Lords Amendment: No. 105, in page 40, line 32, leave out subsections (3) to (7) and insert:
("(3) If, before that time expires, a settlement of the matters to which the application relates has been reached, the Commission shall report that fact to the Industrial Court, indicating the nature of the settlement.
(4) If, when that time expires, no such settle ment has been reached and the application has not been withdrawn, the Industrial Court, with a view to testing the grounds of the applica tion by taking one or more ballots, shall request the Commission to consider whether—
(5) For the purpose of determining the question specified in subsection (4) of this section the Commission shall consider the extent to which different descriptions of employees comprised in the bargaining unit have interests in common, having regard in particular, in relation to each such description of employees, to—
(6) In relation to the ballot, or (if more than one) each of the ballots, to be taken as mentioned in subsection (4) of this section the Commission shall determine whether it is to be taken by the Commission or is to be taken under the supervision of the Commission by some other body, and in either case what arrangements would best secure that the ballot will be properly conducted and that the voting in the ballot will be kept secret; and the Commission shall thereupon arrange for one or more ballots to be taken in accordance with their conclusions under subsections (4) and (5) of this section and under this subsection.
(7) The question on which any ballot under this section is to be taken—
(8) After one or more ballots have been taken under this section in pursuance of an application under section 47 of this Act, the Commission shall report the results of the ballot or ballots to the Industrial Court, to the applicant, and to every employer, organisation of workers or joint negotiating panel specified in that application.")
§ I understand that it might be for the convenience of the House to discuss at the same time the following three Lords Amendments:
No. 106, in Clause 51, page 41, line 22, leave out subsections (1) and (2) and insert:
("() Where a ballot under section 50 of this Act has been taken on the question specified in subsection (7)(a) of that section, and the result of the ballot, as reported by the Commission to the Industrial Court, is that a majority of the employees voting in the ballot voted against the continuance of the organisation of workers or joint negotiating panel as sole bargaining agent for the bargaining unit, the Industrial Court shall make an order directing the employer or employers—
() Where such a ballot, limited to a section of a bargaining unit, has been taken on the question specified in subsection (7)(b) of section 50 of this Act, and the result of the ballot, as reported by the Commission to the Industrial Court, is that a majority of the employees voting in the ballot voted against that section continuing to be included in the bargaining unit for which the organisation of workers or joint negotiating panel is recognised as sole bargaining agent, the Industrial Court shall make an order directing the employer or employers—
§ No. 256, in page 111, line 36, at end insert new Clause K (Review of ballot taken under Part II or Part III).
No. 311, in Schedule 3, page 133, line 14, at end insert:
(" . In so far as the rules make provision for the purposes of section (Review of ballot taken under Part II or Part III) of this Act, they shall include provision—
§ The purpose of Lords Amendments Nos. 105 and 106 is twofold. First, we wish to clarify the procedure which has to be followed by the National Industrial Relations Court and the Commission on Industrial Relations in Clause 50. Secondly, we want to make further provision for the safeguarding of minority interests when ballots are taken on withdrawal of recognition.
§ Perhaps I might say first a few words about the necessity for clarifying the procedure in Clause 50. For a number of reasons, it did not seem to us that the procedure at present laid down was very clear or as consistent as we would like. In particular, it did not make it clear that when the C.I.R. decided that the ballot should be limited to a certain section of the bargaining unit, each section 1660 of that unit should be separately balloted. This seems to us obviously to be desirable. If only one section of the bargaining unit were balloted, the position of the bargaining agent might be in doubt in the remaining part of the bargaining unit which had not been balloted. It therefore seemed to us that by far the best course would be to require, as the Amendments do, that the ballot should be taken in all parts of the unit so that the position of the bargaining agent was left in no doubt in any part of the unit.
§ The reason why we have provision in Clause 50 for ballots to be held in part of the bargaining unit is to enable the C.I.R. to hold a ballot of a dissident minority group within the bargaining unit which feels that it should not remain within that unit. In such a hypothetical case, the remainder of the bargaining unit could probably be quite satisfied with the performance of the established bargaining agent. It seems to us right that the remainder, too, should be balloted so that their position is left in no doubt. This means, however, that the question on which the ballot should be taken ought not to be whether the union should cease to be the bargaining agent, as Clause 50 at present provides, but rather whether the union should continue to be the bargaining agent for that unit. That is the main clarification in this respect which is made by these Amendments.
§ The second purpose of the Amendments is to write into Clause 50 special safeguards for minorities. This point has been of some concern, as was the matter which we discussed a few Amendments ago. I think that there is now no doubt that the new subsection (5) will go a good way towards meeting any genuine fears of those minorities who felt that they might not receive proper treatment under these provisions.
§ Those are the reasons for Lords Amendments Nos. 105 and 106 but perhaps I might say a final word about them. They may appear to be more extensive than they are. We could have achieved these purposes by a string of small Amendments to the existing subsections but we thought it better to introduce new subsections rather than a long string of smaller Amendments. We hope that at 1661 least this makes them easier to see and understand.
§ Lords Amendment No. 256 is a new Clause which comes in after Clause 15, and Lords Amendment No. 311 is an Amendment to Schedule 3. They arise because, on a number of occasions in Committee in another place, it was pointed out by Opposition spokesmen, notably by Lord Gardiner, that the provisions of the Bill which required ballots to be conducted by the C.I.R. or under the supervision of the C.I.R. did not afford any opportunity for appeal against a reported result of a ballot, nor did they give the Industrial Court any other option than to accept the result as reported even though there might be circumstances in which it was evident that a mistake had been made in the conduct or in the reporting of a ballot. It was, therefore, urged that there should be statutory procedure for rectifying mistakes made by the C.I.R. or by any other body conducting a ballot under the supervision of the C.I.R.
§ The Lord Chancellor in another place accepted the argument that the prerogative writ procedure would not enable a simple error of fact to be corrected by way of an order of the Divisional Court and he accepted that it would be desirable to enable mistakes made in the conduct of statutory ballots to be challenged in the Industrial Court. The Amendments are intended to deal with that situation. I hope that the House will feel that it is right to provide this provision for supervision and appeal against ballots which may be thought to be wrong in some way or other.
§ The proposed Amendments will only apply, however, to ballots under the provisions of Part II and Part III of the Bill. Thus, it is not intended that the new provisions should apply in respect of strike ballots in emergency circumstances under Clause 138. So there will be no provision for any party to complain to the Industrial Court of a mistake made in the conduct of a strike ballot, nor, as a result, can a court order a fresh ballot. Superficially this looked wrong, and I should like to explain, I hope satisfactorily, why we are taking this course.
§ 7.0 p.m.
§ We have taken this course because of the special circumstances surrounding an emergency strike ballot and the overriding 1662 purpose of such a ballot. We have made it plain that the ballot is intended purely to assess the strength of support for the industrial action taken, or to be taken, by allowing the workers concerned to express their wishes. When the result of the ballot is reported to the court, the order is effectively discharged. Since the power to take further action, whether by the court or by the parties concerned, does not in any way depend on the result of a ballot, and the court has no further statutory powers under the strike ballot provisions, we did not think that it was necessary or even right to give the court the same statutory powers to review a ballot as in the cases about which I spoke earlier where the result of the ballot imposed a legal obligation upon one or more of the parties. There is this big distinction between these ballots. One is an opinion-testing procedure with no liability flowing from it; the other is on the substance from which obligations and liabilities might flow.
§ Furthermore, in order to protect the interests of the parties, especially those of the workers concerned, and to remove any possibility of abuse of the strike ballot provisions, Clause 143(7) makes it plain that after the principal order under Clause 138 takes effect, the court shall not entertain any application relating to the same industrial dispute or any other industrial dispute which appears to fall within the scope of the original one. Nor, I should stress, does the court have any power to extend the period within which the result of the ballot must be reported. This means that the period in which people are restrained from organising a strike while the ballot takes place can similarly not be extended. An important factor to take into account is the need, when there is a strike ballot, for speed and for there to be no possibility of the period being capable of extension. Therefore, we saw no reason for giving the court power to quash a ballot when there are no powers available to it to continue restraint on organising industrial action.
§ I think that is all that I need say at this stage in explanation of the purposes of these Amendments. However, with the permission of the House, I shall do my best to answer any questions which may be raised during the debate.1663
§ Mr. Orme
The Secretary of State has explained how ballots will or will not be conducted in an agency or sole bargaining unit situation. My hon. Friend the Member for Norwood (Mr. John Fraser) quoted from Gilbert and Sullivan when discussing a previous Amendment. When I was in industry I worked at one time with a shop steward who when I used the term "Gilbertian"—I do not know whether he understood what I meant—always used to say when things got chaotic, "Send for Gilbert and Sullivan".
When we try to reduce industrial relations, the question of agency shop and recognition of a sole bargaining agent, to a ballot form within industry, we begin to realise how complicated the situation will become. This is a completely new situation. We have had no information. Some of my noble Friends in another place asked how these ballots would be conducted, who would be responsible within the plants for conducting them, how they would be counted, and what procedure would be used. We have received no satisfactory answer from the Government.
We move to a unique situation when we come to Amendments Nos. 256 and 311. My noble Friend Lord Gardiner, with his legal knowledge and feeling of justice, asked in the other place whether there should be some check on these undefined procedures which are laid down in the Bill.
I should like to ask a specific question arising from new Clause K. Subsection (2), provides:If, in accordance with Industrial Court rules made for the purposes of this section, the Industrial Court finds, in the case of a ballot for which this section applies, that the report made to the Court by the Commission as to the result of the ballot was incorrect, and that it would be just and equitable in the circumstances to amend the report so as to rectify the error without requiring a further ballot to be taken.On what precedent is this situation created whereby somebody can alter a ballot which has taken place? Will this body have to report on the altered ballot? Will the participants in the ballot have a right of access to find out who has altered it and why it has been altered?
I do not think that in the British Constitution there is anything comparable 1664 with that subsection which gives the body to which the ballot has been referred the right contained in that subsection. Paragraph (a) provides:the Court may make an order amending the report accordingly, and(b) where such an order has been made, the report shall have effect for the purposes of this Act as if it had been made as amended by the order.The Secretary of State has an obligation to tell the House exactly what is meant by this and what the precedents are.
I note that Lord Gardiner, who had asked for some form of longstop, was unfortunately not present in the other place when Lord Drumalbyn brought this proposal forward. There was an exceedingly short debate on it in the other place. This is a cardinal point. I do not know what my lawyer Friends feel about the legal aspects, but it seems an extremely ominous proposal.
We are opposed to the Industrial Court in its entirety because of the legalistic powers and functions which it will be given. We are certainly opposed to the idea that it should have these overriding powers. It is interesting to note that it will only deal with Parts II and III of the Bill; it will not deal with strike ballots of a national character. We wonder about the accuracy of these proposals in this regard. However, we are not asking for these long-stop proposals; we are opposed to ballots in their entirety.
§ Amendment No. 311 to Schedule 3 underwrites the main purpose of Amendment No. 256. I think that we are entitled to a reply from the Minister on the whole question of the operation of these ballots.
§ Taking this a stage further, I think that to give the Industrial Court the right to alter a ballot is to provide for direct interference by the State.
§ Mr. Carr
I must correct the hon. Gentleman. I have no power to give orders to the Court. The Court is the 1665 equivalent of a High Court. It is not under the thumb of any Minister. It is because we believe it right that these matters are better argued in public, in a court, than behind closed doors in the Ministry, which is political and controlled by the State, that we are proposing, amongst other things, this kind of procedure.
§ Mr. Orme
All I can say is that the Minister has power to direct the attention of the Court to certain practices. However the right hon. Gentleman puts it, this is seen in the trade union movement as a political structure. One sees the Industrial Court coming into collective bargaining with regard to the setting up of an agency shop and, in particular, deciding who is the sole bargaining agent within an establishment. For those reasons, the Opposition hope that the Minister will answer the points that have been put to him.
§ Mr. Ronald King Murray
When one looks at subsection (2) of the proposed new Clause one sees there a serious defect. This is not the kind of long-stop for which Lord Gardiner was asking. Something else has been put in its place, no doubt through inadvertence rather than malevolence.
Let me put it this way. The error to be corrected is either material, or it is immaterial. If it is immaterial, there is no need for this machinery. If it is material, it can relate to only one thing, and that is the result of the ballot. If the Commission's report is so misguided that it says there is a majority for, when it should have been there is a majority against, it is almost inconceivable that this machinery will be required. If there is anything else, it is difficult to see how it will be material. I should like the Government's reaction to that.
§ Mr. Adam Butler
The hon. Member for Salford, West (Mr. Orme) is worried that the Court may change the result of a ballot. As I read the Clause, it is not to the effect at all, but relates to the report on the result of a ballot. Perhaps I may use an example from our debate a few days ago. It was my impression that the result of the miners' ballot on the strike vote was 57 per cent. If I had been in the position of the Commission, I should have reported that to the Court, but it transpired later that the correct 1666 figure was 55 per cent. It would have been pointless to hold a second ballot for the sake of correcting the inaccuracy of my report. That is how I read the Clause, and I take it to be correct.
If strike ballots are to be left out of the new Clause in respect of all appeals to the Industrial Court, may we be told what the mechanics are for dealing with any alleged irregularities in the conduct of emergency strike ballots?
§ 7.15 p.m.
§ Mr. R. Carr
With the permission of the House, I should like to reply to the debate.
The hon. Member for Salford, West (Mr. Ore) said that nobody knew how the ballots were to be conducted. They are a new thing, and one has to start somewhere, at some time. The hon. Gentleman has made it clear that he is opposed to all ballots in this connection, and I shall come to that in a moment. But if one is not opposed to the possibility of ballots in circumstances of this kind, one has to make a start at some time.
Until the C.I.R. starts to operate, and to study the matter, it is not possible to lay down in legislation, or to explain in advance, how this will be done. This is one of the difficult tasks which the C.I.R. has ahead of it. We shall have to watch very carefully how it does this job. It will have to develop its techniques and expertise on this issue. When something has never been done before, one cannot easily say in advance exactly how it is to be done. But if one says that that is a debarring factor, one never starts on anything new.
The hon. Gentleman complained about the complexity of these proposals. That is something which often crops up. If we are honest, we will admit that all law is complicated when one looks at it. Even if I take the point, as I do, about the previous Administration's Bill, that it was never debated, and never amended, and therefore we cannot say that we saw the Bill in its final form, I still say that if one wants to see a complicated Bill, complicated beyond any chance of being simplified by Amendment, one has only to look at the right hon. Lady's Bill that was published just before the General Election last year. As my hon. and learned Friend said during a recent debate, it took twice the number of 1667 Clauses to deal with unfair dismissal as the present Bill takes.
We have to accept that when dealing with a matter of this kind, or with almost any matter, the law relating to it, studied in a vacuum, always seems extremely complicated, and even when studied in practice will be complicated, but that is because it has to be fairly precise and, as far as possible, cope with all the possibilities that one can foresee.
The main point that has been raised arises on subsections (2) and (3) of the new Clause, where the Court is given power to rectify a mistake without taking a new ballot. If one says it like that, it sounds appalling, but if one reads the whole of subsections (2) and (3) the whole thing comes into somewhat clearer focus and a rather different perspective.
All that subsection (2) says is that where the Court decides that it would be just and equitable in the circumstances to amend the report so as to rectify the error without requiring a further ballot to be taken it can do so. The circumstance envisaged is that there is a genuine miscount and all parties are agreed that that is so, because for example a ballot box had been left out and was subsequently found. In those circumstances it seems totally unnecessary to go through the whole procedure again, but the parties concerned will have full rights to go before the Court, and if they do not think that what was done was equitable, and that another ballot ought to be taken, that argument can be made before the Court.
The next subsection provides that where the Court takes a different view from that taken in the circumstances to which I have just referred it has power to quash the ballot and any decisions arising out of it, and then one has to start again. I should have thought that if, in an industrial situation, all parties were satisfied, and the Court was satisfied, that the error was of the order that I have agreed, it would be sensible for the Court to take that action. We must remember that this Court has the status of a High Court. It is not some minor body. If we cannot in this country trust a body of this kind to decide whether, in the circumstances, something is just and equitable, and that the error is not one which requires a new ballot, I do not think that 1668 we shall ever be able to trust anybody on anything.
§ Mr. Orme
One thing that one learns about parliamentary drafting is that it is not what the Minister says that counts. What counts is what is in the Bill. What matters is how the Court will interpret the words in this Measure when it becomes an Act. That is what is important, not the words of the Minister, myself or anybody else. Those words, taken on their own, constitute a changed constitutional situation, as I see it.
§ Mr. Carr
Of course, I accept the hon. Gentleman's point that no Minister from this Dispatch Box can say how a court under our constitution will interpret an Act. We can only declare our intentions and try to assure the House that we think we have got words which will put our intentions into practice. If the courts interpret an Act contrary to Parliament's intentions, that, I understand, is one of the most frequent reasons why Parliament sometimes enacts amending legislation.
§ Mr. Ronald King Murray
Would the right hon. Gentleman accept that there is no constitutional precedent for this kind of juidcial interference in a democratic vote?
§ Mr. Carr
That may be true. We are starting a new type of procedure and it is of a different order of magnitude from that of elections of ourselves to this House and therefore the formation of the Government of this country.
The ballot is going to be conducted under the auspices of the C.I.R., and not by the employer or the union or anybody associated with the dispute. One should remember that. In addition, the Court has to look at complaints about the ballot having been wrong for some reason. If, and only if, the Court, having heard the case, believes that it would be just and equitable in the circumstances to amend the report without ordering a new ballot, it is given power to do so.
I should have thought that when we are dealing, as we are, with circumstances probably involving an industrial dispute, as much speed as we can achieve is necessary. This seems a sensible provision to make in a case where, for example, all the parties agree that the ballot is wrong because there has been a miscount arising from the temporary loss of a ballot 1669 box I would have thought this was not a bad precedent to set in this very well defined field, particularly as subsection (3) makes it very clear that if the Industrial Court is not satisfied that it would be just and equitable to take into account a genuine mistake and to record it without causing everybody the trouble of having a new ballot, the Court has power to quash the ballot and start again. As I say, I think this is a reasonable provision. But the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) is right; I think this is a precedent and it is, therefore, a matter about which obviously there can be differences of opinion.
Perhaps I may say this to my hon. Friend the Member for Bosworth (Mr. Adam Butler). As I explained originally, the strike ballot in an emergency situation is of a different order—a minor order in one sense—because no obligations or duties or liabilities flow from that ballot. Therefore, while we want these ballots to be accurate, it is not the same as other ballots from which liabilities and obligations flow.
§ Mr. Bidwell
We understand the Minister's differentiation between the strike ballot and the other form of ballot. I assume that financial liability would not arise in the second place but that financial liability of some kind would arise in the first place. Are the Government handicapped by the absence of the C.I.R. and by their consequent inability to take soundings from it?
§ Mr. Bidwell
I mean in the sense that one pays for accounting clerks in the conduct of ballots at elections. How are these ballots to be conducted and at whose expense?
§ Mr. Carr
The cost of the C.I.R. and of its work, including the conduct of ballots, will fall on public funds. The parties will not be involved in any way.
So far as the strike ballot is concerned, I am advised that in theory the High Court could entertain an application for an order to quash the result of one ballot and order another one. I am told that that is the theoretical position. I am also advised that since no legal result 1670 flows from a strike ballot, it is at least possible, if not probable, that the High Court might in practice decline to issue such an order. So I have to say to my hon. Friend that I cannot put my hand on my heart and say that I have a very satisfactory answer to his question.
We have to decide at any given moment on the number of safeguards that we put into a particular procedure, and we felt it was right to put the safeguards, the appeals and so forth, into this ballot procedure but we did not think it was right to do so in the case where no legal liabilities flow. In any case, in practical terms, the idea of a strike ballot is to provide an opportunity for workers to express their opinion in a serious national situation where there is evidence of different views among the workers affected in the dispute. If that opinion is challenged, it will carry less authority. It is the natural authority which a ballot of this kind will or will not carry which will have its influence. But it will not commit anybody to any liability or any action. To imagine that in an industrial dispute it would be practicable or helpful to say "Stop" and have it all over again, even if the ballot were suspect in any way, would be counter-productive rather than productive.
§ Mr. Adam Butler
Do I understand that in the case of alleged serious misconduct there is no right of appeal? May I take an extreme example where the ballot is so close that the majority required is one or two only. If there is an allegation of misconduct, is there still no right of appeal?
§ Mr. Carr
There is the theoretical right to go to the High Court. However, I see my hon. Friend's point and I have said that I cannot properly satisfy it because we have had to make a judgment as to whether it would be right and helpful to set up the machinery in order to satisfy him. The ballots will be conducted by the C.I.R. who will become expert and professional in conducting them. I sincerely hope and believe that ballots conducted by a body such as the C.I.R. will command respect and will have integrity, and that there will not be grounds for charges of gross misconduct and so forth.
Nevertheless the authority of these ballots is only a natural authority. If it is so close as to be a matter of a few 1671 votes one way or the other, I do not think it will help very much to resolve the dispute in question. I believe it could be helpful in resolving the dispute in question if such a ballot in those circumstances showed a pretty clear decision of opinion for or against. But if it is really narrowly poised, and since no natural rights flow from it, I doubt whether it would have much influence.
On balance, we decided that to provide machinery for questioning this sort of ballot, in view of the time delay that would be involved in that, with the possibility of holding it again—all this happening while an industrial dispute was active—would nullify the whole procedure. While I wish that I could satisfy my hon. Friend, we felt that there were some strong practical reasons for not providing the machinery, realising that this was a ballot which, according to the natural authority that it commanded, might be influential and might be influential for the good.
§ 7.30 p.m.
§ Mr. Harold Walker
Notwithstanding what the right hon. Gentleman said about the other Amendments, he has done nothing to assuage my anxieties about No. 256. I am sure that if he has not satisfied me he has not satisfied my hon. Friend the Member for Salford, West (Mr. Orme), who also had some vocal support from some of my other hon. Friends. I share their view that, while the right hon. Gentleman's words are no doubt offered in good faith, it is for the Court to interpret the black and white of the Bill.
While I accept his view that common sense suggests that, if all the parties agree, there is no reason why they should not make the alteration, there is nothing about this in the Bill. What he proposes would put an extraordinary and unprecedented power in the hands of the Court. If and when we reach Amendment No. 256, we shall therefore seek to divide on it.
§ Question put and agreed to.
§ Subsequent Lords Amendment agreed to.
Lords Amendment: No. 107, in page 42, line 26 at end insert:
() the application is made by the organisation of workers in respect of which the
order was made, or, where the order was made in respect of a joint negotiating panel, the application is made by an organisation of workers represented on that panel.
§ The Solicitor-General
I beg to move, That this House doth agree with the Lords in the said Amendment.
Under the Clause as it stood, after an order had been made by the Court withdrawing a right to recognition, the Court was debarred from entertaining any subsequent application for two years from any other organisation of workers or trade union. The Government did not intend the Clause to have that effect. The Amendment is introduced to limit the bar on any subsequent application during the two years only to the organisation of workers from which the recognition has been withdrawn.
§ The Amendment has the entirely benevolent effect of allowing a union which has not been displaced by reason of a withdrawal order to make application for recognition at any time thereafter, even though such an order has been made. In other words, it will limit the bar on a subsequent application simply any solely to the union from which recognition has been withdrawn. On that basis, I commend it to the House—I hope, without fear of contradiction.
§ Question put and agreed to.