. Carlile) is not listening. The directive seeks to do something totally different.

Mr. Forsyth : I am grateful to my hon. Friend for his free legal advice. It is much appreciated. I suspect that the hon. and learned Member for Montgomery knows the position perfectly well. It is that Britain has effective frameworks such as ACAS, the Equal Opportunities Commission and industrial tribunals to establish the facts and apply the relevant law. They operate on the principle that the applicant has to prove his or her case on the balance of probabilities. That principle has been whole- heartedly accepted by all parties until now, but now we know where the Opposition stand. They are prepared to ditch an important principle for a great leap in the dark.

The Opposition want confusion instead of common sense, and it is common sense that guides industrial tribunals. They have received guidance from the Court of Appeal about the burden of proof. An industrial tribunal simply looks at the evidence as a whole and decides whether a complaint has been established. Sometimes clear evidence of discrimination will not be available, but tribunals are perfectly capable of dealing with that by drawing inferences from the facts. That is a common-sense approach that works perfectly well and tribunals apply it every day.

The Government will fight to ensure that employers remain innocent until proved guilty. [Interruption.] The hon. Member for Kingston upon Hull, East scoffs as if this were some minor matter. That shows why he will remain on the Opposition Benches and will not be in government. We will simply not accept a measure that seeks to put every employer in the position in which, on the flimsiest of evidence, an aggrieved party can force him to prove his innocence.

Mr. Hoon : If we accept what the Minister says about the state of the law, what does he say about the Law Society's observations [Interruption.]

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Mr. Deputy Speaker : Order. There is so much noise from the Opposition Front Bench that I cannot hear the hon. Gentleman's intervention. [Interruption.] Order. Hon. Members must respect the courtesies of the House.

Mr. Hoon : What does the Minister say about the Law Society's observations on the directive ? It says that the directive would help to clarify the law and that such a change would produce greater consistency in decisions of industrial tribunals.

Mr. Forsyth : I have not seen the reasoning behind that. The Law Society says many things. The hon. Gentleman will have heard what I said about Lord Slynn of Hadley and the all-party sub-committee which agreed with the Government. That is a fairly authoritative source. I look forward with some enthusiasm to hearing the explanation by the hon. Member for Cynon Valley (Mrs. Clwyd) of the Opposition policy which Opposition Members must try to defend. I dare say that that is the strongest argument they can produce.

Sir Teddy Taylor (Southend, East) : While I wish to convey my enthusiasm for the splendid sentiments expressed by my hon. Friend the Minister, will he make it clear that, if we followed the Law Society's recommendations and changed our law, we could change it back next year if it did not work ? If we allowed the European people to alter our law, we could not change it. That is terribly important.

Mr. Forsyth : I think that I should be where my hon. Friend is, and that my hon. Friend should be here. [ Hon. Members-- : "Hear, hear."] He puts the argument clearly and precisely--I could not have put it better myself. I want the House and the country, if it is listening, to know what Opposition Members would hand over.

Let us get down to brass tacks. How would the proposal work ? An employer would advertise for someone to fill a vacancy and a man and a woman would apply. On this occasion, the employer chooses the man because he is the best candidate. That ought to be the end of the matter. Not so under the directive. If the woman could show that she had the minimum qualifications necessary, her case would be made in the eyes of those who drafted the directive. Never mind the employer's judgment that she was not the better candidate. Simply by not being selected, she would establish a prima facie case under the directive and the entire burden of proving no discrimination would shift to the employer. Unless the employer could produce convincing evidence that the complainant was not discriminated against, she would win. That is amazing and totally unacceptable.

As if that was not reason enough to consign the measure to the dustbin, there are others to show how misguided is the Opposition's support. The directive would have an uneven impact across the European Union because it exempts procedures based on inquisitorial systems of justice that are common in most other member states--for example Belgium, France, Italy and Luxembourg. Other countries whose systems are a mixture of inquisitorial and adversarial--Netherlands, Ireland, Portugal and Greece--could also claim exemption. The directive would bear heavily on the United Kingdom's adversarial system. France, Italy, Greece and Spain have all secured their

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lifeboats while the Opposition are scuppering a British system that stands scrutiny alongside that of any member state.

The vagueness and ambiguity of the directive would introduce confusion into an important area of the law. I am too kind and honourable to give way to the hon. Member for Cynon Valley so that she could explain exactly how an industrial tribunal would apply article 4. Has she studied article 4 ? What does it mean ? Does the hon. Lady know what it means ? The plain fact is that the directive is confused and not needed.

Our record of providing employment opportunities is the best in the European Union.

Mr. Prescott : Oh!

Mr. Forsyth : The hon. Gentleman scoffs. Why does he not examine Britain's success ? In Britain, more and more women are working. The number of women in employment here has risen 16 per cent. since Labour Members were last in office. That represents more than 1 million extra jobs for women under this Government. Opposition Members have nothing to teach us in that regard. There are now more women in paid employment in Britain than in any other European member state except Germany.

Mr. Eric Illsley (Barnsley, Central) : The Minister suggests that the British system works and does not need change. Is he aware that the National Union of Mineworkers has been pursuing a claim for equal value for canteen workers for 16 years, but it has still not been resolved and has yet to go before the Court of Appeal ? Surely the Minister does not believe that the system is foolproof.

Mr. Forsyth : I agree that there have been problems in pursuing claims, in terms of timing and so on. That is for the House to put right. My right hon. Friend the Secretary of State for Employment is addressing some of the proposals made by the Equal Opportunities Commission, but that has nothing to do with the directive. If there is a Division, I hope that the hon. Gentleman will join us in the Lobby. He should recognise that it is for the House to decide the systems that operate in this country and that his party would sign all that away and give up our veto--which the Government are maintaining. We will use to ensure a system that reflects the interests of the United Kingdom and employment opportunities here. Since 1979, women's average weekly earnings have risen in cash terms 300 per cent. and in real terms 55 per cent. faster than those of men. That impressive record has been achieved because the Government steadfastly pursued the right policies, leading to a dynamic and flexible labour market, underpinned by an effective framework of law. Under this Government, the UK labour market is able to offer a wide range of opportunities, and women have taken advantage of them. The Government will continue to pursue those policies and to make more opportunities available. We will not accept damaging proposals such as the directive.

9.9 pm

Mrs. Ann Clwyd (Cynon Valley) : I beg to move, To leave out from "men" to the end of the Question and to add instead thereof : "refutes the assertion by the Government that the United Kingdom's arrangements for deciding complaints of sex

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discrimination and equal pay are fair to both parties : supports the principle of reversing the burden of proof in this area ; condemns the pressure, mostly from the UK Government resulting in the original draft Directive being diluted ; is perturbed that the wider definition of indirect discrimination contained within the original draft has been removed and that Article 4 of the new draft introduces the concept of objective justification' into cases of direct sex discrimination ; and calls for the redrafting of the Directive to reflect the proposals outlined in the original version."

I imagine that the Minister's bluster over the past 20 minutes has been more to do with his dislike of the European Union than of the directive. I recall that, when I last debated European legislation that promoted the rights of part-time workers, in Committee upstairs, the Minister was at pains to distance himself from his Christian Democratic colleagues in the European Parliament, describing them as too socialist for the liking of the "party opposite". I suspect that if we are looking for a stalking horse, we could do no better than promote the Minister's chances in the race ahead.

I cannot accept the Minister's bluster when we are discussing a directive that is of supreme importance and offers an opportunity to discuss the undervaluing of the contribution that women make to the economy and society. The deficiencies in the Sex Discrimination Act 1975 and the Equal Pay Act 1970 are all too obvious to the eye of any objective observer.

I cannot accept the Minister's crocodile tears over jobs. The Conservative party has just deprived 200 men in my constituency, who work in a highly profitable and productive industry, of jobs. The Conservatives did not shed any tears over making sure that those men lost their jobs. In fact, by pursuing a deceitful argument and programme, they eventually pushed them out of their jobs. It is not up to the Minister to give the Labour party any lessons on the importance of employment to people in our constituencies, because we have seen the effects of the Government's policies in every single one of them. So please give us no lessons on the importance of jobs ; we have seen the effects of long-term unemployment, not only on those who have lost their jobs, but on their families as well, and no jobs have come to areas that have lost thousands of jobs, for example, in the coal and the steel industries in the past 15 years.

Despite the Sex Discrimination Act and the Equal Pay Act, women continue to be undervalued and underpaid. They still face unnecessary barriers at work. They fail to gain equal treatment at work and are denied equal pay. Again, the Minister boasted about women and their pay. The figures show that pay differentials between men and women are greater in the United Kingdom than in any other European country. For manual workers in industry, female earnings represent just over two thirds of average male earnings. For non- manual workers in that sector, female earnings represent only 58.3 per cent. of average male earnings--lower than any in other country shown except Luxembourg. If the Minister wants to make any claims about pay, he should address himself to those tables, which are available in the Library if not to the Department of Employment.

Mr. Ian Bruce (South Dorset) : I wonder whether the hon. Lady has looked at the statistics on men and women's pay, moving up towards and including 1970 when the Equal Pay Act was introduced. They show that women's

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pay was getting closer and closer to men's pay until the Equal Pay Act ; then, for more than two decades, it went in the opposite direction.

Mrs. Clwyd : That is a very interesting argument indeed. I suggest that the hon. Gentleman looks at the table in the Library, which shows that, since this Government came into office, the gap between men's and women's pay has grown wider instead of closer. That is nothing to do with the Equal Pay Act ; it is to do with the Government and their policies towards women.

The right to equal treatment is a fundamental right for all workers in the European Union. There is a legal duty on all member states to provide effective measures to ensure that those principles are applied. Yet, since 1979, the United Kingdom Government have paid only lip service to attempts to reduce discrimination.

Despite having a woman Prime Minister for 11 of the past 15 years-- [Hon. Members :-- "Hear, hear."]--only one woman was appointed to the Cabinet, and she was sacked after a year. I am interested in the support for the previous Prime Minister. If that support were available from the Conservative Benches for the present Prime Minister, he would not find himself in his present vulnerable position.

I must say one kind word about the present Prime Minister : he is a leader in one respect. He was the first person holding that office since 1964 to appoint an all-male Cabinet. As the Minister was happy to acknowledge, this Government have blocked European directives on part-time work and parental leave. Indeed, the Government find a reason to oppose any progressive European social legislation. They did that when I was a Member of the European Parliament. Of all the countries and parties represented on the Social Affairs and Employment Committee, the only party to block effective social legislation was the Conservative party.

The Government's latest act was to abolish wages councils which provided for the equalisation of pay rates for men and women. Nearly 2 million of Britain's lowest-paid women now have no effective remedy against unequal pay. The Trades Union Congress has made a formal complaint to the European Commission arguing that, by abolishing the wages councils, the United Kingdom Government are failing to comply with their legal obligations.

Mr. Michael Forsyth : Of course we have abolished wages councils. However, will the hon. Lady confirm that wages councils had nothing to do with equal pay ? Until the passing of the Equal Pay Act 1970, was it not the case that, under a Labour Government, wages councils set different rates of pay for men and women ?

Mrs. Clwyd : The disparities have grown since the wages councils were abolished.

The Minister did not welcome a recent House of Lords judgment which gave part-time workers the same rights as full-time workers with respect to unfair dismissal and redundancy payments. Instead, he said that he was still taking legal advice. He did not even bother to say that tonight. The Minister's comments tonight seemed to convey the fact that it was never the Government's intention to implement legislation that the other place has said that this House must implement.

Clearly, the Government have no intention of moving on the protection of part-time workers. That is another

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example of the Government's reluctance to support working women when 88 per cent. of part-time workers are women.

I was very interested in the Minister's comments on the draft directive on the burden of proof. The draft directive was first published in 1988 and, predictably, it was opposed by the United Kingdom Government. It was revised and amended by the Belgian presidency in July 1993. If the Minister is unaware of the evidence given to the Committee in 1988, I suggest that he examines it. The Law Society, the TUC, the Equal Opportunities Commission and others gave very detailed evidence and they all supported the directive. The purpose of the draft directive is to enable alleged victims of sex discrimination to pursue their claims more easily and more speedily in the courts. It is not clear from the memorandum submitted by the Department whether the United Kingdom Government agree that that purpose is important and desirable. From what the Minister has said tonight, it is highly unlikely that the Government believe that such a purpose is important.

Government opposition to the original draft directive in 1988 put them at odds, as was said earlier, with the Law Society and the Equal Opportunities Commission. Both those bodies believe that the reforms in the draft directive were sensible and practical and would eliminate areas of doubt from complex legislation. The proposals would ensure greater consistency in application of discrimination legislation in industrial tribunals and, where appropriate, the county court.

As noted in the supplementary explanatory memorandum, the United Kingdom opposes the shifting of burden of proof in principle, and it is the only member state to do that.

Not surprisingly, I cannot find anywhere in the Government's written evidence any statement about the importance of eliminating discrimination in employment. Indeed, quite the contrary, from what the Minister said tonight. There is no mention--and the Minister has not acknowledged it anywhere--of the undisputed fact that sex discrimination remains prevalent in employment and in many other areas of British life.

It is brazen impudence for the Government to argue that the law is fair and accessible when both the TUC and the Equal Opportunities Commission have complained about its operation. The EOC has also called for a major overhaul of sex discrimination and equal pay laws in this country. It seems that everyone apart from the Government acknowledges that the laws are complicated and obscure.

In the Minister's written evidence, the United Kingdom also opposes the draft directive on the grounds of subsidiarity. We know from other debates that we have had with the Minister that the Government use subsidiarity as an argument when they do not like some European measure ; then they say that we should decide the matter at home. In the area under discussion, the Government want to argue subsidiarity on the one hand, but on the other hand they are not prepared to do anything about the issue.

Since 1981, the EOC has been pressing for legislation to bring United Kingdom law into line with that of the European Union. Each time the Government adopt a minimalist response, and that is their idea of subsidiarity. If anyone is to take the argument of subsidiarity seriously, surely there must be common minimum standards on which European Union member states can build. What women in Europe need are easier and speedier ways to win

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basic rights. The apparently technical draft directive is about making European equality law work in practice for women in all the member states.

The Government's motion argues that the draft directive would have a disproportionate effect on the United Kingdom. Yet as the EOC pointed out, broadly speaking, United Kingdom case law already provides for the shifting of the burden of proof. The directive therefore would for the most part establish that position.

Mr. Heald : In the most recent case, Camara, the employment appeals tribunal made it clear that the suggestion in earlier cases had been misunderstood and the burden of proof had not shifted. Does the hon. Lady disagree with that ?

Mrs. Clwyd : I should be grateful if the hon. Gentleman read the rest of the judgment.

The main relevance of the directive to the United Kingdom would be its effect on sex discrimination proceedings. Everyone can quote cases and pick out lines, as we could from Enderby and others, which show that there are still some arguments on these points. It is to clarify the points that we are trying to persuade the Government to be progressive in their approach to the directive.

Ms Jean Corston (Bristol, East) : Does my hon. Friend agree that study after study over the past 16 years has shown that women have failed to succeed at tribunals, partly because there is no legal aid ? Also, it is impossible for women to prove discrimination if they have no access to records. That is also applied to race discrimination cases such as that of West Midlands Passenger Transport Executive v . Singh--as we are all citing cases. In that case, it was held by the Court of Appeal that

Mr. Deputy Speaker : Order. There is no female precedent in that.

Mr. D. N. Campbell-Savours (Workington) : They are all precedents.

Mr. Deputy Speaker : I am grateful for that remark from a sedentary position ; at present, I am in the Chair.

Ms Corston : Time and again, it has been shown that women have failed to prove sex discrimination because they have no access to records. The only way in which that can be done is for the burden of proof to shift, and that is why it is so important for the directive to be enforced.

Mrs. Clwyd : I am grateful to my hon. Friend the Member for Bristol, East (Ms Corston). She is a most eminent lawyer who has much experience in the matter, and we are all grateful for that intervention.

Interestingly enough, the Government conceded that point in the explanatory memorandum of 12 July 1988 relating to the earlier drafts of the directive. They said that the directive proposed in sex discrimination cases that the burden of proof should be shifted from the complainant to the respondent, once a rebuttal presumption of discrimination had been established. They added that case law in the United Kingdom provided for the burden of proof to be shifted in that way already.

It is therefore nonsense to suggest now that the draft would disproportionately affect the United Kingdom. The Government surely are making a mountain out of a molehill. The Opposition have, of course, always been

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