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Baroness Gardner of Parkes: Can the noble Lord who is to respond to this amendment or the noble Lord who moved it make clear whether employers would still retain an official retirement age? Is it the intention to outlaw it so that one can simply go on for ever? This is a very important matter in terms of pension schemes and so on.

Lord Monson: I congratulate the supporters of these three amendments on being both principled and consistent. So often in the past, "anti-discrimination" legislation and proposed legislation has been highly selective and thus inconsistent. Having said that, even if one endorses the coercion inherent in such legislation, which I have never done, surely inserting clauses like this into the Bill, giving the Secretary of State Henry VIII powers incapable of amendment, is not the right way to go about introducing legislation of such importance. Among other things it would lead to a massive extension of the alarming litigation culture which is doing so much harm to this country.

I was very pleased to hear the Minister, the noble Lord, Lord Simon, say just over half an hour ago that he opposed the introduction of excessive legalism into the Bill. I endorse that. Each of these proposals, if

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pursued, deserves a separate Bill to allow both Houses of Parliament the maximum opportunity for detailed discussion and amendment.

Lord Meston: I speak briefly in support of this amendment. Older employees are vulnerable to discrimination by being denied opportunities, denied promotion or through selection for redundancy. It is clear that age discrimination in employment takes place as the Government's own consultation report last year accepted. Unlike Australia and the United States, we do not have specific age discrimination legislation and so we oblige the older worker to resort to the less straightforward provisions of sex discrimination or the unfair dismissal statutes.

As my noble friend said, it is generally perceived that the Government have now watered down their commitment to outlawing age discrimination, simply encouraging employers with a voluntary code without any clear legal status. It is on that basis that I support Amendment No. 271. I take up the point very properly raised by the noble Baroness, Lady Gardner of Parkes. It is generally understood that no legislative provision for age discrimination could or should override a proper retirement age.

Lord McCarthy: I support the amendment particularly since it does not merely say whether and in what way action should be taken against non-discrimination, but it specifies in some detail the exceptional circumstances. I refer to subsection (3)(d) which states,

    "in any proceedings arising under this section, it would be a defence for an employer to show". It then spells out what the circumstances would be. That is done quite broadly in ways which are similar to exceptions set out in sex and race discrimination; and in the case of sex discrimination, single-sex accommodation and establishments including decency, privacy and so forth. The same applies to race. It is a very reasonable and well thought-out amendment.

I make this point, although it refers to an amendment which has not yet been moved. It contrasts with the amendment as regards discrimination in the workplace on grounds of sexual orientation. There is an even wider discrimination in the workplace with a general prohibition where there are no specifications concerning exceptions at all.

6.45 p.m.

Lord Sainsbury of Turville: I wish to underline that the Government's position on discrimination is clear. We said in our manifesto:

    "We will seek to end unjustifiable discrimination wherever it exists". We shall deliver on that part of our manifesto, as on all the others. I therefore have considerable sympathy with the concerns which have led to this amendment, along with the proposed Amendments Nos. 272 and 273.

That said, for reasons I am about to explain, I ask the Committee to reject these new clauses. As regards Amendment No. 271, the Government believe that

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unfair age discrimination in employment is bad for the individual, bad for business and bad for the country. Promoting age diversity and tackling age discrimination in employment is a key part of the Government's strategy of building a country where everyone, whether young or old, can play their full part. The question is one of how best to achieve that goal.

The use of legislation has not proven itself to be the best way forward in this complex area. One has only to consider the position on jobs. France and Spain, for instance, both have age discrimination legislation but their older worker employment rate is lower than in this country. In Canada, which also has legislation in this area, the economic inactivity rate among 55 to 64 year-olds is higher than in this country.

It became clear during a year-long consultation carried out by my honourable friend the Minister for Employment that effective legislation covering age discrimination raised very complex issues, not least that raised here of whether the retirement age itself is discriminatory. On the basis of listening when one has consultation, the Government are taking a measured approach, taking forward a range of initiatives that will help older people and bring about cultural change and using the lessons learned from those initiatives to inform future plans.

We need to change attitudes. Employers need to believe that people can and do add value to their business regardless of age. The results of the consultation published last year pointed to a non-statutory code of practice as being the best way to encourage the process of change. The Government have been working to develop a draft code with some key partners, including the TUC, the CBI, the Employers Forum on Age, Age Concern, the Institute of Personnel and Development, the Federation of Recruitment and Employment Services and the Institute of Management. Members of the Committee will be aware that the code was issued last Monday. A copy is in the Library. We believe that the code will bring real benefits in promoting good recruitment and employment practices irrespective of age. It will cover all aspects of employment practice from recruitment through training and promotion to redundancy and retirement. It will be backed with more detailed guidance and illustrative case studies.

The effectiveness of the code will be fully evaluated by February 2001. The groundwork that will be necessary is being put in place. We have commissioned an independent organisation to carry out the necessary large-scale research project. The results of this evaluation will help inform future plans for legislation. This will include the approach the Government take to proposals for EU directives or regulations under Article 13 of the Treaty of Amsterdam. The treaty, which recently came into force, allows the European Commission to bring forward proposals to counter discrimination on a wide range of grounds including age and sexual orientation. I shall come to the latter when responding to Amendment No. 272.

In carrying out the evaluation we shall look in detail at employer policies and practices in recruitment and employment and the impact that these have on age

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diversity in the workforce. In order to provide a base line against which to measure changes in attitudes, practices and policies, an initial survey of employers and older people is also being carried out prior to the publication of the final version of the code. In addition, we shall publish each June key indicators showing the position of older workers in the labour market.

I hope that I have managed to reassure the Committee that the Government are far from inactive in this area and that they share the commitment of noble Lords to action against unjustified age discrimination in the workplace. Where we differ is over the means. We do not believe that the time is right for a legislative measure such as that proposed. I hope that I have satisfied the Committee with my description of what the Government are doing in this area and that therefore the amendment will be withdrawn.

Lord Razzall: As the Government have only recently changed their mind from the position that they took only two years ago when in opposition, I had not anticipated that in the first round of the discussion I would be able to persuade them to change their mind again. On that basis, and with the intention of referring to it at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Razzall moved Amendment No. 272:

After Clause 13, insert the following new clause--


(" .--(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's sexual orientation.
(2) In subsection (1) "employment matter" includes--
(a) the offer or refusal of employment;
(b) the termination of employment;
(c) terms and conditions of employment;
(d) the provision of training or skills development opportunities;
(e) promotion and career progression.
(3) Regulations under subsection (1) may--
(a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
(c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above.
(4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")

The noble Lord said: As was indicated earlier, this is the second of the anti-discrimination measures that I am proposing should be inserted into the Bill by way of amendment. The position with regard to discrimination on the ground of sexual orientation, which this amendment is designed to cover, is somewhat different

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from the position that we covered on the previous amendment which dealt with discrimination on the ground of age.

In these days of quite extensive anti-discrimination legislation, it would probably come as a surprise to many people to know that as the law currently stands neither lesbians nor gay men have protection in the workplace in any of the following areas. To decide not to appoint someone because of their sexuality is not currently unlawful. To treat someone less favourably in the workplace because of their sexuality is not currently unlawful. To harass someone in the workplace because of their sexuality is not unlawful. To pay someone less because of their sexuality is not unlawful, and it is not per se unlawful to dismiss someone because of their sexuality. I suspect that Members of the Committee would regard that as a surprising state of affairs in the current context of our anti-discrimination legislation in other areas.

The Government's position on this is fairly straightforward. In June 1998 when we considered the Bill on sexual orientation and discrimination--that Bill did not become law because although passed in this House it did not have time to complete its passage through another place--speaking for the Government, the noble Baroness, Lady Blackstone, stated:

    "At this stage ... I can promise that the Government are committed to giving serious consideration to the issues raised by this Bill".--[Official Report, 5/6/99; col. 657.]

I do not want to detain the Committee long on this amendment because at Second Reading the Minister explained that this was not a matter for the DTI, which is sponsoring the Bill, and that another department, the Department for Education and Employment, would be dealing with these issues. I regard that as slightly strange given that we are led to believe that this is a period of "joined up" government, to adopt the phrase used by several noble Lords and Ministers. Nevertheless, I look forward to the Minister's reply and to hearing when we can expect at the very least a voluntary code of practice to bring this into line with the anti-age discrimination code which is already in place. I should like to know what action the Government propose to take. For all the same reasons that the previous amendment was moved and could be justified, I should have thought that there is a case for putting on the statute book the power for the Government to legislate in this area if a voluntary code of practice does not prove to be sufficient.

On the point raised by the noble Lord, Lord McCarthy, there is a distinct difference between the difficult areas of age discrimination and the necessity to include the defence for which we provided in the previous amendment and the question of legislation on the ground of sexual orientation where the issues are likely to be much more clear cut and the protection need not therefore be provided for employers. I beg to move.

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