HC Deb 15 October 1975 vol 897 cc1372-85

A. After section 5 of the principal Act, there shall be inserted the following section: "Rights of workers aggrieved by exclusion or expulsion from trade union to apply to tribunal. 5A.—(1) A worker aggrieved by his exclusion or expulsion from any trade union, branch or section may apply to a tribunal appointed for the adjudication of such grievances for a declaration that he is entitled to be a member of that trade union, branch or section. (2) The tribunal shall be appointed by the Secretary of State in consultation with the General Council of the Trades Union Congress and the Chairman of the Conciliation and Arbitration Service and shall have an independent person with legal qualifications as chairman and two other members. (3) The procedure at such a tribunal shall be in accordance with rules made by the Trades Union Congress and approved by the Council on Tribunals. (4) If at any time there is not existent such a Tribunal and such rules, such an application may be made instead to an industrial tribunal in accordance with industrial tribunal regulations. (5) Where any such declaration has been made either by the tribunal or by an industrial tribunal as the case may be and has not been implemented by the union, branch or section concerned within any period specified in the declaration or if no such period is specified within a reasonable period, the worker may apply to the High Court, or in Scotland, the Court of Session for an injunction, interdict or such relief (including compensation) as the court may think just and expedient in all the circumstances of the case. (6) Nothing in this section or section 2(5) above shall prejudice or in any way reduce the common law rights of a person who has applied to join, but not been given membership of, or who claims to be and to remain a member of, or who has been expelled from, a trade union."

Mr. Foot

The amendment would leave unrepealed the statutory right of a worker to seek remedies against arbitrary or unreasonable exclusion or expulsion from a union which is contained in Section 5 of the Trade Union and Labour Relations Act. It would, however, replace the present provision for complaint to an industrial tribunal by provision for complaint to a special tribunal, appointed by the Secretary of State in consultation with the Chairman of the Advisory Conciliation and Arbitration Service, and with the TUC, with a legally qualified independent chairman. That would be a statutory tribunal on the same lines as the voluntary independent review committee which the TUC proposed to establish.

The right of the worker to seek redress through the High Court if the tribunal's declaration is not implemented and the legally defective subsection (5) of the original Section 5 are retained by the amendment.

I shall try to deal succinctly with this grouping of amendments not because I do not regard the matter as of great importance but because we have had debates upon it on numerous occasions over the past 18 months. I dare say that some recollection of those debates will be forthcoming today. But I imagine that it would be for everyone's convenience that we should not lengthen the debate unnecessarily. I hope to set a good example in that respect.

4.0 p.m.

The amendment passed in the other place makes a concession to the view which the Government have put in the past. It recognises that unions have an overriding interest in the question of exclusions or expulsions and that any supervisory body should be constituted in a way that takes that into account. However, the amendment still does not meet the basic Government objection to this proposition, which we have put throughout—the objection in principle to the intervention of the law in the internal affairs of trade unions. We have also pointed to industrial relations consequences, in practice, which we believe could be serious, and we have drawn attention to many legal defects in the amendment.

We believe that the law is an inappropriate and ineffective instrument to intervene in decisions by unions about whom they are to take into membership. Even if it were acceptable in principle that the law should tell democratically constituted bodies whom they must take into membership in this way, it would be ineffective in practice in achieving the desired result. We have worked on that principle.

The Government have said throughout, from the beginning of these discussions—I have said it many times—that they are convinced that it is necessary to have safeguards for individuals in a closed shop situation. We have said so on many occasions, and that view derives from a common sense approach to the situation. It was underlined in the Donovan Report, which discussed the matter in this context. We wished to secure a method by which the individual would be protected from injustice and to ensure that he would have a remedy.

The possibility of High Court injunctions and legal sanctions is likely to produce ill-will and a bad industrial relations climate, hostile to the achievement of those objectives. Therefore one of the reasons why we prefer the method which the Government suggested for this matter is that the individual will be better protected by the provisions which we suggest than by the legal provisions which were introduced in the other place.

Apart from failing to deal effectively with the objective it sets out to achieve, the amendment has other undesirable and irrelevant legal side effects. For example, subsection (5) aims at preserving common law rights of action. That is unnecessary. Such common law rights as exist are in no way threatened. But, worse, the proposed amendment is harmful and may undermine long-standing legal immunities in respect of the purposes of the unions, and the legality of their rules, which are in restraint of trade, given by Section 2(5) of the Trade Union and Labour Relations Act. This point has been put to the Opposition on a number of occasions in this House and in the other place, but I do not believe that it can be said that they have made any adequate reply.

What we have proposed to deal with the problem—and what the TUC has proposed—is the establishment of an independent tribunal or review body set up by the TUC after consultations which were proposed in the Bill as we sent it to the other place. The establishment of that body marks a new development in trade union history and it is one of considerable importance.

It does not mean that the trade union movement is seeking to keep everything within its own boundaries. Indeed the trade union movement as a whole will have surveillance over the operations of the individual trade unions in a way that has not existed before. In these circumstances that is right, and it can also have a good effect in ensuring that the individual trade unions seek to avoid injustices to individuals and to avoid reference to the courts from arising. That development should be welcomed by the House.

We would be most unwise to say that the independent review body proposed by the TUC does not mark a great step forward. We should also be careful not to take legal action which could prejudice the operation of this new independent review, which has a better opportunity of providing safeguards for the individual than has the legal machinery. If the legal machinery or the absolutely thorough reference to the tribunals were to be incorporated, such as is envisaged in the Lords amendment and such as the Opposition have sometimes supported, and if that procedure were to be brought into operation to protect the individual, it is unlikely that the individual could be reinstated, once having been arbitrarily excluded or having lost his job. Very often reinstatement is the aim which the individual wishes to secure, and under the arrangements of the independent review, the possibilities of reinstatement are much greater.

I ask the House to reject the Lords amendment, so as to give a good start to the independent review procedure proposed by the TUC. I believe that that is much the best way of dealing with the problem, as it may exist. It is the best way of setting about it. If we found that that procedure did not work, we would have to seek other means of protection for the individual, but I think that it is much better, when we have a new proposal for dealing with it, mat we should give that proposal the best possible start. On those grounds I ask the House to reject the Lords amendment.

Mr. Leon Brittan (Cleveland and Whitby)

My right hon. Friend the Member for Lowestoft (Mr. Prior) has asked me to express his apologies to the House for his absence today. A long-standing engagement involving other people has taken him abroad.

For well over a generation the desirability of the closed shop has been one of the most hotly contested issues in industrial relations. Its supporters and opponents alike have been equally vehement. If that controversy could be stilled, a major source of national contention would be removed.

During the debates on this Bill and its predecessor, the Opposition substantially altered their previous position in the hope that this end could be achieved and some sorely needed common ground reached. However great our reservations about the closed shop, we were prepared to accept that it should be permissible, subject to some limited but crucial qualifications. Those qualifications were that proper safeguards should be provided for minority unions, for freedom of expression, and for the individual who is treated unfairly by a union or who has conscientious objections to joining one.

The Government refused to accept those qualifications and have thereby rejected the golden opportunity of achieving a reasonable compromise between our support for the rights of the individual and the strong feeling within parts of the trade union movement that the closed shop is an industrial necessity.

Accordingly today we find ourselves supporting the amendment made in another place which is designed to protect an individual against unfair exclusion from a trade union or unfair expulsion from it. There is no dispute between the parties as to the need for protection in a situation of this kind, especially, but not only, in a closed shop situation. Today membership of the trade unions affects, and is likely to continue to affect, a man's livelihood, and is one of the most crucial employment matters. The only dispute between the parties is as to the form in which protection from unfair exclusion and expulsion could take.

That does not mean to say that we consider that the trade union movement is guilty of massive abuses of power. We have made it clear in all the debates that we accept that this problem affects only a limited number of individuals, but both in principle and in practice it is none the less important. The need for the protection of the individual was recognised by the Donovan Report, which recommended that statutory backing should be provided for a review body. The need was recognised by the Government. The strongest suggestions were made early last year and since that the Government would handle the matter by legislation.

Contrary to the fears of the Secretary of State, I do not propose to rehearse the various hints and implications in what he and his colleagues said in suggesting legislation. It was foreshadowed at one stage during the passage of the Employment Protection Bill. But nothing came. Finally, because nothing had come, Section 5 of the 1974 Act was passed handing the matter over to the industrial tribunals.

On Second Reading of this Bill, the Secretary of State spoke of the TUC proposal for a review committee. As we pointed out, we had distinct reservations about that as a basis for proceeding in this matter. Nevertheless, contrary to what the Secretary of State has implied in his suggestion of an attempt to subvert the proposal for a TUC review committee, the Lords amendment, which we attempted to bring about in Committee in this House, is an effort to build on it and to give it a very limited degree of statutory backing.

Mr. Sidney Bidwell (Ealing Southall)

It is hard for those of us brought up in the trade union movement, with various views on the concept of the closed shop, to hear a member of the legal profession denigrating the principle of the closed shop in any shape or form, since his profession is wholly tied up with a closed shop. When the House was debating the Industrial Relations Bill for so long, all these matters were considered and the Conservative Government then retreated on the basis of a fair compromise on the question of the agency shop. In the end, in the Industrial Relations Act we got the stupidity of people having to pay into a charity, and other such nonsense.

Mr. Brittan

The hon. Gentleman has had the benefit of being here longer than I. But one of the advantages of coming to these matters slightly more fresh is that one can perhaps avoid refighting the battles of yesteryear and try to produce a genuine basis for moving forward. That is what we are trying to do. The basis for this debate is the very narrow one of whether it is right that the proposal which we have reluctantly accepted as being the working proposal—to deal with a problem which the Secretary of State concedes to exist, and has done so for 18 months—should be dealt with purely by a trade union review committee or given a modest degree of statutory backing.

The Secretary of State is familiar with the concept of a statutory back-up for what is claimed to be fundamentally voluntary procedure. He may recall that small piece of legislation last summer, the Remuneration, Charges and Grants Act, which sought to implement the principle of a modest degree of statutory back-up for what was portrayed as an essentially voluntary policy. Rather in the same way, this modest Lords amendment seeks to do exactly that.

I am seeking to persuade the House that the differences between the procedure proposed by the Secretary of State and the one which the Lords have enacted are wholly in favour of the Lords amendment for the implimentation of the principle and purpose which I have thought we all shared. There are four essential differences between the right hon. Gentleman's proposal and the Lords amendment.

4.15 p.m.

The first of these differences relates to the appointment of the review committee. The right hon. Gentleman proposes that it should be done by the General Council of the TUC and that there should be consultation. We believe, with the Lords, that the tribunal should be appointed by the Secretary of State in consultation with the General Council of the TUC and the chairman of the Advisory, Conciliation and Arbitration Service. We do not believe that to be an unreasonable suggestion in the light of the reasonable maxim that justice should not only be done but be seen to be done.

I have no doubt that if the TUC were left to this matter on its own it would operate in complete good faith, but an individual who feels aggrieved, however unjustly, will hardly be satisfied to deal with a body which appears to have been appointed by the parent body against which he is himself appealing. To suggest that it should be the other way round is surely an elementary protection for the basic principle of justice.

Let us imagine what an outcry there would be from the Labour Party if we suggested that questions of unfair dismissal should be determined by a review body appointed by the President of the CBI. Yet it is a precise parallel, and the change we suggest is wholly in the direction of fairness and justice.

The second change proposed is equally innocuous—that the procedure of such a tribunal shall be in accordance with rules made by the TUC but approved by the Council on Tribunals. The Council on Tribunals is not a judicial body. It is an administrative body, and it has not been subjected to criticism, as far as I am aware, from the Labour Party. We are not even suggesting that the Council on Tribunals should make the rules on procedure. We only suggest that it should exercise its basic rule as a watchdog on procedure and principles of justice and have the right to approve the rules made by the TUC. That is hardly a Draconian or hostile suggestion. It is not difficult to propose if one is sincere in desiring this limited but genuine problem to be dealt with fairly.

The third difference between the procedure proposed by the right hon. Gentleman and the one we support is that we would make provision for what will happen until the tribunal is set up, or if it is not set up. That may seem rather unreal or unnecessary until one reads the words of the Minister of State on 17th December 1974 in Committee on the Bill. He said: This tribunal should be in existence early in the new year, possibly before we have completed our Committee proceedings. We are not racing the TUC to see who can get there first, but the TUC intends that nothing we do in this Committee will hold up its progress towards the early establishment of this appeal tribunal."—[Official Report, Standing Committee E, 17th December 1974; c. 62.] This is 15th October 1975 and the appeal tribunal has not been appointed yet. We believe that, even if it is thought that industrial tribunals are an unsatisfactory forum, until this new body is set up they should fill the vacuum, which in any case ought not to exist.

The fourth difference between what we support and what the Secretary of State would have done relates to the important matter of enforcement. He advocates a proposal which has no means attached to it whereby to ensure that the findings of the review committee are ever implemented in any shape or form.

We are asked to believe that the unions will implement the proposal and leave it at that. I readily concede that in the overwhelming majority of cases the unions will implement the findings of the review committee.

However, it was not some dire Right-winger but an extremely distinguished libertarian law lord, Lord Salmon, who in another place pointed out the possibility of a union falling into the hands of those who were not prepared to implement the recommendations of the review committee and who said that there should be some fall-back procedure. If the Secretary of State is right in saying that the unions will obey the recommendations of the review committee there will be no problem. If the right hon. Gentleman had read slightly more carefully the Lords amendment he would have appreciated that if that happens none of the judicial intervention which he regards as anathema would come into existence. The implementation of the review committee's award would occur, and that would be an end of the matter.

Therefore, subsection (5), to which objection is taken, arises only in the situation in which the review committee's recommendation is ignored. In that limited situation, in which ex hypothesi an individual has been wronged and has been found to be wronged and in which he has been adjudged right but in which his union will not implement the recommendation, is it too much to ask that he should have recourse to the courts? That is hardly a Draconian power. It is a reasonable one to apply as a last fallback position.

Mr. Ron Thomas (Bristol, North-West)

Will the hon. Gentleman expand a little on the enforcement aspect? No doubt he will recall exactly what the legal paraphernalia set up under the Industrial Relations Act attempted to do in the Goad case. All the legal enforcement for which the hon. Gentleman could have wished was used in that case but it failed miserably.

Mr. Brittan

There is a difference there because—to speak candidly about the political realities—the climate has changed It is plain from this that what is being re-introduced is not the National Industrial Relations Court that has caused such ill-will. In the fall-back position which we are envisaging, in which the trade union movement's own review body has been defied, I would anticipate—I hope with confidence and conviction—that the Trades Union Congress would support its own body and would not encourage any kind of action other than action in support of its own body. That is an important difference.

Another important difference is that recourse would not be to the National Industrial Relations Court but to the ordinary courts of the land. If the hon. Member for Bristol, North-West (Mr. Thomas) and the Secretary of State were to say that in no circumstances should the union member have recourse to the courts of the land, I could understand their approach, but this is not the position

taken by the Secretary of State. Again and again during the passage of the Bill the right hon. Gentleman has said that nothing will take away the rights of the individual under common law to apply to the courts. He is there implying that if the common law rights are followed and an order is made by the courts, the trade union movement will happily accept the order. If the trade union movement is prepared to accept enforcement by the courts of the land of common law rights, surely it will be prepared to accept the enforcement by the courts of the land of a finding of its own review committee. That is irrefutable.

The Government have proposed a solution to a limited problem but it is a matter of principle and, therefore, is of crucial importance. We have considerable reservations about it. However, we sought in this place unsuccessfully—others sought elsewhere successfully—to provide the minimum degree of backing to the proposal put forward by the Secretary of State in order to make it work and to give it effect.

It would be a tragedy if a matter that has been so controversial for so long could not be stilled at last by the acceptance of a modest further degree of protection for the rights of the individuals whom we have all been sent here to serve.

Question put, That this House doth disagree with the Lords in the said amendment:—

The House divided:Ayes 281, Noes 235.

Question accordingly agreed to.

Subsequent Lords amendments disagreed to.

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