§ [Nos. 1–3]
§ Clause 1, page 1, line 8, at beginning insert ("in")
§ Clause 1, line 9, after ("union") insert ("subsections (3), (4) and (5)")
§ The Commons disagreed to these Amendments for the following Reason:
§ Because a statutory right of complaint is unnecessary.
§ Lord JACQUESMy Lords, I beg to move that this House doth not insist on their Amendments Nos. 1 and 2 to which the Commons have disagreed for the Reason numbered 3. With the leave of the House, I will also speak to Amendment No. 4 which is a related Amendment. These three Amendments are concerned with exclusion or expulsion from membership of a trade union. The effect of the Amendments is that a worker who is aggrieved may apply to a statutory tribunal for a declaration that he is entitled to be a member of a particular union. Given such a declaration, the worker can if need be apply to the High Court for an injunction and for compensation.
On this issue there is some common ground. On all sides of both Houses there is a desire to have protection for the individual worker, especially in the situation of a closed shop where the job may be at stake. There is, however, a difference of opinion as to the best way in which this can be done. This difference of opinion has been debated in both Houses on several occasions during the last two years. I am sure that the House will this afternoon require me to do no more than outline the difference of opinion.
The Government take the view that law is an inappropriate and ineffective instrument for intervention in decisions by unions as to whom they shall take into their membership. We believe that a direction from a statutory tribunal with a possibility of a High Court injunction and compensation could engender hostility. It could frustrate the achievements of the real objective and it could create a bad industrial relations atmosphere. The unions themselves are ready and willing to tackle the problem. The Trades Union Council will set up an 1149 independent tribunal or review body consisting of a chairman with legal qualifications and two other members; and all three members will be appointed in consultation with the Secretary of State and the Chairman of the Advisory, Conciliation and Arbitration Service.
In a closed shop situation, a worker who has used the procedure within his union and is still aggrieved will be able to appeal to this new TUC body. This body will proceed by way of conciliation and agreement but will, if need be, make recommendations. The TUC has stated categorically that there will be a clear responsibility on the part of each union to accept the recommendations. The individual unions, on their part, will advise all who are excluded or expelled of their rights within that union and of their right of appeal to the TUC's new body.
My Lords, we believe that in the situation in which the worker is likely to find himself, this is the more satisfactory procedure and is likely to give him greater protection. We believe that because the procedure has been agreed with his fellow-workers and their union, they will be much more inclined to respect and work with it than they would if it were a direction from a statutory tribunal. In effect, the trade union movement as a whole will have a surveillance over the operations of the individual unions.
The Government believe this is a landmark in trade union history and they hope it will be welcomed as that by this House. We are convinced that it is the better way to deal with this difficult problem. We believe that, in practice as distinct from theory, it will give better protection to the individual worker, and we have no doubt whatever that it will be more conducive to good industrial relations. We have however made it clear on more than one occasion that if this does not work then we will seek some other method of protecting the individual, and I repeat that assurance this afternoon. In the other place, your Lordships' Amendments were rejected by a majority of 46. In these circumstances, I hope that your Lordships will see your way clear not to insist upon Amendments Nos. 1 and 2.
§ Moved, That this House doth not insist on their Amendments Nos. 1 and 2 to 1150 which the Commons have disagreed.—(Lord Jacques.)
§ 3.2 p.m.
§ The Earl of MANSFIELDMy Lords, perhaps in the circumstances in which your Lordships find yourselves this afternoon it would be right and fitting if I were as brief as the noble Lord, Lord Jacques. What the debates on this part of the Bill have shown—if they have shown anything—right through the passage of the Bill through both the other place and in your Lordships' House, is the difference of approach between those who support the Government and the Opposition, and those who are like-minded; a difference of approach as to how the rights of the individual should be protected, how the weak should be protected against the strong, and what, if anything, should be the recourse of those individuals or bodies who feel they are the subjects of injustice and overbearing operations on the part of the majority. This is exemplified by these Amendments.
I do not suppose that any Opposition has shifted further than this Opposition during the passage of the Bill. I hope I say this without too much contention: there has been a continuous rearrangement of position to try to bring the views of the Opposition nearer to those of the Government and their supporters. So far as we are able, we appreciate the reasons which have motivated this legislation, and I feel able to claim that we have gone along the road so far as we can, bearing in mind the difference in our political philosophies, to meet what the Government are trying to do. But the cleavage—if I may use the word on a matter such as this—is complete. May I state briefly the headlines so far as these differences of approach are concerned.
First, there is the character of the review body. We think it inherently unsatisfactory that the review body which it is promised will be set up—I do not know when this promise is to be carried out, and I do not suppose any other noble Lords know, either—by virtue of its composition cannot provide that security to an individual or a weak trade union that feels its interests have been impugned. Secondly, there is the rules of procedure of the review body. As I understand it, it is to be composed of those within the TUC—and I have nothing against them 1151 or what they no doubt will try to achieve —and it cannot be a satisfactory situation that the rules are going to be made up by that body acting as a court of appeal, if I may use those words, in its own cause or the cause of some of its members.
Perhaps the most serious doubt that we have applies to the enforcement of the fallback procedure if, at the end of the day, conciliation fails to produce a happy result. Unfortunately, as the Bill stands, and as it now comes before your Lordships' House, there is nothing that can be done to protect the rights of the individual. I do not wish to go back over the debates which have exercised your Lordships at considerable length, but we feel there should be a safety net where, if all else fails—as any other citizen has the right to do in any other sphere—an individual or a body of people who feel they have been wronged can seek some form of redress. That is the point between us; it would labour the point to continue any further.
This is a controversial matter; it is one which we on this side of the House regret very much. It is something where we realise the Government arc inflexible and, in this case, are determined to have their own way. I repeat, we do not like to see provisions such as this written into our law.
§ Lord WIGODERMy Lords, this group of Amendments was originally tabled in the other place by the Liberal Party and moved from your Lordships' House from these Benches by my noble friend Lady Seear. It seemed to us—and it still does—thatsome element of independence in the establishment of the tribunal would help to give confidence to those who were complaining before it and, in the last resort, the decision of the tribunal might have to be enforceable upon constituent unions. We recognise the position the Government have taken. I think it necessary in the circumstances to say no more than this: we wish the TUC Committee that is to be established well; we recognise the importance of its decisions in relation to the matters which will affect the livelihood of the individual and his family. We shall scrutinise its operations with care, and if there appears to be any indication that the legitimate rights of an individual are being overborne 1152 by the big battalions, we on these Benches will not hesitate to return to this topic and, in doing that, we shall be encouraged by the assurance which the noble Lord, Lord Jacques, gave your Lordships this afternoon.
§ Lord HAILSHAM of SAINT MARYLEBONEMy Lords, I should like to add this point to what my noble friend has already said. From what has been said from both the Liberal Benches and by my noble friend, this is not a matter upon which we seek to embark upon a dispute with another place. But what Parliament is being asked to do by the Government at the moment is to deprive individuals of rights which are clearly within, or were supposed to be guaranteed by, the Universal Declaration and by the European Convention. Although it may be, as the noble Lord, Lord Pannell, said on a rather similar topic not many weeks ago, that the man on the shop floor is not much interested in the Universal Declaration of Human Rights, I would say that unless he acquires a new interest in that subject it will be an end very shortly of the liberties of this country.
The noble Lord has given an assurance that if this new landmark in trade union history does not work, legal rights, I suppose, but some other unspecified measures, will be taken by the Government. We do not know, because we have not been told, what rights of compulsion the new body will have upon individual unions who may or may not feel disposed to abide by what cannot be called its judgments, because they are not judgments. We do not know what remedy an individual will have if the tribunal which he had no part in creating, and which is not one of the regular courts of the land, denies him justice. He will have no compensation, notwithstanding that he has been unreasonably excluded or unreasonably expelled from his union. In contravention of his human rights, he is to have no monetary compensation.
Of course one understands, although one does not necessarily agree with, the proposition that in industrial relations one does not want to introduce legal proceedings—that has always been a contention of the side opposite—but this has nothing to do with industrial relations. This has to do with the rights of an individual, excluded unreasonably from a 1153 union in the context of a closed shop agreement. He is to be denied his right to work. The Labour Party have decreed that in English law, and indeed in Scottish law, too, he is to be denied his right to work. But let us look where we are going. We are going the way of elective dictatorship.
§ Lord PANNELLMy Lords, in so far as the noble and learned Lord thought fit to interpolate my name for something that I said some weeks ago—and, after all, let the whole Conservative Party Conference have this on television—may I tell your Lordships' House that I think there is an inalienable right for a member to join a trade union and this does nothing to safeguard that. I tend to tinge justice with memory, and my own memory is of a great deal of discrimination against me for no reason other than that I was a member of a trade union. In this House, whenever noble Lords rise on the other side they always look at the trade union movement with half-hostile eyes. They seek to defend the back-slider and the dissenter, but never the great body of the trade union movement.
§ 3.12 p.m.
§ Lord JACQUESMy Lords, I should like to comment on one or two of the questions that have been raised. First, as to when this body will be appointed, the TUC is ready and willing to act as soon as these Amendments are not insisted upon. It has already reported to the last Congress what it is going to do, and has its approval. Secondly, the question of appointment and procedure was raised. So far as appointment is concerned, there is very little in it. The Amendments propose to set up a body consisting of a chairman with legal qualifications and two other members The appointment was to be made by the Secretary of State, in consultation with the TUC and the Chairman of the Conciliation and Advisory Service. The procedure will be very much the same now. First, the constitution of the tribunal is to be the same; that is, a chairman with legal qualifications and two other members. But instead of their being appointed by the Secretary of State in consultation with the other bodies, they will be appointed by the Trades Union Council in consultation with the Secretary of State and the Chairman of the Conciliation and Advisory Service. We believe it will 1154 have the same result so far as the personnel are concerned.
So far as the procedure is concerned, the principal purpose of having a chairman with legal qualifications is to ensure that the tribunal will proceed in accordance with natural justice. There is no difference between the Amendments and the position of the Government on that. So far as enforcement is concerned, the TUC has made it clear in its report to Congress that there will be a clear undertaking on the part of the unions concerned to accept the recommendations of the appeal body. We believe they will be accepted; and, if they are not, I have given an assurance which is on the Record.
Finally, so far as appeal is concerned, in almost every union there is detailed procedure which can be followed by an aggrieved person, and the new TUC body will be the appeal body. After the worker has gone through all the machinery within his union, he can then if need be appeal to the new body set up by the TUC. We believe that in practice this will give the most adequate safeguard.
§ Lord GOODMANMy Lords, it may curtail the debate if I make a few observations on the matter at this point, because this is obviously a theme which will recur in relation to the other Amendments and, once said, it need not be said again. I think the theme really turns on an observation dropped by the noble Lord who said that noble Lords opposite were concerned only with the backslider and the dissenter and were not concerned with the great mass of people. If I may say so, it is the duty and function of Government and of justice to be concerned with the backslider and the dissenter, and a society that does not protect the backslider and the dissenter is a society which is totally failing in its duty.
I have in the last months, since the Amendments were sent back to the other place, undergone a process of instruction that I think has been salutory and helpful to me. I have discovered something which I did not know before—and this was remiss of me—that is, the depth of feeling that runs on the Government Benches about this matter, relating of course to the Industrial Relations Act which they hated with such fervour and 1155 regarded as so loathsome and objectionable. On that matter I have no comment to make, but I do not believe that when their ardour of resentment has abated their feelings on this matter will still leave them with a belief that you can exile the rule of law from a civilised society. They may retain this belief at this moment, and I am sure they retain it with total sincerity, and in view of their feelings about it and of the way in which it arose they have my total sympathy. But I urge them to realise that people of my generation and training—and, I venture to think, those of the generation and training of many other Members of your Lordships' House—cannot accept this proposition in any circumstances whatsoever.
We do not believe it possible to organise a society in which people's property is safe and their lives and security are safe, without some mechanism of law or some mechanism so resembling the law as to make no difference. Hence, I say that what they are seeking to do is to persuade us of the unpersuadable. We shall never be persuaded that you can abrogate the rule of law and live in safety in a civilised society. We shall never be persuaded that the individual should be at the mercy of the mass, the minority against the majority, the weak against the strong; and since it is our function to see that all these lesser elements are protected, I say to them that however many constitutional collisions may arise we shall not accept this proposition, and we believe it to be our bounden duty not to accept it.
§ Lord DOUGLASS of CLEVELANDMy Lords, I am rather astonished at what the noble Lord, Lord Goodman, has said with regard to the rule of law defending minorities. I thought democracy meant that the majority opinion was the one which appertained and which was carried out. I thought the essence of democracy was that the majority had its way, and this was how we avoided dictatorship. The rule of law is, I think, something to which we must all have regard; I would never contradict that argument. But I would not attempt to make laws to cover every situation that we come up against, because by doing that we should become submerged; and we are almost submerged with laws at the moment.
1156 The fact is that if the Trades Union Congress Organisations Committee, with its Disputes Committee working for it, had not solved the problems of people who have different desires as to which union they might or should join, and if this Disputes Committee had not decided those issues to the satisfaction of those who want issues to be decided by law, the issue your Lordships would be asking us to decide in your Lordships' House today would be: how are you going to deal with the multiple unions in an industry, when a man decides he is going to join whichever one he wants, and open the door for that type of trade union which is in industry only to disrupt it? The trade unions and the TUC have been successful in bringing this matter to a conclusion which is satisfactory to all members of the trade union movement, and to the noble and learned Lord, Lord Hailsham, and his Party. They have solved the problem without getting the law brought into the matter, with all the complications that brings; and because the trade unions have been so successful we find ourselves in this position today.
As I see it at the present time, the Amendment on the Order Paper would allow trade unions to come in for the purpose of disrupting industry, and be invited in by law; and the Trades Union Congress would be helpless in the face of a situation like this. There is a long argument on this matter but I will say this. If the point of view that my noble friend Lord Jacques put forward is not accepted in this House at this present time, within 12 months the Opposition will be wishing that it had been, and if they come to Office they will look for a power like this which will solve the problems that the Industrial Relations Act, with all its law, failed to solve when they put it through.
§ 3.21 p.m.
§ Lord HOUGHTON of SOWERBYMy Lords, I apologise for prolonging the debate on these Amendments, but, after the speech of the noble Lord, Lord Goodman, in which he asserted that some of us were trying to persuade Members of this House on something about which they will not be persuaded, I think the other side of the case is due to be mentioned, and reinforced from 1157 experience from this side of your Lordships' House. I believe that on a previous occasion I made it clear that the case for the rule of law in this connection did not go by default in the discussions which took place between the Trades Union Congress and the Labour Party on various matters arising from the Industrial Relations Act 1971. But I must repeat that the mischief, the harm, that was done by the Industrial Relations Act 1971 is being felt to this day. An atmosphere was created in which an appeal to the law in connection with relations between union members, or between unions, was regarded as anathema.
The Industrial Relations Act 1971 had prejudiced the whole atmosphere of relations between trade unions and the law. Therefore, when it was pressed on the Liaison Committee, upon the Trades Union Congress, that there must be some safeguard against wrongful expulsion from unions, with consequences that would flow from that, we were persuaded, after very long discussion, not all of it harmonious, that an alternative had to be provided and that that alternative could be provided by the trade union movement itself and, given confidence in it, it could be regarded as acceptable. The assurance we received was that the Trades Union Congress would agree to the setting up of an independent tribunal, presided over by a chairman with legal qualifications, and there should be upon that tribunal members in whom the unions and members of unions could have confidence, and that unions would respect the adjudication and the findings of this tribunal.
The feature of this proposal which was attractive to those of us who had to consider it was that an adjudication by a tribunal of that kind stood a better chance of being accepted within the unions themselves than did a judgment of the court. We all know the problems of trying to enforce a judgment of the court where mass movements are concerned. A court might decide that a certain worker was entitled to reinstatement, or was entitled to be a member of a union, but that would not compel the colleagues of that person to work with him. This is what my noble friend Lord Douglass of Cleveland who has just spoken was referring to—the disruption of a judgment which was un- 1158 acceptable to large numbers of organised workers. This was the shambles of the Industrial Relations Act 1971.
So, my Lords, the best solution in the circumstances is that this tribunal should be set up and should deal with these matters. My noble friend Lord Jacques has said that if experience shows that one cannot have confidence in this kind of machinery, if experience shows that justice is not being done or justice is not being accepted by members of unions in individual cases, then the matter can be reconsidered. But for the time being I am sure that this is the best possible solution. Lawyers naturally appeal to the law. Even non-lawyers who are not wise in their generation think that the law is the best appeal to make. It is not always the best appeal to make. In relationships between human beings other institutions, other factors, can be brought to bear in order to re-establish harmony and mutual confidence. The law has its place, but it has not its place in every situation in life. It has not its place in all human relationships, either.
Where we have, as we experienced under the Industrial Relations Act, a situation in which a large number of workers are not prepared to accept the judgment of the court, what then are we to do? There is no possibility of enforcement. We are not proposing to set up a rival to court procedure. The High Court is still there and an appeal to it can still be made. But for dealing with the general run of problems of this kind the machinery proposed is the most acceptable in the circumstances. I ask your Lordships to heed the wisdom of those of us who have been in this movement for 40 or 50 years and know what we are talking about, and I hope that your Lordships will accept the Motion from the Government Front Bench.
§ On Question, Motion agreed to.