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Equality Bill

I do not know. We have been asking for the evaluation for some time. I was anxious to receive it before this stage if that was practicable, but we have not received it: that is the situation. In readiness to receive this evaluation, we have conducted a round of discussions with employers and others, and the opinions we heard were a bit divided. Therefore, we also want to use the evaluation to persuade employers about the benefits, but the long and short of it is that that is what we are waiting for. I shall move on to the different issue that my hon. Friends the Members for Hayes and Harlington and for Dover (Gwyn Prosser) have brought before us. Their amendment 34 seeks to remove the power for Ministers to introduce affirmative regulations specifying how part 5 of the Bill, which deals with the "work" provisions, would apply to seafarers and those who work on hovercraft. Without any such regulations, the application of part 5 would be a matter for tribunals and the courts to decide on a case-by-case basis. I cannot imagine that anybody would want that, because it would cause confusion and uncertainty. The context in which seafarers undertake their work is different from that of other workers. Many issues relating to ships and their crew are governed by the law of the state where the ship is registered, but others may be governed by the law of the state in whose waters the ship is located. A ship can be constantly moving between waters under the jurisdiction of different states, and might not be operating in the waters of its own flag state. Given that context, we definitely do not want the facts about to whom this part applies and to whom it does not apply to be determined on a case-by-case basis. That is why we need regulations, and why, in due course, we will urge my hon. Friends not to press their amendment, which would stop those regulations from being made. The UK is entitled to apply its law to vessels registered in the UK, but international law and custom limit the extent to which the provisions can be applied to non-UK registered vessels even while they are in UK waters. The Equality Bill is completely silent on how part 5 applies generally and regulations must be made to apply it to ships and seafarers in all those locations and circumstances to ensure that seafarers are protected from discrimination at work as and where appropriate. Without the regulations, it would be completely unclear. Everybody wants to see seafarers protected from discrimination, but we must tailor the way in which this is achieved. Let me move on to the concern that drives my two hon. Friends to try to remove the regulation-making powers when they clearly appreciate as well as we do that it is important to have certainty in application. I think that the regulation-making power is wide enough to address the issue of differential pay among seafarers. It is common practice in the shipping industry for seafarers' pay to reflect the country where they are based and therefore where they are likely to spend their wages. Historically, that has been lawful by reference to nationality in the UK through section 9 of the Race Relations Act 1976, which is repealed by the Equality Bill. I understand my colleagues who are seeking this amendment would like to see differential pay outlawed totally in the UK and are concerned that, by allowing the regulation-making power in the Bill, the Government will replace section 9 or put in pay differentiation in some way. It is right to say that the Government must carefully consider the implications of disallowing the practice, including the economic impact, and weigh up the possibility of putting UK employers at a significant commercial disadvantage. That said, the Government are acutely aware of the opposite case and of the strength of feeling against reintroducing even a more narrowly drawn replacement for section 9, or anything like it. So, the Under-Secretary of State for Transport, my hon. Friend the Member for Gillingham (Paul Clark), published draft regulations earlier this week. They offer an insight into how the Government think the provisions in part 5 will apply to seafarers and remain silent—we will return to this—on the issue of differential pay. The final regulations will determine the extent to which part 5 applies to seafarers. As published, the work protection would be given to a seafarer working wholly or partly in Great Britain on a UK-registered ship or a seafarer working wholly or partly in Great Britain on a ship flagged to an EEA state other than the UK while it is in UK waters if the seafarer is British, an EEA national or a citizen of a state with corresponding EU law rights, provided that the seafarer has a legal relationship located in Great Britain or has a sufficiently close link with Great Britain. My hon. Friend the Member for Hayes and Harlington asked for some explanation of what a sufficiently close link would be, and I shall try to help with that in a minute. The third category to which part 5 would apply under the current regulations is to a seafarer working wholly outside Great Britain on a UK-registered ship if the seafarer is a British citizen or a national of an EEA state or a state with corresponding EU rights, provided that their employment relationship is in Great Britain or, again, has a sufficiently close link. The non-UK and non-EEA states are those that have an associative agreement with the EU. They include, for instance, Nigeria and Guyana, from which, I understand, some seafarers are drawn. What counts as a sufficiently close link to bring those second kinds of seafarer under the protection of the Bill depends on an overall balance of a range of factors. However, factors that may be relevant are: whether a person is employed on board a ship where the ship is registered—its flag state; the law under which the employer company is incorporated; where the employer's business is established; where an employee is recruited or hired, or where the contract for employment is concluded; under which territory's law the employment relationship is entered into; which territory's law applies to the whole employment relationship; the jurisdiction under which disputes about employment relationships should be brought; the legal systems to which the two individuals are subject; to which territory's social security system the employee is affiliated; the territory where the employee pays income tax; the nationality and ordinary residence of the employee; and whether the employment involves the performance of sovereign functions, which I do not suppose happens very much. My hon. Friends the Member for Hayes and Harlington and for Dover, with whom I had the pleasure of meeting last night with my hon. Friend the Parliamentary Under-Secretary of State for Transport, gave me a set of examples about people working on ships between Aberdeen and Lerwick, and asked whether they would be covered by the regulations as currently drafted and hence protected against that unequal pay. The answer is that one would have to consider all those characteristics.