HL Deb 25 January 1990 vol 514 cc1219-30

7.7 p.m.

Report received.

Clause 1 [Amendment of s. 10(3)(c) of Trade Union Act 1984]:

Lord Campbell of Alloway moved Amendment No. 1: Page 1, line 7, leave out from ("be") to end of line 8 and insert ("suspended until such proceedings, including any relevant appellate proceedings, shall have been concluded.").

The noble Lord said: My Lords, I move this amendment in an irenic spirit. Amendment No. 3, which stands in my name, is purely consequential. Noble Lords on all sides of your Lordships' House have striven to reason with Her Majesty's Government and meet all their objections to this Bill. It appeared at Committee stage to no avail. As seen by your Lordships' House this is not a political question and no noble Lord —least of all those of us who have spoken from these Benches —are in any way interested in confrontation with Her Majesty's Government. We have only sought to persuade by reasoned argument —so far to no avail.

Somewhat dispirited, therefore, but not totally downcast, after Committee stage I sought the advice of my old friend the noble Lord, Lord Carr of Hadley whom I served in the early 'seventies in his office as Secretary of State. He authorises me to inform your Lordships —he cannot attend, alas, but would have done so had he been able —that in his opinion, which is reflected in Amendments Nos. 1 and 3, Her Majesty's Government will not allow for any judicial extension of the 28-day period. It is, so to speak, holy writ or cast in stone, if you like. It is a statutory period. My noble friend Lord Carr of Hadley asks: "Why not stop the clock to avoid this unintended injustice and the overburdening of the judiciary and then restart the clock when the proceedings are concluded?"

That is what this amendment and its sister, Amendment No. 3, seek to achieve as an alternative to extending the period as proposed in the amendment to be moved later by the noble Lord, Lord McCarthy. I wish to be totally frank with your Lordships' House and with my noble friend the Minister. If the Government are not attracted to the principle of Amendments Nos. 1 and 3, and refuse to accept them, I shall withdraw them. The noble Lord, Lord McCarthy, will then move his amendment, which I shall support.

If the Government were to accept the principle of the stop-the-clock amendment, the hope is that the noble Lord, Lord McCarthy, would not move his amendment. He is good enough to indicate assent. So we are all at one and we all understand which way we are going, although the matter seems rather complicated.

The time has now come for plain speaking. We have to get down to brass tacks. Noble Lords must know today where they stand. I ask the Minister whether Her Majesty's Government accept that there is a problem; namely, that of unintended injustice and the overburdening of the judiciary. Does the Minister accept that there is such a problem? I would like an answer. If my noble friend accepts that there is a problem can he tell us how Her Majesty's Government propose to deal with it? I also seek an answer to that question.

We are now entitled to an answer, yes or no. If the answer is yes, how do the Government intend to deal with the matter? If the answer is no, I shall withdraw the amendments and we shall proceed on the amendment tabled by the noble Lord, Lord McCarthy. It is common ground between my noble friend the Minister and myself that the Bill now before another place can carry either of these amendments; namely, either the stop-the-clock amendment or that tabled by the noble Lord, Lord McCarthy.

When that Bill reaches your Lordships' House either amendment may be tabled. If it is rejected by another place, and if the mood of this House persists, the matter will be returned to another place. As your Lordships know, I have given an undertaking to continue with this Bill which, if it is killed in another place, can only result in tabling amendments to the Government's Bill when it reaches this House. Undertakings given are to be honoured. I appeal to Her Majesty's Government to accept the inevitable and to avoid a future collision course between the two Houses by today pre-empting such a situation one way or the other.

If the Government propose to do nothing, let it be said; if they propose to do anything, let it be said; if there are reasons in support of either attitude, let those reasons be given today. As a firm supporter of this Administration I have played this measure with an open hand. I have given notice of all these intentions to the Government Whips, the Attorney General and to my noble friend the Minister. In this long and good-humoured debate —and let it always remain so —your Lordships have shown exemplary patience. The House may well feel without in any way capping my noble friend the Minister, that it is only reasonable that we should now have an answer to the questions that I have raised. I beg to move.

7.15 p.m.

Baroness Turner of Camden

My Lords, this amendment, to which I have put my name, is a further attempt to persuade the Government to accept the Bill which has been introduced by the noble Lord, Lord Campbell of Alloway. The reasons for the Bill have been stated on many occasions in this House. I do not wish to repeat them at length tonight. As we have said, the Bill is an attempt to rectify an injustice which arises from the imposition on a union of the obligation to ballot yet again if the 28 days allowed to it under present legislation have been eroded by actions initiated by the employers in the courts.

We know that this has happened once already in the case of the dock work dispute. We also know that it can certainly happen again even though the Government have stated that they regard that situation as very much a one-off business. In our view that is not the case and the situation could easily arise again. The Minister at that time also said that the Government did not want a situation in which an unlimited amount of time would be available to a union within which it could call a dispute following a majority ballot.

I have re peatedly said, and I say it again in this House, that it is never in the interests of a union to prolong the time following a ballot and to delay calling a dispute once it has a mandate for so doing. Matters tend to go off the boil. Members expect a call from the union and, if nothing happens, they become frustrated and less inclined to follow the union's lead. The same is true if a union has to call a second ballot, if it is forced into that position because the mandate has been exhausted, whatever the reasons may be.

In order to meet the Government's objections, an amendment was accepted in Committee which would have put a limit on the length of time available. We now have before the House another amendment, another variant, which we hope will commend itself to the Minister. The noble Lord, Lord Campbell of Alloway, has described it graphically as a stop-the-clock amendment and that is what it is. That will mean that the 28-day period will not have been completely eroded and the union will not have to ballot again in the normal course of events because even if the proceedings went to appellate level, effectively, they would not be counted as part of the 28-day period.

There is another variant before the Douse in the form of an amendment to be moved by my noble friend Lord McCarthy. I support either variant. We are anxious to see this measure on the statute book. In order to achieve that, we on this side of the House support an amendment which would meet the Government's objections as regards an unlimited period of time. I would be prepared to trust the discretion of the court, a matter provided for in the original Bill. The Government are not prepared to accept that. That being so, I earnestly ask the Minister to indicate to the House whether the Government are prepared to accept either of the amendments. The Bill would then proceed to the statute book and be accepted as law in this area. With those words, I commend the amendment to the House.

Lord Brightman

My Lords, the Bill qualifies for a mention in the Guinness Book of Records. Its history is unique. It has had the advantage of two Second Reading debates and a Committee stage. There have been about 20 speeches in all. Every speaker except the Minister has spoker. in favour of the Bill. We cannot all be wrong, at least I do not think so. I now make my fourth speech. There is no point in repeating what I and others have said. It is sufficient to say that I am in favour of the Bill. I am in favour of the amendment proposed by the noble Lord, Lord Campbell of Alloway. I am also in favour of the alternative amendment which may be proposed by the noble Lord, Lord McCarthy.

Lord Rochester

My Lords, from these Benches I support the amendment. Should it not find favour with the noble Lord, Lord Strathclyde, I shall support the amendment to be moved in that eventuality by the noble Lord, Lord McCarthy.

As I see it, the amendment moved by the noble Lord, Lord Campbell, removed the ambiguity identified in the amendment moved in Committee by the noble Lord, Lord McCarthy, to which noble Lords then agreed and which is incorporated in the Bill as now amended. The amendment of the noble Lord, Lord Campbell, also overcomes the objection raised to that amendment by the noble Lord, Lord Strathclyde, when he questioned why, if a ballot were to be held to continue to represent the view of relevant members more than four weeks after it had taken place, that should depend on a court's decision.

At that time the Minister went on to make what was to me a significant statement. He said: If there were to be changes in this area of the law, the Government believe that the right approach would be to preserve the principles upon which the present legislation is founded. The noble Lord's amendment" — the amendment of the noble Lord, Lord McCarthy— fails to satisfy this test, in my view". —[0fficial Report, 15/1/90; col. 485.] With that statement in mind, I should like to put the following proposition to the Minister. Should he regrettably find fault with the proposed amendment on the ground that it fails to satisfy that same test —I very much hope he will not —might the Government's response be more favourable if at Third Reading I were to propose simply that, without reference to the courts, a period of eight or even of only six weeks should be substituted for the period of four weeks now included in the 1984 Act?

Lord McCarthy

My Lords, the series of suggestions put before the Government for their consideration during the proceedings on this Bill proves, if it proves nothing else, that we are doing our very best to try to accommodate all the legitimate objections which the Government might put forward. I apologise for not being in the House in time to read the new amendment proposed by the noble Lord, Lord Campbell of Alloway, and to discuss it with him. This was due to falling trees on the Western Region.

In the light of what he has just said, I believe that his amendment is in many respects superior to mine, superior merely in the sense that it goes a little further to meet the Government's stated objections. If my noble friend Lady Turner refers to the noble Lord's amendment as a stop-the-clock amendment, I suppose that my amendment in Committee which is now down for further discussion today might be called an injury time amendment. I can see that there are advantages from the Government's point of view in stopping the clock rather than having injury time. It would do away with any possible incentive, which they said was a matter of concern to them, for a general secretary of a union to strike first, somewhat irresponsibly, in order to ensure that he could have one ballot even if subsequently a decision went against him at the court of first instance.

It would not be possible, as it might have been possible under previous amendments, for the courts to give the unions more time altogether —although I do not think they ever would —than they would have been given if they had been subject entirely to the 28-day rule. From that point of view it seems that the amendment goes further than my previous amendment did and my amendment on the Marshalled List today does to meet the Government's objections. My amendment simply clarifies something which was unclear in Committee.

I am sure that we are all in the Government's hands. If they can indicate that they prefer one amendment to another, or say that while they do not like either of the amendments they like the suggestion of the noble Lord, Lord Rochester, noble Lords will immediately back that proposal. It is very much in the Government's court.

Lord Strathclyde

My Lords, the amendment of my noble friend Lord Campbell of Alloway certainly adopts a very different principle from that which has previously appeared in Clause 1 of the Bill. No longer is it to be left to the courts to exercise discretion about whether to extend the four-week period allowed between the date of a ballot and the union's first authorisation or endorsement of industrial action. Instead a four-week period is to be suspended until any proceedings in which a relevant act is called into question have been concluded —the stop-the-clock provision, as my noble friend called it.

To explain my reservations about the amendment I fear that I must once again restate the essential purpose of the law on industrial action ballots and of the four-week limit. In requiring a union to ballot its members as a condition of immunity for organising industrial action, the law simply ensures that union members can expect to have a vote in a proper ballot before being induced to take industrial action by their union. To allow an undue length of time to elapse between such a ballot and the union's first authorisation or endorsement of industrial action risks the situation in which the ballot result no longer accurately represents the views of the union members as recorded in the ballot. The 1984 Act fixed the limit at four weeks from the date of the ballot.

It may be helpful if I also confirm that these arrangements are quite different from those which would have been adopted if we had meant to ensure that a union invariably had four weeks from the date a ballot first authorised industrial action during which it would not be and could not be constrained by court proceedings or indeed an injunction. This is an important point on which noble Lords should be in no doubt. If more than four weeks pass without a union authorising the industrial action about which its members voted, it cannot be assumed as a matter of course that the ballot result continues to reflect the views of the relevant members.

As it happens, we have recently seen how the views of voters —that is, the votes of union members —may well change with the passage of time. When Ford manual workers were balloted on 18th December, they voted to take industrial action. However, when balloted again on 23rd January, a little over four weeks after the date of the previous ballot, they voted against. That was despite the fact that their union recommended they should vote in favour of industrial action. Surely that illustrates —although, I do not seek to draw a general lesson from the circumstances of a particular case —the dangers of allowing too great an interval between a ballot and the union action to which it relates.

7.30 p.m.

Lord McCarthy

My Lords, I should point out to the Minister that the offer was considerably improved between the time of the first ballot and that of the second ballot. It was not the same issue.

Lord Strathclyde

My Lords, the noble Lord is quite right; the conditions had changed. However, the noble Lord, Lord McCarthy, has entirely missed the point. The leaders of the union recommended that their members should vote for a strike. It was the union members themselves who voted against such action. It shows that sometimes there is a difference between what union leaders think their members want and what their members actually want.

Lord Murray of Epping Forest

My Lords, the Minister must surely recognise that in adducing this argument he has completely missed the point. For example, in the ambulance strike the leadership recommended acceptance of the offer while the members turned it down. What the leadership recommends and what its members decide is totally irrelevant to the issue under discussion. The issue is a simple one. I put it to the Minister in this way: if he had thought of this argument during the passage of the Bill, would he have written the existing condition into the legislation?

Lord Strathclyde

No, my Lords. The point I am trying to make—and, I did say that I was not seeking to draw a general lesson from any particular case —is that within a fairly short space of time, in this case four weeks, the minds of union members can change —

Baroness Turner of Camden

My Lords, I trust that the noble Lord will again give way. Does he not agree that the issue had changed? Of course it is true that the circumstances have not changed; but the issue upon which the members were balloted had changed in that the offer was different.

Lord Strathclyde

My Lords, I totally accept that point. However, the principle I am trying to put across to the House is that union leaders may think in one way while the union members think in another. Therefore, extending the four-week period may not be in the interests of members and may not be what they decide.

I return now to the amendment under discussion. Noble Lords will be aware that the time necessary to conclude the sort of proceedings to which this clause relates could be very considerable. Even interlocutory proceedings can be appealed up to this House. If full trial of the action is necessary before proceedings can be regarded as concluded, that would be a very lengthy process. The point is that by the time such stages had been completed, there could be no guarantee that the original ballot represented the present views of those who voted.

There appears to be another problem concerning the terms of the amendment; for example, exactly what the word "suspended" would be taken to mean. That is a point of detail and is of minor significance in comparison with the fundamental difficulty which I have already described —namely, that an undue amount of time might elapse between the date of the ballot and the union's authorisation or endorsement of industrial action which that ballot was about.

The noble Lord, Lord Campbell of Alloway, correctly asked me to represent the Government's position on the Bill and he also asked how he should proceed hereafter. As I said during various debates on the Bill, the Government will certainly keep relevant aspects of the present law under review. However, the fact is that the Government remain unconvinced that there is a problem about this aspect of the present law which needs to be tackled by further legislation.

Noble Lords have made frequent reference to the fact that the TGWU had to reballot its members when the four-week period —during much of which the union was subject to an injunction —had expired, before it first authorised or endorsed industrial action by dockers last summer. We must ask ourselves whether the need to reballot in those circumstances really represented a failure of, or a problem about, the current law as it stands. It seems to me that it was quite right that the union should have gone back to its members and given them the chance to indicate in a proper ballot whether they were still content for it to organise industrial action.

If it is argued that the Bill is not designed to ensure that a union need not be placed in the position of the TGWU last summer, then I must ask: what is it about? The Bill may be based upon a simple proposition: that Parliament was wrong to impose a four-week limit on the validity of an industrial action ballot, as it did in the 1984 Act. Indeed, the noble Lord, Lord Rochester, mentioned that point this evening. I have not heard any real point of principle illustrating that Parliament got it wrong in 1984.

Another possibility is that the Bill is aimed at helping to ease the burden on the courts which can arise from the need to accord a certain priority to dealing with industrial relations litigation. As I said in the debate on 6th December (at col. 961 of Hansard): The Government appreciate that ensuring expeditious hearing of priority cases inevitably causes some disruption to judges, listing officers and parties involved in less urgent cases". It is much to the credit of the courts that they ensure that priority is given where necessary. It is surely a virtue of the way they operate that this can be done. In any case, if that were its motivation, this Bill is not really an appropriate vehicle for addressing what may be wider issues about our machinery of justice. I repeat and reconfirm that we shall continue to keep the law under review.

I must say to my noble friend that no argument put forward in connection with an amendment to the Bill thus far would convince me to support its inclusion in the legislation at this point in time.

Lord Campbell of Alloway

My Lords, my noble friend the Minister has carried his bat on a sticky wicket. I congratulate him. He has been totally forthright. He says that there is no problem. Therefore, as there is no problem, he says that nothing need be done. However, that view ignores the consensus of your Lordships' House.

As pointed out by my noble and learned friend Lord Brightman, it is accepted on all sides of the House that there is a problem. Further, such a view also ignores the letter, dated 7th December, from the Master of the Rolls referred to in cols. 480 and 481 of Hansard on 15th January. It is what I would call the own goal letter. It pointed out to my noble friend the Minister that if his point of construction —to which he referred this evening —is right, he is in fact scoring an own goal. Not only does the Minister's view ignore the contents of that letter, it also ignores the corrective interventions of the noble Lords, Lord Murray and Lord McCarthy, and that of the noble Baroness, Lady Turner of Camden.

The Government insist that there is no problem. Therefore there is no more to be said. The four weeks issue raised by the noble Lord, Lord Rochester, was dealt with by my noble and learned friend on the suggestion that the Government might have got the four-week period wrong and that this could be rectified because they are always looking at legislation.

However, I have never suggested that the four-week period was wrong. Moreover, no noble Lords in the course of debate have ever suggested that such a period was wrong, and I am not here and now going to suggest otherwise. In my view, four weeks is a reasonable and fair period. Your Lordships' House has accepted it as such. There it is. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 2: Page 1, line 8, at end insert ("as from the expiry of the period of 4 weeks referred to above").

The noble Lord said: My Lords, I am sorry that we have come to the amendment because I thought that the Government might have been a little kinder to the still more modest amendment moved by the noble Lord, Lord Campbell of Alloway; nevertheless, here we are. The House is well aware of what the amendment is intended to do: it is intended to make it clear, whereas it is said not to be clear in the amendment that I moved in Committee, that we are excluding the original 28 days in the maximum allowed for judicial discretion, and we are therefore suggesting that the maximum overall time available for the exercise of discretion is 10 weeks.

Of course, despite what the Government have said, if we had any indication that any other formulation, such as that suggested by the noble Lord, Lord Rochester, might find a somewhat less flinty heart on the other side of the House, we would change it again. If the Government destroy the Bill in another place, we can return to the issue when the Goverment's latest Employment Bill comes to the House. We shall go on.

The only new argument put forward by the Government tonight is that the four weeks are to be regarded as sacred because —I am trying to be fair to the Minister —in four weeks anything could change and, in particular, the rank and file members might then disagree with their executive. If they disagreed with their executive, and the executive was recommending a strike, they might then be prepared to take the offer. In order to support that, the Minister quotes one instance—Ford's.

As my noble friend rightly said, that issue was not the same. There was a considerable improvement in the offer. Therefore when the executive went out to ballot the second time, it is true that the leadership gave the same recommendation that it had given previously. On that occasion, on a separate issue, the members decided that they were prepared to take the offer. A much better comparison, and one that I made in Committee, and one made by Mr. Clarke, the Secretary of State for Health, in the recent debate on the issue, is that of the ambulancemen. In that dispute there were two ballots. In that case the issue was the same because there had been no significant improvement in the offer; nevertheless, there was second ballot and the majority for continuing the dispute was larger than it had been in the first place. It is far more likely if the Government force people, especially in the context of an intervention by the courts, to have a second ballot, that the majority will be increased. That is what happened in the case of TGWU and the docks.

Therefore, in his own interests and in the interests of good industrial relations, the Minister should try to find some way to join the widely expressed feeling in the House. For all those reasons, I beg to move.

Lord Campbell of Alloway

My Lords, I support the amendment for the reasons given by the noble Lord and to place on record the gratitude of your Lordships' House to the noble and learned Lords, Lord Brightman and the Master of the Rolls, whose names appear against the amendment and who drafted it. I am grateful to them for their assistance.

7.45 p.m.

Baroness Turner of Camden

My Lords, I support the amendment moved by my noble friend. As I said earlier, I support both amendments, and I am sorry that the first amendment did not attract government support. I should like to take the Minister up on one point that he made. He said, and my noble friend has emphasised this point, that he believes the four weeks are sacred. In the dock work dispute, the TGWU did not have four weeks. The four weeks were totally absorbed by legal proceedings, which is what this Bill is all about. We should be happy if the union had four weeks. The whole point of the attempted legislation is that the union does not have four weeks unless there is a provision such as is proposed in the amendment. I support the amendment.

Lord Murray of Epping Forest

My Lords, the aim of the Government's employment legislation is to improve industrial relations. One of its sub-aims is to reduce the number of strikes. That is fair enough; we are all in the business of trying to reduce the number of strikes wherever we can. The assumption that the Government are making on this issue is that the holding of a second ballot would reduce the probability of a strike.

Where there has been a legal intervention and then a second ballot, history shows that that assumption is dead wrong. If we go back as far as the rail dispute under the Industrial Relations Act, the majority on the second ballot was far greater because the membership resented intervention by the law. The Minister will be accentuating the danger of a strike because he will pile Pelion on Ossa. He will add grievance to grievance in the eyes of the membership. If he does not care about that, why should we? But I do care, because I do not want to see more strikes caused unnecessarily.

Lord Strathclyde

My Lords, the amendment moved by the noble Lord, Lord McCarthy, helpfully makes clear the intended effect of the amendment that he successfully introduced in Committee. My response to that amendment assumed that that was what he had in mind. It follows that there is nothing I can usefully add to the reply I then gave.

The amendment fails to satisfy the requirement that the essential principle of the present arrangements must be preserved; that is, to allow an undue length of time to elapse between a ballot and the union's first authorisation of the industrial action risks a situation in which the ballot result no longer accurately represents the views of the union members as recorded in that ballot. The 1984 Act fixed the time at four weeks. Nothing that I have heard convinces me that it would have been any better to set the limit at 10 weeks. There is nothing necessarily sacred in four weeks, but we have no evidence to show that the situation would be improved if the limit were 10 weeks.

The noble Lord invoked the ambulance dispute in his defence. I invoked Ford's. Had there been no four-week limit and no second ballot at Ford's, the union could have authorised industrial action on the basis of the first ballot which we now know did not reflect the views of the membership.

Baroness Turner of Camden

My Lords, it did.

Lord Strathclyde

My Lords, it did not, because the union leaders recommended strike action. They recommended the union members to vote yes, but they did no such thing. They voted no. That shows that the union executive is out of touch with what its members wanted. It also shows that the four-week period is the correct period.

Lord McCarthy

My Lords, the Minister does not appreciate the first thing about union executives. The executive says what it thinks the members should do. It is not its business to be slavishly in touch. The Minister does not complain when the unions involved in the ambulance dispute recommend acceptance. He does not say that they are out of touch. They are only out of touch when they recommend a strike and the members do not want it. The executive gives its opinion. It is for the members to decide. That does not mean that the executive is out of touch.

Lord Strathclyde

My Lords, all I am saying is that the noble Lord has not provided any evidence to show that it will be better to set the limit at 10 weeks as opposed to four.

Lord Campbell of Alloway

My Lords, before my noble friend sits down, perhaps he would accept that he has got the matter slightly wrong. The offer changed. In industrial relations when the offer changes, even by a small margin, the back pay comes into play so the small margin makes a great difference. If the offer changes, with the greatest respect to my noble friend, it destroys I he argument on which he was relying.

Lord Strathclyde

My Lords, I am sure that my noble friend does not wish to get into a lengthy discussion about the Ford dispute. I made it absolutely plain when I used that example that I was not making a great case of it; it was simply an example of how the members' views differed from those of the executive.

Lord McCarthy

My Lords, I heard what the Minister said. However in the light of the remarks of the noble Lord, Lord Campbell of Alloway, I must retain the amendment and ask the House to vote on it.

The argument which the Minister used is not an argument at all. The only example, the only case he has is that of the Ford Motor Company. It has come to my mind, listening to him, that the second ballot in the Ford dispute was not called by the law. It was decided on by the executive, not because they had to carry it out, but because they wished to find out what the members thought of a different offer. If that happens, it is not the same situation. In those circumstances I think that we should vote on the amendment.

On Question, amendment agreed to.

Clause 2 [Interpretation]:

Lord Campbell of Alloway had given notice of his intention to move Amendment No. 3: Page 1, line 9, leave out from ("act"") to ("as") in line 10 and insert ("has the same meaning").

The noble Lord said: My Lords, I have spoken to this amendment. It was consequential upon Amendment No. 1 which I have withdrawn. I beg leave to withdraw the amendment.

[Amendment No. 3 not moved.]

The Earl of Strathmore and Kinghorne

My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.52 to 8.10 p.m.]