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Lord Rochester: My Lords, from these Benches I join in thanking the noble and learned Lord, Lord Fraser of Carmyllie, for repeating the Statement. My noble friends and I take a view that is different from that of the Government as expressed in the Statement with regard to the directive.

The matter has a long history. It is not, as is sometimes claimed, to be seen as a way of getting round the social chapter and our opt-out from it. It stems from the Treaty of Rome as amended by the Single European Act, subscribed to by the noble Baroness, Lady Thatcher, when she was Prime Minister.

The Statement refers to the valuable derogations already secured in the Government's negotiation on the directive. It was in fact Mr. David Hunt, the then

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Secretary of State for Employment, who, three years ago--as the noble Lord, Lord Peston, said--claimed that the teeth of the directive had been drawn. And he did not vote against it when he had the opportunity to do so at the European Council in its amended form.

I acknowledge that there are conflicting views as to whether the length of the working week should be regarded as a health and safety issue. That was plain enough from the evidence given in 1990 to Sub-Committee C of your Lordships' European Communities Committee (of which I was privileged to be a member) in its inquiry into the draft directive as it then was. The European Court of Justice has now ruled that working time is a health and safety issue. I am glad at least that the Government do not propose to go so far as to refuse to act on that judgment. However, I see from the Financial Times today--again the noble Lord, Lord Peston, has already mentioned this--that the Government's use of a confidential medical report in their appeal to the Court has now been heavily criticised by its author, Professor Harrington of Birmingham University. He said that his conclusions did not support the Government's claims and he believes that working hours are a health and safety issue. When the noble and learned Lord replies, perhaps he will comment on that report.

I do not pretend that implementation of the directive will necessarily be altogether without cost. I used to work in the chemical industry, and in the debate on the Maastricht agreement five years ago I expressed some anxiety about the provisions in the directive concerning night work and shift work because of their possible effect on continuous process work. Nor do I forget that the United Kingdom has to compete not just in Europe, but also with the United States and Japan, for example.

There are many groups who are exempt from the provisions of the directive. People who do not wish to work more than 48 hours in a week on average need not do so, and there is plenty of scope for those who are prepared to work longer hours, including continuous shift workers, to whom I have just referred, to negotiate appropriate arrangements with their employers. After all, it is the vulnerable, low paid groups who most need protection from unscrupulous employers and whom the directive will rightly most benefit.

The directive refers to amendments that are to be tabled at the intergovernmental conference dealing with the specific problem, among other things, of the working time directive. The Statement says that the Government attach,

    "the utmost importance to these amendments, and [will] insist that they form part of the outcome of the intergovernmental conference".

Again, the noble Lord, Lord Peston, made some mention of that.

I wish to ask the Minister this question: is it not in our own long-term interests that, rather than threatening to impede our future developments in Europe unless there are treaty changes--as the Prime Minister has already done and as the Statement implies--the Government should now take the advice of the director

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general of the CBI and adopt a constructive attitude in implementing the directive, taking account of the significant degree of flexibility that lies within it?

In relation to the suggestion that the directive may be the thin end of the wedge that would lead to "more such burdens", would not the approach I have advocated afford the best possible means of influencing their formulation to suit UK conditions?

Lord Fraser of Carmyllie: My Lords, perhaps I may respond to the two contributions from the Front Benches. First, the noble Lord, Lord Peston, said that it was strange language for a Statement and he took particular exception to the words,

    "forced on the United Kingdom".

That language was deliberately chosen, just as the Commission deliberately chose a route towards this directive which it knew meant that it could be implemented using qualified majority voting when it was believed by all at the time that it would be included within the social chapter from which the United Kingdom had an opt-out. It was for that reason that the language was undoubtedly strongly worded.

The noble Lord went on to say that he was surprised that we took exception to the directive, seeming to believe, as I understood him, that all that was contained within it was essentially optional in nature. I invite the noble Lord to look carefully at what is included within the directive, particularly with regard to night work which, on my reading of it, certainly does not allow for a wholly optional approach to that matter. It is exceedingly complicated and I say this: where there are optional provisions within the directive, the approach of the Government will be that so long as we have to implement it we will take the best advantage of what derogations there are and seek to ensure the maximum flexibility.

The noble Lord said that he considered this simply a political matter and that there had been a recent change of heart by the Government. With respect to him, I spelt out in the Statement that as far back as June 1993--some five months before the directive was implemented--the United Kingdom Government signalled that they would challenge the legality of the basis for the directive. So it is simply not true that a late challenge has been mounted.

Nor do we regard what is contained in the directive as being minor or trivial. I agree that optional arrangements are allowed for. They are extremely complicated and we shall have to look at them very carefully. For that reason--in view of the fact that the noble Lord did not raise it--I take it that he considers it acceptable that we want to consult on the matter. Indeed, the directive itself makes specific provision for consultation. We shall certainly want to consult. These are not minor or trivial matters.

Even if the noble Lord does not accept that view of what is already within the directive, what I am surprised he does not grasp is that Commissioner Flynn has already made it clear that he will be publishing a White Paper in which he will be looking at further action that might be taken to limit very much more the

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exceptions and derogations provided for in the directive. Once the legality of the directive is there, as we have to accept it is following the European Court ruling, it would be a very serious matter for the United Kingdom if all the hard-won derogations secured back in 1993 were at risk of being lost and the United Kingdom's position could be voted down because qualified majority voting would be the arrangement required. Some very complicated matters would then arise. For example, I understand that one of the issues the Commission now wishes to consider is the regime affecting offshore workers. That is a difficult matter because, in the interests of health and certainly safety, one would have thought that what one wanted to secure on offshore rigs was the minimum number of people and the minimum number of helicopter journeys made to and from them. If these provisions were to be imposed upon the offshore industry, far from bringing about an improvement in safety there would be a very real risk of safety being harmed yet further.

The inconsistency of the position seems to lie with the Opposition. At the time of the social chapter and the opt-out that was secured by the Prime Minister the Opposition objected to the opt-out because they believed that these very matters were included within the social chapter and would be thus excluded from consideration within the United Kingdom. If there has been a change of position, it has been by the Opposition. What has caused the Prime Minister and the Government real concern is not a matter of internal party politics; it is, as the Prime Minister said in his letter to Mr. Santer, because it goes directly contrary to the spirit of what was agreed at Maastricht. It is an issue of good faith. I believe that we are entirely within our rights to insist that where we thought we had dealt in good faith on a particular measure we should now go back and get that corrected.

I turn to what was said by the noble Lord, Lord Rochester. I agree with him. Although we might not wish to do so, we must obey the rule of law. For that reason we will implement the directive if we have not managed to bring about a change beforehand. There is little prospect of bringing about implementation before 23rd November. Indeed, I think that probably at least three other countries within the European Union will not achieve implementation by that date. But, as I indicated earlier, probably the more important feature is that we must engage now, as the directive itself enjoins us to do, in widespread consultation on some extremely complicated matters and on some parts of the drafting of the directive which I personally consider to be extremely obscure. It will take some considerable time for many to understand what it is all about.

The noble Lord referred to the comment by Professor Harrington which appears in today's Financial Times. It is correct that Professor Harrington provided a study and that it formed part of the Government's legal challenge to the working time directive. We always made clear, in accordance with established practice, that it could be published only once the case had been concluded. I have read, as the noble Lord has, what was said in the article but I have not yet read his report. I am led to understand that the report states that the scientific basis for

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establishing optimal hours of work is in doubt from the beginning and that it is impossible to be dogmatic on scientific grounds concerning the maximum number of hours to be worked each week. Professor Harrington says that there is no firm scientific basis for setting a specific numerical lower limit. In the article in the Financial Times he certainly offers the opinion that 48 hours is a sensible limit. But the study which he was asked to carry out was more to do with the scientific basis on which such a limitation might be set.

Finally, the noble Lord asked whether it was not now in our own interests not to threaten to impede. I come back to this point. We are concerned that this is indeed the thin end of the wedge, and with some real cause. The Prime Minister negotiated long and hard to secure the opt-out from the social chapter. The noble Lord and his party may not have agreed with him but it was perfectly clear that that was a major part of his negotiating position. It was clearly understood by most people for a considerable time that the opt-out would secure exclusion from just this type of directive. It was a deliberate act by the Commission to avoid the opt-out that the route under Article 118a was taken. It is our firm intention that in the negotiations at the IGC the position on Article 118a should not only be reversed but that we should not be tricked like this in future.

4.28 p.m.

Lord Boyd-Carpenter: My Lords, is my noble and learned friend aware that, contrary to what was said by the noble Lord, Lord Peston, many of us have great respect for the Prime Minister's Statement? It was fully justified by the circumstances of the case and sets out the position of this country very well and very clearly. Is he also aware that some of us have had for some time a considerable disregard for the European so-called Court of Justice? Certainly its latest effort gives us confirmation of the view that it is not a body to be treated with any respect or with very much attention. Is he further aware that it is extremely important that the British Government should maintain the position they have always maintained and that this decision should be overruled?

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