§ 8.32 p.m.
§ Lord JACQUES rose to ask Her Majesty's Government whether they will try to secure widespread and influential support for a brief and well-publicised code of industrial practice with limited objectives including procedures for trades union recognition and procedures prior to industrial action. The noble Lord said: My Lords, in any community there are differences of opinion and conflicts of interest which give rise to dispute. The way in which a community resolves those disputes is one of the indicators of the standard of civilisation which has been attained in that community. In a highly civilised community we expect disputes to be resolved peaceably, quickly and fairly. In our own country in industrial relations there has been a tendency for ruthlessness, and in some cases violence, to be used in the pursuit of sectional interests. This is not in the interests of the community, and very often it is not in the interests of the workers concerned. For example, hasty industrial action in pursuit of higher wages which results in a strike of nine weeks means that in the remaining 43 weeks of the year there has to be an increase in wages of 21 per cent. merely to break even. Your Lordships will see from those figures that very often hasty action and long periods of industrial disputes have been not only not in the interests of the community, but also not in the interests of the workers themselves.
§ Of course the worker has rights. He has the right to withdraw his labour. I think that is unquestioned. But he also 227 has the duty to carry out the terms of any contract on which he has entered; and with rights there are also duties. Since unnecessary industrial action is not in the interests of the community, it is the duty of Parliament and Government to see that so far as possible conditions are created which avoid that kind of unnecessary action. It is the duty of Parliament and Government to see that people are adequately informed before they decide to take such action. It is also the duty of Parliament and Government to see that if there have to be group decisions on whether or not such action should be taken, there should be proper procedures and facilities for the taking of that decision. It is upon those assumptions that I have based my Question.
My Question is to ask the Government to
try to secure widespread and influential support for a brief and well-publicised code of industrial practice with limited objectives …".
§ I stress the word "brief", and also the words "limited objectives". I want to deal with essentials only. I have in mind a code of practice which states that if negotiations have failed to resolve a dispute, as the next step there shall be some form of conciliation. I do not want conciliation to be used as an excuse for delay, and consequently I would expect there to be a time limit of, perhaps, one month or such other period as might be agreed by the parties. It must be kept flexible. If at the end of the period of one month the conciliator has not been able to resolve the dispute to the satisfaction of the parties, it would then be his duty to report and to recommend, and I would expect every worker involved in the dispute to get a copy of the conciliator's report and recommendations. That is the way in which I would keep him informed.
§ If the parties had in mind industrial action, I would also expect that before taking such industrial action they would have a ballot—a ballot to give proper facilities for everybody who is going to be involved, to participate in the decision. I believe that is essential because of the importance of industrial action upon the community. I would remind your Lordships that a ballot before industrial action is not new—the miners have had it for 228 years. So far as national stoppages are concerned, it used to be the case that a majority of 60 per cent. was required in a secret ballot; now it is 55 per cent. I am not asking for anything as big as that; I should be quite happy with a simple majority.
§ I was one of those who were responsible for piloting through this House the Employment Protection Bill 1975. Among other things, that Bill dealt with the procedure which would be followed when a trade union was seeking recognition which was not acceptable to the employer. Since that Bill became an Act we have had widespread publicity about it on occasions when the Act has not worked—in particular, Grunwick. But I should like to point out that the Act has worked in far more cases than it has failed. The number of employees who have become members of trade unions as a result of the influence of the Act or because of the procedures embodied in the Act, is far and away greater than the number who have failed to become members of trade unions because there has been some obstacle to the operation of the Act. We only hear of cases where there has been failure. For example, earlier this week the Guardian estimated that there had been 30,000 new members of trade unions as a result of the Employment Protection Act.
§ Lord TORPHICHEN
My Lords, could I ask the noble Lord whether it would worry him to think that some of those members who have been obliged to become members of trade unions as a result of the working of that Act may not have wished to become members of trade unions? Does that worry him?
§ Lord JACQUES
My Lords, if I thought that what the noble Lord has said is true, I would be worried. But I am convinced it is not true. In the trade unions which are concerned in what I would call the badly-organised industries —not badly organised because of any fault on the part of the trade unions but because of the way in which the workers are distributed, for example in the retail trades—because of the Act there have been opportunities of getting the opinions of the employees; because their opinions have been favourable to joining trade unions they have joined, and there has been recognition by the employers. Those are 229 the cases to which I am referring. But we have only heard one side of the case, such as Grunwick, because that is the side which gives rise to drama and the news. It is a side which is depressing. It means that the employer has not been prepared to accept the provisions which were made by Parliament in the Act, that he has resisted.
Why has he resisted? He has resisted, I think, because he has felt that with organisation in trade unions the employees would get some power and they would probably misuse that power. What he is afraid of is the misuse of that power. I, therefore, seek a brief and simple code of practice which would try to avoid misuse of the power, but at the same time would provide for obligations on the part of the employer, and in particular in respect of recognition of trade unions.
I would expect the kind of code which I have in mind to lay down that the employer, in the case of recognition, would not resist a ballot which was asked for by ACAS. I would expect the employer to agree that after the ballot, after the decisions had been taken by ACAS, after the employer had had the opportunity of appealing to ACAS against those decisions, he would accept the final decision of ACAS as obligation in industrial relations without resort to the higher courts. I would not prevent his going to the higher courts on what would be largely questions of law, but I would expect him to regard the machinery which has been laid down as fair and reasonable and something which he ought to accept in the last analysis. That is the kind of code that I want. A code which deals with the essential matters, but two matters in particular; the procedure before industrial action is taken by trade unions and the obligation of the employer in respect of the recognition of trade unions. Those are the things I want in particular. Whether it has anything else is another matter. But I want it to be simple and brief and something of which each worker can have a copy, not something for the lawyers.
I am aware that we already have an industrial code, but that industrial code suffers from two disadvantages. First, it is a comprehensive code, and because it is comprehensive it is ambitious and consequently it is more difficult to get it accepted. Secondly, it has the mis- 230 fortune to be associated with the ill-fated 1972 Act, and in saying that I believe that is simply a psychological disadvantage; I am not opposing it because of that, but it is a psychological disadvantage. If we earnestly require a better atmosphere in industry we should not allow psychological things like that to frustrate us in our attempts. But I would retain the comprehensive code. I would retain it as the comprehensive code, but in so far as there was a popular simplified code, such as I have in mind, something which could be published among the workers and of which they would have a copy, I would expect the comprehensive code to be amended so that the codes were consistent. There would be a simplified version and a comprehensive version, but they would be entirely consistent with each other and there would be no doubt and no confusion. I believe that is the way in which it is best to deal with that part of the problem.
I also believe that if we had a simplified code which was accepted and agreed by Parliament, by Government, by the CBI and by the TUC, it would be accepted by the workers. I believe the influence of those bodies together would be so great that it would be accepted. And those who challenge my belief I invite to submit an alternative. We have a problem here and we have got to be prepared to use public opinion to deal with that problem. That is the real objective of the code which I have in mind.
In conclusion I would remind you that this country has the talent and has the resources to be the richest country in Europe, but if we continue to waste our resources fighting with each other we shall never attain that position. If, on the other hand, we can look and try to find a basis of co-operation, so that we are cooperating with each other instead of scrapping with each other, I believe that we could be the richest country in Europe and that everyone of us would be a good deal better off than we are now.
§ 8.47 p.m.
§ Lord BELSTEAD
My Lords, the reason for Lord Jacques's Question this evening should meet with a response from anyone concerned with trying to solve the dilemma of industrial relations in this country. I follow the noble Lord in 231 claiming that in inventiveness and quality of goods in this country we can hold our own against all comers. But at the same time some hard facts are continuing to tell against us. The number of days lost through unofficial strikes last year was almost as high as the peak figure of 1974. These frequent disruptions are a direct disincentive to production and to investment, and, as the noble Lord said, hasty action and long periods of industrial action are not in the interests of the employees concerned.
I should like to make it clear that I agree with the noble Lord that a code of practice, voluntarily agreed and readily understood, could go a long way towards preventing unofficial strikes. In fact, it would be unlikely that I would disagree, because, as the noble Lord mentioned, the 1972 code, for which my noble friend Lord Carr of Hadley was responsible, recommended procedures for recognition and the settling of disputes, the two areas specifically mentioned in Lord Jacques's Question; indeed page 3 of the 1972 code recommended periodic revisions. But a new code based, as the noble Lord, Lord Jacques, suggested, on the 1972 code, which is still in effect, will only be successful provided there is a genuine commitment to the code.
The central question for the noble Lord replying to this debate is, if the Government accept Lord Jacques's Question this evening, how can this commitment be secured? At the moment ACAS has already issued three codes of practice; one on discipline, another on disclosure of information, and a third on time off for trade union affairs. Apart from the consideration that actually none of these three codes falls within the scope of the noble Lord's specification of "brief", the distinctive feature of the three codes is that neither the CBI nor the TUC can be held to be jointly responsible and therefore jointly committed to them. I believe as firmly as anyone that the voice of the individual employee or company should always be heard alongside the voice of the big battalions. But I suggest that, if a voluntary code of practice is to be made to stick, somehow ACAS must use its influence to secure joint agreement from the CBI and the TUC that they are 232 committed to such a code and will use their influence with their members to that effect.
This is no mere debating point, for the only alternative to voluntary commitment is the imposition of some form of discipline. I am not saying anything very revolutionary by that, because it is worth noting that each of the three codes so far produced by ACAS carries with it sanctions of some kind. But, if the discipline for that part of the noble Lord's code which will be concerned with recognition is to be regarded as fair and balanced, then I am afraid I must register my disagreement with the noble Lord, Lord Jacques, that I do not think it can be based exactly upon the Employment Protection Act 1975. Under Section 11 of that Act a trade union can refer a recognition issue to ACAS, but an employer cannot. If the trade union refuses to approach ACAS at all, then the conciliation process, about which the noble Lord, Lord Jacques, was talking and which he was recommending to us, cannot come into effect—there is, in fact, nothing that anyone can do. Meanwhile, the trade union may be demanding, strenuously, recognition from the employer, very possibly in competition against the interests of another union, backing the demand possibly by the threat of blacking and protected by the immunity against breach of contract which the Trade Union and Labour Relations Act provides. I agree that that is by no means frequently the case, but when it happens it is an impossible situation for any company or any commercial undertaking.
I cannot believe that the Government foresaw the effect which their legislation in 1975 and 1976 would have. If a code of practice, so far as it relates to recognition, is to be accepted as fair and balanced, will the Government give an undertaking that they are prepared to consult about the working of the recognition procedures under the Employment Protection Act, to review and, if after consultation it is found necessary, to amend?—for nothing would give a greater chance of success for a code on recognition than that the Government would be prepared to give that undertaking.
In his question the noble Lord, Lord Jacques, asks for the code to be well-publicised and I certainly support that 233 intention. However, here again that provision would carry with it the requirement that all who read and use it should regard such a code as being fair and even-handed. On these Benches we recognise the value of the services of ACAS and we certainly support the need for ACAS to have continuing responsibility. But, in respect of its responsibility for recognition of disputes, so far as reaching decisions and reaching consistent decisions is concerned, I am bound to say that ACAS obviously has run into some difficulties.
I think that a great deal of misunderstanding could be cleared away if the general duty with which ACAS is charged under Section 1 of the Employment Protection Act could be re-worded in a more balanced way. To the general duty of promoting the improvement of industrial relations, your Lordships may remember there is specifically added a single additional duty—that of the extension of collective bargaining. Certainly that is a duty of ACAS—of course it is, where it is appropriate—but that is not always the case. In addition, ACAS is concerned obviously with conciliation, arbitration and the safeguarding, I should hope, of the individual rights of employees. In addition to that, surely it would be appropriate to have spelled out in a code some clarification as to what sort of proportion of employees should be represented by a particular trade union, for ACAS to be able to make a recommendation for recognition.
In suggesting that, may I say that I in no way wish to detract from ACAS's discretion. I am saying that some guidance from ACAS on this subject would clarify matters for those using a code and would provide some public understanding of the basis for ACAS's decisions. When the noble Lord originally spoke on this subject during the debate on the gracious Speech a year ago, my noble friend Lord Carr of Hadley also made much the same proposal in that debate. Indeed, my noble friend recommended that we should attempt, point by point, to try to tackle industrial relations problems in this way. The noble Lord, Lord Jacques, must have been using his very persuasive powers.
In his question the noble Lord, Lord Jacques, has, I think, chosen perhaps the two hottest potatoes that he could have 234 laid his hands on. The second one of course is the procedures prior to the taking of industrial action. May I suggest that there are two elements to be considered here. The first one is to establish effective disputes procedures which will be honoured. The second one is to establish democratic procedures within trade unions for deciding whether or not to take individual action. As I understand him, in effect what the noble Lord has been saying to the House is that the presence of a simple code in the hand, understood by those concerned and by the general public, will contribute in itself to the honouring of disputes procedures. I agree, provided, and only provided, there is genuine commitment to the code.
At this very moment, or at least up until about 8 o'clock this evening, thousands of people have been unable to return home because of the unofficial strike on British Railways, in direct breach of agreement. If the noble Lord went to catch his train back to Portsmouth this evening, I say in all seriousness that it would be no good for him to show a copy of the code to the engine driver. There must be some commitment to the document and the procedures in the code, and then—and only then—can the code become effective.
However, I very much join with the noble Lord in saying that the procedure, which is absolutely inseparable from the responsibility of taking official strike action, is the opportunity for trade union members to express their wishes by way of secret ballot. I wonder whether the bread strike would ever have taken place if a ballot had been held.
At the weekend your Lordships may have noticed that the Sunday Telegraph reported my right honourable friend Mr. Prior's proposal for the Government financing of ballots if there is pressure from trade union members for a secret vote. I think that the advantage of this method would retain for union executive's freedom to negotiate, because clearly the executive's own membership would not press for a ballot while negotiations which could lead to a better offer were still being carried out; but this method, which is almost exactly the same as the noble Lord has been saying, would ensure something which is by no means always the case when a strike is called or confirmed these days— namely, that the members, or possibly the 235 union executive at its own discretion, have ensured that a majority actually supports the strike action.
The Government have a responsibility to reveal in this debate whether they believe that a code of practice such as that for which the noble Lord has asked could mark a step forward in recognition and bargaining procedures. I believe that such a code can do so provided it is accepted as fair and provided those concerned with it are committed to it. I hope that the noble Lord, Lord Wallace of Coslany, who is to reply to the debate, can show that the two objectives of fairness and commitment can be secured, and that he may be able to announce that through ACAS action can now be taken to introduce a new code on recognition and disputes procedures.
§ 8.59 p.m.
§ Lord ROCHESTER
My Lords, I should like to join in thanking the noble Lord, Lord Jacques, for having asked this Question and, so far as I possibly can, to support him in the matter. Like the noble Lord, Lord Belstead, I recall that he made a similar suggestion in the debate on the gracious Speech a year ago, and following him then I expressed the hope that since the suggestion came from such an authoritative source the Government would give it the attention it deserved.
Since then, unfortunately, nothing seems to have happened. Indeed, it was with the aim of pressing the Government to take some initiative directed towards the achievement of at least one of the two objectives specifically mentioned in this Unstarred Question of the noble Lord, Lord Jacques—that concerning negotiating procedures—that I recently asked a Starred Question in your Lordships' House as to whether they would consult with the Opposition Parties, the TUC and the CBI with a view to drawing up an agreed code of practice under which disputes that were concerned with the interpretation of agreements already entered into should be settled by arbitration rather than industrial action. I think it is fair to say that that suggestion met with so much support from all parts of the House as to mean that the noble Lord, Lord Wallace of Coslany, undertook to convey to the council of ACAS your 236 Lordships' views. No doubt when he replies to the debate he will be kind enough to let us know where that matter now stands.
The request that I then made was limited. It took account of the clear distinction that is drawn in Europe between disputes of right involving interpretation of agreements already entered into, and disputes of interest. In disputes of right there is an obligation not to resort to industrial action before referring the issue either to a court of law or to arbitration. Almost invariably the parties to that agreement abide by the independent decision. Disputes of interest, on the other hand, arise out of a bargaining situation. They are typically when an existing agreement relating to pay has expired and a new one has to be negotiated. In that situation both parties retain freedom until a new agreement is reached. If the parties cannot agree on the terms of a new agreement, a dispute of interest then exists and it is open to both parties to take industrial action: the unions to call a strike and the employers, equally, to operate their lockout. Incidentally, even in disputes of interest, as I understand it, although industrial action is regarded as entirely legitimate, it is very seldom actually employed.
At that time my suggestion was confined to the proposition that in all disputes concerning the interpretation of agreements already entered into and whether they affect individuals or groups, in the last resort there should be recourse to arbitration which both management and employees would abide by. In this sense there is, I think, some difference of emphasis between the noble Lord, Lord Jacques, and myself; I noted what he had to say about conciliation as opposed to arbitration. However, I very much welcomed—as did the noble Lord, Lord Belstead—the emphasis that the noble Lord, Lord Jacques, placed on the importance of a secret ballot now being conducted before strike action is actually taken.
When we have reached the point when The Times Newspapers have felt obliged to suspend publication, at least largely because no adequate disputes procedure has been established and is adhered to, and when enormous damage is being inflicted on the country—for example, as 237 in the recent Ford dispute—-and when that industrial action is taken before agreements have expired and in circumstances where there is no dispute at all as to the interpretation of those agreements, I suggest it is high time that we, as a House, should call strongly and unitedly for the Government to take some new initiative in this matter.
On the question of trade union recognition, the noble Lord, Lord Jacques, has said that there are recommended procedures already in existence in the code of practice which was associated with the Industrial Relations Act, which he said has been left intact in subsequent legislation. However, I agree with him that on this point also it would be helpful if some new Government initiative were taken designed, as he puts it in his Question:to secure widespread and influential support".The words "and agreement" are not added in his Question, but I take it that they are implied in the phraseology which he has used.
As I understand it, he sees ACAS as the agent for administering a code of practice covering both the question of negotiating procedures and of trade union recognition. I acknowledge that that is the body which, under the relevant sections of the Employment Protection Act, is charged with dealing with questions concerning arbitration and recognition. Furthermore, because our failure in recent years to achieve the industrial stability that we so badly need is, in my view, due largely to the fact that so many different bodies have been set up by both Labour and Conservative Governments and then abolished or rejected by their successors, if it is at all possible I should like to make use of ACAS for the purposes that both the noble Lord, Lord Jacques, and I have in mind.
I have some doubts—and I must express them—whether, having regard to the way in which ACAS is now constituted and operates, it has enough standing and its verdicts sufficiently enjoy the confidence of all concerned to be the generally acceptable agent that is required. Because, fairly or unfairly, ACAS is now viewed somewhat sceptically by many employers, it may be that it would be best that ACAS should show itself willing to submit itself, if necessary, even to some 238 restructuring. Certainly I very much agree with the noble Lord, Lord Belstead, that the relevant sections of the Employment Protection Act should be reviewed and, where necessary, amended so that as far as possible they satisfy both employers and trade unions.
It was partly with considerations such as those in mind that in my earlier Question I suggested that there should be consultation with the TUC and the CBI, rather than with ACAS in the first instance. I was glad at any rate to note the importance which the noble Lord, Lord Jacques, attached to consultation with the TUC and the CBI, and the emphasis he gave to the force of public opinion in this matter, and in those respects I would agree with him. What cannot be tolerated is a situation in which the powers of ACAS are revised to suit only the trade unions, and are altogether isolated from the judicial process. For the rest, I should like simply to agree in principle with the proposals Lord Jacques has made concerning ballots on union recognition.
I find that in your Lordships' House I am increasingly advocating the search for a consensus in matters such as these. This is certainly not because I am in favour of compromise for its own sake. It is simply because I see no solution—and here I agree again with Lord Jacques— to our basic industrial problems until we are prepared to mark out some common ground on which to tackle them. The current case of Sanderson v. Fork Lift Limited has merely served to confirm me in that view.
Perhaps in support of it I may, in conclusion, call on the evidence of Sidney Webb, as he then was, to the Royal Commission on Trade . Disputes, which reported in 1906. This links up closely with the words with which the noble Lord, Lord Jacques, asked his Question in the first instance this evening. The year 1906 was a significant year for Liberals, and indeed for the industrial development of this country. It may therefore be appropriate that it should be someone from these Benches who should quote Webb's words then. He wrote:I cannot believe that a civilised community will permanently continue to abandon the adjustment of industrial disputes, and incidentally the regulation of the conditions of life of the mass of its people, to what is in reality the arbitrament of private war".239 I suggest that if we are to remain a civilised country and a democratic society it behoves us now to heed the warning implicit in those words.
§ 9.10 p.m.
§ Lord MCCARTHY
My Lords, I should like to join previous speakers in thanking the noble Lord, Lord Jacques, for putting down this Question tonight. I am afraid that I cannot follow him in some of the things he said, and I should like to concentrate on that aspect of his Question which deals with recognition. I am somewhat sceptical now as to how far procedures can be improved by codes of practice. We used to believe this, and a lot of effort has gone not simply in relation to the 1971 Act but into many of the publications of the old CIR and now of ACAS to producing new model procedures through such things as codes of practice. One must be sceptical as to how far one can in fact make general provisions of this kind.
The trouble is that a good procedure is very much concerned with the particular circumstances of the case. If it is a good procedure, it fits well the particular circumstances of an individual industry or firm, and you cannot prescribe for particular circumstances in generalised codes of conduct. But, more importantly, whatever it may say about particular circumstances, it should embody certain shared understandings, certain beliefs which are shared between the parties, hopefully arising out of mutual trust between the parties to a procedure, and you cannot induce that by general codes of practice. I think most practitioners in industrial relations, and most people with experience of attempting to reform industrial relations in the last 10 years, would say that they are much more sceptical than they were, for example, at the time of the publication of the Donovan Report, as to how far one could improve disputes procedures by general statements of the sort that can be embodied in codes of practice.
Quite frankly, I cannot follow Lord Jacques in what he said in relation to strike ballots. Of course strike ballots have an important part to play in the methods by which trade unions consult their members. Of course there are many 240 trade unions which have long traditions of using strike ballots. It does not follow from this that there is anything necessarily better as a technique of consultation and gaining information about a ballot per se than a shop floor meeting. It depends on the circumstances.
In many situations, a shop floor meeting where people can explain what is involved and answer questions and answer objections is a much more sophisticated and flexible tool than a ballot. The problem is not whether we prefer ballots or shop floor meetings. The problem arises from the experience that we have had in these matters, and in particular the experience we had under the Industrial Relations Act 1971. I was rather surprised that the noble Lord, Lord Belstead, spoke about ballots on the railways. We had a compulsory ballot on the railways under the Industrial Relations Act 1971 and I should have thought that one of the things that would have ensured was that nobody on the Benches opposite would talk about compulsory ballots again.
The problem with ballots is that if you seek to induce them from outside, even through a code of practice, you are, however gently you may seem to do it, it appears to those involved, seeking to change the rules in the middle of a dispute. We have had much experience not simply in this country but in the United States of the fact that, if compulsory or quasi-compulsory ballots are induced or forced on trade unions in the course of a dispute, it becomes a matter of basic amour propre that the trade union shall win the ballot.
§ Lord BROWN
My Lords, my noble friend has not mentioned Germany, where ballots are universal and highly successful.
§ Lord MCCARTHY
They are universal but they are not imposed by law, my Lords, In other words, they are part of the system. I am saying that if you tried in a quite different system to impose it by law, it will be resented; it will be made an issue of principle and the overwhelming evidence from this country and the United States and from many other countries is that the unions will win and that, when they have won, you will be in a worse position than before.
§ Lord ROCHESTER
My Lords, would the noble Lord agree that, as I understand the Question in the name of the noble Lord, Lord Jacques, and the responses to it by the noble Lord, Lord Belstead, and myself, no question of the law has arisen? It was all covered by the code of practice that we together envisaged.
§ Lord MCCARTHY
My Lords, if the noble Lord is saying that there would be no compulsion—even the compulsion of demonstrating through a code of practice that this is the sort of thing that should happen—then he really seems to be saying that, since nothing will change as a result of the publication of that code of practice, I should not be bothered about it. If that is what he is saying, I accept his argument, though I do not think we should be getting much further forward.
I come to the question of what Lord Jacques said about recognition, which is a very different case It seems that here is a case where a code of practice could do a great deal. It is remarkable that successive Governments have been committed in general terms to the extension of collective bargaining by recognition support through legislation for the last seven or eight years—indeed, if we count the publication of the Donovan Report, it is 10 years—and we have had no idea of the sort of criteria or circumstances and in what conditions the Government would want to see recognition accorded to a trade union.
That is all the more: remarkable if we go back to the Donovan Report because, as I understand it, that broadly put forward three arguments in favour of statutory aids to recognition. The first was that collective bargaining was the best way of dealing with problems of settling terms and conditions and that therefore we should see an extension of collective bargaining. But the second argument was that the British system of collective bargaining was disordered and that in the past we had had a great deal of disorder and fragmentation on the issue of trade union recognition, particularly so far as blue collar workers were concerned, and we wanted to do rather better for white collar workers. Thirdly, I think the members of the Donovan Commission were much impressed by the fact that 242 it was put to them that the numbe of notoriously bad industrial situations in this country—particularly in the car industry, but not in that industry only— had begun to get that way because very strong employers' resistance was put up to trade union recognition in the early days.
The Donovan Commission were saying, "If we accept that collective bargaining is a reasonable way to settle terms and conditions and if we want to extend collective bargaining, particularly in the white collar field, in a rational and sensible, not a fragmented, way; if we want to do it in a way which will not create problems from the point of view of competition and inter-union disputes; and if we are to do it in a way which avoids a legacy of disruption and a tradition of resistance, we need some form of third party involvement", and they recommended the establishment of the institution which became known as the CIR.
It is not often that Members on this side of the House say this, but I wish to point out that in some ways some of those ideas found expression in the Industrial Relations Act 1971. That Act was not simply saying that you should recognise any trade union that came along or any trade union that had a sufficent membership; it did not simply play the numbers game. That Act said you had to try to find a sole bargaining agent, that you had to try to define a sensible bargaining unit and that the CIR, in deciding whether or not to extend collective bargaining in a particular firm, was entitled to ask whether a particular unit had the resources effectively to represent the workers.
So the reformist elements which were stressed in the Donovan Report, and which would, and should, have led to a clear code of practice on recognition found some expression in the 1971 Industrial Relations Act. The trouble is, as we all know, and has also been said by the noble Lord, Lord Jacques, that all the other provisions in the 1971 Industrial Relations Act made it unacceptable. It is perfectly true, as was said by the noble Lord, Lord Belstead, that even on the recognition side the 1971 Industrial Relations Act allowed employers to bring references on recognition to the CIR, but in the context of the 1971 Industrial 243 Relations Act they were bringing references the primary aim of which was to revoke sole bargaining agencies. That was swept away in the 1975 Act, but unfortunately nothing of a reformist nature was put in its place. So we had the repeal of the 1971 Act, and in its place we had the 1975 Act—the Employment Protection Act. As a result of this one can search through Sections 11 to 16 of the Employment Protection Act and not find any guidance, nor any principles. One will find nothing which tells what are the criteria which should be used in deciding whether or not to recognise a trade union under the provisions of that Act.
The theory of the EPA was that we could safely leave this to ACAS—that the ACAS council, which was to be a bipartisan council, roughly speaking 50 per cent. CBI and 50 per cent. TUC, would work out the criteria for recognition. I suggest that this was a very dangerous assumption to make. Recognition is a very controversial matter. It is not a matter upon which the trade unions and the employers automatically naturally agree. It is a matter about which they will naturally fall out. Therefore it was to be doubted whether the council of ACAS would find it easy to formulate an effective code of practice on recognition. That in fact has been the case. They have not done so. It is no criticism of them that they have not done so, because essentially and basically, in my submission, this was a task for those who framed the Act; and they did not do it.
The second assumption upon which the Employment Protection Act was based was that the council of ACAS would be given an unlimited amount of time in which they would be able to work out what the criteria on recognition would be because the judges would leave them alone. This is where naiveté really takes off. It passes my comprehension how anybody could believe that in a piece of legislation in the mid-1970s total discretion could be left to an extra-Parliamentary body—a QUANGO—and expect the judges of this country to keep their noses out. Of course, that is not what has happened. In fact every time the ACAS council, however slowly, however carefully, have tried to develop some criteria to decide between case A and case B, they have had to run the gamut of the courts.
244 The courts have taken a very simple view. It is easy for people on this side of the House to say that the courts have taken this view because of their prejudices. I should prefer to say that they have taken this view because of their ignorance. However, whatever the reason, the courts have taken a very simple view. Their view generally has been that you have to have the membership. It does not matter who you are. It does not matter whether by recognition you are to produce disruption in industry. It does not matter whether by recognition you are to add to the total number of unions. It does not matter whether you are to make the reform of British industrial relations—which was a central pillar of the Donovan Report— more difficult or impossible. If you have the membership, you get the recognition. This is a perfectly understandable, simple view for the courts to take. My point is that the main reason why they are able to take that view is because the Act does not prevent them from doing so.
Therefore, what I am arguing is that we should have a code of practice on recognition, and that this code of practice should go back to the basic assumptions behind the extension of State support for recognition in the Donovan Report, which are that we are not simply trying to extend the frontiers of collective bargaining; we are also trying to introduce a little rationality, a litter order, a little less competition inside the recognition procedures so far as the State is concerned.
People will say, of course, that this is in fact an undercover argument for supporting TUC unions against non-TUC unions, and to some extent it is, because if you are trying to rationalise, if you are trying to sort out, a complicated industrial relations structure, you will tend to support existing unions and you will tend to say, "We have far too many unions already, and we do not want to recognise any more". Nevertheless, I would argue that a sensible code of industrial practice on recognition would just as soon and just as frequently—in fact, maybe more frequently in time— come to decide between TUC unions on certain rational and sensible grounds as it would be deciding in favour of TUC unions as against TUC unions. But, whatever the consequences, it seems to me that we have got into a situation in which, so far as recognition is concerned, 245 we need a code of practice. I do not believe that code of practice can in fact be provided in present circumstances by the ACAS council: I believe it should be provided by those who frame the legislation, either in the legislation or separately.
§ 9.26 p.m.
§ Lord MOTTISTONE
My Lords, it is a little difficult to follow the noble Lord, Lord McCarthy, because as I see it—and he will correct me if I am wrong—he says, in effect, that codes of practice without teeth are not worth very much, that codes of practice with teeth cause resentment, and that therefore there should be no codes of practice except in the one area he has just been suggesting —a code of practice for recognition procedures, a subject to which, surely, his earlier arguments would equally apply. It seems to me a little difficult, therefore, to take his argument all the way.
§ Lord MCCARTHY
My Lords, the difference is that we have legislation dealing with recognition, and we have institutions, ACAS and the CAC, that have to apply that legislation, but we have given them no guidance. That is why we need guidelines. That is the difference.
§ Lord MOTTISTONE
My Lords, they need guidelines, but in the case of other people, such as trade unions and employers, they are not to have guidelines because guidelines will cause resentment. Perhaps I read the noble Lord wrongly. Anyhow, perhaps I could very briefly say (because there is not very much to say in addition to what has already been said) that it seems to me that there is a need for the sort of code of practice that the noble Lord, Lord Jacques, has proposed; and, with others, I think we can be very grateful to him for plugging away at this point. There are, however, several misgivings about how this should be carried out and how effective it would be; and in some respects I go along with the noble Lord, Lord McCarthy, in saying that we have had not very good experience, for all sorts of reasons, of earlier codes of practice. I also go along with my noble friend Lord Belstead in one or two of the misgivings that he put forward.
The point about the proposal put forward by the noble Lord, Lord Jacques, 246 from which I think we should perhaps benefit most is its brevity. It seems to me that one of the problems of the codes of practice which have been tried in this area is that they are too long. The shortest one, in some respects, is the 1972 one, to which reference has been made. That got itself a bad name, and it is really awfully childish of us that we allow that in relation to something which you find, when your read it today, is remarkably in advance of its time. A lot of what it says is even now not being practised by a lot of firms and by a lot of trade unions.
This code of practice is in fact a very good one, but it has 133 paragraphs and 28 pages, and people do not like reading that amount. The Employment Protection Act has produced three codes of practice from ACAS, each of which, at first sight, is longer than the 1972 code of practice, and each of which is on a narrow front; and 13 Departments of Employment leaflets covering other areas that have not been covered by ACAS. If you put them all together—and I have had a quick look—they are about 20 times as thick as the 1972 Code of Practice.
People have not got the time to absorb all that. Naturally they say: "Well, we will not pay any attention to that. It is a put-up job. The Government are trying to thrust ideas down our throats". They find arguments for resenting it, because, in part, they cannot be bothered or have not got the time to read the material thoroughly. These are all produced by earnest and very well-meaning people who want to make quite certain that there are no errors, that nothing has been missed out and that people cannot misinterpret what they should be doing. When dealing with codes of practice, the one thing they can be is brief and one can risk missing things out—which you cannot do with the law. Where we tend to go wrong is when we allow people who are familiar with the law (let alone writing it) to have a hand in writing the codes of practice.
I suggest, therefore, that if the Government are going to take active steps to pursue the line which the noble Lord, Lord Jacques, is recommending—and I hope that they are—they should look very carefully at his recommendation for 247 brevity and hire somebody to write the code of practice who is not a civil servant, not a lawyer and not a Parliamentarian, in the vague hope that he or she will put together something which is easy to understand and quickly read by busy people who may then pay some attention to it.
My Lords, having said all that, the nub of the matter (which we have all touched upon) is really trust and commitment. All the writing in the world— even if written by the clever and angelic creature that I have suggested—is not going to create that. But if the Government set a sort of pointer with the sort of guidance the noble Lord, Lord Jacques, is calling for, that might help to encourage people who have to work together in industry to start to do a bit more trusting.
§ 9.33 p.m.
§ Lord BROWN
My Lords, I find myself in general agreement with my noble friend Lord Jacques, and I want to suggest an addition to his suggestion. Before doing so, I should like to take up some of the comments made by my noble friend Lord McCarthy. I thought he was extremely sceptical about codes of practice. With respect, I think he does not understand why they have been relatively unsuccessful so far. I go a long way with the noble Lord, Lord Mottistone, in his explanation of this. What is missing in the minds of most employees at work is the knowledge of available means of dealing with such matters as industrial disputes differently from the customary way they have been dealt with in the past. I do not know how many copies of the original code of practice have been issued but I doubt whether 1 per cent. of the employees of this country have ever read it.
It is that failure to get it through into the minds of ordinary people in industry which makes it relatively useless. Incidentally, the continuing publication by ACAS of further additions to that code in separate booklets is in my view a disaster. There must be at least one booklet every year amended, so that any reasonable shop steward and employee interested in these matters has to have a collection of four or five in order to understand what it is all about. As I 248 understand my noble friend Lord Jacques, what he is after is a very abbreviated code that would be sent to every employee in the country, so that everybody would know that something was available as an alternative to these hideous disputes from which we all suffer. I could give instances of this. I am not going to do so because I have not much time, but one result of informing 76,000 doctors of what was going on in a huge negotiation of which I was chairman was that at the end of two years the unions were convinced it would not be supported by 20 per cent. of their members. It was actually supported by over 80 per cent. largely because they knew what was happening
I support the noble Lord, Lord Jacques, in his scheme of getting a simple code into the hands of the people. With large bodies of people one can only get commitment first by publication, and second by understanding. I wonder whether that minority in the Ford Motor Company who, according to the Press, sought a ballot might have succeeded in convincing many of those on strike of voting for a secret ballot, if there had been in the hands of every one of those employees at some previous date a suggestion as to how ballots should be conducted in these circumstances, approved at national level. People do not know that there are alternative institutions to the age-old ones of battle which they use.
Now I should like to come to the additional contribution that I want to make to what the noble Lord, Lord Jacques, said. My text for saying this is the old Scottish saying: "Many a mickle macks a muckle". I am sure all noble Lords understand what that means: "many a little thing makes a big thing", to put it in those terms. I believe that many a right royal industrial dispute, particularly of the unofficial kind, is created by a growing collection of unresolved individual grievances. I know that the industrial code calls for grievance procedures. I am also aware that although many firms have produced some form of grievance procedure, some are extremely faulty. I will not go into the details of the faults; but one of the most common is to discipline a man and impose the penalty first. Then he is invited to appeal afterwards. That seems contrary to the rules of British law. That is a common fault: there are many others.
249 Many firms now have agreed, published and well understood appeals procedures operating in their area. I want to say briefly what I mean by an appeals procedure because it can be outlined very easily. A proper appeals procedure is a system whereby any employee who has any grievance can insist that he takes his objection to his manager's decision to the next manager up the line, and so on up to the most senior man on the particular geographical site on which he is working. If the employee continues to feel that injustice persists and he gets the backing of the majority of those who represent him, then a negotiation must take place at that level. The procedure must be fully deployed before negotiation of that sort commences.
If this procedure were universal, then in the first case from between 60 and 70 per cent. of these appeals would be settled at the first stage of appeal. I have had a great deal of experience of procedures of this kind. Secondly, many unofficial strikes would be avoided. Thirdly, the rapid settlement of what may be looked upon as tiny grievances but which never appear tiny to the individual affected, would make a substantial contribution to the improvement or morale throughout the ranks of the employees concerned. Such a procedure could not of course deprive the individual of his right under the law to appeal to an external tribunal against what he feels to be unfair dismissal. The code could suggest that it would be highly advisable that this procedure should be gone through before the appeal to the external tribunal took place.
My understanding of what is happening in these industrial tribunals at the moment is that they have not turned out too happily in many cases. Some of the decisions being taken are extremely unfortunate. The passing of all appeals for trivial and serious matters like dismissal through the internal procedure first would not only save a great deal of time for the tribunals and also for the unions and employers involved, but would prevent many of the cases going to the tribunals at all. Such, again, has been my experience.
I should like to see in the code suggested by the noble Lord, Lord Jacques, some reference, perhaps in an appendix, to the availability of a detailed appeal 250 procedure such as I have described so that every employee, if he likes to get hold of a copy of the code, can learn of an objective, logical appeal procedure which he can begin to promote with his fellows for adoption in the firm by whom he is employed. I think that would be a useful addition, because the start of many disputes is, to a much greater extent than is commonly realised, a combination of unresolved petty matters which eventually is turned into a matter of principle by the shop stewards and then becomes one of the disputes with which we are all too familiar.
I hope that in considering the suggestion of the noble Lord, Lord Jacques, it will be realised that simply for the Government, the CBI and the TUC to get together and agree a code on the lines suggested would get us nowhere. As I understand it, the essence of what has been suggested to the House tonight is that this should be a matter of putting a copy of the code through the letterbox of every employee in the country. That is the value of the proposal.
§ Lord MCCARTHY
My Lords, before the noble Lord sits down, would he help me to understand? He said that a code of practice only helps if it is available, and in order to make it available he wants a copy to be put through the letterbox of everybody in the country. Surely a code of practice only helps if it is embodied in particular procedure agreements, and that only happens if those who negotiate those procedure agreements feel they have not got that already.
§ Lord BROWN
My Lords, the noble Lord is a much respected economist and adviser on industrial matters, but I do not think he realises that what goes in industry is what is felt to be real by masses of people—some 25 million employees. You can do all the logical scheming at the top that you want to, but it does not solve anything at the bottom until people know about these things; and the act of putting a code through letterboxes is very important.
Let me give an example of what happened three years ago. The Government asked the noble Lord, Lord Goodman, and the Daily Mirror team to produce a document on our dire economic straits. A lot of people sneered at that at the time but a document was put through every 251 letterbox in the country. What I noticed subsequently was that when a poll was taken it indicated that 70 per cent. of the trade union members in this country were in favour of a Government wage policy—which at that time was a very surprising result. I put that down to the fact that everybody knew some facts then which they had not known before.
§ 9.44 p.m.
§ Lord GORE-BOOTH
My Lords, there is a famous saying that "fools rush in". I have actually tiptoed into this debate tonight really for two reasons. I will expand on one of them right away; that is, that I suppose your Lordships who are still present are so used to these subjects that perhaps they under-express themselves a little. I must say that when I read the Question put by the noble Lord, Lord Jacques, I was filled with enormous admiration and encouragement. That was because it seemed to me that the noble Lord, Lord Jacques, was doing an enormously wise and forward-looking thing. It is so tempting in this subject to try to do everything at once, and to rush at the whole problem as though it were one, which surely would have meant returning us into a great argument about a whole lot of things in the Industrial Relations Act and so on. Whereas it seemed to me that the noble Lord was extremely wise in taking, as a first attack on this problem after all the arguments, something about which there could certainly be no offence given and I should have thought great encouragement taken. This is because it was right to start with something rather quiet, if I may describe it in that way, something not imposed on anybody, and even avoiding the whole vexatious question of where you go from consensus to orders. So that we owe him a great debt of gratitude for doing this.
My other reason for coming in is that, apart from my own personal interest in this matter, as an ex-diplomat I am perhaps over-sensitive to what actions in this country do to our reputation, or indeed to our prosperity, in our relations with other countries. I can assure your Lordships that this question of industrial relations is regarded around the world as far the most important crisis that we have to contend with as a nation, and it 252 even goes so far as people talking about it as the British disease. Therefore, it is of the most immense importance that we go on trying and trying again to gain a little ground—here a little and there a little—until we get finally, and it may take us decades yet, the right answers to these questions. There will, of course, always be discontents, but certainly, latterly, we do not seem to have been very successful as a country in anticipating them or in stopping them quickly when they happen.
Perhaps I may refer specially to the whole problem of balloting. It may be that some of your Lordships have forgotten that balloting for elections to Parliament was introduced—and I am happy to recognise to the noble Lord, Lord Rochester, that it was by the Liberal Party—in 1872, over 100 years ago. I should rather hope that, as a country, we were getting used at last to the idea of secret ballots in situations where an open indication of one's opinion was embarrassing. There is no doubt that there are sometimes rather dislikeable cases of action being taken on people revealing their hand, and this must much distort the answers given, particularly in a big crowd, rather suddenly, where people perhaps have not had time to make up their minds what they really think, and where there is a certain amount of fear in the air. I am very much encouraged by what the noble Lord, Lord Jacques, said on the subject of the acceptability of balloting, and I think I am not over-interpreting him by saying that he would like to see this increased.
One other reason, and then I shall finish, is that I also felt that the debate was likely to be very learned and scientific and, obviously, I greatly admire the proficiency with which noble Lords have argued these matters. I should just like to finish my own very brief remarks by saying two sentences simply as a consumer and just to express the hope, on behalf of commuters, that people who are expert in these matters always think in terms of the person who arrives at the station and then finds that his train is not there. Here, again, if I may just conclude these brief remarks, I think that the noble Lord, Lord Jacques, was so extremely wise, in that he pinpointed in his Question the matter of the stoppages of work which happen without the proper procedure having been observed first. So may I 253 express my obligation to all noble Lords for having been able to listen as a member of the public. Once again may I express the very strong hope that the Government will give the fair wind that it deserves to the Unstarred Question posed by the noble Lord, Lord Jacques.
§ 9.50 p.m.
Lord WALLACE of COSLANY
My Lords, the hour is late, but the importance of the debate calls for a reasoned reply. In view of certain remarks which I shall make towards the end of my speech, I do not intend to go in detail into the points made by the various speakers. However, I am grateful to them all, because this debate is perhaps of far greater importance than some of us realise. It is a very serious issue, to which, unfortunately, the media does not give sufficient attention.
Perhaps I may refer briefly to the speech made by the noble Lord, Lord Gore-Booth. He referred to the British disease, meaning strikes and industrial unrest. The noble Lord, Lord Belstead, also referred to strikes. I am not saying that everything in the garden is lovely, but Britain's strike record compares favourably with that of quite a number of countries. This is nothing to be proud about, of course, for we are not satisfied with the situation as it is.
The unfortunate fact is that industrial relations achievements never receive publicity, although every strike, large or small, is publicised by banner headlines. Although there are certain honourable exceptions, one of which is the Guardian, it is regrettable that the media does not give a little more attention to constructive efforts and achievements.
The noble Lord, Lord Belstead, asked me how, if the Government accept an ACAS code, support for it can be secured. All ACAS codes follow upon close consultation with the CBI and the TUC. Both the CBI and the TUC have nominees on the ACAS council, and both bodies accept all ACAS codes. In this way, it will be supported. Furthermore, their provisions can be used at industrial tribunals, et cetera, as evidence of good practice. If, however, the noble Lord is suggesting penal sanctions, then I have to tell him that we part company.
254 The noble Lord, Lord Rochester, asked me a question to which he certainly did not expect to receive an answer tonight. The noble Lord suggested that there should be a revision of the powers of ACAS. That is a matter for the Government to consider. I can say only that I take due note of the point. I thank all noble Lords for their very reasonable approach, and I am sure that their contributions will be appreciated in other quarters. In particular, I want to thank my noble friend Lord Jacques who asked for support for a code of industrial practice offering guidance on a number of matters. The Government share his view that codes can play a useful role. It was for this reason that Section 6 of the Employment Protection Act laid upon ACAS the duty of producing codes of practice to provide such practical guidance. I know my noble friend agrees with me that ACAS, an expert body in which, as I have already stated, the CBI and the TUC are represented, is the proper body for such a task.
As the House knows, ACAS has so far produced three codes of practice—on Disciplinary Practice and Procedures, on Disclosure of Information for Collective Bargaining, and on Time off for Trade Union Duties and Activities. These codes have been widely publicised and are having a considerable impact. The service also has the duty of providing one or more codes of practice to supersede the more general 1972 code of practice. ACAS is an independent body and the Government cannot tell it what to do. But I am happy to be able to tell the House that ACAS is currently working to prepare a code relevant to the matters which have been referred to by the noble Lord, Lord Jacques, in initiating this debate.
The Government are concerned that codes of practice should be widely publicised as well as being authoritative. To this end, Section 6 charges the service to prepare a draft of any code it seeks to issue, to consider any representations made on the draft, and to modify it, if necessary, before transmitting the code to my right honourable friend the Secretary of State for Employment for his and subsequently Parliament's approval. This House knows, from its debates on two of the ACAS Codes of Practice, the seriousness with which the service takes its duty to 255 consult widely and fully before producing a code. As well as hearing from parties thought by the service to have a particular contribution to offer, ACAS has issued its proposals for a draft code as a consultative document and allows time to receive written and oral submissions on its proposals. For its first code, it issued more than 40,000 copies of a consultative document, for its second it issued over 60,000 copies, and for its third it issued over 66,000 copies.
Points have been made tonight from these Benches and from the Benches opposite that individual members of unions should receive copies of this new code. But it is a fact that a number of unions already supply their members with copies of codes. Quite a number of unions do this and of course we would all agree that it would be desirable for others to follow this very good example.
Your Lordships will know that proposals in draft ACAS codes have sparked off considerable reaction. In addition to the oral submissions and queries in each case, ACAS has received very large numbers— in fact hundreds—of written submissions from important and representative bodies, employers' associations and unions, the CBI and the TUC as well as from individuals. It received more than 150 written submissions on its first consultative document, more than 140 on its second and more than 200 on its third.
I should mention that another reason for giving ACAS the job of producing relevant codes of practice is that this ensures not only that the code reflects the wide experience of ACAS, but also that the code will be applied in particular circumstances with the benefit of ACAS' advisory services. Your Lordships will know of the important function ACAS provides in the advice it freely offers to both sides of industry. Last year alone officers of the service made almost 9,000 advisory visits to places of work and conducted over 250 advisory surveys and projects at the behest of parties. For the service, a code is not a one-off document reflecting the particular concerns at the time when it was written; it is a document which can be applied by its careful and continuing commitments to the parties, employers and unions, who have to adapt to it.
256 On a more general note, the value of codes, as opposed to legislation, has been raised in the debate. I should like to make the Government's position clear on this. We do not see codes as alternatives to legislation in industrial relations. Rather, they supplement and amplify the legal framework. This is the case with the ACAS codes which I have mentioned, with the codes in the health and safety area, and in the Government's proposals on industrial democracy. At the same time, we are sensitive to criticisms that too many codes might prove indigestible. We think it sensible, in the general area of industrial relations, to rely on the good sense and experience of ACAS, whose day-to-day contacts with employers and unions put it in the best position to judge what are the priority subjects for inclusion.
I now turn to some of the more specific topics mentioned in the debate. Taking union recognition first, the Employment Protection Act itself lays down a procedure for parties and ACAS to follow when a recognition claim is made under Section 11 of that Act. As noble Lords know, this provides for reference to ACAS and lays on the service certain duties in handling a claim; for example, the duty to consult all parties who will be affected by the outcome of any reference. But the Act does not attempt to lay down a rigid set of criteria for application in every case. Rather, it was intended that provision should be made throughout for conciliation settlement by agreement, and failing this it was Parliament's intention that the service should have a wide discretion as to how best to proceed in any particular case.
This procedure has been widely used. Up to October, there have been almost 1,300 references to ACAS and already over half of these have been settled amicably. The problems which have arisen should be put into proper perspective. But I frankly admit there have been difficult cases and Grunwick is one of these. Here the employer refused to allow an independent survey of the opinions of workers by ACAS, and I agree with my noble friend Lord Jacques that this behaviour cannot be justified. Noble Lords will be aware that two Private Member's Bills were introduced in another place in the last Session of 257 Parliament to alleviate some of the problems which have arisen, but, unfortunately, because of Conservative opposition there, your Lordships did not have an opportunity even to consider them. However, the Government continue to keep the recognition provisions under review and will pay particular concern to the legal issues alluded to in this debate, some of which are still before the courts, and that must not be overlooked.
On the question of guidance to parties about what they should take into account in judging a union claim for recognition, ACAS has already in its last annual report indicated in some detail the factors which it finds relevant in defining the group of workers for whom particular collective bargaining; arrangements may be appropriate, and in assessing support for collective bargaining among workers concerned. I will certainly not recite all those factors this evening. Anyway, ACAS cautions that any particular factor is not decisive of itself. Different regard has to be given to each factor in different circumstances. I am sure this flexible approach to questions of union recognition is the correct one.
I now turn to procedures prior to industrial action. As we have seen today, and in the discussions following a Question from my noble friend Lord Rochester a few weeks ago, several subjects can be raised under this heading. First, there is the question of what procedures exist as alternatives to industrial action. Secondly, there is the matter of compliance with agreements, including fixed term agreements. Thirdly, there is the issue of the internal union procedure which should precede a strike. Fourthly, there is the role of arbitration. Noble Lords have illustrated tonight several other topics of this type, because all these questions become more complicated according to the type of industrial action under scrutiny. I share the sentiment of the mover of the Motion before us, a sentiment shared by a number of noble Lords, including the noble Lord, Lord Mottistone, that a code of practice should be brief. But, my Lords, I would venture to say that any code which seeks to cover all the matters I have just mentioned will scarcely have limited objectives.
I shall now consider some of these matters in more detail. On the question 258 of dispute procedures, most employers and unions do have some form of procedural agreement for settling disputes. Disputes may be of two kinds, disputes about substantive issues to be included in any agreement, and disputes about the interpretation of existing agreements. This distinction was noted by the noble Lord, Lord Rochester, who suggested that disputes about the interpretation of agreements were especially suitable for arbitration. However attractive this distinction is in theory, it does not in practice seem so important to the parties themselves. This was pointed out by the Donovan Commission and confirmed more recently by a survey of procedures in Great Britain whose conclusions were published by the Department of Employment in 1975. While some parties may use the distinction to identify arbitrable issues within their own agreements, I do not think too much should be made of it. Rather, I would agree here with the 1972 Code of Practice introduced by the last Conservative Administration, that parties should attempt to settle all disputes by use of their agreed procedures before contemplating industrial action. In practice, of course, this is generally what happens. Although the media concentrate on disputes, most industrial problems are solved through discussion between management and shop stewards or full-time union officials.
On the question of compliance with collective agreements, I am sure we would all agree that collective agreements, including fixed-term agreements, should be observed—and, in the case of fixed term agreements, observed for their full term. The Government would certainly endorse this proposition, and I am sure that the great majority of trade unionists and employers would agree with it. Clearly, the structure of collective bargaining will break down if this were not generally the case.
When we come to the question of internal procedures which unions should follow before their members take industrial action, concern has most recently been expressed about mass meetings. Many think secret ballots are a better way of taking members' opinions. The Government certainly share some of the reservations expressed about mass meetings and consider it would be preferable, in some circumstances, to use other means. 259 Of course some unions, like the National Union of Mineworkers—and there are a number of others—regularly use ballots, and others have rules requiring ballots before some type of industrial action is sanctioned. And we are all very much aware that whatever procedure is used by a union there is no guarantee that members will vote for industrial peace.
It seems to be generally accepted by the public that, in all the strikes that occur from time to time, if only we had a ballot there would not be a strike. That is sheer wishful thinking, because in point of fact we might have a ballot and a strike. On the other hand, some ballots may result in no strike. Therefore, the public at large should not get that impression and some leader writers and Sunday papers should take note of this fact.
The Government do not believe that they should attempt to intervene unilaterally in such matters and, still less, introduce legislation aimed at compelling unions to hold secret ballots on strike action. The experience of the last Conservative Administration, whose Industrial Relations Act had such a provision, showed that such intervention only serves to make this situation worse. The Government have repeatedly said they would be prepared to consider the question of financial assistance towards the cost of ballots—if the trade union movement were to come forward and ask for Government help. The plain fact is that this has not happened. The Government are quite willing, but there has been no request. But then we have no evidence that any union has decided, on the grounds of cost, against having in its rules provisions for ballots. I should like to say that unions are democratic and there is an indication growing that some union members and some of those taking part in the disputes would have preferred a ballot. All that I can say—and I have some knowledge of trade unions, as a rank and file member in the past—is that it is in the hands of union members. They must attend their meetings; they must assist in formulating decisions of policy, and if the rules do not allow them and they want to do so, they can change the rules. That is the position and it is up to them.
260 May I conclude with a few remarks about arbitration as a means of avoiding industrial action. Voluntary arbitration has long been a feature of our industrial relations. The State has provided for a standing arbitration body, currently the Central Arbitration Committee, since 1919. Collective agreements often include provision for arbitration and ACAS has —at the request of both parties—referred to independent arbitrators over 300 disputes in each of the last two years. In general, parties do agree to be bound by the arbitrator's award and in most cases they comply with it. But arbitration requires that the issue is relatively clear-cut, that parties agree on the details of what the real issue is and are willing to have it settled by a third party. One or more of these prerequisites may be lacking and so some other form of third party intervention, especially conciliation, may be appropriate. Here the importance of ACAS is widely recognised.
In the early 1970s the conciliation services of the Department of Employment was handling fewer than 1,000 cases a year. Now ACAS handles close to 3,000 cases annually and is helping to achieve settlements in three-quarters of these. I am sure that noble Lords will agree that this is a considerable achievement for which the service is to be congratulated. The suggestions made tonight for compulsory conciliation or for conciliators to make recommendations seem likely to be counter-productive and would undermine the success of ACAS.
This has been an interesting and, I would add, a vitally important debate which has covered quite a range of matters of concern to us all; we could have gone much further. I am glad to be able to inform your Lordships that work is in progress at ACAS on a code relevant to some of the matters mentioned today. I am sure that the views expressed today will be of considerable interest to the service. I can give the assurance that I have made arrangements for a copy of the debate to be sent to ACAS as a contribution to be considered in the formulation of these codes. Here this House is taking some practical steps to make its views known. I am obliged to all noble Lords who have taken part in the debate. Of course, when the code is ready and it goes to my right honourable friend, it will come to this 261 House for debate. Then we can look forward to further constructive debates on this very important matter. Once again, I should like to thank my noble friend Lord Jacques and all other noble Lords who have made a very valuable contribution to an important subject that is affecting the nation today.