Trade Union Act 1984 (Amendment) (No. 2) (Hansard, 4 July 1990)

I beg to move,

That leave be given to bring in a Bill to amend the Trade Union Act 1984 by extending by any time taken up by court proceedings the four week period in which a ballot must be implemented by a trade union. [Interruption.]—I am receiving encouragement from one of the louts on the Government Front Bench, but despite that I shall continue.

We can see what happens when the law interferes in trade union affairs. Not even this anti-trade union Government intended what came about in the case of which I shall speak. In order to illustrate it, I must return to last year's docks dispute. The Trade Union Act 1984 provides for legal immunity for those strikes called within 28 days of an affirmative ballot by union members. The anomaly that was created was due to the docks dispute and was, by the Government's own admission, unintended and unforeseen.

The chronological order of events is that, on 2 May last year, the Transport and General Workers Union announced its intention to ballot its members on whether they wished to strike in response to plans to abolish the national dock labour scheme. On 8 May, the port employers issued a writ alleging that the strike action would be unlawful as it did not involve an immediate trade dispute. On 19 May, the Transport and General Workers Union held a ballot resulting in an overwhelming majority in favour of strike action. At that time, the union believed that, using the 28 days, it had until 16 June in which to start a strike lawfully. On 29 May, the court decided in favour of the union, but gave the port employers leave to appeal against that decision.

On 17 June, following an appeal by the employers, the Appeal Court reversed the original decision and granted the port employers an injunction preventing industrial action. The Transport and General Workers Union then decided to take the case to the House of Lords. On 21 June, the other place reversed the Appeal Court's ruling and lifted the injunction preventing industrial action. Unfortunately, by that time the union had exceeded the 28 days allowed for the ballot and was forced to hold another ballot at great expense.

Even on the Government's own admission, it was not intended under the Trade Union Act 1984 that, following an affirmative ballot of its members, a union would not have the freedom during the 28-day period to start a strike lawfully. During the docks dispute, the Transport and General Workers Union had no time to call a strike, because during the 28 days it faced court action and so could not have a ballot.

The spirit of the Act was clearly undermined by that process. It is necessary to amend the Act to preserve the spirit in which it was first passed into law and prevent a recurrence of that unintended anomaly. Unfortunately, the Government have set their face against any such amendment. They have said that it would be unnecessary, as the circumstances of the docks dispute were exceptional and unlikely to be repeated. They said that to amend the Act would be an over-reaction. That was not the opinion of many people in the other place, particularly the noble and learned Lord Donaldson, the Master of the Rolls. No 1021 one would imagine Lord Donaldson to be a defender of trade union rights—he is the last person one would expect to be so.

Lord Donaldson described the Government's attitude when they said that to amend the Act would be an over-reaction as a triumph of hope over all experience. He continued that his experience as a practising lawyer and judge was where there is sufficient money at stake"— that is interesting in itself— one or other of the parties will not hesitate to take legal proceedings purely with a view to achieving delay."—[Official Report, House of Lords, 6 December 1989; Vol. 513, c. 947.] How right Lord Donaldson was to say that. He also said that the losers in such a case would be those people whose court proceedings would have to be rescheduled to accommodate the new proceedings as soon as possible. He added that the 28-day rule places a heavy burden on the legal process because of its inflexibility.

The noble and learned Lord made an important point when he said that, having seen the example of the port disputes last year, other employers will be tempted to use the law as a delaying mechanism. Rules should be made as soon as possible to pre-empt that possibility.

The Master of the Rolls was concerned about the law and how it affects the courts, but he was equally concerned to say that trade unions could be adversely affected because there was no doubt that other unscrupulous employers would follow the example set by the port employers.

The 1984 Act has created another major imbalance in industrial relations. The scales are again weighted against trade unions which are placed at a severe disadvantage. First, unions and then members have to foot the considerable bill for re-running the ballot. Trade unions do not have unlimited funds and, as well as the cost of the ballot, postal, administrative and other charges have to be taken into account.

Secondly, unions which have industrial action delayed by court proceedings could find that their campaign was losing momentum. That could cause frustration and 1022 pressure from members for industrial action. If there has been an overwhelming majority in favour of industrial action at the earliest opportunity, members will become frustrated at having to await the outcome of further negotiations. Obviously, that could lead to unofficial action, and I hardly think that that was what the Government had in mind for the Employment Act 1984.

In spite of Government opposition to the amendment, when it was debated in the other place it was overwhelmingly supported by members of all parties. The only people who are dragging their feet over this extremely sensible amendment are the Government. Why are they doing that? Perhaps they think that, if they make a union have another ballot, its members will be put off and the union will lose support.

However, that did not happen in the docks dispute. In the first ballot called in 1989, 74–3 per cent. of union members were in favour of industrial action and 25–7 per cent. were against it. The turnout was 90 per cent. If we could achieve such a turnout in a general election, we would think that democracy had returned to Britain. In spite of the delay, the second ballot, which was held on 7 July, showed that 74.2 per cent. of union members were in favour of industrial action and 25.8 per cent. were not, and the turnout had gone up. Such a sensible Bill should be accepted without delay.