TRADE UNION AND LABOUR RELATIONS (AMENDMENT) BILL

HL Deb 10 March 1975 vol 358 cc22-9

3.30 p.m.

Lord SHEPHERD

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Shepherd)

On Question, Motion agreed to.

House in Committee accordingly.

[The Earl of LISTOWEL in the Chair.]

Clause 1 [Repeals of the principal Act]:

The CHAIRMAN of COMMITTEES (The Earl of Listowel)

Before I call Amendment No. 1 I should point out to the Committee that if this Amendment is agreed to I cannot call Amendments Nos. 2 and 3.

The Earl of MANSFIELD moved Amendment No. 1: Page 1, line 8, leave out paragraph (a).

The noble Earl said. I beg to move Amendment No. 1 which is tabled in my name and that of my noble friend Lord Gowrie. If this Amendment were adopted by your Lordships the effect would be to reprieve Section 5 of the Trade Union and Labour Relations Act, 1974. If one recalls the words of Section 5 or if, as some of us have fairly recently had cause to do, one reads those words and digests them thoroughly for the first time, at first blush one would think it almost inconceivable for any Government to resist this Amendment, and indeed it is almost inconceivable that any Government should contemplate a provision in our trade union law which would not include words which seem to be filled with good sense and what I might call natural justice.

It is a matter of the greatest regret, I think we must all agree, that the trade union movement has become so suspicious of what is, after all, the law of the land and in particular the courts which administer it. I suggest it is equally a matter of great regret that the trade union movement has determined that it shall pursue courses and that it shall control its affairs outwith the law. If I were going to be contentious I might almost say that the trade unions consider themselves above the law, but I will not say that. However, I do say it is obvious that they consider themselves and their affairs to be outside the law. However unsatisfactory this situation may be, it is one which we on this side of the Committee recognise. Therefore we shall do our best to live with the situation however much we dislike it and deplore it. So far as this Bill is concerned we do not like it for reasons that my noble friend Lord Gowrie gave during the Second Reading debate, and if it is not improper and out of order for me to do so I should like to convey to your Lordships his sense of regret at not being here today because his employment takes him away from your Lordships.

We regard this as a bad Bill. Nevertheless, I suppose it is capable of improvement, and it is our intention to exercise our undoubted rights as a revising Chamber to try to make the Government think again and to try, by constructive criticism, to inject some safeguards into the most unsatisfactory areas of this Bill. It is in this light and for these reasons that we have tabled Amendment No. 1. We have not—and we consider for a very good reason— tabled any of what I might term the consequential Amendments which were discussed during the Report stage in another place. Our reasons for this are simple. This Amendment is here, hoping that your Lordships, exercising your undoubted powers for constructive compromise and the ability to produce a route around what seems to be an intractable problem, will produce something acceptable both to the Government and to those on this side, of whatever Party, so that there emerges a compromise which will be useful and at the same time just. But I should say that we reserve our right to come back again at another stage if no satisfactory compromise is produced at this stage of the Bill.

Section 5 of the 1974 Act gives protection to the individual who has been excluded or expelled from trade union membership either in an arbitrary or discriminatory fashion. For these purposes the Amendment goes very much wider than the consideration of such matters as the closed shop or the Press. I concede at once that the persons who are likely to be affected and who would seek the protection of Clause 5 of the Act are small in number, but in my submission it does not mean that they should not have as full and as proper a protection as is possible.

For about a year there has been talk of a review body to be set up by the TUC to review such matters as are contained and laid down in Section 5, and while there has been a lot of talk nothing has been done, and as I understand the position as it is at the moment, the Government will not or cannot take action themselves. I understand the Government when they say over the matter of the closed shop that they are neutral. That is a point of view which they are entitled to take, but I suggest one must look at the other side of the coin. If the unions are now to be put in the position, at least on the Government's argument, where they were in 1971, certainly they will have greater power than existed before the passing of this Bill, and in my respectful submission they therefore should at least give their blessing to greater safeguards to those who may suffer harm under the Bill. I suggest that this Amendment would give Section 5 a reprieve. It is a modest safeguard, merely giving a worker aggrieved by his exclusion or expulsion from his trade union, or branch, an opportunity to apply to an industrial tribunal and thereafter, if no declaration is made, recourse to the High Court.

The question therefore arises: if this safeguard is not acceptable to the Government, what safeguard could be? On both sides of the Committee I think we are very nearly agreed on what I might call two points. I am sure noble Lords opposite would agree that individuals must have some rights vis-à-vis the trade unions. The question is who—and by what method—is going to exercise that right.

The second matter about which I think there is probably agreement is enforcement. In the first instance, I think noble Lords would agree that if somebody is dissatisfied with the performance of his union in relation to himself it is right that he should take the matter up with the union. Only when there is no satisfaction or when he cannot get satisfaction or there is patently some injustice, even if one takes this on a subjective test, does the question then arise whether that appellate body should be purely internal to the union, internally managed, internally set up, or whether it should be under the aegis of an outside person or body such as the Secretary of State. As I have said, we have tabled this Amendment hoping that your Lordships will seize the opportunity to produce ideas and arguments. I beg to move.

3.40 p.m.

Lord SALMON

Some of my friends have told me that this Amendment is a very hot Party political potato, so hot indeed that no self-respecting Law Lord should attempt to handle it. For my part, I am convinced that it transcends any mere Party political issue. I am convinced that it is my duty to speak in support of this Amendment, although I should be equally content to accept the Amendment to be proposed by the noble and learned Lord, Lord Wigoder, and the noble Baroness, Lady Seear. If Section 5 is struck out of the Act, this would strike at the very root of a principle which all my life I have done my best to defend—the principle that the law of England will always protect individual liberty and the basic right of every man not to be unreasonably or arbitrarily prevented from earning his living. It protects every man against any threats or any abuse of power, from whatever quarter those threats may come.

I want to make it plain that I do not regard legislation as a sensible means of promoting good relations between trade unions and employers. Section 5, however, has absolutely nothing to do with such relations. I am by no means against the closed shop; quite the contrary. It gives the trade unions the power which they require effectively to negotiate on behalf of their members, and it confers certain benefits upon employers, which most of them recognise. But the closed shop also confers enormous power on the trade unions over their own members. For a man to be expelled by his trade union is infinitely more damaging than for him to be unfairly dismissed by his employers. If he is dismissed by his employers, there are, after all, other employers; but if he is expelled by his trade union he is prevented from earning his living by the skills which he has worked to acquire. It is against the danger of a possible abuse of the power of expulsion in the context of a closed shop that Section 5 offers its protection to every man, not least the ordinary chap on the shop floor.

In this country, irrespective of persons, we live under the rule of law and the basic right of everyone to be protected by the law. To my mind, that is an immutable principle. If one starts tampering with the law, the individual liberty of everyone will be put in the greatest jeopardy. The lessons of history teach us that to confer absolute power on any man or institution, in the pious belief that the recipient can be completely trusted to use that power reasonably and fairly, has often led to tyranny and disaster. Our freedom depends on the rule of law. It would be a sad day for this country if Parliament were to put any group or institution, even a trade union, above the law, and to withdraw the protection of the law from any man. That is what this Bill does.

Of course I accept that none of the trade unions as at present constituted is in the slightest degree likely to exclude or expel anyone by unreasonable or arbitrary discrimination. But what of the future, perhaps the not-very-far-distant future? We cannot shut our eyes to the fact that there are groups, very small numerically but extremely cohesive and tenacious, who have infiltrated the unions with the intention of seizing power if they can. Their objects and ideas are entirely different from those of the trade unions, which we all know and respect. Their avowed purpose is to wreck the Social Contract and the democratic system under which we live. Their ethos derives from foreign lands where individual liberty is dead, and where the courts and trade unions are mere tools of the Executive, to do its will. We should all be extremely optimistic or ingenuous were we to believe there is no danger that one of these groups may succeed in infiltrating the Executive of some trade union, and may then seize power. If they did succeed, some of the workers would no doubt then wake up and begin criticising the leaders of the Executive. Does anyone doubt that in such circumstances they would be threatened, that if they did not "shut up", they would be expelled? I believe there would be some shop floor hands with the courage to insist on their right of free speech, and I am equally convinced that when they did, they would be thrown out. With Section 5 struck off the Statute Book they would have no protection whatsoever. It seems to me that this is a fact that no one ought to ignore.

I ask the question: does anyone suppose that the TUC can have any influence over such a union as the one I have described? Such a union would have just as little regard for the TUC as it had for the rights of its own members whom it had expelled. Accordingly, I suggest it follows that a tribunal set up by the TUC to report upon any complaint which workers may make if expelled, would be only a pallid and completely ineffectual substitute for the safeguards now provided by the law under Section 5.

I ought to make it plain that I unreservedly accept that the TUC would set up an impartial tribunal, and that that tribunal would adjudicate fairly upon any complaint by a worker that he had been excluded or expelled from his union by unreasonable or arbitrary discrimination. As a realist, I cannot accept that with the best will in the world, which no one doubts, there would be the faintest chance of the TUC being able to persuade or compel such a union to comply with the findings of the tribunal of the TUC. That is the danger. I beg those who want to discard Section 5 in its entirety to think again. A time may come when it will be badly needed. Can it conceivably do any harm to preserve the protection it provides for the ordinary man against an abuse of power, even if, happily, no such abuse ever occurs?

Industrial tribunals such as the one to which Section 5 refers, have been in existence for a very long time. There is no proposal even in the present Bill to discard them. They deservedly enjoy a very high reputation with everyone for the ability, the expertise and the complete impartiality with which they discharge their many and varied functions. Surely it is inconceivable that they would hold a worker's expulsion from his union as being due to unreasonable arbitrary discrimination if it could be justified on any reasonable grounds; for example, that the man had refused to pay his dues.

Section 5 has been in operation for over five months. During this time it has adjudicated over a number of disputes. No one denies that it has dealt with them satisfactorily. The operation of Section 5 has certainly caused no friction with the unions. It works. In the name of reason, why not leave it alone? Wantonly to sweep it away can serve only to undermine the pillars of our freedom and expose the working people of this country to dangers of oppression in the days to come.

I would add only this. If I am told that the removal of Section 5 would leave the right of recourse to the courts unimpaired, I answer, "Look at Section 1(b) of this Bill". It sweeps away Section 6, including that part of it which requires that the trade union rules: … shall be so framed as not to depart from or permit any departure from natural justice. It is impossible to consider Section 5 in isolation. If Section 6 goes, the rules of a Communist dominated trade union—if ever such a union came into being—could be amended to allow the Executive to do what it likes, irrespective of the rules of natural justice. Indeed, the repeal of Section 6 might well be regarded as a mandate to make such an amendment. If this should happen, the Common Law, in my considered opinion, would be entirely powerless to protect the working people of this country against oppression. I beg your Lordships not to allow Section 5 to be swept away, because it is in the end the only effective protection which the ordinary man on the shop floor would have in the circumstances I have postulated. If it goes, it could well herald the beginning of the end of individual liberty, and that would be something for which we should be execrated in the generations to come.

House resumed.