Equality Bill

I am very glad that there are some who were young enough to benefit; I was not. The purpose of my amendments is to remove the provisions that make it lawful to dismiss an employee on grounds of retirement and not to offer employment to a person where, at the time of the person’s application, he is over the employer’s normal retirement age, or over 65 if the employer does not have a normal retirement age. If my amendments were accepted, they would abolish the current default retirement age and related provisions from the time the Bill is brought into effect. This matter has a longish history. As we want to get the Bill through and waste as little speaking time as possible, I will take this as quickly as I can. The object of my amendments is supported by the report on the Bill of the Joint Committee on Human Rights—noble Lords can see paragraphs 183-185, which I do not need to read—and by the Equality and Human Rights Commission. Many of your Lordships may not know that the matter was carefully considered by a committee of this House, chaired by the noble Lord, Lord Burns. The Select Committee on Economic Affairs report, Aspects of the Economics of an Ageing Population, wrote as far back as 2003, at paragraph 6.42: ""We also recognise the legitimacy of arguments for retention of a normal retirement age, but on balance we believe that any such retirement age may impose restrictions on the efficient functioning of the labour market in our ageing society. We believe it is for firms and their employees to devise their own retirement systems, and we further believe that these systems should be ""based on performance criteria rather than chronological age. … We therefore recommend that the Government should not permit the continued use of a normal retirement age by employers, whether at age 65 or 70 or 75, unless the employer can provide a reasoned and objective justification for the use of age rather than performance criteria in the determination of employability. We further recommend that the Government set an example of good practice by explicitly removing upper age limits in all public-sector employment in advance of the implementation of the forthcoming legislation on age discrimination"." In the case of Heyday in 2009, which I have just mentioned, objections were taken—on behalf of, I think, the Crown—to referring to that report on the grounds that it would breach parliamentary privilege for judges ever to read the reports of a Select Committee for the purpose of making choices about how to construe Community law. That objection, I am glad to say, was overruled and the High Court, in the form of Mr Justice Blake, looked at all the evidence before that Select Committee, some of which was relevant because it concerned what Ministers had told the committee. The court felt that it could not strike down the default age of retirement of 65 under Community law for reasons to do with what had happened when it came into force under the directive. However, at the end of his long judgment, Mr Blake said that if the relevant provision; that is, the default age of retirement, ""had been adopted for the first time in 2009, or there had been no indication of an imminent review, I would have concluded for all the above reasons that the selection of age 65 would not have been proportionate. It creates greater discriminatory effect than is necessary on a class of people who both are able to and want to continue in their employment. A higher age would not have any general detrimental labour market consequences or block access to high level jobs by future generations." He continued: ""If the selection of age 65 is not necessary it cannot therefore be justified. I would, accordingly, have granted relief requiring it to be reconsidered as a disproportionate measure and not capable of objective and reasonable justification in the light of all the information available to government"." In other words, the learned judge was saying that, because there was an imminent review, he would not go any further but he regarded the present default retirement age of 65 as disproportionate and essentially against the public interest. I have already quoted what happened with regard to the Select Committee on Economic Affairs but it might interest the Committee to know that the matter went further. Both officials and Ministers from the Department for Work and Pensions gave evidence to the Select Committee on behalf of the Treasury and the Department for Work and Pensions, all of which indicated that the direction in which they were heading was to abolish the compulsory retirement age of 65. The right honourable Andrew Smith MP, for example, as Secretary of State for Work and Pensions, and the official supporting him gave such evidence. The noble Lord, Lord Burns, asked whether it was expected that when we had the legislation against discrimination it would not be possible for companies to have a normal retirement age, even if they wished to have one, as that was going to become illegal. He asked whether he had understood that correctly. Mr Smith replied: ""There is an option in the consultation that you could retain an age limit of 70, but the basic answer to your question is yes, we would not be expecting to allow firms to operate at a lower ""mandatory age limit than that. There could be other perfectly good reasons for terminating a contract but age would not be one of them"." Other interesting advice was then given by employers, trade unions and the Chartered Institute of Personnel and Development, which suggested that the idea that you needed a rigid age discrimination provision of that kind was old-fashioned. Then, what used to be called the Department for Trade and Industry, led at the time, I think, by the right honourable Patricia Hewitt, won the argument against the Department for Work and Pensions, as a result of which it was decided that such a provision would be retained, as some of the employers had asked. So the predecessor but one or two of the noble Lord, Lord Mandelson, came to a conclusion, which no doubt still prevails among business Ministers, reflecting the views of some of the employers. That is the background, and I perfectly appreciate that there has been a consultation which will come to an end on, I think, 1 February. With these amendments, I am not seeking to have freedom now. I appreciate that it is impractical to say that as soon as the Bill becomes law that is an end of the matter; there must be some breathing space to allow that to happen. At this stage, I am probing in the hope that the Minister will be able to say something positive other than that the matter is being looked at. I beg to move.