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Mr. Leigh: That may be a possible way forward.
Let me briefly consider the American experience, because it is quite interesting. The Bill proposes that the age equality commission should advise the Secretary of State on issues, guidelines and perhaps legislation; but, in the next five years, there may be European Union intervention on the matter. The United States has had an Act outlawing discrimination in employment since 1967 when Congress passed the Age Discrimination in Employment Act.
The jurisprudence surrounding the 1967 law is described by Richard Epstein, professor of law at the university of Chicago, as complex and formidable. He is a leading critic of the use of the blunt instrument of the law to deal with delicate matters of discrimination. He has criticised the decision of Congress to pass the Act and said that before passing the Bill:
- "Congress made no effort to understand the business reasons for practices that it rendered illegal. Instead without asking why, it offered only the blanket judgment that discrimination on the basis of age is 'arbitrary' and should for that reason be forbidden. The upshot of its position is that categorical judgments are thereby rendered illegal, and firms are now required, under a presumption of distrust, to make individualised decisions about ability independent of their knowledge of age."
Of course, we must be realistic. Some employers will always persist in bad practice in this sphere, just as they will always persist in bad practice in others. However, in the market as a whole, the pressure to provide the best products and services is the most effective pressure that can be brought to bear. I apologise to the House for giving such a classic Hayekian analysis of the situation.
Peter Bottomley: When I was the Minister responsible for health and safety, I discovered that it took 200 years
from the time it was found that vitamin C helped people to avoid scurvy to the time that people were required to feed crews on ships with the food that prevented it. Is 200 years the sort of period that my hon. Friend has in mind?
Mr. Leigh: That is a singularly inappropriate example. As it happens, I know a bit about naval history. Following the experience of Captain Cook, it is remarkable how quickly good practice spread throughout the fleet. I apologise for digressing, but I was asked about this. It was obvious that scurvy was a fatal disease that seriously inhibited the fleet's ability to sail around the world. Sailors were therefore given lemons, and that good practice spread like wildfire throughout the fleet. Legislation might not have been passed. The 18th century House of Commons did not operate like that. The hon. Member for Falmouth and Camborne was not here at the time of Pitt, the Earl of Chatham, to suggest that there should be a scurvy quality commission or something of the sort. We did not need it.
Mr. Leigh: I am enjoying myself so I shall give way again.
Mr. Hopkins: The hon. Gentleman keeps making the point that we do not need legislation to encourage good practice. However, there are many examples in recent decades in which legislation has made a significant difference. For example, the legislation on the compulsory wearing of seat belts and crash helmets and the serious laws restricting drinking and driving have saved countless thousands of lives. Even though it is rational to wear a seat belt or a crash helmet and not to drink and drive, people still did not wear them or continued to drink and drive. I am afraid that the law was necessary to make people act sensibly.
Mr. Leigh: Even if that were true, there must be a difference between matters such as the wearing of seat belts or a crash helmet, which relate to health and personal safety, and seeking to impose a whole new series of burdens, controls and regulations on the wider business community. If people wear seat belts or crash helmets, it as certain as night follows day that they are safer. It is not immediately apparent that legislation such as this Bill necessarily improves matters. Leaving aside the fact that it would impose an extra burden on business, it is not obvious that it is the right thing to do.
Mr. Mark Prisk (Hertford and Stortford): Does my hon. Friend agree that drink driving laws were on the statute book for more than 10 years before the statistics reflected the fact that it had become socially unacceptable to drink and drive? Is it not that model to which we should be looking, in which each individual plays a role in changing what is acceptable? Simply passing laws is not the best approach.
Mr. Leigh: It is dangerous for the House to get ahead of public opinion. Of course it has to lead public opinion, but to get too far ahead and to impose its will on a society
that is not ready for it can cause distortions and difficulties and does not necessarily meet the laudable aims that we want to achieve.
Mr. Edward O'Hara (Knowsley, South): On public opinion, is the hon. Gentleman aware of the Age Concern Gallup poll which shows that 73 per cent. of the public agree that it should be illegal to discriminate against someone because of their age? As for burdens on business, did he not hear what my hon. Friend the Member for Falmouth and Camborne (Ms Atherton) said about the B&Q experience? It makes eminent business sense to employ older people.
Mr. Leigh: Exactly. I do not know whether the hon. Gentleman heard me say that it makes eminent business sense for B&Q and other companies to employ older people because they are wiser, have better people skills and are more experienced, but it is not necessary to legislate to achieve that laudable aim.
Dr. John Pugh (Southport): I am trying hard to understand the hon. Gentleman. He said that it is the duty of the House to lead public opinion, but that it should not be ahead of public opinion. I find it difficult to understand how it is possible to lead without being ahead. Perhaps he can clarify that.
Mr. Leigh: The hon. Gentleman is making a semantic point; he knows perfectly well what I am trying to say. The House cannot get too far ahead of public opinion.
There has to be a balance. Some employers, possibly for good business reasons, have younger staff. Others, for equally good business reasons, have older staff. Within that system, individual cases of disappointed expectations, such as those cited by the Bill's supporters, are not necessarily a condemnation of the marketplace as a whole. Workers tend to move to jobs where they are most highly valued. Those employers who refuse to employ older people because they do not value them are missing out, and employers who value older employees will benefit instead. That freedom of contract should not be interfered with in the blunt way that anti-discrimination provisions do. If the law interferes, it will not succeed in doing everything that proponents of such legislation might wish.
Even after 30 years of the United States Age Discrimination in Employment Act, the law does not guarantee every worker a job with the employer of his or her choice at the desired wage. That is not possible, but it is the implied wish of those who support such anti-discrimination measures. The more the state attempts to achieve that, the more intrusive and coercive its attempts will become.
Mr. Swayne: It would have been legitimate for the hon. Member for Falmouth and Camborne (Ms Atherton) to introduce this measure so that we could scrutinise and weigh up whether it would achieve its objective. What she has done instead is to come up with the idea of handing over the task, which is rightly the task of Members of Parliament, to a commission that will lobby, agitate and introduce legislation. She thinks that our role
should be done by someone else—the great and the good, the big cheeses or whoever—but is not that an attempt to do us out of a job?
Mr. Leigh: I agree that society as a whole can right some of the wrongs. Members of Parliament and campaigning organisations can help. It is not necessary to have a statutory commission.
It is also important to recognise that employers may impose age restrictions for good reasons, such as health and safety, or for reasons relating to service targets that are essential to the survival of that firm. There may be good reasons for practices that some people say are based in discrimination. If such restrictions are justifiable, they should not be interfered with. It is also important to recognise that some age restrictions may be so self-evidently sensible that they have to be imposed even though the same restrictions will eventually affect those who impose them.
Age discrimination is not like sex or race discrimination. A man cannot become a biological woman and women of one race cannot become people of another race, but all young people become old people. Either the restrictions that employers impose make sense, in which case they will be prepared to submit themselves to the same restrictions when their time comes, or they do not, in which case the employers should recognise the need for change.
Respect for age is important both morally and practically. The House is doing society a service by continuing to draw attention to examples of injustice suffered by older people, and we should continue to do so. Legislative intervention, however, is not the answer. In particular, an age equality commission would be ineffective and possibly damaging because it would be unlikely to recognise the complex and varied reasons why age sometimes requires different treatment. Some suppliers of goods and services discriminate positively in favour of elderly people, providing price discounts and special services that are not available to young people. Other service providers may impose upper age limits for good health reasons. I am afraid, therefore, that I cannot support the Bill. I hope that my hon. Friends will also oppose it.
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