HL Deb 15 July 1971 vol 322 cc499-508

3.30 p.m.

THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)

My Lords, I beg to move that this Bill be now further considered on Report.

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

Clause 155 [Immunity of confidential information]:

LORD STOW HILL moved Amendment No. 93H: Page 115, line 14, leave out from (" unless ") to (" he ") in line 17.

The noble Lord said: My Lords, Clause 155, I submit, is a clause of very great importance. That clause and Clauses 55 and 56 deal with the obligation which the Bill places on an employer to disclose information to a trade union which the trade union needs for the purpose of the orderly and effective conduct of wage negotiations. I think that on both sides of the House—and really there is no Party content in this particular aspect of the Bill—it may be agreed that, whatever reservations one may have about other parts of the Bill, this provision is an extremely useful one. It has a long history. It found its place first in In Place of Strife, in paragraph 47. It was introduced in the last Government's Bill which was read in another place for the first time, and it now finds its place in the clauses to which I have made reference in the present Bill.

Your Lordships may have seen on the Ninth Marshalled List that there are four separate Amendments to this clause. The one I am moving is perhaps of considerably lesser importance in principle than two of those which follow. Clauses 56 and 57 having imposed the general obligation to disclose information, Clause 155 excuses the employer from having to disclose information set out in paragraphs (a) to (e) of that clause. Clause 155 is in identical wording to a provision in Clause 22 of the last Government's Bill, except that that Clause 22 contained an additional paragraph which I believe, according to an Amendment to which the noble Lord, Lord Drumalbyn, has put his name, will be put into this Bill later. Among the types of information which the employer need not disclose there is information described in the following wording in paragraph (d): any information relating specifically to an individual, unless it is such that the disclosure of it could not (apart from any special private circumstances of that individual) be reasonably expected to be seriously prejudicial to him and he has consented to its being disclosed, That is the identical language of the last Government's Bill.

The Amendment which I have put down will leave out all words from"unless it is such"until one gets to the part of the paragraph which reads"he has consented." In other words, the information relating to an individual which could be withheld would not include information if the individual concerned consents to its being disclosed. At the moment, as the clause is worded the employer, in asking himself what information he has to disclose relating to the individual, has to deal with two aspects. First, he has to ask himself whether it is information such that the disclosure of it could not…reasonably be expected to be seriously prejudicial to the individual, and secondly, he has to ask himself whether the individual has consented to the disclosure of that information. The point of the Amendment is this: surely it is enough that the indivdual has consented to the disclosure of the information. There does not seem much point, once the individual has given his consent, in going on to inquire whether the information is such that it could not…reasonably be expected to be seriously prejudicial to the individual.

My Lords, I put the argument shortly in these words. Is it not enough if the individual says,"Give the information; I am perfectly ready for it to be disclosed "? Should that not be enough to place an obligation on the employer to disclose that information? I accept that no very great principle is involved, but I think it right to put the point. I put the point in Committee and the noble Earl, Lord Jellicoe, replied in his usual helpful and courteous manner. Having read through his speech and considered it further, it seems to me that as it relates to this question of disclosure of information it is justifiable to come back to it and to ask the noble Earl whether he has had second thoughts about it and whether there should be a twofold requirement before the information is disclosed. I shall be grateful to know whether the noble Earl has had second thoughts on this matter.

3.38 p.m.

EARL JELLICOE

My Lords, as the noble Lord, Lord Stow Hill, has said, the protection given in this part of the Bill is a double-barrelled one. In the first place, personal information may not be disclosed without the individual's consent, and the second barrel is that, even if he does consent, the employer may withhold it if the disclosure would seriously prejudice the individual's in-tests. If the noble Lord's Amendment were agreed to, the protection would become merely single-barrelled, and where this consent was given the employer would not be entitled to withhold the information, even where the disclosure would be clearly against the interests of the individual concerned. The noble Lord quite correctly said that I said in Committee that I would look at the arguments he had advanced at that stage of the Bill. I have done so, but I believe, having done so, that the extra protection afforded by the double lock, as it were, is useful. On the whole we should be reluctant to see it expunged from the Bill. I grant that there may be a touch of the prefectionist about this, but it is the same perfectionism that the last Government imported into their Bill, as the noble Lord, Lord Stow Hill, fairly recognised.

I should find it very difficult to state with absolute certainty that someone at some time would not, either foolishly, mistakenly, or perhaps with some other motive, consent to the disclosure of information of this sort. I am therefore reluctant to accept the Amendment, although frankly I am not prepared to die in the last ditch for it. I am reluctant for the reason which I have just given: that this is something which could occur. May I cite an example? An employer might well go to one of his employees and say to him,"Really, I do not consider that it would be sensible for you to disclose this particular piece of information ", but the individual concerned might nevertheless, against that advice, consent to the disclosure, or he prepared to consent. I think that in those circumstances it is reasonable for the employer to say,"You are mistaken. Reveal this information if you think you should; I want no part in it and do not intend to disclose it." I hope that by that example I have shown that the Bill as it stands is intended, as was the last Government's Bill, to work to the individual's advantage. On the whole I should prefer to leave the wording unamended, to have this double lock on door. At this stage that is my advice to your Lordships.

LORD DIAMOND

My Lords, while thanking the noble Earl for his temperate and balanced reply, I should like to ask him whether he really needs a double lock on his double-barrel—which is the metaphor which came most easily to him and which seems to fit the circumstances very well. The noble Earl and my noble friend reminded us that this is the wording of an earlier Bill. I would remind the House that this is the occasion when this House examines and improves Government Bills. The fact that a Bill has been put before either House of Parliament, drafted by the Parliamentary draftsmen with the full authority of the Minister of the Government concerned, does not mean that Parliament should automatically accept the wording proposed. We are making something like our 350th Amendment to this Bill. May I suggest to the noble Earl why it would be right for him to yield to his own better feelings, as I gathered they were, and not to be over-cautious about this?

First, there is the solid political fact that the general view is that although the clauses in the Bill requiring information to be given are forward-looking and welcome and in line with the code of practice, the whole benefit of those clauses has been withdrawn by Clause 155 which says in effect,"Yes, it may be right to give the information; but here is a list of the sort of information you do not need to give ". It would be helpful if the Government could show their willingness to support the general view that the code of practice was right in saying that information, where proper, should be disclosed. Secondly, the real test is not that of a double-barrelled gun; the real test is the consent of the individual concerned. That is what matters. If somebody else then says,"I do not think that you should have consented; were you wise to consent?", that is not an equal double-barrel; it is putting a further, unnecessary, cautionary stop on it.

I suggest that it would be extraordinarily foolish if in negotiation the trade union representatives said that they would like certain information; that it emerged that it affected a certain individual; that they should say,"Ask whether the individual is prepared to give it "; that the individual was prepared to give it, but that the employer or his representative nevertheless said."In the interests of the individual we do not think that it ought to be given ". That would not be believed. It would be thought that the employer was withholding the information because it was damaging to the employer and beneficial to the employee and for that reason the information would not be divulged. The real protection is there. We are not removing the protection; we are removing unnecessary and fanciful words. Inasmuch as accepting this Amendment would help in a political sense to remove some of the perhaps exaggerated but not unfounded views that the benefit of the earlier clauses is being withdrawn by this clause, and inasmuch as when a negotiation starts it would be impossible to withhold information which the individual himself consented to be disclosed. I hope that the noble Earl will consider this point further and that he will say that on second thoughts or on second pressure he is able to accept the Amendment.

LORD SHIN WELL

My Lords, the last thing that I should like to see is the noble Earl dying in the last ditch—or in any ditch. I want him to remain.

EARL JELLICOE

My Lords, may I interrupt the noble Lord before he embarks on one of his longer speeches, or even on one of his shorter speeches? I meant what I said about not dying in the last ditch over this Amendment. I speak, I hope, with your Lordships' permission. With a view to getting on with the Report stage, I may say that if the noble Lord, Lord Stow Hill, wishes to press this Amendment I am quite prepared not to advise my noble friends to divide against it.

LORD SHINWELL

My Lords. I accept that point. I was not intending to make a long speech but merely to say that it appears to me that the clause is redundant. The previous clause covers the whole point. So long as it is understood that no attempt is being made to suppress speech-making in your Lordships' House, I forbear from proceeding in any other direction.

THE EARL OF BALFOUR

My Lords. I feel that it is important to remember that people very often disclose information which for some reason or another, they do not wish to be taken further. All of us, myself included, have been indiscreet sometimes. The noble Lord. Lord Stow Hill, referred to Clauses 56 and 57 to which this Amendment would apply. I should like to draw attention to Schedule 3, paragraphs 41 to 44, headed Disclosure of information, where (in 42(c)) reference is made to the provisions of Clause 101. Moreover, paragraph 3 of Schedule 6, in stating that the industrial tribunal can sit"in private for the purpose of hearing evidence ", goes on in sub-paragraph (2)—the wording of which was altered not long ago by Amendment 90B—to provide that the kind of evidence which would enable a private sitting to take place would be information of any of the descriptions specified in paragraphs (b) to (e) of Section 155(1)… So I feel that we want to safeguard the individual here and give him the double-barrelled protection which the noble Earl felt should be given. I feel that it is a matter of protecting not just anybody, a company or a big organisation, but of protecting the individual. I should like him to have that extra bit of protection.

LORD STOW HILL

My Lords, I feel in a difficult and slightly embarrassing situation. I moved the Amendment saying that I did not think any great issue of principle was involved. I moved it in the knowledge that I had ranged against me the wisdom and very great experience of my long standing friend, Mrs. Castle. I then found that I had also ranged against me the not very strongly held view of the noble Earl, Lord Jellicoe, and I felt myself rather vacillating at that point.

Then my noble friend Lord Diamond, made, as I think, a very robust and powerful speech which greatly reinforced my confidence. My noble friend Lord Shinwell, made what I thought was an extremely important point; namely, that if one looks at the previous paragraph one finds that in any event information imparted to the employer in confidence is protected and does not have to be disclosed. My noble friend Lord Shinwell, was saying"in any event, why do you want the preceding paragraph which we are now discussing when you have that limitation which applies to all information imparted in confidence?" My interest then vacillated very greatly. The noble Earl, Lord Jellicoe, then said that he was prepared, as I understood him, having heard the argument to advise his friends not to oppose the change.

I am wondering now where I stand. Technically, I suppose I stand in this position: I have moved the Amendment; I have not yet withdrawn the Amendment and, in view of what noble Lords have said and the views that have been expressed (including, if I may say so, the view of the noble Earl, Lord Balfour, of which I have taken account) I feel the right course I should pursue is to put the question to the decision of the House.

On Question, Amendment agreed to.

3.53 p.m.

LORD DIAMOND moved Amendment No. 93B: Page 115, line 19, leave out paragraph (e).

The noble Lord said: My Lords, I beg to move the Amendment page 115, line 19, leave out paragraph (e), and perhaps it would be convenient if the Amendments 93(D) and 93(E) in my name could be discussed at the same time. The first Amendment seeks to omit paragraph (e) which again is on this same clause we are discussing about the disclosure of information. Paragraph (e) says: any information the disclosure of which would be seriously prejudicial to the interests of the employer's undertaking for reasons other than its effect on collective bargaining. That kind of disclosure need not be made. An employer is not required to disclose that kind of information. If it were prejudicial to his interests for reasons not connected with the collective bargaining then he is not required to disclose it.

That is one way of dealing with the matter certainly. We are on a difficult problem here. It is possible I quite agree, to hold more than one view. How can one best carry out the intention of the Bill, of the Government, of the code of practice that there should be the relevant information given to the representatives of the employees during the course of collective bargaining without damaging the employers' interests; and, of course, thereby damaging the employees' interests, because the employees undoubtedly depend in part on the success of the employer, and it would be no benefit to the employees that the employers' interests should be damaged. You might succeed in getting a very short-term benefit as the result of the immediate negotiation, at the cost of doing damage to the firm, from which the employer and the employees both sought to benefit.

So, my Lords, this is not really a contentious matter. It is certainly not a Party matter. It is a matter of trying to envisage which is the best way to deal with what is admittedly a difficult problem. The way it is dealt with in the Bill is certainly one way of dealing with it. I suggest to your Lordships, however, that it is not the most satisfactory way, because the way the Bill deals with it is to exclude the disclosure of information which would be seriously prejudicial to the interests of the employer. Once information which is needed for collective bargaining—and it is not in dispute that the information is needed for the purposes of collective bargaining—is withheld, no matter how true it is that it would be prejudicial to the employer to disclose it, once that information is withheld when it is admittedly needed for the purposes of collective bargaining, then I suggest to your Lordships that the atmosphere is immediately poisoned. It would not be a co-operative and useful negotiation. Therefore I think it is right that information should be given.

But if the information is given the employer must be protected, and I think the sensible way of protecting the employer is to enable a negotiation to take place through giving the information but to make it absolutely clear that that information must not be divulged. It is for that reason that the following two Amendments are put down. The second one which I invited your Lordships to consider at the same time was Amendment 93D, which states that: Where the employer and this is the proposed paragraph in place of the one which I am seeking to remove— is satisfied that the disclosure of certain information in accordance with the provisions of section 56 or section 57 of this Act would be seriously prejudicial to the interests of his undertaking for reasons other than its effects on collective bargaining "— exactly the same words as in the present clause— he shall communicate that view in writing at the time of such disclosure to each of those persons to whom the disclosure is made.

That Amendment makes it clear that he has to disclose it. He is at liberty to make it clear to the people to whom he is disclosing it, and to make it clear without any argument or doubt by putting it in writing and saying that this is information which will be prejudicial to the interests of this firm if it is disclosed. Therefore one goes on to Amendment 93E which says after"subsection"insert"(2A) or ", on page 115, line 34. That arises in the final subsection (4), which at the moment reads: If any person discloses any information in contravention of "— a particular subsection— he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £400. What I am suggesting is that that clause should be widened so as to include the disclosure of any information in contravention of the very matter we are discussing.

So the total proposal of the three Amendments put together is that where you have information which is admittedly necessary for the purposes of joint consultation, of collective bargaining, and it is information the disclosure of which to the outside world would be prejudicial to the employer, then disclose it confidentially to the employees' representatives but make it absolutely clear when it is disclosed that it is confidential and that it would be prejudicial. Go even further—and this is somewhat Draconian but I nevertheless think it right—and say If this confidential information is disclosed you will be liable on summary conviction to a fine not exceeding £400." That makes the seriousness of it quite clear. I hope it will be thought that this is a preferable way of dealing with what is an admitted difficulty, of providing information so that a useful and co-operative discussion can take place during the course of collective bargaining. I beg to move.