House of Commons Hansard Debates for 9 May 1994

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staunch supporters of the original draft. In particular, we supported the wider definition of indirect discrimination that it contained. Under current law, that is extremely difficult to prove, and the draft directive would make it easier for people to claim indirect discrimination, since it allows more general practices to be examined for discriminatory behaviour. That would have been a major advance in the fight for equal treatment in the workplace. The original draft contained many other worthwhile proposals--far too many for the Government to countenance- -but the Government's pressure to wreck a worthwhile European initiative eventually bore fruit. When the Belgian Government, who were seeking a compromise, brought the directive back to the table, it had been considerably watered down. That was mainly due to the efforts of the Government. In addition, article 4 of the new draft was rewritten. It begins by stating that the respondent--that is, the employer--must prove that the principle of equality has not been violated. It goes on to say that member states may decide that the respondent complies with that point if he or she can prove that there are objective reasons not concerned with a person's sex which justify a difference in treatment. That clause has apparently sprung from nowhere, and it may introduce so-called objective justification into cases of direct sex discrimination. An implication of that may be that employers will be able successfully to justify a refusal to take on a pregnant woman because of the costs of staff cover during maternity leave. That, according to the Equal Opportunities Commission, would be a major departure from the current position in United Kingdom law, and that is one of several reasons why it does not support the draft directive in its present form.

Labour's position is entirely clear. Unlike the Government, we support the principle of reversing the burden of proof. That has been established in practice in the United Kingdom, and we support the extension of the principle, and of laws to support it, throughout Europe. Along with our allies in the European Parliament, we have consistently supported the extension of best practice for working men and women throughout the Union.

Mr. Jenkin : May I draw the hon. Lady's attention to the letter in the Vote bundle on this issue from Lord Justice Slynn of Hadley

Mr. Alex Carlile : Lord Slynn.

Mr. Jenkin : I beg your pardon. The letter refers to his belief that the measure would lead to

"more protracted litigation rather than a higher ratio of success for applicants seeking to prove unlawful discrimination". Is the hon. Lady aware that Lord Slynn is hardly a Euro-sceptic ? He has served extensively in employment appeal tribunals, judged extensively in sex equality cases and served in the European Court, both as Advocate-General and as a justice.

Mrs. Clwyd : I am grateful to the hon. Gentleman for giving me Lord Slynn's curriculum vitae. However, I prefer to take account of the view of the Equal Opportunities Commission's considerable and extensive experience of these matters. It has more experience than Lord Slynn, despite his extensive CV, which the hon. Gentleman read out. The hon. Gentleman is entitled to his opinion.

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Mr. Alex Carlile : Does the hon. Lady think that it is perhaps worth making the point that the Government have rejected the opinion expressed by the distinguished lawyer and judge Lord Slynn and have given reasons for rejecting the directive which are different from those given by Lord Slynn in his letter ?

Mrs. Clwyd : I am grateful to the hon. and learned Member. Perhaps he would explain the matter to the hon. Member for Colchester, North (Mr. Jenkin) as soon as he can.

Mr. Michael Forsyth : In the spirit of helping the hon. Lady, if we could leave Lord Slynn for the time being, may I ask her what she would say to the Court of Appeal, which has taken the view that changing the position on the burden of proof would not be helpful and is not necessary ?

Mrs. Clwyd : I do not think that the Minister got the phraseology right. Would he like to phrase the question again ?

Mr. Michael Forsyth : I was simply making the point that not only Lord Slynn but the Court of Appeal has said that reversing the burden of proof would be unnecessary and unhelpful. Is the hon. Lady saying that we should take the views of the Equal Opportunities Commission before those of the Court of Appeal ?

Mrs. Clwyd : Obviously, there are many opinions on the matter. I am not saying that anyone has the complete answer. We do not support the directive as it is currently drafted. We ask the Government to go back and rewrite it. If the Minister had read our amendment--he clearly has not--he would have seen what we were asking him to do. We are not calling for support for the directive. We want to see it rewritten. We want to bring back many of the positive features of the original version. We also want to see article 4 redrafted so that there is no prospect of objectively justified direct sex discrimination creeping into United Kingdom law.

If the Government claim that they are committed to the elimination of sex discrimination and oppose the draft directive on principle, which is what I understand the Minister to argue, as well as for technical reasons, what other steps are they planning to take-- [Interruption.] I am addressing the question directly to the Minister and I hope that he will respond to it when he replies. What steps do the Government plan to take to speed up and increase the success rates in sex discrimination and employment cases ? If the Minister rejects the directive and wants to see it buried, what does he propose to put in its place to improve the current position ? As we all know, the Government have fought tooth and nail against any extension of Community competence in equal opportunities legislation. I have not seen any evidence that the Government want to make it easier and quicker for applicants to win sex discrimination cases. In fact, the opposite is the case.

The original draft directive was a modest attempt to improve the status and position of women in society. In opposing the amended directive, the Government once again are showing their complete lack of concern about the growing gap between the position of men and women in our society. Whatever progressive social legislation is proposed by the European Union to eliminate inequality, the Government are guaranteed to fight it tooth and nail. In

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the coming European elections, as in last week's local elections, the electorate will once again kick the Government where it hurts. 9.34 pm

Mr. Ian Bruce (South Dorset) : I was not planning to speak until I saw this incredible amendment-- [Hon. Members :-- "What about your notes ?"]. They are all blank ; I am making it up as I go along. The Opposition tabled this incredible amendment--[ Laughter .] Opposition Members may scoff but I am trying to address my remarks directly to the motion.

I was starting to warm to the hon. Member for Cynon Valley (Mrs. Clywd) during her final remarks because she rightly said that she wants something positive to happen to redress the balance between men's and women's earnings. I certainly agree. The question that we should ask is whether that balance can be redressed by legislation either in this House or in Europe. I contend that it cannot. Before 1970--before we legislated-- employers were starting to recognise that women were valuable members of the work force, and the differential between men's and women's earnings was becoming less. For one year after the Equal Pay Act 1970, the momentum carried that trend forward, but, in all but a couple of years since then, the differential has widened. Therefore, legislation has not been effective.

Hon. Members have mentioned the Law Society often enough this evening, saying that it wants us to legislate more. I am looking at the lawyers who are present in the House, because one finds that almost all those in lawyers' offices who are doing the really valuable work are women and they are on the lowest salaries paid in virtually any profession. All those legal secretaries who make all the money for the business and keep it going by doing the conveyancing get virtually no money.

Mr. Geoffrey Hoon (Ashfield) : Will the hon. Gentleman give way ?

Mr. Bruce : Very briefly. Obviously the hon. Gentleman is a lawyer and I have insulted his sensibilities.

Mr. Hoon : On a straightforward political point, if the hon. Gentleman's argument is correct, why did the Conservative Government not repeal the Equal Pay Act 1970 between 1970 and 1974 ? That Act was fully implemented in the Sex Discrimination Act 1975.

Mr. Bruce : If I had been in the House, I certainly would have urged the Government to do precisely that. Hon. Members should learn that, if legislation that was put in place more than 20 years ago has completely failed, we should kick against it instead of trying to tinker with it in the ridiculous fashion that this European directive requires.

When I earned an honest living, as they say, carrying out work studies, as a work study manager--I cannot even remember my job title now--I was a good job evaluation person. One thing that we had to do was to demonstrate why job evaluation was a useful tool in a workplace. We had to make it clear to people, however, that there never has been and never will be a situation in which one can say that a job of work has a particular financial value.

Job evaluation was set up to ensure that, within a workplace, differentials could be justified in terms of the types of jobs people had to do. Clearly, if it is impossible to give work a specific value, it is also impossible for

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anyone who does a job in a different company at a different rate of pay to prove that his or her work is equally valuable. When people take employers to the sex discrimination courts to try to prove that case, they find it impossible. They are trying to prove an impossibility.

There is no clear relationship between the value of what someone does and the amount that they are paid for it. I touched on the example of solicitors' offices. Hon. Members should consider where the money is earned and who does the conveyancing work, and the fact that the solicitors are paid a large amount of money because they have a particular qualification.

It is a value judgment to decide that someone who has had the privilege of going to college for six years and all the fun of student union rags and the rest of it should get extra reward for their work. Opposition Members may scoff at that, but I have an even better example to cite that is much closer to home. They should think twice about scoffing, especially when they read Hansard tomorrow, because my other example concerns the differential between the salaries of Opposition Members and their secretaries.

If one compares the work of Opposition Members with the productivity of every secretary in the House it becomes clear that there is absolutely no case for those hon. Members to earn more money than their secretaries and research assistants. They get all the perks and the money but, in terms of skill levels, qualifications and knowledge, their secretaries stand far higher : they do all the work, but they earn much less. Those Opposition Members would have the greatest difficult in proving that they are worth more money. They are paid more just because of custom and practice. There are also far more men than women doing their job.

Mr. Illsley : The hon. Member started by arguing that comparisons are invalid and that no comparisons can be made between the equal value of one type of work and another, but he is now seeking to make such a comparison between hon. Members and their secretaries. Which way does he want it ?

Mr. Bruce : The hon. Gentleman has just made my point. I was simply saying that one cannot make such value judgments. The marketplace and those in power make the decision. One of the few occasions on which the House can be assured of a good turnout from Labour Back Benchers on a one-line Whip is when they are called upon to vote through a pay rise. They are very good at justifying that. That is the way of the world and that is reality.

I am not kicking against reality ; I am telling legislators that they cannot simply tell the House or the European Parliament or the Commission that they want to reverse the laws of reality. There is no point in their deciding that there is a strict relationship between the amount of money that someone is paid and the value of his work. The directive is seeking to change the burden of proof, which means that the impossible, which cannot be proved, will be proved by the employer. The employer will be unable to do that and the case will therefore fail.

The Government are totally justified in rejecting this ridiculous directive. If the European Parliament fights against our Government and the sensible measures that they put forward after the European elections, we will rue the day on which anyone voted for socialist or Liberal Democrat candidates to serve in that place.

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9.42 pm

Mr. Alex Carlile (Montgomery) : It was interesting to see the cloak of sackcloth and ashes worn by the hon. Member for South Dorset (Mr. Bruce), as he talked about equal pay for equal value. The Register of Members' Interests reveals that he is the chairman of Ian Bruce Associates Ltd., parliamentary adviser to the Telecommunications Managers Association and parliamentary adviser to Trevor Gilbert and Associates, personal injury employment advisers, which is a division of Recruitment Network Ltd. The register also states that he has received a gift of satellite equipment, two fax machines from Southern Electricity plc and a mobile telephone from Talkland International, and that he has had the use of a Nissan Primera. [Hon. Members :-- "Oh."] He also visited Elveden forest holiday village. And so it goes on.

What a disreputable performance we witnessed from the hon. Gentleman.

Mr. Ian Bruce rose

Mr. Carlile : If the hon. Gentleman would like to confirm that he does not take his full parliamentary salary, for which some of us voted, I should be happy to give way. Does he take that money or not ?

Mr. Bruce : The hon. and learned Gentleman has just proved the point, because although my staff work much harder than I do, I can command more in the marketplace for doing certain things. If the hon. and learned Gentleman thinks that that any of my staff should simply be able to go to the European Parliament or wherever and prove that he should be paid that money instead of me, that is ridiculous.

Mr. Carlile : I am afraid that the hon. Gentleman's brain works like a jigsaw puzzle with half the pieces missing.

There are some important and serious arguments to be made. As I listened to the Minister's speech, I was reminded of the memorable occasion in the House on which Mr. Alan Clark spoke about the same subject. In his diary, Mr. Clark is frank about that occasion. He says, in effect, that on that evening he was playing the part of Bacchus after earlier bibulousness ; his speech then was at least as coherent as that of the hon. Gentleman playing the part of ignoramus here tonight.

For example, the Minister sought to rely on the right hon. and noble Lord Slynn of Hadley. I have read Lord Slynn's letter. I have an immense admiration, as I think have most lawyers in the House, for the intellectual ability of Lord Slynn and his experience in the European Union. If Lord Slynn had objected to the directive on the same basis as did the Minister tonight, the Minister might have some credibility ; but he has chosen to rely on two entirely different points. One related to subsidiarity, and has been adequately discussed by the hon. Member for Cynon Valley (Mrs. Clwyd), and the other related to the basis of the labour market.

The hon. Gentleman was eventually tempted by the hon. Member for Hertfordshire, North (Mr. Heald) to remember the case in the Court of Appeal of Camara. I would remind him that his hon. Friend was a little bit selective--I am sure more selective than he would be in court--in citing from the case of Camara. In court, one has to tell the judge not only the good things but the adverse points when making

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one's submissions. I remind him especially of that part of the judgment in Barking and Dagenham London Borough Council v. Camara, in which it was said :

"Thereafter bearing in mind the burden of proof upon the applicant the Tribunal should apply their findings to each element necessary to establish the type of discrimination alleged, and finally decide whether the applicant has established direct or indirect discrimination or victimisation as the case may be."

If one analyses those words and the rest of the Court of Appeal's judgment in Camara, one realises that the Court of Appeal was doing its best to apply the same evidential standards without reversing the burden of proof in jurisprudential terms. If it were to reverse the burden of proof it would be overruled by the House of Lords, because that would be judicial law making, which is not permitted. By taking a very clever, intellectual approach, the Court of Appeal achieved almost exactly what is in the directive in any event.

It is plain that the Government do not understand what article 4 of the directive says. Indeed--I know that there is a great shortage of time tonight, so I shall make the argument as quickly as I can, but it is important--it seems clear that the Minister has never read article 4 of the directive, in its present or its previous form. Paragraph 1 of former draft article 3 would have required persons who considered themselves wronged by failure to apply to them the principle of equality to establish before a court or other competent authority a presumption of discrimination. So immediately, before the burden of proof--if it be the right word--shifted, the complainant would have to establish that there had been discrimination. There is a clear burden of proof on the applicant.

Paragraph 2 of the same draft stated :

"A presumption of discrimination is established where a complainant shows a fact or a series of facts which would, if not rebutted, amount to direct or indirect discrimination."

Those words could not have a plainer meaning. I say to the Minister that they and the subsequent version made it crystal clear that the applicant under the directive has to establish something that would amount to direct or indirect discrimination unless it is rebutted. What is the difference between that and what the Minister claims to be the alternative, which the Government seek to present to the House as the answer to the directive ?

The Government do not understand the directive. They seek simply to find yet another stick with which to beat the European Union. At the beginning of the debate when the Minister was making his opening remarks, it was plain that most of the Conservative Members who had come in to listen to him belonged to the Prime Minister's illegitimate tendency. There were so many of them that the Minister looked like the old woman who lived in a shoe.

It is time that the Government showed a little intellectual honesty in European matters and recognised that the directive represents a fair statement of what should be the law in this country and the fact that it is close to our existing law.

9.50 pm

Mr. Oliver Heald (Hertfordshire, North) : I confess that when I heard the hon. and learned Member for Montgomery (Mr. Carlile) twitting my hon. Friend the Member for South Dorset (Mr. Bruce) about his interests, I chuckled because I thought of all the remunerated employment that the hon. and learned Gentleman must have as a silk. He must make a good few bob--

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[Interruption.] I confess to being a lawyer. However, in addition to being a Queen's counsel, a recorder and a lay member of the General Medical Council, the hon. and learned Gentleman also has the loan of a word processor and software from Tandem computers, which is no doubt useful when considering briefs.

I was hoping to make three points in the debate. First, the burden of proof is an important principle. It is a right of the individual that should not be attacked except where it is essential in the interests of justice. The principle that he who asserts a right must prove it is vital. It is wrong for Opposition Members to say that, simply because it is difficult to prove a case in particular circumstances, we must change the whole basis of proof and how it is achieved.

The House of Lords Select Committee looked at the proposal and reached that conclusion. It said that, if we pursued that approach, more cases would be proved but at the risk of proving cases that should not be proved. It made the cogent point :

"a Directive which clearly did reverse the legal burden of proof would undoubtedly assist complaints in this area. The Committee do not, however, believe that such a change would be right in principle . . . It is not obvious that there is any unique justification for making a change as sweeping as reversing the basic rule on burden of proof in favour of victims of sex discrimination".

Once that barrier is breached, where does the matter end ? A case that is difficult to prove can always be found, but, if the burden of proof were reversed in every such case, an extremely dangerous principle would be established.

Mr. Hoon : Does the hon. Gentleman see a difference between equal pay cases and product liability cases where the burden of proof is reversed ?

Mr. Heald : Yes, I certainly see a distinction. We could have an interesting legal argument about that.

Mr. Hoon : What is it, then ?

Mr. Heald : I have only a short time in which to speak. Given our years of debating law together, the hon. Gentleman will accept that we could discuss that area of law for many a happy hour.

Secondly, if there are objective reasons and one can point to, for example, a difference in pay, I accept that the burden should be reversed--and it is. But in a case where such direct evidence does not exist, the balance struck in the case of Chattopadhyay and later cases is right : that if one person has better qualifications than another but that person has not been appointed, an inference should be drawn. But the burden of proof should not be changed because it is an important protection for the individual.

In the Chattopadhyay case, the court made it clear that the inference should be drawn only in circumstances that were consistent with the treatment's being based on racial grounds. In later cases--in particular, the case of Barking and Dagenham London Borough Council v. Camara, of which we have already heard a good deal--the courts made it clear that

"the guidelines in earlier cases permitting inferences to be drawn in favour of an applicant were not to be taken to mean that the burden of proof itself shifted."

That principle was still clearly enshrined in the words read out by the hon. and learned Member for Montgomery : the burden of proof, which is important in English law, should not be interfered with in such a way. The fact that an inference can be drawn is a way of providing proof, but that is not the same as changing the burden of proof.

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The Commission has not taken adequate account of the procedural safeguards in English law. There is a statutory questions procedure, whereby--if inferences are not to be drawn--an employer can be forced to answer a range of sweeping questions relating to the way in which he has dealt with the choice between two applicants. Documents can be required, and the employer can be forced to give them up if that can be justified. Those protections, together with the burden of proof, are important in protecting the interests of the employer, while also ensuring that the plaintiff has a reasonable chance of succeeding in a case of this sort.

I believe that the burden of proof should be protected. I think it right, in clear cases, to shift the burden as we do ; but, given the protections that already exist in English law, I do not consider that we would be right to introduce the directive. Interestingly, the hon. Member for Cynon Valley (Mrs. Clwyd) criticised Conservative Members, saying that we argued for subsidiarity because it would allow us to decide at home what should happen. I believe that : I believe that we should fight hard for subsidiarity. It is right for us to decide many such issues at home. One reason is that, over a thousand years, we have developed one of the best legal systems in the world--and I do not want it to be bastardised by the European Community or anyone else.

9.57 pm

Mr. John Hutton (Barrow and Furness) : Earlier, we were entertained- -his speech was certainly entertaining--by the Minister of State. He made what most of us would describe as a rather raucous speech and a convincing case for being reshuffled into the Foreign Office, where he could display some of his more diplomatic skills in describing our European Union partners. At various points, he described this modest set of proposals as ridiculous and absurd, but anyone examining the details of the directive would reach a different conclusion.

Many of us were left with the impression that the Minister was not actually talking about the directive. He showed contempt for our European partners who, as my hon. Friend the Member for Ashfield (Mr. Hoon) said, support the proposals. His comments about competitiveness were complete gibberish. There is no suggestion that the directive will add any new legal obligations for employers. It is simply an attempt to clarify the emerging European jurisprudence on where the burden of proof lies in cases of discrimination.

The Government's rather flimsy compliance cost assessment, contained in the bundle of documents that they have provided, is also ludicrous. The measure will increase employers' obligations by a minute fraction. As the Government have effectively conceded, it is almost impossible to put a financial measure on any extra costs that British employers will face, and the attempt to do so strikes me as absurd.

The Government's objections to the draft directive have more to do with their current problems over Europe than with the issues raised by this modest set of proposals. The debate is all about their resistance to positive measures to improve the employment protection rights of British workers. That resistance will be shown to have been a mistake. The debate is also largely about appeasing the growing number of Eurosceptics on the Government Back Benches.

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There has been some reference to case law tonight and to the burden of proof in discrimination cases, but no one has looked in great detail at the Enderby v . Frenchay health authority case. The European Court of Justice, which is the ultimate authority in such matters--not the Court of Appeal or the House of Lords, although the Minister may not like that--has already made the position transparent in respect of that case.

It being Ten o'clock, the debate stood adjourned.

Motion made, and Question put forthwith, pursuant to Standing Order No. 14 (Exempted business),

That, at this day's sitting, the Motion in the name of the Prime Minister relating to Equal Pay and Equal Treatment (Burden of Proof) may be proceeded with, though opposed, until any hour.-- [Mr. Conway.]

Question agreed to.

Question again proposed .

Mr. Hutton : As I was saying, in the Enderby case the European Court made it transparently clear that under the provisions of article 119 and the supporting directives there has already been a shift in the burden of proof. Paragraph 18 of the European Court judgment, which was about a case involving equal pay, reads as follows :

"Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory".

The hon. Member for Hertfordshire, North (Mr. Heald) and others have tried to quote other authorities, but the European Court is the overriding authority, and I have quoted the governing principle that applies to cases in which the onus of proof is the subject of dispute.

The hon. and learned Member for Montgomery (Mr. Carlile) made a point that the Minister did not seem to understand--these are not cases that will land employers with impossible burdens. They will not have to fight cases with both hands tied behind their backs, because applicants will have to make out a prima facie case of discrimination before there can be any argument about the onus of proof moving to the respondent. The Minister cited the case of a man and a woman with equal qualifications, but the woman did not get the job. There, it would still be open to the employer to present the argument that the Minister predicted--that the woman was not appointed because she was not the right candidate for the job.

Mr. Heald rose

Mr. Hutton : The hon. Gentleman has had his opportunity, and time is limited.

The argument about subsidiarity must also be exposed for what it is. The Government are using it to reject and defeat an idea to which they are fundamentally and ideologically opposed.

The Minister also tried to argue that there is no evidence to warrant the changes to the directive. In the research done in 1984 by Jennifer Corcoran and Elaine Donnelly, the problems in many European jurisdictions were clearly shown up. Many applicants face a problem trying to present their cases successfully to an industrial tribunal, and that problem is what the directive attempts to solve. The Minister rather laboured the point that there is a fundamental objection in the British legal system to anything that reverses the onus of proof and places it on the respondent. As my hon. Friend the Member for Ashfield

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(Mr. Hoon) has said, we have already done that in a number of other sectors. The burden of proof in taxation law has been moved around. For the product liability directive in 1985, the Government accepted a change in the onus of proof--it was moved to the respondent. So that, too, is a bogus argument. There is no principled objection to the change. If there were, it would have emerged in earlier cases, when the Government did not object to a shift in the burden of proof. It all comes down to the basic proposition that the Government oppose the draft directive because it would do something positive to advance the employment protection rights of British workers, especially workers who have faced sexual discrimination. The Government's arguments amount to superfluous waffle. They simply oppose the directive because, in its modest way--many of us would say, its limited way--it represents an attempt to improve the employment rights of British women.

I hope that the House will have the common sense and the good judgment to tell the Government that we have had enough of their Eurosclerosis and scepticism. A logical and reasonable case can be made in support of the directive. I hope that the House will take that view.

10.4 pm

Mr. Eric Illsley (Barnsley, Central) : In the few remaining minutes of the debate, I want to elaborate on a point that I made earlier about an equal pay case that has dragged on for many years. A number of women have been unable to plead their case successfully under the legal system, despite the fact that they have been aided by the National Union of Mineworkers, which provided funds so that the women could pursue their case and have legal representation. As long ago as 1978, two canteen workers at Hem Heath colliery in Staffordshire applied successfully to an industrial tribunal for pay equal to a male working in a surface establishment. The NUM negotiated with British Coal in an attempt to ensure that that principle was applied throughout the industry. British Coal refused and said that each case would have to be proved and considered on its own. That led to a number of equal pay claims on behalf of women employees of British Coal, which unfortunately proved unsuccessful. The NUM then pursued a case under equal value legislation. In 1983, it made some 1,500 claims to British Coal to secure equal pay for work of equal value on behalf of canteen workers. That claim was successful. An industrial tribunal found in favour of the canteen workers who were supported by the NUM. British Coal appealed, but the canteen ladies' case was upheld and British Coal's arguments were again rejected.

It is interesting to note the differential between the canteen workers' wages and comparable wages of male surface workers. It amounted to about 80 per cent. There was also a differential in concessionary fuel receipts, which were originally the basis of the claim. The preliminary hearing of the industrial tribunal found in favour of the canteen workers and the NUM was again successful at the employment appeals tribunal, yet, many years after the original claims in the early 1980s, British Coal wants to take the case to the Court of Appeal.

The union incurred considerable costs in pursuing those cases at the industrial tribunal and at the employment appeal tribunal. Despite the fact that British Coal has

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already lost two cases, it is pursuing the case at the Court of Appeal, and if it loses that case, it threatens to take it to the House of Lords.

It is obvious that British Coal has lost the argument and that it opposes the case because, as a company, it has more resources available to it than the NUM. That is a result of a fault in the legislation. British Coal's deliberations and filibustering, for want of a better word, have resulted in the union spending much money on the case. The membership of the union has, sadly, declined because of Government policy and it now faces difficulties in pursuing the case to the Court of Appeal and then the House of Lords, despite the fact that it has been successful on two occasions.

Our legislation is not good enough and in the absence of Government legislation the directive is the only measure that is available. Perhaps we should consider it to make our legislation more effective. Where a proper and valid claim has been found successful by the employment appeals tribunal, there should be a measure to allow it to go forward.

10.9 pm

Mr. Michael Forsyth : This interesting debate has shown the differences between the Opposition and the Government on Europe. Were it not for the social chapter opt-out which my right hon. Friend the Prime Minister negotiated and which Opposition Members opposed, the House would not be discussing the measure at all because it would have been decided by other member states under qualified majority voting. The hon. Member for Ashfield (Mr. Hoon) nods with enthusiasm because, as the hon. Member for Cynon Valley (Mrs. Clwyd) confirmed in her speech, Opposition Members see Europe as a way of bringing in socialism by the back door and of achieving what they cannot achieve in the House because they cannot secure a mandate for it. The hon. and learned Member for Montgomery (Mr. Carlile) was hoist by his own high technology. He accused me of not having read the directive but quoted from a version that has long since been superseded. It appears from a study of the Register of Members' Interests that the hon. and learned Gentleman has a computer. It is high time that he had a look at his database and revised his views. The hon. Member for Cynon Valley said that the Equal Opportunities Commission was concerned about the impact of wages councils on women's pay. As I pointed out, she neglected to mention that wages councils used to set different rates of pay for men and women. There was no mention of that under a Labour Government. Why was it that we had no trouble in Europe and no trouble from the Equal Opportunities Commission on the role of the wages councils when the Labour Government abolished 11 of them ?

The measure is unnecessary. As the hon. Member for Barrow and Furness (Mr. Hutton) said, every employer who refused to give a job to a woman with the same qualifications as a male applicant, even though the employer had chosen the man because he thought that he was the best person for the job, would be put in the dock and asked to prove that he had not discriminated against the woman. If that is what the Labour party wants to happen, I hope that people will know about it. [Interruption.] We do not want any interventions from the hon. Member for Kingston upon Hull, East (Mr. Prescott). We all know his view on positive discrimination from the

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