Grand Committee Report of 15 June 2004

Official Report of the Grand Committee on the Employment Relations Bill
(Third day)
Tuesday, 15 June 2004.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Elton) in the Chair.]
Lord McCarthy Lord McCarthy moved Amendment No. 53:
After Clause 27, insert the following new clause—
"RIGHT TO ORGANISE AND BE HEARD: INFORMATION FOR WORKERS
(1) This section applies to a workplace where the employer does not recognise an independent trade union in respect of a relevant worker.
(2) A "relevant worker" means a worker employed wholly or mainly at the workplace who is eligible to become a member of such a trade union under its rules.
(3) Where a relevant worker informs the union in writing that he wishes to receive information concerning trade union services, the union shall notify the employer of that fact and invite the employer to make available opportunities at an appropriate time to provide the worker with information at the workplace concerning those services.
(4) Thereafter the employer shall as far as reasonably practicable provide such opportunities to the union."
The noble Lord said: I hope that we can agree to take Amendments Nos. 53 to 56 together because they relate to one another. Indeed, if we had thought further we would have rolled them all up into one giant amendment. However, I hope that they make some kind of consistent whole.
We are trying to promote what we call the "right to organise and be heard". The four amendments taken together create a situation in which a worker in an unrecognised establishment—the amendments deal essentially with unrecognised union places—approaches a suitable union and asks for information about that union. He or she is interested in the possibility of joining the union and wants to know more about it. At that point, nothing happens with regard to the employer—the business is between the union and the potential member. But we are suggesting that if the union asks the employer for a certain elementary assistance and to provide certain opportunities, the employer should be under a legal responsibility to do so.
The amendment does not specify precisely what the form of this assistance should be. It is the sort of thing that governments always tell us they put in regulations, which is fair enough. But it would take the form of arrangements for meetings and documents that the union might give to the employer and which the employer might circulate to the interested worker or
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workers. There might be access to a website, and so on. The employer would be assisting in a very elementary and minimal way in the right of the worker to organise and to hear what the union has to offer. That is why we call it the right to organise and be heard.
If we have such a provision, there must be certain sanctions in case the employer takes no notice or the worker gets no response. We have a minimal elementary provision for complaints, which could be taken before an industrial tribunal. In order to fill out what that might involve beyond the bare bones of regulations, we are saying that there should be a code of practice.
Why should one propose such a measure at this moment? What would be the case? There are several reasons for doing so. First, it appears to us to be a logical development of the Government's commitment to what is in effect the recognition procedure. The Government established a recognition procedure in the 1999 Act which represents on their part a limited and balanced commitment—as we have said frequently in previous debates on this Bill—and an agreed commitment to encourage trade union recognition and development.
There are some 1.5 million members of trade unions in unrecognised places of work, the great majority of which are in the private sector. They work in firms where not only are their unions not recognised but there is also no trade union recognition. It is extremely implausible to suggest that from a position of no representation, knowledge, information, facilities or anything else, we could expect trade unionism spontaneously to develop. If one is committed to recognising the validity and utility of trade union organisation, there should be something before that recognition procedure—as a curtain-raiser or a preface.
There is a great deal in international conventions, the European social charter and so on, which we have cited many times, about the right to organise and to resist employers who seek to prevent that right. However, there is very little, certainly in domestic legislation, about the positive aids towards the right to organise. In a non-union environment, the right to organise is weak, so there is a logic to the commitment.
There is a contemporary parallel. My noble friend Lord Sainsbury will remember our many debates on the Employment Act 2002 about whether the Government were doing all they could; whether they should do more to provide forms of dispute resolution outside the system established by law; whether they should make more use of the provisions of the Advisory, Arbitration and Conciliation Service; and whether they should in some way restrict access to tribunals. In the end, the Government agreed that they ought to provide some sort of domestic procedure. We said at the time that that would be extremely difficult, and so it has turned out to be. After all this time we still do not have the regulations because they are still in draft. It is very difficult to get agreement between the two sides on them.
Nevertheless, some agreement has been achieved. As I understand it, when it is effective, the domestic procedure will, to some extent, prevent immediate

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access to the tribunal, and will have within it a collective aspect. Obviously, we cannot have an agreements procedure that discourages applications to the tribunal if it is entirely individualistic; it needs a collective aspect that encourages workers to use the procedures available.
The logic of that requires something to be done for trade unions, or something to encourage individual workers. If there is a right to organise, there should be a right to information and assistance, however moderate. That is the idea behind the amendments. I beg to move.
Baroness Turner of Camden: The Bill is largely about union recognition and how it may be achieved. As we have said on numerous occasions, although we have reservations about some provisions of the Bill, broadly speaking my noble friend and I are in favour of it. However, there is the matter of union access to non-members which we discussed under the provisions for a suitable independent person earlier in the Bill. That provision is intended for situations where a recognition claim is about to be made. In other words, the union is already able to claim recognition because it has membership on the employer's staff for whom it wants the right to bargain collectively.
The access amendment proposed is designed to facilitate union organisation. As a former union organiser, I make no apology for that. It does so by setting out what should be done and enshrining that in a legal framework. I think that that is reasonable and sensible. The Government are a signatory to the International Labour Organisation conventions about the right to organise and bargain collectively. Our amendment sets out what may or may not be done where recognition has not been achieved but where some employees feel that they would like to belong to a union and learn more about union facilities. I hope that my noble friend will regard the amendment as a helpful addition to the Bill, because it is meant to be so.
Baroness Miller of Hendon: Although I am certain that the noble Lord and the noble Baroness think that the amendment will be a helpful addition to the Bill, I do not agree. In general terms, the amendments do not support good industrial relations because they place one-sided obligations on the employer. I cannot imagine why employees could not get the information they want. I feel that these amendments will add to the burden of the work before it gets to tribunal.
I note that Amendment No. 56 is included in the grouping. I would not say that I do not agree with it in the same way as I do not agree with the other three amendments in this group. We have tabled a similar amendment but it refers to a code of practice to the CAC and not to ACAS. I think it would be a good idea to have such a provision.
Lord Triesman: This group of amendments creates new rights and obligations in respect of workers who are not currently covered by a recognition agreement with an independent union. They are genuinely ambitious amendments and cover a major piece of
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territory. Not surprisingly, there are some difficulties in the legal drafting of such broad provisions. For example, Amendment No. 55 gives no indication of the remedies the tribunal might apply where it finds that a complaint is well-founded. I could point to one or two other technical drafting points, but I do not think that that would be helpful. Rather, I would like to discuss the policy rationale underpinning the new right to organise that the amendments seek to introduce.
The new right to organise and the duty that it imposes on employers—and it is just a duty on employers, as the noble Baroness, Lady Miller, pointed out—are set out in Amendment No. 53. The terms used in that amendment are defined in Amendment No. 54, which also specifies some supplementary provisions. So I will address my remarks mainly to those two amendments, as they are the hub of the matter.
Amendment No. 53 obliges employers to provide opportunities for a union to give information to workers who send written requests to the union for information about its services. Those opportunities must be provided at the workplace of the worker. Amendment No. 54 specifies certain types of access that are included within the definition of an opportunity. Among these are the holding of on-site meetings between the union and the worker or workers involved, together with the dissemination of union literature to those individuals.
It follows that the whole process starts with the worker approaching the union through a written communication. Everyone who has been engaged in organising will recognise that that is, in general, how it starts. If so, surely the union and the worker have established contact already and do not need to use the employer's premises or facilities to develop their immediate dialogue. The union simply needs to write back to the worker at his or her address, or meet the worker outside the workplace to provide the necessary information on the union's services. There is no practical reason why this process should involve the employer at all, impose costs on him or disrupt his business through workplace meetings.
I should add at this point that the holding of workplace meetings will be virtually impossible to organise in accordance with these amendments. Subsection (2) of the new clause inserted by Amendment No. 54 states that the union shall not inform the employer of the identity of the workers involved. How, then, can the employer facilitate the meeting when he is expressly denied information about the people who will attend?
There are extensive rights to union membership in this country, which are being strengthened by the Bill. These rights ensure that individual union members can use the services of their union at an appropriate time and cannot be penalised for so doing. However, there is no obligation under international law for such worker and union dealings actually to take place on the employer's premises. That extrapolates further than any current international law provides.

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In response to my noble friend Lord McCarthy, I do believe that it follows that there is no ability for union members to access union services where the union is not recognised because we already have a right to be accompanied at a grievance or disciplinary hearing by a union official. That is an existing arrangement and it applies whether or not the union is recognised. There are already key advantages in place.
3.45 p.m.
However, I do not believe that the amendments are about passing information on the union to interested workers; rather—and I understand exactly why—they seek to establish for unions broader access rights to workplaces where they are not currently recognised, to enable them to obtain recognition. Such rights go far beyond those already established by law. As I have said, such access could well involve a number of obligations on the employer. More important still, the access rights would apply across a wide range of circumstances, taking little account of the prevailing state of industrial relations at any given workplace. They also make no allowance for the existence of the statutory recognition procedure, which contains specific access entitlements.
Let me try to illustrate the mischief that might be caused. Let us assume for a moment, not that there is simply one union trying to get access or to achieve recognition, but that there are two competing unions, unions A and B, vying for recognition. Union A makes an application for statutory recognition, which is acceptable as admissible by the CAC. We now enter the sensitive phase in the recognition process. However, under the proposals made by my noble friends, union B could easily access the workplace at this time, presenting its advantages, competing and undermining union A's bid to the CAC. My noble friends, who have a wealth of industrial relations experience, will understand how disruptive that would be for union A, which will potentially have done a huge amount of work to try to secure recognition. I fear that inter-union rivalries do take place. They would be transferred directly on to the shop floor in those circumstances and as a result Union A's bid for recognition would be weakened, potentially fatally.
The example that I have given, without naming unions but calling them unions A and B, is not entirely fanciful. I suspect that all organisers will have come across precisely the sorts of examples where that kind of competition can be disruptive exactly as I have described. I fear that I have one or two painful memories of such occasions.
I, and probably all Members of the Committee, will know how difficult it can be for a union to organise any group of workers. It is a long slog and can be very painstaking, even when the union is already recognised, let alone when it is trying to get recognition. It is therefore important for unions to develop new techniques of effective organisation, which they have done. The TUC's organising academy was a major innovation that had a great impact on many unions. It is precisely the sort of innovation that
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I am trying to describe. I sympathise with my noble friend's wish to make life easier, but one way or another, I do not think that it would allow us to avoid the difficult slog.
This legislative route is not the right way to proceed. For the reasons I have outlined, I believe that it is flawed. In that light, I invite my noble friend to withdraw his amendment.
Lord McCarthy: We have had a very interesting debate, to which I shall try to respond briefly.
I am glad that the noble Baroness says—I must be careful to get her words right—that she is against the amendment because she does not think that trade unions assist industrial relations, and she thinks that they are one-sided. I tried to elicit an answer from her about that. Those who share her view of not wanting to assist trade unions because they are one-sided and do not improve industrial relations should tell us what they feel about the present legislation. If they are logical, they ought to come along and say, not that they are trying to make the legislation work, but that they are committed to abolishing it, if they ever returned to power.
That does not help those of us who think that trade unions are a good thing and want to encourage them. We believe that trade unions can help industrial relations, because they help employers to know what workers think. Without representative institutions, however strongly employers may think they know what their workers think, they do not. We think that when employers find out what their workers think it is easier, better and not so difficult to find agreed ways forward. But the noble Baroness thinks that trade unions get in the way of that process, so we would not expect her to accept or encourage a proposal of this kind.
However, I would have thought that the Minister would be rather different. After all, he has been a trade union official and, presumably, he thought that he was doing good in that role. He has said a rather mixed bag of things about our amendment. He said that it is genuinely ambitious, but in the way that someone might be ambitious to fly by jumping off a mountain, because it will not work.
I agree with some of his criticisms. It is true that we do not specify how it would work in detail. That is a matter for the regulations or, if necessary, a code of practice. As regards compensation, the industrial tribunals are able—I have done it many times—to make declarations of what the law is. Many times, if they do not get involved in dismissals or anything of that kind, they are able to award compensation to individuals who are denied their legal rights. That might be a way forward. It is not the critical element. A solution could be found to all the things that we have mentioned.
Essentially, we are saying that there ought to be something before the formal recognition process. That is my answer to the Minister's question about whether there would be difficulties because a union might be using the recognition procedure. Of course, if someone

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was using the recognition procedure in a particular firm, one would not expect those things to apply. One would not expect the kind of assistance that would result in the types of disputes to which he referred, which occur already without such legislation. Again, I do not think that that is a critical matter.
The Minister said that this would not help. He knows as well as I do that in the union that we share—the AUT—in Oxford, for example, we do not have recognition. I declare my interest as president of that branch. We do not have formal recognition, but we hope to get it. We have a kind of benign acceptance. We have facilities. If we had a legal basis to extend those facilities, we would be in a stronger position and closer to full recognition than we are today. It is for practical reasons of that kind that I have brought forward this amendment. But we shall not get anywhere today, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54 to 56 not moved.]
Clause 28 [Inducements relating to union membership or activities]:
Lord McCarthy Lord McCarthy moved Amendment No. 57:
Page 27, line 20, leave out "sole or main"
The noble Lord said: We turn now to the whole question of the Joint Committee on Human Rights and the effect of the Wilson judgment, which I am afraid may take up quite a bit of our time today. Amendments Nos. 57, 59, 64, 65 and 66 have the effect of taking out the phrase "sole or main" at various places; I hope that we have found them all. The phrase appears twice more in Amendments Nos. 88 and 89, which we shall take subsequently because there is a rather different argument.
We want to delete the words "sole or main" throughout the Bill, which would therefore read:
"A worker has the right not to have an offer made to him by his employer for the"
purpose—not the sole or main purpose—of inducing him to leave or not become a member of the union. We do that for a number of reasons; this is an old, established problem.
As I said at Second Reading, employers have reacted in three main ways to the growth of trade unionism. Some employers have encouraged or not resisted it. But some have reacted in an extraordinarily—we would say nowadays—tough way by dismissing people who join trade unions or are found to be active in trade unions. But a lot of employers, not only in the 19th century, most certainly during the 1970s and 1980s, and even today, fell somewhere in between. They did not want to encourage trade unions, but they did not want to react automatically against their employees who joined trade unions. So they tried various devices, including threats, inducements and bribes. These were accepted among employers—indeed, many employers would accept them today—as a way of dealing with the presence of trade unionism in the firm.
In 1975, in effect for the first time, the then Labour government tried to limit and regulate that behaviour with Sections 53 and 54 of the 1975 Act. They made it actionable to prevent or deter people from belonging to or being active in a trade union. It did not cure the behaviour because it is incurable, but it can be dealt with and limited. On the whole it worked and seemed to satisfy trade unions until the famous case where the EAT took a decision which the Court of Appeal then reversed. In 1993, in this House, we came to the Ullswater amendment, which reversed the practical effect of the 1975 provisions.
Naturally, since the amendment was introduced by a Conservative government, it was not possible to do anything about it until there was a change of government. But even in 1999, when there had been a change and the trade unions asked for something similar to a reserve to the 1975 position, nothing effective was done. Perhaps nothing effective would have been done, but in 2002 the European Court of Human Rights declared in the famous Wilson judgment, which forms the basis of our argument today, that the existing law was a breach of Article 11. We maintain that any sensible person, on reading the judgment, has to say that our amendment is one way—only one—in which British legislation can be brought into conformity with the decision of the court.
We shall deal with some of the other ways to achieve that in later amendments, but removing the words "sole or main" is clearly necessary if the limits laid down in the judgment are to be met. Moreover, if "sole or main" remains, the Act will be unenforceable. Nothing in the judgment mentions "sole or main"; it is a term of art created by the Government. The judgment talked about the "purpose", saying that if the purpose was to discourage trade union membership, that would contravene Article 11. The Government invented the phrase "sole or main" and the practical effect of keeping it in the Bill would be to make the Act unenforceable.
All the employer needs to do is to argue something very similar to the defence introduced by the Ullswater amendment. He can say that he had a mixed motive. He can argue that it was not his only aim to discourage trade union membership when he promoted someone to an area where there was no trade union recognition; he can say that he had all kinds of aims. Any employer could deliver a rash of objectives, including making people work better, the introduction of incentive schemes and, as I said on the last occasion, improved washrooms. Anything could be the objective, but it just so happens that if you are not a member of a trade union you get the benefits, but if you are you do not. The defence will remain. Only when the words "sole or main" are removed, thus ensuring that the strict terms laid down by the court are met, can we hope to enforce the Act.
I shall quote from the Joint Committee on Human Rights. We hope that the committee supports us. But it is supporting us in a rather wishy-washy way.
4 p.m.
In the third progress report of the Joint Committee on Human Rights, published on 15 March, the committee said that it had doubts whether the current provisions meet the convention requirements. It looked at that stage as though the Joint Committee was not going to support us on "sole or main". However, in its fourth progress report, on 6 April—after listening to arguments and letters from Mr Hendy, the noble Lord, Lord Wedderburn, and other sources—the committee went so far as to say that it would be best to omit "sole or main" as that would really come into conformity with the judgment. It suggested that the point could not be made clear without the omission of "sole or main".
The committee had nothing to say on the point in its 13th report, on 5 May. However, in its most recent report, on 4 June, it said:
"We recommend that the effect of the provision in practice should be kept under review"—
although it does not give any real reason for that—
"and that amending legislation should be introduced as a matter of urgency if the practice of tribunals turns out not to protect the Article 11 right to collective bargaining in a reliable way".
I suggest, with respect to the Government, that that is not a satisfactory solution. Unless the Government are prepared to come out of the closet, as they were urged to do by the Joint Committee in its report, and accept this amendment, then sooner or later they will get into a situation in which tribunals do not protect Article 11 rights. For practical purposes the Bill's provisions are no different from those of the Ullswater amendment. That is what has happened. This is therefore an opportunity for the Government to do something simple and straightforward to settle the issue. I beg to move.
Baroness Turner of Camden: This is an important aspect of the Bill, as my noble friend Lord McCarthy indicated. He has referred, of course, to the 13th report of the Joint Committee on Human Rights, which has considered the matter again in the light of the information and the opinion that it had from the Government on their original opinion, which, as my noble friend Lord McCarthy indicated, was against including "sole or main" in the Bill at all and substituting for it simply "a purpose". The DTI, I understand, refuses to accept that a case can fall within Article 11 where,
"the purpose of the employer is in fact to retain or reward valuable staff"—
even though—
"one of the results, if the employer's offer is accepted, may be that particular terms of the workers will cease to be determined by collective agreement".
It is surely clear, however, that even the purpose of rewarding valuable staff could and may well be accompanied by an equal or less immediate purpose of weaning staff away from union representation. Indeed, there may be employers who would judge employees to be specially valuable staff not only because they were valuable in their job performance
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but also because they were willing to move to individualised contracts and abstain from any association with unions.
However, I think that the department has already accepted that this is a difficult issue, as indeed has the Joint Committee on Human Rights. Although it has come some way to meeting the Government's case, it has nevertheless, as my noble friend said, recommended that,
"the provision in practice should be kept under review and … amending legislation should be introduced as a matter of urgency if the practice of tribunals turns out not to protect the Article 11 right to collective bargaining in a reliable way".
It seems to me that in circumstances in which there is such a concern about whether the right wording has been found, it is much better to be on the safe side and simply have "a purpose" rather than "sole or main", as was first indicated in the report of the Joint Committee. That is what we had in mind when we drafted our amendments. We still hold to the view that we held then.
Baroness Miller of Hendon: I suggest to the noble Lord, Lord McCarthy, that if he intends to comment on my remarks about his amendments, he should do so accurately. I certainly do not wish to have a repeat of what we had last time.
Lord McCarthy: Sorry; I did not hear that.
Baroness Miller of Hendon: I said that if the noble Lord wishes to comment on my comments, he should not misquote me. I certainly did not say that in general terms the trades unions do not add to industrial relations. The line that I actually wrote was that, "the amendments do not". That is a completely different meaning. I said that they were one-sided, which is what the Minister said when he responded. As we are at the very beginning of the sitting, I thought I should point out that it would be better if we did not go down those routes.
The five amendments in this group, proposed by noble Lords opposite, seek to leave out the words "sole or main" from the clauses where the employer is giving inducements to the employee in relation to collective bargaining. The effect of the amendments could be that if a wholly minor reason of the employer, however peripheral, were present, then adverse consequences could arise. The impracticality of this, that any fancied "side effect" could trigger those consequences, while the onus of proving that the thought never entered his mind, would have to be a burden that the employer would have to dispute. I believe that the Government are quite right to insist that it should be the "sole or main" reason.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): There are five amendments in this group. I believe that the key amendments are Amendments Nos. 57 and 59, which change the effect of the new rights within new Sections 145A and 145B of the 1992 Act. The other amendments—Amendments Nos. 64, 65 and 66—are consequential. I shall therefore focus

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my remarks on Amendments Nos. 57 and 59, but, in passing, I might add that I think that other consequential changes to new Section 145D are needed to achieve my noble friends' objectives.
New Sections 145A and 145B create rights for workers not to be made offers by their employers where such offers are made for prohibited purposes. Those prohibited purposes concern the inducement of workers to relinquish aspects of the right to associate freely in trade unions. As we are all aware, the offering of such inducements was central to the judgment by the European Court of Human Rights in the Wilson and Palmer case, and its finding that our trade union law was incompatible with Article 11 of the European convention.
It follows that the "purpose" or "purposes" of the employer's actions in offering inducements play a key role in the construction of these new rights. These amendments therefore focus on this core element of the protections.
Employment relations are often complex. We recognise, therefore, that the offering of inducements might well be driven by a mix of different motives. In other words, there might be cases where the employer wishes to achieve several purposes when making offers. Some of those purposes might be perfectly proper and meet necessary business needs. Others might constitute a prohibited purpose.
We believe we need to cater for such complexities within the new rights; otherwise we risk establishing a very rigid arrangement which might unnecessarily and harmfully constrain business activity. For example, we do not want to stop employers making offers to retain key staff. Our policy objective is to provide some scope for employers lawfully to offer an inducement where their main purpose in offering that inducement was not one of the prohibited purposes as defined by new Sections 145A and 145B. To achieve that aim, we inserted the words "sole or main purpose" within the definition of rights. It means that an offer is unlawful only where the employer's sole or main purpose in making it was one of the prohibited purposes.
Amendments Nos. 57 and 59 delete the words "sole or main". Their intention is to ensure that an offer is unlawful in cases where a subsidiary purpose—possibly a very minor one—was a prohibited purpose. As I have explained, we believe that that is too restrictive.
The law on human rights is complicated, and its application to trade union law, which is itself complicated, often raises difficult issues on which reasonable people can take different views.
However, we believe that we are complying with the European Convention on Human Rights in constructing the rights in this way. I dare say that my noble friends take a different view, but, as they will know, the Joint Committee on Human Rights has looked at this particular problem and has received evidence on the matter from various sources, including
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the DTI and my noble friend Lord Wedderburn. In this matter, the final view of the JCHR accepts that there is a case for retaining the "sole or main" test.
My noble friend Lord McCarthy believes those rights to be unenforceable. I do not pretend that that is an easy matter on which to make a decision. However, tribunals are experts and accustomed to assessing such issues when presented with the arguments from each side. They do so regularly in unfair dismissal cases when assessing the principal reason for a dismissal.
We have also made provision within new Section 145D to make their task more manageable. It places the onus on the employer to show his sole or main purpose. It also sets out matters that the tribunal should take into account in determining the employer's sole or main purpose under Section 145B. That represents a helpful steer to the tribunals when assessing the matter.
It is also interesting to note that Section 152 of the 1992 Act dealing with dismissal on comparable ground applies where the reason—or if there is more than one, the principal reason—is the offending one. We are bringing Section 146 into line with that. No one has claimed, nor could they claim, that Section 152 is unenforceable or ineffective.
My noble friends clearly take the view that under their amendment an employer will be caught if he has a subsidiary purpose to achieve what new Section 145B calls "the prohibited result". We doubt that: it is our view that the expression "the purpose" already requires the tribunal to consider the predominant purpose of the employer. I think that we can all accept that an employer may have a mix of purposes: I find it difficult to imagine how a tribunal could identify "the purpose" in such a case without looking at the predominant purpose rather than minor and subsidiary purposes. However, that is certainly not as clear as it should be in the legislation. This lack of clarity is another sound reason for altering the formulation to "sole or main purpose" as we have proposed.
We note that the Joint Committee on Human Rights has asked the Government to keep the practical operation of this test under review when it is applied by the tribunals. I can reassure both the JCHR and your Lordships that the Government will certainly do that. We know that those new rights represent a significant development in trade union law. It would therefore be normal practice for us to keep such provisions under scrutiny and to look at the cases that arise. In the light of those remarks, I would ask my noble friend to withdraw his amendment.
Lord McCarthy: I should to say to the noble Baroness, Lady Miller, that I am sorry that she thinks I have misquoted her again. I do not intend to misquote her. I must be very careful if I quote her ever again because I do not seem to be able to understand precisely what she is saying. No doubt that is my fault.
I turn now to the Minister. Can he cite any part of the judgment that leads to the particular form of words on which the Government have decided? It is not the

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same as the principal reason, although the principal reason gives enough problems to tribunals. Goodness gracious me, it does. I suppose that it would not be quite so bad if it was the principal reason, but it is the inclusion of the word "sole" and not just the word "main". Figures cannot be put on this, but for anyone considering a case of this kind, unless the element of discriminating against trade unions is insignificant—say, 1 or 2 per cent of the motivation of the employer—how on earth is the poor tribunal supposed to know that? I do not know.
Probably, the more examples that the employer can load in in order to show that he has got mixed motives, then the less chance there is that anything will be done by a tribunal. This is not like sex or race discrimination because most of the reasons that employers give to defend themselves against those types of discrimination do not stand up. They are not plausible in the context. That is why it is possible, after a great deal of examination and difficulty, to find cases of sex discrimination and race discrimination. But here the employer is loading the case against the union with a series of plausible motivations, which are likely to stand up in 99 per cent of cases. So it is not the same. I am not suggesting that we put this down as an amendment at Report, but it would be better if the Government had said "principle". I think that "sole or main" is significantly worse. The Government have never explained where this strange quotation came from and I would like to know.
My other point concerns the idea of review. The Committee has suggested that if a number of cases go against the trade unions the Government will review as an act of urgency. The Government say that they review everything and that life is a continuous review. But if these situations arise and they are brought to the Government's attention, although it cannot be proved in a tribunal that the employer's predominant purpose was to discriminate against or discourage the union, it will be well known that that is the case. If the Government decide to act, surely the only thing that they can do so far as "sole or main purpose" is concerned, is to adopt the essence of this amendment. So will the Government tell us today that, if we turn out to be right, they will accept that the only alternative is to accept an amendment of this kind? I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 58:
Page 28, line 8, leave out "which is recognised by his employer"
The noble Baroness said: The object of Amendment No. 58 is to make this section of the Bill applicable also to members of unrecognised independent trade unions. The Joint Committee on Human Rights recommended that the proposed section should apply to unrecognised trade unions as well as to recognised ones. The European Court of Human Rights made it clear that rights under Article 11 should apply whether or not a union is recognised.
I understand that the Government do not accept this recommendation on the grounds that, in Wilson and Palmer—which the clause was introduced to deal with—the employer was seeking to induce trade union members to give up their existing rights to have their terms and conditions determined by collective agreement with a recognised union. In other words, the employer was seeking to change the status quo and was using inducements directed at union members to try to bring it about.
The Government say that the situation where a union is seeking recognition is different in that the union is seeking to change the status quo so that the terms and conditions of its members will be determined by collective agreement. It does not seem to me that that is an adequate reason for rejecting the Joint Committee's recommendation. This Bill is about trade union recognition. In a situation where a union is seeking recognition, it is perhaps even more important that the type of protection afforded by these new clauses should be made available to members of unrecognised unions.
Unless the rights of members of unrecognised unions are included in this section of the Bill, an employer hostile to union organisation would have a clear run to offer inducements and preferment and to threaten unpleasant consequences before a union had the opportunity to get its campaign for recognition off the ground.
I hope that, on reflection, the Government will agree that the Joint Committee's recommendation should be accepted. I notice that at section 2.26 on page 42 of the latest report—it is the sixth progress report and thirteenth report of Session—the committee looks at the considerations that the Government have advanced against the idea of extending this section to unrecognised unions. It states:
"We recognise the force of this last consideration, but we doubt that the availability of a procedure for obtaining recognition can be said to provide adequate protection for a violation of the rights of a non-recognised union, at least in the short term. We draw this matter to the attention of each House".
In other words, it is also attempting to deal with the Government's argument that, as far as unrecognised unions are concerned, there is a procedure in the Bill whereby recognition can be obtained. The committee says that it does not regard this as an argument for denying the validity of the notion of the Court of Human Rights that protection should be afforded to non-recognised unions as well as recognised unions. I beg to move.
Baroness Miller of Hendon: Unless I have misunderstood the amendment, I believe that it would be entirely negative to the purpose of the recognition procedure because it would mean that an employer, having recognised or having been compelled to recognise a union, might also be compelled to deal with a rival union. It would also mean that employers would be compelled to deal with a union even after recognition proceedings had failed through lack of the

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proper level of support among employees. That is my understanding, and I do not think that it is a particularly good idea.
Lord Campbell of Alloway: I am a member of that committee. I agreed with the report and I still do so. I thought that the argument put by the noble Baroness, Lady Turner, was perfectly fair and objective, but for the life of me I cannot see why recognition should be the exclusive privilege of any particular type of trade union. Therefore I want to make it plain that I support Amendment No. 58.
Lord Sainsbury of Turville: This amendment concerns new Section 145B, which Clause 28 would insert into the 1992 Act if the clause became law. Currently, the right within the proposed new section is limited to the members of recognised trade unions only. The amendment seeks to widen its scope to include the members of non-recognised trade unions.
In drafting terms, the amendment does not make perfect sense because it does not make a necessary consequential change to subsection (2) of new Section 145B, which defines the prohibited result of the unlawful offer. That definition is couched in terms which pre-suppose that the union is already recognised. However, that is a small point and I want to address the main issue raised by my noble friends; namely, should we not create a similar right for the members of non-recognised unions?
We have opposed that idea for a number of reasons. First, we wanted to address the problem which had actually arisen in the Wilson and Palmer cases. The facts of those cases all concerned members of recognised unions which the employer was trying to derecognise. So the circumstances of the cases which gave rise to the judgment of the European Court did not deal directly with the reverse situation where the union was not recognised at all.
Secondly, we were concerned that there may well be adverse consequences for industrial relations if we extend the scope of Section 145B to cover the members of non-recognised unions. Let me give an example. It is by no means uncommon for recognition agreements with one union to cover a bargaining unit within which some workers belong to other unions. Both the recognised union and the employer usually take steps to promote the advantages of the recognition agreement. Both often try to discourage members of the other union from seeking a separate recognition arrangement for their own union. Who knows what "offers" the employer might make to those of the bargaining unit, including members of the non-recognised union, against this kind of sensitive industrial relations background? This situation could give rise to legal challenge from disgruntled members of the non-recognised union. Potentially, the stability of bargaining arrangements could be upset, and inter-union rivalries could surface in the tribunals or courts. The last thing we want—I am sure my noble friends share this view—is to make those new rights a weapon that can be used to upset established voluntary collective bargaining arrangements.
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As was clear from discussions last week, the law on recognition is a sensitive issue. We have taken steps to build a statutory procedure that takes considerable care to balance the legitimate interests of employers and unions. I fear that that kind of proposal might have unforeseen consequences and disrupt that delicate balance.
Thirdly, we were conscious that there were significant differences in the meaning of an offer under the two cases of recognition and non-recognition. Where the union is recognised, the offer can induce union members to forego key representational rights that the members enjoy. There is no obvious route whereby they could regain them. In contrast, where the union is not recognised, members do not lose any tangible benefits or rights as a result of these offers, because none exists. Indeed, in the simpler case where there are no inter-union rivalries, it is difficult to see why the employer would make such offers in the first place. As my noble friends know, even if they regret it, there is no right to union recognition and therefore, in contrast to the case where workers have their terms settled under a collective agreement, there is no right that the employer might wish to displace by making an offer. In those circumstances, it seems probable that the employer will simply refuse recognition.
My noble friends are probably concerned that such offers might prevent non-recognised unions from ever seeking to be recognised. But non-recognised unions can apply to the CAC for recognition under the statutory recognition procedure. Moreover, under that procedure, individual workers are protected against detriment or dismissal for taking a position on the recognition claim of the union. That protects workers who had previously accepted the employer's offer who support the union's application for statutory recognition. The making of offers to its members would therefore not fetter the legal entitlement of a non-recognised union to apply for recognition. That means that the making of offers in this situation is ineffective in achieving the employer's purpose of ensuring that recognition cannot ever cover the workers who accepted the offers.
The Joint Committee on Human Rights recognises the force of that consideration, although it appears to doubt that the availability of the statutory procedure can be said to provide adequate protection for the union "at least in the short term" to remedy the wrong that results from the offer. We will consider closely the Committee's views; however, it still seems to us that the existence of the statutory procedure deters employers from making these offers because they are such a weak means of pursuing the employer's objectives.
The amendment raises a difficult issue. We understand the arguments in favour of extending the scope of new Section 145B. I have tried to explain why we drew up the section in its current form, which undoubtedly deals with the gist of the inducement problem. However, I can assure my noble friends that we are still looking at the matter in the light of the

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latest report of the Joint Committee on Human Rights. I therefore ask my noble friend to withdraw her amendment.
Lord McCarthy: We are talking about human rights, not about collective bargaining and whether we can encourage a certain kind of such bargaining. Nothing in the European Convention on Human Rights says that you can deny the right of trade unionists or trade unions and somehow give them a second order of rights because they are not recognised. On the contrary, those rights inhere in trade unions and in workers, whether or not they are recognised. Indeed, one might well say that those who are not recognised need such rights more than anyone else; and that they should not be discriminated against and told that they cannot get promotion or a decent wage unless they drop out of their union precisely because they are not yet recognised.
I do not think that those who framed the international conventions would take away a member's rights if his or her union was in some sense a pirate union, trying to break in to a recognised area. Those rights inhere in individuals and in trade unions. You cannot wipe them out with certain convenient ways in which to limit their scope. The Government do not understand what the conventions are about.
4.30 p.m.
Lord Campbell of Alloway: I apologise for having spoken from a sedentary position. It is rather a hot day and I had forgotten the form.
As regards the remarks made by the noble Lord, Lord McCarthy, the convention would never include the type of specific provision such as he suggested should or could have been there. As the Minister has said that he will give consideration to the matter, all that I can do is to express my gratitude.
Baroness Turner of Camden: I thank the Minister for his explanation of the Government's opposition to the amendment. I noted that he was willing to give consideration to the 13th report and the recommendations that the committee has made, and I look forward to hearing the results of that further consideration.
I am surprised that once again the spectre has been raised of inter-union disagreement and dispute in connection with our amendment. Quite a number of years ago there were often lots of inter-union disputes, but there have not been as many recently as there used to be. Indeed, the TUC has taken a very active role in preventing such disputes, and there are committees available, of which I was once a member, to sort out difficulties when unions compete unsatisfactorily for recognition rights within bargaining units when they have not yet got a presence, and so on. The machinery exists within the industrial relations sphere for dealing with those problems.
I support what my noble friend Lord McCarthy said. We are dealing with the individual right of a member of an unrecognised union to have the protection which is extended to members of recognised
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unions. It is simple, really. Although I shall withdraw the amendment, we shall consider the matter again carefully, especially as the Government are going to consider the report of the Joint Committee, because we believe that the issue is an important one of individual human rights. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 60:
Page 28, line 16, after "is" insert "subject to subsection (6)"
The noble Baroness said: I shall speak also to Amendment No. 63. Amendment No. 60 is purely a paving amendment to make way for the substantive amendment, Amendment No. 63, and to make it clear that an agreement such as is covered by Amendment No. 63 is not, to use the wording introduced in the Bill, a "prohibited result".
When the 1999 Act was passed, it included a subsection—Section 17(4)—which was, with a minor variation which I shall mention shortly, the same as Amendment No. 63. In effect, it provided that, notwithstanding an agreement reached with a union after collective bargaining, an individual employer and an individual employee could come to an agreement which suited both of them better. By that agreement, the employer could pay, and the employee could accept and receive extra money—extra pay—for performing extra services. In other words, if the employee did more than was required of him under the collective agreement negotiated on his behalf by the union, he could be paid more. It did not include, for example, a better company car, the promise of promotion, a bigger office, more time off, or any other intangible benefit. The benefit had to be in the sole form of money.
There are two other qualifying conditions. First, there must be no inhibition against the employee being a member of a union. I will return to that matter shortly. Secondly, what the employee had to do to earn this extra money must be done under a proper contract of employment, and the payments must reasonably relate to the value of the services provided.
The principle of this amendment was at first very vigorously opposed by the Government but, eventually, the amendment in its present form in Section 17(4), was accepted under an agreement between me and the Minister in charge of the Bill, the noble Lord, Lord Simon of Highbury, on behalf of the Government.
It is right to point out two things: first, as I am given to understand, Section 17 of the 1999 Act has never been brought into effect in the five years since it was passed. I suppose I wonder why. Secondly, the Government's opposition to the amendment was repeated at the ensuing TUC conference, which demanded that what it called the "Miller amendment" should be repealed. My one claim to historical fame has been to have a section in an Act of Parliament

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named after me. Up to this time, the section has not been repealed, but, by not bringing it into force, it has been effectively kicked into touch.
It is, however, not without significance that, at the first legislative opportunity since the 1999 Act was passed, the Government seem to be trying to accede to the TUC's demand to repeal Section 17(4), wrapped up with the rest of the section, thereby annulling an agreement made in good faith between one of their Ministers and the Opposition. That ought not to be allowed.
The Government's reason for this volte face is a judgment of the European Court of Human Rights in Wilson and Palmer and others v the United Kingdom. In this case, it was effectively ruled that agreements which prohibited union membership in return for extra payment were not allowed. That is not a complete summary of the judgment, but I shall expand on it in a moment. Your Lordships will recall that I have just explained that Section 17(4)—modesty prevents me from continuing to call it the "Miller amendment"—anticipated that judgment by some three years, and expressly prohibited such a condition in an agreement.
After my Second Reading speech, I received a letter from Mr David Wilson, the Wilson of the Wilson and Palmer case, whose place in the history of labour relations is also assured by his having been part of a leading case. Mr Wilson upbraided me, quite rightly, for some unintentionally loose wording in my description of his case. He pointed out that his employers had attempted to procure a denial of the right of union representation to an employee receiving an extra benefit. The key word was representation. I am most grateful to him for having pointed that out to me. That is why I said, a few moments ago, that the description of the judgment was not complete. I wish that I had thought of the question of union representation as well as union membership in 1999.
As a consequence of what Mr Wilson wrote to me, I have slightly altered the wording that I am now proposing for inclusion in this Bill. The right to receive extra money for extra services must not now prevent a worker from being a member of a union—that is the same as I proposed before—nor prevent the worker from being represented by a union, holding office in a union or from participating in union activities. That is the difference between my amendment and the previous subsection.
That modification is the proper way in which to meet the requirements of the judgment of the ECHR—not by repealing Section 17(4). Why is it necessary to resuscitate Section 17(4)? Having effectively pigeonholed Section 17 of the 1999 Act, the Government have now introduced new Section 145B to the 1992 Act, which says, omitting irrelevant words, that a worker who is a member of a recognised union,
"has the right not to have an offer made to him",
which,
"would have the prohibited result".
What is a prohibited result? It is one in which,
"the workers' terms of employment, or any of those terms, will no longer be determined by collective agreement negotiated by…the union".
But that is precisely what Section 17(4) provided and permitted—namely, that an employer and a worker could negotiate a separate bargain outside of the collective agreement. That would be a better bargain to their minds, in which an employee who was prepared to do more, could be paid more.
It is precisely because new Section 145B(2) has introduced the concept of a prohibited result that the reinstatement of a modified Section 17(4) is essential, in accordance with the Government's previous agreement with me. I am aware that the Minister has suggested that nothing in this Bill abrogates the "Miller amendment". At Second Reading, he said:
"Our proposals already adequately safeguard these key business concerns and protect the ability of employers to offer enhanced terms to key workers who they wish to retain for sound business reasons".—[Official Report, 29/4/04; col. 930.]
That is not what the plain and unequivocal words of proposed new subsection (2) say, however. Neither I nor my advisers can find anything in the Bill which substantiates the Minister's claim. Indeed, new Section 145B(2) does precisely the opposite, and seems expressly to prohibit agreements outside collective bargaining. In the absence of clear, unequivocal chapter and verse that such an agreement is not prohibited by the Bill—although I should be very happy to hear clear and unequivocal chapter and verse—I beg to move.
Lord Sainsbury of Turville: The amendments relate to the proposed new rights within new Section 145B. They also have implications for the way in which Clauses 28 to 31 extend the protections against detriment on grounds of trade union membership and activities.
The noble Baroness argues that the provisions contained within these amendments are needed to ensure that employers enjoy the necessary flexibility when setting pay and reward systems. We entirely agree about the need for flexibility, as we understand that employers need to reward success to achieve high performance in the workplace. To motivate employees, all sorts of performance pay systems are in place. It is now the norm, rather than the exception, that workers doing the same or similar jobs often receive different pay, depending on their output, value added or other measures of performance. And, of course, different workers are promoted to higher-paying jobs on the basis of their past performance.
We have no desire to restrict employer freedoms in this area, as long as their actions are driven by the right business motives. We believe, however, that the existing wording of these clauses, including Clause 28, already provides the necessary safeguards and flexibilities. That is achieved through the reference within new Section 145B and elsewhere to the "sole or main" purposes of employer's offer. I draw the noble Baroness's attention to the debate that we have just had on this matter, as it is absolutely central to this

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point. We have already debated the matter. As the noble Baroness will be aware, some believe that we have created too much flexibility for the employer.
4.45 p.m.
I fear that these amendments could greatly undermine the protection that Clause 28 introduces. Their wording limits the circumstances in which payments of various kinds are counted as being unlawful offers under new Section 145B. Under her proposed arrangement, virtually all financial inducements would be permissible, so long as they were not linked to the explicit surrender in the contract of employment of union membership, union representation or participation in the union's affairs.
The meaning of "union representation" in this context is very unclear and would produce uncertain effects. But I believe that the intention, and probably the effect, is that the term should not cover the surrender of any entitlement for the worker to have his or her terms and conditions determined through collective agreement. If I am right, the amendments are designed to make it lawful for employers to induce workers to leave the scope of collective agreements. That is exactly what happened in the Wilson and Palmer case. The amendments therefore carry the great risk that we would fail to comply with the judgment of the European Court of Human Rights.
As we know, there is some history behind the amendments, to which the noble Baroness referred. They are adapted from wording used in Section 17(4) of the Employment Relations Act 1999. The noble Baroness was the author of that subsection, which is known as the "Miller amendment". It is often very difficult in Opposition, as my noble friend Lord McCarthy will confirm, to alter draft legislation. The noble Baroness used considerable skill to ensure that the provision was inserted into the 1999 Act. However, as she pointed out, Section 17 has never been commenced. The reason is simple: it was felt that the scope of the powers in the section were seriously restricted. The amended section was viewed as seriously flawed by both unions and employers, who did not want it at all.
Amendments Nos. 60 and 63, though different in some key respects, reinstate similar wording within the new protections that we propose. As I have explained, I see no advantages in so doing. We have created the necessary flexibility for employers in defining the new protections. The CBI and other employer groups understand, and largely support, our approach on that matter. Also, events have moved on since the 1999 Act was debated in this place. In particular, we have the judgment of the European Court of Human Rights in the Wilson and Palmer case. The amendments would almost certainly mean that we would fail to comply with that judgment.
Put simply, to the extent that the noble Baroness's motives are pure—I am sure that they are always so—the flexibility for employers that she has championed is now available to them. To the extent that her motives are not pure—I do not want to pull her down
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that path—and that she condones in any way the practice of employers trying to induce people to break collective agreements, quite rightly that has not been allowed in the legislation. I say that because the noble Baroness's amendments are intended to build on, rather than displace, the new provisions contained in Clauses 28 to 31. The effect of the two sets of provisions when read together can only be described as very difficult and unclear. It is simply not possible to work out how her amendments interact with the clauses of the Bill. As a result, the amendments would sow confusion and uncertainty. I hope that she will accept—I have every reason to think that she will—that that would not be in the interests of anyone, whether employers, trade unions or employees.
I hope that, given my remarks about flexibility, the noble Baroness will agree to withdraw her amendments.
Baroness Miller of Hendon: I shall certainly withdraw the amendment in a moment; I have no problem with that. I am delighted that the Minister thought that most of my motives were pure, although he went on to suggest that some may not have been pure. I would like to assure the Minister that I have never had an impure thought or motive in my life.
I shall read with extreme care what the Minister has said and I shall go over the clauses again because in moving the amendment I said that neither I nor my advisers found the point covered that the Minister has just confirmed is so covered. I am pleased that the Minister thinks that I have been working hard for employers, but I am also interested in employees. I would not want him to think that I am not.
Having made those points, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 61:
Page 28, line 24, after "worker" insert "or his trade union, whether recognised or unrecognised,"
The noble Baroness said: In moving Amendment No. 61 I shall speak also to Amendment No. 62. These are important amendments, although Amendment No. 62 is the main amendment in the group. There is an important aspect of the ECHR judgment that the Joint Committee on Human Rights believes has not been adequately dealt with in the clauses we are now debating. The judgment could hardly have been more clear.
By using financial incentives and detriment in order to induce workers to give up their rights to have their unions represent them, the rights of both workers and unions were infringed. However, the Bill provides no remedy for the union. It scarcely acknowledges the separate union rights in the matter. The joint committee accepts that the Bill would not enable a trade union to bring proceedings to obtain a remedy for action taken by an employer to offer inducements to employees not to join a trade union or take part in union activities. It says that this represents a lacuna in

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the Bill that could prevent it achieving its objective of rectifying part of the incompatibility established by the ECHR in the Wilson case.
Amendment No. 62 provides that a union with a member or members whose rights under the Bill had been contravened by an employer may present a complaint that an employer had acted in contravention of the relevant sections of the Bill to an employment tribunal. Where a tribunal finds that a union complaint is well founded, it shall make a declaration to that effect, leaving it for the union to take the matter further, should it wish to do so. The joint committee has pointed out that if the employer is a public authority, it would be open to the union to bring proceedings under Section 7 of the Human Rights Act 1998, but this would not apply if the employer was not a public authority, rather a private employer. The union would be without a domestic remedy for the violation of its rights. That seems entirely inequitable and I hope that the Government will be prepared to accept this reasonable amendment.
Incidentally, the joint committee has looked again at its recommendation in the light of views expressed by the Government and came to the following conclusion:
"We consider that failing to provide unions with an avenue for redressing a violation of their rights under Article 11 could result in a violation of both the Article 11 right and the right to an effective remedy for that violation. We draw this to the attention of each House".
I beg to move.
Lord Sainsbury of Turville: The rights introduced by new Sections 145A and 145B are assigned to the members of independent trade unions. It is those members who enforce the rights by complaining to employment tribunals and it is those members who receive the remedies for breaches of the rights in the form of declarations and awards by the tribunal. This approach is completely consistent with the way our other trade union-related rights for individuals, such as time off for union officials for trade union duties and activities, are designed and enforced.
There is no role for the union to bring a complaint on behalf of a member or for the union to complain in its own name. The main exceptions are the special cases of recognition and the right to information for the purposes of collective bargaining. What both these cases have in common is that they relate purely to the collective side of industrial relations: in one case the obtaining of recognition and in the other the acquisition of the information that the union needs to carry out collective bargaining effectively.
That is not the case here. While the continuation of collecting bargaining may be at issue, the objectionable conduct is done in relation to the individual members of the union rather than the union itself. It is to be noted that in both the special cases that I have mentioned, the union appeals to a different body, the CAC. That is because it is the CAC that deals with the collective aspect of industrial relations. Those clauses confer individual rights and, as one would expect, complaint is to an employment tribunal.
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The effect of the two amendments is to provide for the union to bring complaints to employment tribunals where the rights under new Section 145B have been infringed. Amendment No. 62 also seeks to provide something similar in connection with the rights within new Section 145A.
The key issue at the root of these amendments concerns the ability of the trade union to bring complaints in its own name. The logic of this case rests on the premise that as trade unions have rights under Article 11 of the European Convention on Human Rights, they must have a means to seek a remedy for breaches of those rights under relevant domestic laws.
That is a matter into which the Joint Committee on Human Rights has looked. In our evidence to the Joint Committee, we pointed out that when reaching its decision the European Court of Human Rights was driven by the rights of individual workers. In its judgment, there are very few references to, and little argumentation about, the violation of the rights of the union. In our belief, it follows that we are implementing the court's judgment properly if we provide individuals rather than unions with the corresponding rights and remedies. Moreover, in our view, the Article 11 rights of trade unions are safeguarded by providing these rights to their members as individuals.
The Joint Committee on Human Rights accepts that,
"the remedy obtained by the individual will often have the effect of indirectly vindicating the rights of the union".
However, it goes on to state that there may be circumstances where that will not occur because individual members are not prepared to take action themselves. It therefore considers that a separate avenue for the union to seek redress should be provided.
We are somewhat surprised by the Committee's view. As I have said, none of the other provisions of UK law that confer individual rights in relation to union matters provides for such a separate means of redress. That arrangement has worked adequately hitherto and I am sure that there is no reason to believe that it would not continue to do so in the future for these new rights when they are introduced, as well as for the existing rights.
In practical terms, unions are not disengaged from the process of enforcement. They will actively support their members in making those claims to tribunals. That happened in the Wilson and Palmer cases. I am sure that it will happen again in the future should other cases arise.
We take the Committee's views very seriously, even where they take issue with our considered position. I can assure my noble friends that we will study the report produced by the Joint Committee on Human Rights very carefully before deciding our final position on this matter. I therefore invite my noble friend to withdraw her amendment.
Lord McCarthy: On examination, the Government do not really give a reason. All the arguments that the noble Lord has put before us today were put to the committee and they were all rejected. There was no ambiguity about it. From the beginning, the committee rejected those arguments. The reason is simple because, essentially, the Minister says that there is no redress. He says that due to a technicality and due to the way in which we have processed industrial disputes and the rights of trade unions in the past, there is no redress for a denial of rights.
That is wrong. It is morally wrong. The law should provide redress and it would not be difficult. All it has to do is accept our amendment. Trade unions go before and use tribunals. There is no reason why they should not use tribunals in this respect. If the Government do not want them to use tribunals, they should let them use something else. There are other forms of redress. But for them to come out in circumstances of this kind when they have been told clearly and simply that there can be a denial of rights in this process and for them to provide no redress—that cannot be right.
Lord Campbell of Alloway: Very briefly, I support the reasoning of the Joint Committee. The noble Lord, Lord McCarthy, is totally right: the argument was fully considered. The essence to my mind, and I speak only for myself, is the curious illogicality of the absence of redress unless the employer is a public authority. That seems to me to be administration gone mad. I merely ask whether the noble Lord, Lord Sainsbury, would, if it is not too much trouble, reformulate in a letter his reservations on the reasoning of the Joint Committee so that we may once more—which we do—consider it in reply. There is a seed of injustice in this, on any showing.
5 p.m.
Lord Sainsbury of Turville: I hope that I have already given clear reasons why we believe that this is a different situation. Surely the question here is whether it is sufficient for there to be redress through the individuals or whether the union itself has to have this right. Noble Lords may not agree with the argument, but I have pointed out why I believe that the way in which we have dealt with these matters—through the members—is the correct way. I do not see any point in reformulating the views. As I said in my final comments, we will give very serious thought to what has been said by the Joint Committee on Human Rights before we take a final position.
Lord McCarthy: I have never missed my noble friend more than I miss him this afternoon. You cannot say that the union gains redress through the member. The tribunal will give the member compensation limited to what it believes is the damage incurred. The court will not add money and say, "Here is £5,000; give it to the union". Of course it will not; that is nonsense. The fact that we have not had this circumstance before does not mean that we cannot find a way of dealing with it now. The union will not get a penny of what the worker gets—of course it will
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not—but what the union has lost is the right to negotiate. It has lost the right to present its case to its own members. I do not know how on earth it could calculate the sum involved. However, a wrong has been done and we cannot expect the worker to pass the money on to the union.
Baroness Turner of Camden: I note what has been said and thank Members of the Committee who participated in the debate; it has been very interesting. My noble friend the Minister said, "This is an individual approach"; but that is the problem. As my noble friend acknowledged in his earlier speech, very often an individual may not feel able to take the case to a tribunal himself. That very often happens. That is one of the reasons why one would want the union to have the right to take a case on its own, because the union has lost a right. If one is given a right one must have a means of enforcing it. That has been made very clear in the committee's report. It is not much use having rights for which one has campaigned and which one has obtained if one then has no means of enforcement. The problem with this clause, as we see it, is that there are no means of enforcement for the union.
I am very glad that the Minister said that further consideration will be given to the Joint Committee report. We look forward to hearing the results of that consideration. However, it seems to me that this issue is so important that although we shall seek to withdraw the amendment today—we have to, this is Grand Committee—we shall undoubtedly come back with the issue on Report. It is a matter of principle as far as we are concerned. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 62 to 66 not moved.]
Clause 28 agreed to.
Clauses 29 to 31 agreed to.
Clause 32 [Exclusion or expulsion from trade union attributable to conduct]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 67:
Page 33, line 28, leave out "contrary to the rules" and insert "inconsistent with the rules and objectives"
The noble Baroness said: This amendment turns to a different aspect, that of dealing with the rights of unions to exclude particular individuals from membership. I understand that Clause 32 was introduced in the Commons to amend the law on exclusion or expulsion of workers from unions so that where the union is subjected to organised infiltration by people belonging to racist organisations, as has apparently been the case in some areas, the union can choose not to let them join or can expel such individuals from membership. The provision applies where a member of the union has behaved in a way contrary to union rules.
Many unions have statements in their rule books promoting diversity and tackling discrimination. They may not all have actual rules, but opposition to racism and discrimination against ethnic minorities is an

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important part of union policies. The TUC has therefore suggested to us that the Bill would be strengthened, and unions better able to deal with these issues, if instead of the words,
"contrary to the rules of the union",
the wording could be,
"inconsistent with the rules and objectives of the union".
I hope that the Government agree that this is a sensible way to deal with the issue.
I am sure that Members of the Committee will know that the trade union movement has been at the forefront in its opposition to discrimination, in particular to discrimination on racial and ethnic grounds. The movement has policies enabling unions to look after the interests of members from ethnic communities and for a long time they have been recruiting extensively among those groups, many of whom badly need the support of unions because they are often vulnerable and in low-paid employment. Therefore it is necessary for unions to be equipped to deal with people who attempt to infiltrate their organisations in order to promote anti-ethnic and discriminatory policies.
We think that the proposed wording would ensure that people acting in a way inconsistent with the rules and objectives of the union could be dealt with in the correct way. I beg to move.
Lord McCarthy: Once upon a time, trade unions had rule books which enabled them to do almost anything. Most important, they had rules enabling them to discipline their members. If members failed to come out on strike, many unions could expel them. In those days, expulsion from a union was no slight thing; it could exclude you from your trade. But the Conservatives, in their wisdom, decided that such general rules were not democratic and should not be allowed. As a result of legislation passed in the 1980s and 1990s, the right of trade unions to put all kinds of things in their rule books was curtailed. Without boring the Committee with the details, lawyers told the trade unions that the general position arrived at was that a union could expel members only if they had not paid their subscriptions. For non-payment of the subscription, someone could be struck off, but for very little else.
The rule books of unions today do not have general expulsion rules which would enable them to say that members of extreme right-wing parties, left-wing parties or other bodies that could bring the union into disrepute can be expelled. Such rules would be of very doubtful legality. Therefore to put on the face of the Bill a provision stating "contrary to the rules" means in effect that a member has not paid the subscription.
However, our amendment goes further than that because the union could have objectives. Unions could pass resolutions at their national executives saying that they were against fascist parties or any other groups, and that might be sustained if they decided not to
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admit rather than to expel. Once upon a time a union could refuse to admit anyone. Some unions could refuse to admit anyone who was not your brother's uncle. But that cannot be done today and therefore to control entry into a union on the basis of its rule book is an extraordinarily weak way of achieving something that I am quite certain the Government want. In that context, therefore, this is a mild amendment, but one that is very necessary.
Baroness Miller of Hendon: I do not doubt for one moment the motives of noble Lords opposite in tabling this amendment. Nor do I doubt for one moment that they understand trade union rules far better than I am ever likely to. I accept that. However, I have only one point to make, which may not arise in practice. The Bill says, "contrary to the rules", which would mean a positive breach. Whereas the words,
"inconsistent with the rules and objectives",
could introduce a vague, subjective concept and provide scope for endless argument and litigation about what it might mean.
Lord Campbell of Alloway: I understand the case that was put forward. Apart from what my noble friend has just said, with which I agree, it fails to recognise that the objectives of the union can change from time to time. I think that it was the noble Lord, Lord McCarthy, who said that it can pass a resolution. Is that an objective of the union? It can pass another resolution. Is that an objective of the union? Is the tribunal to search through the books and find out what the resolutions were?
I suppose that it is my method or métier as a lawyer that the whole process seems to me to be so imprecise that it is not really appropriate to leave it to the tribunal. I just wanted to add that as another reason, apart from my noble friend's argument, to oppose the amendment. Perhaps consideration could be given to the objection.
Lord Sainsbury of Turville: Clause 32 has been included in the Bill to ensure that unions can adequately deal with political activists who pursue a racist or xenophobic political agenda. I believe that there is widespread support that we need to tackle this issue. My knowledge of union rulebooks is also somewhat limited, but my noble friend has rather more experience, as indeed do my officials. They say that virtually all rulebooks still contain rules allowing unions to discipline their members for a wide range of reasons. Often, those are linked to bringing the union into disrepute. So I do not think that what my noble friend said is totally true: unions may have changed their behaviour, but the rulebooks still cover that point.
Clause 32 changes the remedies for an individual whom an employment tribunal has held to be unlawfully excluded or expelled. A minimum award, currently set at £5,900, applies where the union has not admitted or readmitted the individual to the union at the time that the application for compensation is made.

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5.15 p.m.
It therefore gives a quite substantial amount of money to the deserving and less deserving alike. We think that the minimum award is too high in some cases; I am sure that my noble friends would agree, even if they would go further and say that it is too high in a wider range of cases. The tribunal should therefore be given greater discretion to decide the amount of the award. The provisions contained in Clause 32(4) would remove the £5,900 minimum in cases where the exclusion was unlawful because it was mainly attributable to membership of a political party, but where there were other reasons for the union's decision to exclude or expel that concerned conduct contrary to the union's rules.
In choosing that wording, we wanted to ensure that the statute is clear and places reasonable obligations on individual members to act in accordance with widely available and accessible information on the union's policies and positions. That is why we refer to the union's rules in the subsection. The amendment would broaden the test that disapplies the minimum award to include subsidiary behaviour that is inconsistent with the rules and objectives of the union.
The Government consider it extremely important to ensure that the test to disapply the minimum award works in practice. Rule books vary. Some explicitly refer to the union's opposition to racist attitudes or conduct. Others do not specify many proscribed behaviours and leave it to other union documents to set out the union's position on such matters. We recognise that the current wording may therefore not be sufficiently broad to meet union concerns. We have therefore been working closely with the TUC to devise alternative wording.
However, we must assess any suggested wording against the criteria of openness and clarity that I have described. There a number of reasons why the wording proposed in the amendment is not the best solution.
First, it is not clear exactly what the expression in the amendment means legally. If the amendments are included in the union's rule book, they will be covered by the existing wording of the Bill. Where the objectives are presented in other documents, unions may know what they have in mind when referring to them, but the courts could give the expressions a meaning that may not correspond with the meaning that the union thinks that they have, which may well be narrower than the unions want. The courts will want to give the expressions a meaning that is certain and to do that are likely to adopt a fairly narrow view of their meaning that limits their coverage to objectives set out in documents that are reasonably authoritative and permanent. That is acceptable, but will not necessarily meet the concerns that prompted the tabling of the amendment.
Secondly, and resulting from that, the use of the expressions is likely to give excluded and expelled individuals and their lawyers room to argue, first, that the objective is not one within the meaning of the subsection and, secondly, that in any case the person had not acted inconsistently with it. That approach
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would therefore be likely to lead to the sort of time-consuming wrangles before tribunals that we want to avoid. We do not want to give a platform to those far-Right political parties whose policies are, by their very nature, the antithesis of those of the union.
This is largely a technical issue and we want to table an amendment on this point on Report, provided that agreement can be reached on the appropriate wording with interested parties. I therefore urge my noble friend to withdraw the amendment.
Baroness Turner of Camden: I am grateful for that response from the Minister. As I said earlier, we tabled the amendment because we were approached by the TUC, which was unhappy with the wording in the Bill. I am glad to learn that discussions are continuing and that it is hoped that an amendment will be tabled to cope with the fears expressed by the TUC and us this afternoon. In the mean time, I am grateful for the assurances that have been given and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 agreed to.
Clauses 33 and 34 agreed to.
Lord Sainsbury of Turville Lord Sainsbury of Turville moved Amendment No. 67A:
After Clause 34, insert the following new clause—
"NATIONAL SECURITY: POWERS OF EMPLOYMENT TRIBUNALS
For subsection (6) of section 10 of the Employment Tribunals Act 1996 (c. 17) (procedure regulations in relation to cases involving issues of national security) substitute—
"(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings."''
The noble Lord said: This is a purely technical amendment designed to ensure that the existing provisions relating to employment tribunal cases, where there may be implications for national security, achieve the scope originally intended on their introduction in 1999. Provisions were introduced in Section 41 of the Employment Relations Act 1999 amending Section 10 of the Employment Tribunals Act 1996. Those provisions enable employment tribunals to hear cases involving issues of national security with sufficient safeguards in place to avoid sensitive information being made public.
Before those provisions came into force in 2001, the position was that employees of the intelligence and security services had no right to pursue employment claims through employment tribunals. So the effect of the change was to open up that form of redress to a group of employees who had previously been denied it, with safeguards in place to allow sensitive information to be aired without risk disclosure.
Those provisions were implemented in Rule 8 of the Employment Tribunal Rules of Procedure, in Schedule 1 to the Employment Tribunal Regulations

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2001. The safeguards include the hearing of evidence by a specially constituted tribunal in private, with restrictions on publicity where appropriate.
However, the Government are concerned that, in practice, those provisions are being interpreted rather more narrowly than Parliament intended, with the effect that employment tribunals may apply them only in Crown employment proceedings. One claim involving sensitive security issues, but which did not fall within the definition of Crown employment proceedings, has been brought in an employment tribunal. Although, in the event, that case was settled and did not require a hearing—which would of course have allowed the extent of the power to be determined—the view of senior members of the tribunal's judiciary was, and remains, that Section 10(6) of the Employment Tribunals Act 1996 does not extend to cases that do not fall within the definition of Crown employment proceedings. The point is of potential practical importance, and the Government feel it right to take the opportunity of the Bill to remove any ambiguity for the future.
I assure the Committee that those provisions will not curtail an employee's right to bring a complaint to an employment tribunal. Individuals in that position currently have the right to bring claims to employment tribunals, and that will continue. In certain cases, the new provisions may be of benefit to either or both parties by allowing sensitive issues to be fully debated in tribunals, which they may feel unable to raise at present. A very small number of non-Crown employees would be affected by the amendment—for example, people in the defence or telecommunications industries whose work is highly sensitive from a national security perspective.
The amendment will ensure that the scope of the power is interpreted as originally intended. On that basis, I beg to move.
Lord McCarthy: First, we completely accept the bona fides of what the Government are trying to do. The point is that it would be difficult, unless one was a special specialist, to make head or tail of the new clause. It states:
"Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings".
There seems to be an absence of verbs there. The sentence does not really go anywhere. It does not tell us what those proceedings are; or what are those things that a Minister of the Crown might do or has been directing them to do in the past. Because the Government have introduced this new clause at such a late hour, we do not even have Explanatory Notes to tell us what that might all be about. Is it impossible to state that in a way that would enable anyone reading it to understand what it involves?
Baroness Miller of Hendon: As the Minister said, the amendment enables the Secretary of State to make regulations that, in short, allow an employment tribunal to take so-called national security into account. It is difficult to conceive of how interests of national security could be involved in employment tribunal proceedings, but I listened carefully to what the Minister said and I expect that there could be some cases.
I certainly agree with the noble Lord, Lord McCarthy, in accepting the Minister's bona fides, but there is a danger in invoking national security, because it could be an excuse for some government clampdown. I also agree with the noble Lord that the amendment was tabled late and that there are no Explanatory Notes. We require certain answers. Will the employer invoke national security, or can the Government unilaterally intervene? Indeed, will the tribunal do so on its own initiative? As the idea of national security may well impinge on the rights of one or other party, do the Government agree that when the new regulations are introduced, they will be subject to the scrutiny of both Houses before they are brought into effect?
The Minister has kindly written to me on the subject of national security; no doubt he has written to other Members of the Committee. But, apart from the letter, the Minister must answer those questions in Committee.
Baroness Turner of Camden: I agree with the noble Baroness. When I first read the amendment, I could not understand what it meant, but when I read it again I realised that the interest of national security had been raised again, which enables Ministers to step in to tell subsidiary organisations what they may or may not do. I was concerned about that. I absolutely agree with what the noble Baroness, Lady Miller, said; that is sensible in the circumstances.
Lord Campbell of Alloway: The amendment desperately needs redrafting. The last line should be the first. It is quite simple. It will be the Minister of the Crown who decides whether the tribunal shall conduct itself in a certain way because of national security. That is the start. It is not what the tribunal considers. The Minister of the Crown may issue regulations of generic importance; or it may happen so seldom that we need not make a meal of it. Why not leave it to the Minister of the Crown to direct? He will have his civil servants, who are very competent. He will have all the documents before him; he will receive advice. Surely that is the way to deal with such a matter.
Lord Sainsbury of Turville: It may be simply because I have not spent my whole life in industrial relations, but, in a morass of legislation, I thought that this was one clear part that I understood. It is transparently clear. The verb is "may enable", and the amendment may enable them to do such things as would be done by the Minister. The Minister does not determine that; it is entirely for the tribunal to decide whether it will use the procedures which, in normal circumstances, would be in the hands of the Minister. As I say, the verb is "may enable" the tribunal.

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As for the tribunal rules, they are normally subject to the negative resolution procedure, but we will take that request into account.
Lord McCarthy: It may be clear to the Minister, but the trouble with "may enable" is that, in the context of the amendment, it sounds like, "may enable the Minister to do such things. What they are yet, I know not, but they will be the horror of the world". That is how it reads. Surely the Minister could make it clear to us, as well as to him.
Lord Sainsbury of Turville: I think that my noble friend just has to read the provision slowly and carefully. I am not sure that it can be made clearer and do not think that I can go back to the lawyers to say, "This is incomprehensible". If my noble friend reads it carefully, I think that he will see that it makes sense. We will consider the matter again, but I think that it is probably as near as one can get to what is required.
On Question, amendment agreed to.
Clause 35 [Role of companion at disciplinary or grievance hearing.]:
Lord McCarthy Lord McCarthy moved Amendment No. 68:
Page 34, line 35, after "worker- insert "or workers"
The noble Lord said: I am glad that we are getting to something that I understand, even if others do not understand it. We are taking Amendments Nos. 68, 69 and 74 together. They rewrite, amend and, we would argue, improve all the provisions in the Bill about the companion. One might say that they turn him or her into a representative, but if that is the case, we favour it.
Some odd things about the companion appear on the face of the Bill. One of the reasons why we tabled the amendments was to try to elicit an explanation. For example, at the moment, the companion is allowed to answer questions on the worker's behalf, but the employer is not required to permit the worker's companion to answer questions on behalf of the worker. But why is he not required to do so? If the worker would like that to be done, what is wrong with it?
I do not know whether the person who wrote proposed subsection (2C)(c) of Clause 35 has ever been to meetings of this kind. The employer must not permit the worker's companion to,
"use the powers conferred by that subsection in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it".
So the employer stops the worker's representative from preventing the employer from explaining his case. Why should he do that? The employer also stops the companion preventing,
"any other person at the hearing from making his contribution to it".
Why should he do that? Normally, in these committees, the employer is in the chair, conducting the damn thing. Why does he have to have statutory powers to try to turn him into a reasonable chairman? It is complete rubbish.
The companion also cannot deal with collective grievances in a domestic dispute procedure. We want to encourage domestic dispute procedures because we want to keep people out of tribunals. Why can the companion not deal with collective grievances? We want to remedy this.
Taken together, our amendments would, we hope, enable the companion to take a grievance on behalf of a worker or workers. There would not be all these little details about addressing the hearing to ensure that the employer is not prevented from explaining himself. The companion could confer with the workers when he liked, answer questions on behalf of the workers and address the hearing if the worker or workers indicated that they wished him to do so. Throughout, the companion does something only if the people he represents agree that he shall. He has to do it with good order; perhaps we would like to put the "ABC of chairmanship" in the regulations.
We do not need all this fiddling about. After all, we had a long argument last year; the Government, have accepted that they want to stimulate domestic settlement so that people do not crowd into tribunals. I take it that that is why we have these improvements. Let us turn this person into a proper representative. That is what the Government are doing eventually in the draft regulations, which say that if,
"an employee of the employer who is an employee representative elected or appointed by employees consisting of or including employees of the same description",
he may,
"represent the employees of that description under an established procedure".
We would like to put that provision from the regulations into an earlier procedure. That is the purpose of the amendment. I beg to move.
Baroness Miller of Hendon: We do not object to Amendments No. 68 and 69 but I thought that, under an interpretation Act, one includes the other. If that is so, then the amendments are not necessary.
On Amendment No. 74, as the clause is drawn in the Bill, it permits the worker's companion to take a fairly limited part in the proceedings before the tribunal. The amendment would allow the companion, presumably an experienced trade union advocate or even a paid lawyer, to take over the proceedings and to have a much more active role. I wonder whether that is wise.
Lord McCarthy: I wonder why the noble Baroness says that this would enable the representative to take over. There is a chairperson.
Lord Triesman: Amendments Nos. 68 and 69 allow more than one worker in the workplace, in situations where a collective disciplinary or grievance hearing is held, to be accompanied by a single companion at the hearing. Amendment No. 74 widens the right of the companion to speak at the hearing and effectively to act as a representative on behalf of the worker or workers.
Amendments Nos. 68 and 69 both seek to do the same thing. I do not believe that these amendments are necessary. This is one of those situations where "the

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singular comprehends the plural"—which I have often heard said by lawyers in court. Not being a lawyer myself, I have never had the opportunity to say that before. This is a moment when a wish is gratified.
What I mean by that in practice is that where a group of workers is invited to a disciplinary or grievance hearing, each one is able to choose a companion under the right to be accompanied. It is possible for each one of them to choose a different companion, so there could be as many companions as workers at the hearing. It is equally possible for some or all of them to choose the same companion, so there could be just one single companion who is acting in support of all of them. The right to be accompanied as provided in the 1999 Act and as amended in this Bill allows a single companion to support a group of workers.
This amendment is closely linked to Amendment No. 74, which would allow the companion to answer questions on behalf of the worker or workers and to address in the hearing any situation where the worker or workers wanted that. The amendment also removes the safeguards in Section 10(2C) of the 1999 Act, inserted by Clause 35(1), which give the employer some control over the role of the companion. These safeguards are intended to protect the ability of the employer and the worker, whether singular or plural, to communicate directly with each other. The Government believe that it is important that this should be so and that each party is in a position to understand the other's position fully. We shall be debating the same issue from a rather different point of view in a moment when considering Amendment No. 75 tabled by noble Lords opposite.
The Government do not agree that the companion should act as a representative. The regulations that my noble friend quoted deal with individual employment disputes, not collective ones, and the two are very different. The key point is that direct communication between the employer and worker is an important element in an effective hearing.
Indeed, over the years ACAS has been concerned with trying to settle things domestically and as close to the point of conflict as possible. It has been inclined to argue that a direct form of communication between those directly involved, the employer and the worker, is usually an extremely effective way of trying to resolve a dispute. There are risks that a representative could get in the way of that communication. We have probably all seen rather zealous representatives do so on occasion. We believe that the balance that this clause strikes is the right one. It secures a role for all three of the participants in the hearing, not just for two of them.
Coming back to the issue of singular and plural, I am sure that my noble friends are also envisaging a situation where a single companion, probably a trade union official, would in practice be able to act as a representative for a group of workers under this amendment. I do not believe that that is necessary. There is already legislation in place to allow a representative—a trade union official if there is one,
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but otherwise an employee representative—to be informed and consulted on collective redundancy proposals or a business transfer over a given period.
Where other disciplinary or grievance issues arise on a collective basis—I emphasise on a collective basis—the right to be accompanied applies to hearings as I have explained. My noble friends may consider that a hearing where a number of workers and a number of companions all have rights to speak is unwieldy. However, that is an issue for the employer.
I believe that the employment relations logic of this situation is that no sensible employer would want to run an unwieldy and repetitive meeting. It is another question whether the workers in such a situation would necessarily find the hearing useful. Of course, if they do not, each has the option of raising an individual grievance under the procedures of the Employment Act 2002, which comes into force on 1 October, to which the right to be accompanied applies.
These are all issues that a sensible employer will take into account when deciding how to hear a collective grievance or disciplinary matter. I think that we can leave employers to decide this for themselves. For those reasons, I do not believe that the amendment is necessary.
We do not need the amendment to accomplish those objectives. I hope that I have made the point with sensitivity to the arguments that my noble friends have made. It would be a very contrary employer who sought to have highly repetitive discussions rather than to try and resolve the matter on the basis of a simpler submission on behalf of a collective group. I hope that that gives some reassurance to my noble friends on their concerns. I respectfully urge them to withdraw their amendment.
Lord McCarthy: I must read what the Minister has said because in the end I could not understand a word of it. He started off by telling me that what we said about it being a plural system, not an individual one, was not necessary because, in this case, it amounted to the same thing. Then he said that he had to put safeguards in the Bill so that the employer can prevent it amounting to the same thing, if he does not want it to be the same thing. I do not see that at all. Either it should be the same thing or the Government should tell us why they do not want it to be the same thing and why they want it to be an individual system only.
Perhaps I misheard him, but he said that the quotation I used—a quotation from the draft dispute resolution regulations—was all about collectivity. He said that it was dealing with individuals. That is not correct. Paragraph 2b is about the right of the employees to elect someone to represent them. It is all in the plural. There is an inconsistency between it and what is on the face of the Bill.
As for saying that we must have these safeguards for the employer, there are no safeguards for the worker. The Bill states that the companion must not,
"use the powers conferred by that subsection in a way that prevents the employer from explaining his case".

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There is nothing there that says that we want to prevent the worker being silenced by the employer. And I am not suggesting that there should be. One cannot regulate these things; that is ridiculous. That is why we do not need this subsection.
I shall have to read what the Minister said very carefully, to see whether I can sort it out and come back to it at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 69 not moved.]
5.45 p.m.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 70:
Page 34, line 37, leave out "and" and insert "or"
The noble Baroness said: In moving Amendment No. 70, I shall speak also to Amendments Nos. 71, 72, 73 and 75. These minor amendments to the wording of Clause 35 are all designed to achieve one simple objective: they would allow non-union members to be represented, or to represent themselves, at disciplinary or grievance hearings. This would be achieved by the small adjustments I am proposing throughout this clause.
Understanding the amendments is slightly complicated by the fact that Clause 35(1) itself substitutes a new subsection for Section 10(2) of the 1999 Act, which in turn amends the 1992 Act. The Minister will not be surprised if I call again for a consolidating Act when we are finally through with this one. I know that I raised this at our last meeting in Committee, and the noble Lord, Lord Triesman, explained why that would not be possible. Someone would have to go through all the legislation before a suitable Bill could be produced. However, it is extraordinarily difficult to understand the position. How a worker could find his way through this morass of legislation, I do not know. This is not something to push to one side simply because it is difficult. It is important for us to be able to find the right information, as it is for the employer, and even more so for the employee. I urge the Government to think again about this.
Amendment No. 70 alters the proposed new clause. As currently drafted it requires an employee to be represented at disciplinary or grievance proceedings by someone with two qualifications. These are, first, that he is chosen by the worker and, secondly, that he is a union official. The amendment would remove the word "and" and substitute it with the word "or" so that the representative need not be a union official. Conversely, it ensures that if the representative is a union official just sent along to the hearing by the union without having been chosen personally by the worker, his credentials cannot be challenged by an employer bent on being awkward.
Amendment No. 71 further modifies the qualification of the requirement for the representative to be a union official by providing that this will in any case apply only where the worker is a union member.
In such a case, I think it is obvious that the worker will avail himself of the services provided by the union. However, the provision of a union representative at grievance or disciplinary proceedings should not be used as a recruiting tool for non-union members.
Amendment No. 71 would provide for the nominated representative to agree to act on behalf of the worker. This is for obvious reasons, since without such consent the worker could suddenly find himself without a representative at the hearing.
Amendment No. 73 qualifies the right of the so-called "companion" to act as the worker's advocate so that it requires the worker's request. Usually this may be implied, if only by the fact that the worker would have invited him to be there. But in the course of a hearing things can change and the worker might want his companion to do no more than whisper in his ear. In an extreme case the worker may decide, midstream, to represent himself entirely. That is not an unknown event in the civil and criminal courts.
There could also be a case where proceedings involved two groups of workers, some who are union members or who desire to be represented by the union, and others who are not union members or who do not want to be represented by the union. This amendment would make it clear that the choice of whether and by whom the worker is represented rests entirely and solely with the worker.
Finally, Amendment No. 75 clarifies a most undesirable ambiguity in the proposed new Section 10(2) being inserted into the 1999 Act. The proposed new subsection (2)(c) quite rightly defines, or limits, the rights of the companion as an advocate. However, it is possible that the employer, especially of a small or medium-sized business and not having the resources of a union, will not be represented by his own experienced or qualified "companion". In such a case the employer must be able to speak directly to, and directly question, the worker—who will still be able to consult with his companion.
It should not be forgotten that these grievance or disciplinary proceedings are not taking place in a court of law. Informality should be an essential ingredient of such proceedings.
To sum up, this small group of small amendments are intended to achieve the objective of informality in grievance and disciplinary proceedings, with the worker being the one to decide how and by whom he is represented in the proceedings and to what extent. The amendments ensure that unions are not given a monopoly in representing the workers in those proceedings. I beg to move.
Baroness Turner of Camden: The noble Baroness said that she believed in informality—and, of course, we all do. It is ridiculous to have very formal procedures written into this sort of on-site arrangement. However, she has tabled Amendment No. 75, which introduces a very strong element of informality, suggesting that nothing,
"shall prevent the employer from questioning and receiving responses from the worker".

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In other words, she is writing in to the procedures what the employer may or may not do. That imports an element of formality into what should be an informal procedure.
Baroness Miller of Hendon: I am sure that the Minister will answer that point if he believes that it is relevant.
Lord Triesman: This group of amendments seeks to widen the worker's choice of companion by not restricting it to either a trade union official or a fellow worker. It also seeks to give the chosen companion the rights to refuse the worker's request and to give the choice of a trade union official as a companion only to those who are paid-up members of trade union which is recognised by the employer. In addition, Amendments Nos. 73 and 75 are intended to give the worker more control over the contribution of the companion during the hearing and to ensure that the employer and worker may communicate directly during the hearing.
I shall deal first with the choice of companion. Accompanying a worker at a disciplinary or grievance hearing is undoubtedly a serious responsibility. The Government consider that those who are best placed to act in these roles are those who have specific knowledge or expertise to contribute. For example, a fellow worker knows the employer and knows the workplace. He or she understands the circumstances in which the dispute has arisen. A trade union official has practical experience of dispute resolution and a sound expertise in employment rights and good and less good practice which may have been built up over years or decades.
The disciplinary or grievance process is less well served by other kinds of individual. The worker's partner or friend would tend, understandably, to personalise the discussions; others might intervene in a way that was wholly non-expert, which would change the climate of the hearing at the risk of making it more subjective and less informed. I have seen that happen—when a neighbour came along and decided that he would rely on his A-levels in bellicosity and that they would do on the day.
I would also add that under Amendment No. 70 there would be nothing to stop the worker asking a lawyer or a journalist, for example, to act as companion. I have the greatest respect for those professions, and I would want the record to show so. I mean no offence to them whatever but, inevitably, the nature of the hearing could be more confrontational or more legalistic or might import some other motives if they were involved. Neither would help to achieve the frank, open and tempered debate in which a genuine exchange of views can take place. That is what I believe that all noble Lords who have contributed to the debate on the Bill would want. It is what we want of a workplace hearing, and we believe the provisions of the 1999 Act, as amended by this Bill, offer the best chance of achieving it.
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With regard to Amendment No. 71, the Government do not believe that it would be helpful to stipulate that a trade union companion would be available only to a union member whose union is recognised by the employer. That would close off many workers from a source of expert support. We believe that workers should be free to choose any well-qualified companion who is willing and available.
Generally speaking—again, I try to rely on experience—I can think of few if any unions that would use this simply as a recruitment tool because they are very cautious about representing people in the expectation of that when someone has not made any contribution financially to the union, which would cause a good deal of grievance among those who had. The general point is that the worker should be free to choose a well-qualified companion who is able to help them.
The willingness of the companion to serve in that role is the subject of Amendment No. 72. The noble Baroness's amendment gives the chosen companion a statutory right to reject the worker's request. I wonder whether that protection is necessary. I fully agree with the noble Baroness, Lady Miller, that the companion should be free to refuse help, but there is nothing at all that would stop them from doing so now. A statutory protection is not necessary when they can simply say no. Of course, a trade union has an obligation of service to its members, but the responsibility for setting that obligation belongs to the union and to the worker. I do not believe that it belongs in statute.
Finally, Amendment No. 75 is intended to safeguard direct communications between the worker and employer at discipline and grievance hearings when the companion is present. It aims to ensure that the companion does not have a right to answer questions on behalf of the worker or interpose himself in a way which means that dialogue cannot take place.
The noble Baroness, Lady Miller, makes an important point here. There is a key distinction between the role of a companion to support communication between the employer and the worker or as being able to act as a spokesperson for the worker. The Government agree that the companion should be a supporter and not a representative. In order for an effective debate to take place between the employer and the worker there must be a real chance of them being able to communicate directly.
However, I can assure noble Lords opposite that the amendment is not needed. The Bill already provides the necessary safeguards to ensure that the companion does not become an alternative voice for the worker. That is achieved in new subsection (2C) of Section 10, which is inserted by Clause 35(1). That makes clear that the employer is not required to permit the companion to answer questions on behalf of the worker and that the companion may not address the hearing if the worker indicates that he or she does not want that.
In conclusion, I do not believe that there is a monopoly for unions in this. The right to this form of support applies to non-union members already. They

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can choose a companion who is a fellow worker rather than a trade union official. It does not automatically give the right to the trade union. If a worker chooses not to have a companion, there is certainly no requirement on the worker to have one. Nothing that we propose will change that. I hope that that reassures noble Lords on their concerns. I respectfully urge them to withdraw their amendments.
Lord McCarthy: Can I ask something that I have always wanted to know? The noble Lord says that he knows what the Government think and he knows why they think that when there is a companion over there and a representative over there, they must be different and, in certain circumstances, the companion is better than the representative. Can he explain all that?
Lord Triesman: I had hoped that I had done so. The purpose of having companions with real ability is that they should be able to aid the process by giving the most appropriate and expert advice to the worker involved. In the course of a hearing, there may be submissions that the employer also agrees are helpful and appropriate. That is not foregone because, as my noble friend Lord McCarthy pointed out, if the hearing is ably chaired, there is no reason why that should not be a well-constructed and a well-controlled process.
We want to avoid a position where someone says, as a representative, that he or she will do the whole of the job; that is, answer all the questions, interpose themselves completely and make that kind of direct dialogue between employer and employee an impossibility. That can happen. That is why the distinctions are made in the Bill.
6 p.m.
Baroness Miller of Hendon: I thank the Minister for his response, which I shall read carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 to 75 not moved.]
Clause 35 agreed to.
Clauses 36 and 37 agreed to.
Lord Sainsbury of Turville Lord Sainsbury of Turville moved Amendment No. 75A:
After Clause 37, insert the following new clause—
"PROTECTION OF EMPLOYEES IN RESPECT OF JURY SERVICE
(1) In Part 5 of the Employment Rights Act 1996 (c. 18) (protection from suffering detriment in employment), before section 44 (but after the cross-heading immediately preceding that section) insert—
"43M JURY SERVICE
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee—

(a) has been summoned under the Juries Act 1974, the Coroners Act 1988, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or

(b) has been absent from work because he attended at any place in pursuance of being so summoned.

(2) This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.
(3) For the purposes of this section, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.
(4) In subsection (3) "a relevant period" means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in subsection (1)(a)."
(2) In section 48(1) of that Act (application to employment tribunal), after "section" insert "43M,".
(3) After section 98A of that Act insert—
"98B JURY SERVICE
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) has been summoned under the Juries Act 1974, the Coroners Act 1988, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or

(b) has been absent from work because he attended at any place in pursuance of being so summoned.

(2) Subsection (1) does not apply in relation to art employee who is dismissed if the employer shows—

(a) that the circumstances were such that the employee's absence in pursuance of being so summoned was likely to cause substantial injury to the employer's undertaking,

(b) that the employer brought those circumstances to the attention of the employee,

(c) that the employee refused or failed to apply to the appropriate officer for excusal from or a deferral of the obligation to attend in pursuance of being so summoned, and

(d) that the refusal or failure was not reasonable.

(3) In paragraph (c) of subsection (2) "the appropriate officer" means—

(a) in the case of a person who has been summoned under the Juries Act 1974, the officer designated for the purposes of section 8, 9 or, as the case may be, 9A of that Act;

(b) in the case of a person who has been summoned under the Coroners Act 1988, a person who is the appropriate officer for the purposes of any rules made under subsection (1) of section 32 of that Act by virtue of subsection (2) of that section;

(c) in the case of a person who has been summoned under the Court of Session Act 1988, either—

(i) the clerk of court issuing the citation to attend for jury service; or

(ii) the clerk of the court before which the person is cited to attend for jury service;

(d) in the case of a person who has been summoned under the Criminal Procedure (Scotland) Act 1995, either—

(i) the clerk of court issuing the citation to attend for jury service; or

(ii) the clerk of the court before which the person has been cited to attend for jury service;

and references in that paragraph to a refusal or failure to apply include references to a refusal or failure to give a notice under section 1(2)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980."
(4) In section 105 of that Act (redundancy), for subsection (1)(c) substitute—
"(c) it is shown that any of subsections (2A) to (7F) applies."
(5) In that section, before subsection (3) insert—
"(2A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 98B (unless the case is one to which subsection (2) of that section applies)."
(6) In section 108(3) of that Act (exceptions to one year qualifying period of continuous employment for claims of unfair dismissal), before paragraph (b) insert—
"(aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,".
(7) In section 109(2) of that Act (exceptions to upper age limit for claims of unfair dismissal), before paragraph (b) insert—
"(aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,".
(8) In section 237(1A)(a) of the 1992 Act (cases where employee may complain of unfair dismissal despite participation in unofficial industrial action)—

(a) after "section" insert "98B,"; and

(b) after "(dismissal in" insert "jury service,".

(9) In section 238(2A)(a) of the 1992 Act (cases where employment tribunal to determine whether dismissal of an employee is unfair despite limitation in subsection (2) of that section)—

(a) after "section" insert "98B,"; and

(b) after "(dismissal in" insert "jury service,"."

The noble Lord said: I shall speak to Amendments Nos. 95 to 97 with Amendment No. 75A.
Amendment No. 75A introduces a new protection for employees who serve on juries or are summoned to do so. I am sure that no one would dispute that serving on a jury is an important civic duty, or that it would be altogether wrong for employees to suffer in their employment as a result of such service. Although we have no evidence that that has been a significant problem, we have recent anecdotal evidence of employees being dismissed for performing jury service and the potential for it to become a more significant problem has increased since 5 April this year. On that date the Criminal Justice Act 2003 removed the categories of ineligibility for jury service and excusal as of right from jury service, thereby increasing the number of people eligible.
Redress is available within the general unfair dismissal legislation for employees dismissed for reasons relating to jury service. But general unfair dismissal protection does not apply to those with less than a year's qualifying service with their employer. Nor does it apply to those over the normal retirement age for their job, where there is one, or those over the age of 65, if there is no normal retirement age. It is only in certain special cases, where the reason for dismissal is regarded as automatically unfair, that a complaint can be made to the employment tribunals regardless of length of service or age. The Bill provides an early opportunity to add dismissal for reasons relating to jury service to those special cases. It also provides an opportunity to protect employees against detriment short of dismissal.
Detriment is dealt with by the first part of the new clause, which inserts new Section 43M into the Employment Rights Act 1996. Detrimental treatment could take many forms; for instance, the employee could be excluded from training opportunities or passed over for promotion. As it takes many forms, it is deliberately not further defined. However, because employers are not obliged to pay employees while they are away on jury service, unless that is one of the terms and conditions set out in the contract of employment, new Section 43M(3) specifies that detriment excludes failure to pay remuneration unless it is due under the contract.
The clause also provides protection against unfair dismissal, again by inserting new Section 98B into the Employment Rights Act 1996. The new section adds dismissal because an employee has been summoned for jury service, or has been absent from work on jury service, to the reasons for dismissal that are regarded as automatically unfair. Further amendments to the 1996 Act apply the same protection to employees selected for redundancy for those reasons, if others in the same circumstances have not been selected. They also remove the need for qualifying service and the upper age limit, which apply to ordinary unfair dismissal claims, and add dismissal in connection with jury service to the reasons for dismissal that allow employees to complain to an employment tribunal if the dismissal takes place while they are participating in official or unofficial industrial action.
We realise, however, that there are times when it may be particularly difficult for an employer to spare an employee who has been summoned for jury service. Section 98B(2) therefore provides a set of circumstances in which it is not automatically unfair to dismiss an employee who has been summoned for jury service or has been absent on it. Those circumstances are that the employer's undertaking is likely to suffer substantial injury if the employee is absent; that the employer has made that known to the employee; and that the employee, knowing it, has unreasonably refused or failed to apply to the appropriate officer to be excused from jury service or to have his service deferred. I understand that such requests are likely to be granted, but whether or not they are granted makes no difference to whether the employee is protected against unfair dismissal. It is applying or not applying that makes the difference. If he applies, and his employer dismisses him, he is protected; if he fails or refuses to apply, and it was not reasonable to fail or refuse, he will lose his protection.
The test of "substantial injury" has been chosen to ensure that that potential exception to the unfair dismissal protection is not invoked for unimportant reasons. It is a tough test, and it is right that it should be tough. We would expect substantial injury to embrace, for instance, such eventualities as losing customers because of the employee's absence or being unable to fulfil important orders. But, whatever the nature of the injury to the undertaking, it must be some real form of loss or damage. It will not be enough for

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the employee's absence merely to be inconvenient. It will be for the employment tribunals to consider the facts of each case.
Amendments Nos. 95 to 97 are consequential. These are important new protections. It is our hope and expectation that they will not frequently be called upon but will stand as a deterrent to any employers who might otherwise be tempted to mistreat employees. They will also clearly signal the importance that the Government attach to jury service. I invite Members of the Committee to accept them.
Baroness Miller of Hendon: This long amendment, covering two and a half pages, deals with the protection of employees summoned for jury service. To some extent—for example, in new Section 98B(2)(a)—it also protects employers whose business could be harmed by the absence of a key employee for that reason.
I am interested in the amendment because, at a time when the Government are apparently seeking in another Bill to get rid of the ancient tradition of people being tried by their peers through the jury system, this step to protect it, despite its shortcomings in some types of cases, is most definitely to be welcomed. The new rules might have some adverse effect on some businesses, especially small ones, but it is a price that should be paid in the interests of justice.
On Question, amendment agreed to.
Clause 38 [Flexible working]:
Lord Triesman Lord Triesman moved Amendment No. 75B:
Page 36, line 14, at end insert—
"( ) In section 48(1) of the Employment Rights Act 1996 (c. 18) (complaints to employment tribunals), for "47D" substitute "47E"."
The noble Lord said: These technical amendments simply address a drafting inconsistency relating to the operation of the flexible working law. They amend incorrect cross-references in the Employment Rights Act 1996.
Members of the Committee will be aware that in April 2003 the Government introduced a new law giving working parents with children under the age of six and parents with disabled children under the age of 18, the right to request flexible working, and placed a duty on employers to consider such requests seriously.
To enable the law, a new section on flexible working was inserted into the Employment Rights Act 1996 by the Employment Act 2002. However, a change in the numbering of the flexible working provisions just before Royal Assent was not reflected in a series of consequential amendments. The result is that there are sections of the 1996 Act that refer incorrectly to a provision inserted at the same time by the Tax Credits Act and not that inserted by the Employment Act. The amendments correct the cross-references to avoid what I am sure was considerable, unnecessary confusion.
These provisions were not included when Clause 38 was added to the Bill, as the anomaly was discovered only recently when preparing an unrelated provision. I beg to move.
On Question, amendment agreed to.
Lord Triesman Lord Triesman moved Amendments Nos. 75C and 75D:
Page 36, line 15, leave out "the Employment Rights Act 1996 (c. 18)" and insert "that Act"
Page 36, line 26, at end insert—
"( ) In sections 194(2) and 195(2) of that Act (provisions of the Act which have effect in relation to employment as a member of the staff of the House of Lords or the House of Commons), in paragraph (c) for "and 47D" substitute ", 47D and 47E".
( ) In section 199(2) of that Act (provisions of the Act not applicable to share fishermen) for "47D" substitute "47E"."
On Question, amendments agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Information and consultation: Great Britain]:
Lord Razzall Lord Razzall moved Amendment No. 76:
Page 36, line 32, at end insert
"( ) The Secretary of State shall consult such persons as he considers appropriate before making regulations under subsection (1) that the laying of such regulations is suitable for informing and consulting employees and shall publish the responses received pursuant to those consultations."
The noble Lord said: As the Minister will be aware, this clause is one in which we have a particular interest. We are talking about the mechanisms for implementing Directive 2002/14/EC, to which the clause relates. It will come as no surprise to Members of the Committee that this is an area in which Liberal Democrats have long taken an interest.
The purpose of Amendments Nos. 76 and 80 to 82 is to try to stretch the Government a little further on the implementation of the directive. There have been various delays and discussions on how that should take place. The purpose of our amendment is, first, to put in the Bill a requirement for the directive to be implemented by a specific date—that is, 23 March 2005. Secondly, it would extend the Government's obligation to go out to consultation before making regulations and to publish the results of those consultations.
We feel that the proposals are necessary because, inevitably, the production of the regulations will require some considerable work to marry the continental European approach to a lot of these issues with the history of British trade unionism. We suspect that, as a result of the regulations, in some workplaces we shall find an increase in the number of works councils that are established, which we would welcome. We understand the difficulties of marrying a

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works council structure in some workplaces with a trade union structure, which will inevitably cause problems. However, I do not believe that anyone could suggest that the directive was aimed at the trade union movement. There is scope for implementing it, and we should like to press the Government to put a specific date for implementation in the Bill and to make a commitment to consultation and the publication of the results of that consultation. I beg to move.
Baroness Miller of Hendon: We agree with Amendments Nos. 76 and 81. The only comment I might make is that the proposals are, in a sense, a bit vague. Saying that the Secretary of State shall consult the people whom he "considers appropriate" could mean that he did not think anyone is appropriate and that, therefore, he was not in the business of consulting. However, I believe that it is a good proposal and I certainly agree that publishing the result of the consultation—indeed, publishing the result of any consultation—is a good idea.
Lord Sainsbury of Turville: The amendments mirror each in other in that Amendments Nos. 76 and 80 are in respect of the information and consultation regulations for Great Britain, while Amendments Nos. 81 and 82 would have the same effect in respect of the Northern Ireland regulations. Therefore it makes sense to take them all together.
Amendments Nos. 76 and 81 relate to the consultation that has taken place on the regulations in Great Britain and Northern Ireland. The Government have already consulted extensively on how best to implement the information and consultation directive. To include these amendments in the Bill would be to impose a statutory requirement not only when the regulations are made initially but whenever they may be amended in future, which would not be desirable. The department already follows Cabinet Office guidelines on public consultation and publishes the results of such consultation. So a statutory obligation would not improve things in practice.
In the case of the information and consultation regulations, as a first step we published a discussion document in July 2002 and held a series of roundtable discussions up and down the country with a wide range of individual businesses and their representatives, unions and employment experts, to discuss how best to approach implementation of the directive in the UK and to do our best to ensure that a positive climate was created for its introduction.
Building on this initial work, the Government then held discussions with the CBI and the TUC and a range of other organisations about the details of implementation. An agreed framework for implementing the directive was published on 7 July 2003, together with draft legislation on which we invited comments. A further series of roundtable discussions were also held around the country with a similar mix of experts.
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Copies of the responses to the two consultations are available in the House Library. They indicate strong and broad support for the approach we are taking to implementation, and since the second consultation closed in November officials have been working with a range of stakeholders to refine and improve the regulations. We intend to publish a government response to the consultation shortly, along with updated regulations and draft guidance.
Looking further ahead, it is proposed to run a series of events on maximising the benefits of information and consultation in the workplace. It is also intended to pilot the guidance at a number of workplaces to ensure that it is practical. We plan to work in conjunction with ACAS, trade unions and other organisations to help ensure the legislation is understood and able to be of practical benefit to as many organisations and their employees as possible.
I turn to Amendments Nos. 80 and 82. The draft clause already provides the Secretary of State with the regulation-making powers that are needed to implement the information and consultation directive. The Government are strongly committed to full implementation of the directive. Indeed, as I have made clear, we have spent much time over the past two years consulting stakeholders on how best to implement it.
There has been a good deal of consensus that employee communication is an important issue and can be a key factor in modern and successful business. There is an equally strong consensus that the key to a successful implementation is to build in as much flexibility as practicable in order to allow good information and consultation mechanisms that have the support of the workforce to flourish, while ensuring that employees are able to benefit from this legislation. That is the key feature of the framework that has been agreed by the CBI and TUC.
In agreeing the framework for implementing the directive with the CBI and the TUC, we have been guided by two key priorities: to help ensure that employees have the right to be informed and consulted on management decisions affecting their future; and to do so in such a way as to avoid imposing unnecessary burdens on business. The agreed framework provides for that. It allows employees to request formal information and consultation arrangements from their employer, and to be closely involved in drawing up the arrangements. It facilitates voluntary agreements, rather than laying down detailed rules, so that employers and employees can develop arrangements best suited to their particular circumstances. It is not a one-size-fits-all approach. It allows pre-existing agreements, supported by workforce and management, to continue, and ensures a small minority of employees cannot overturn arrangements agreed with the workforce.
We have agreed with the CBI and the TUC an approach that is flexible and designed to promote better workplaces and more committed staff. That is the foundation on which our proposed legislation is based. It provides plenty of opportunities to reach

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agreements and a number of means by which employee support can be demonstrated. In the light of that explanation, I hope that noble Lords will agree to withdraw or not to press their amendments.
Lord Razzall: I am happy to do so, and I shall read with interest the Minister's remarks in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Triesman: I know that it is earlier than our target time, but it has been a very hot and, I think,
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difficult afternoon. I thank all noble Lords, and indeed everyone present, for putting up with an extremely uncomfortable afternoon. Although it is early, I think this may be a convenient moment to adjourn until 3.30 p.m. tomorrow.
The Deputy Chairman of Committees (The Countess of Mar): The Committee stands adjourned until Wednesday 16 June at 3.30 p.m.
The Committee adjourned at nineteen minutes past six o'clock.